Legal and Scientific-practical Issues of the Criminal Intelligence

Measure “Auditory Control” in the Republic of Belarus

Sergey Sergeevich Galakhov

and Vladimir Vladimirovich Bachila

Federal State Institution Research Institute of the Federal Penitentiary Service of Russia, St., Moscow, Russia

The Academy of the Ministry of Internal Affairs of the Republic of Belarus, Minsk, the Republic of Belarus

Keywords: Criminal intelligence activity, criminal intelligence measures, auditory control, special technical means, the

Criminal Procedure Code of the Republic of Belarus, principles of legality, observance of the rights, freedoms

and legitimate interests of citizens.

Abstract: The study carried out some legal and scientific-practical analysis of the issues and certain provisions of the

theory of criminal intelligence activity in terms of the criminal intelligence measure “auditory control”,

formulated on this basis scientifically substantiated judgments on improving its legal regulation, the prospects

for development of legal and regulatory framework of this criminal intelligence measure. The aim of the study

is to analyze modern problems of conducting operational-search measures "auditory control". As a result, the

authors draw conclusions and proposals for improving the legal regulation of operational-search activities.

This article is important for the further development of the science of operational-search activities and the

practice of "auditory control".

1 INTRODUCTION

The criminal intelligence units are entrusted with the

task of ensuring public and state security, protecting

a person, his rights and freedoms, property, as well as

the established democratic order from criminal

threats by the state. In other words, they must wage a

decisive fight against crime. A significant role is

assigned to the internal affairs bodies of the Republic

of Belarus in its solution.

The right to conduct criminal intelligence

measures is also a legislative obligation of criminal

intelligence activities as part of all law enforcement

system, but at the same time confirms its

independence. The main arguments for such

autonomy, as well as the obligation to perform it in

order to early detection of crimes, their causes and

conditions, the direction of criminal intelligence

measures to detect the perpetrators of crimes,

determine their content. It is their activity in carrying

out due to the desire to establish all the facts and

circumstances that precede and contribute to the

commission of crimes. The society’s need for the

necessity to fight crime is realized through their

implementation (Bachila, 2006; Basetsky, 2009).

https://orcid.org/0000-0001-5808-9683

This activity, regulated by law in the Republic of

Belarus in 1992, did not give definitions for any of

the criminal intelligence measures permitted for

conducting, in particular, such as “auditory control”.

It led to an ambiguous interpretation of the content of

their implementation. The situation was aggravated

by the new version of the Law of the Republic of

Belarus dated 9 July 1999 No. 289-Z “On criminal

intelligence activities”, in which an inaccurate

definition of “auditory control” was given, which led

to an erroneous understanding of how this event could

be carried out.

The revision of the article regulating such an event

as “auditory control” has been significantly changed

in the new law dated 6 January 2021 No. 88-Z.

However, in the legal regulation of both this criminal

intelligence measure and other ones, there are still

subjective reasons and diametrically opposite

judgments that do not allow talking about the

completeness of its edition. The text of the law as a

whole also revealed many problems and raised a

number of questions in its implementation in general

and in the organization and tactics of conducting

individual criminal intelligence measures in

particular.

Galakhov, S. and Bachila, V.

Legal and Scientiﬁc-practical Issues of the Criminal Intelligence Measure “Auditory Control” in the Republic of Belarus.

DOI: 10.5220/0010635100003152

In Proceedings of the VII International Scientiﬁc-Practical Conference “Criminal Law and Operative Search Activities: Problems of Legislation, Science and Practice” (CLOSA 2021), pages

269-273

ISBN: 978-989-758-532-6; ISSN: 2184-9854

269

2 MATERIALS AND RESEARCH

METHODS

The materials of the study were the current legal basis

for criminal intelligence activities, scientific works

and publications on the considered topic. In the

preparation of the study, general scientific

(description, comparison), formal-logical (analysis,

synthesis, analogy), comparative legal methods were

used to ensure objectivity, historicism and

comparativeness in the study of auditory control and

other research tools of modern socio-humanities,

which make it possible to comprehensively study the

issues of the research topic.

3 RESULTS AND DISCUSSION

The Chinese military leader Sun Tzu (IV-V centuries

BC) instructed in the treatise that “information

obtained in advance helps a wise ruler ... people

should bring it” (Clearly, 1998). In this context,

“auditory control”, as the most “acute” covert

technical action carried out around the world, requires

that we focus on this criminal intelligence measure.

During interpreting it scientifically, all judgments

concerned its admissibility (Tarsukov, 1997). While

the issues of legality in relation to the measure

“auditory control” and other actions permitted by law

were outside the scope of the study (Basetsky, 2009).

At the same time, the scientific and technological

progress used in criminal intelligence activities helps

to justify covert work with the use of technical means

(Richard, 2017). Despite the legitimization of the

human factor in covert work, it was not possible to

completely overcome the negative attitude towards it.

The use of technical devices in solving problems of

criminal intelligence activity, which are the same for

confidential employees, allows, in our opinion, to

transfer the considered problem to the sphere of legal

relations arising in connection with the legality of the

use of special technical means. Their application

allows them to be secretly installed in places of

supposed meetings of persons of criminal intelligence

interest or to use mobile devices for monitoring and

recording conversations.

Allocation of technical means specially adapted

for documenting intelligence information into an

independent group is characteristic for the active side

of criminal intelligence activity. Indeed, as a starting

point of reference for their practical functioning, we

can consider obtaining factual data on secretly

contemplated, prepared or committed crimes,

sophisticated methods of concealing traces of

criminal activity, places of storage and distribution

channels of the stolen goods, finding persons hiding

from the investigation and court, etc. At the initial

stage, it is a kind of a single category of information,

which, depending on the prevailing conditions, can be

immediately implemented or sent for long-term

storage for dynamic comparison with other materials.

A characteristic difference of such data from other

types of information is its purposeful acquisition

mainly as a result of secret auditory control

(Giovanni, 2016).

42.5% of the interviewed field officers consider it

expedient and permissible to regulate the

organization and tactics of conducting individual

criminal intelligence measures by independent

departmental regulations. Their absence will continue

to complicate the evidentiary assessment of the

course and results of the “auditory control” by

investigators, prosecutors and judges (Baskov, 1998).

As international practice shows, it was the

violations of law in criminal intelligence activities,

especially those ones related to the use of surveillance

devices, that had the most negative political

consequences. Suffice it to recall that the essence of

the so-called Watergate case reduced to the detection

of listening devices in the premises occupied by the

opposition party in the United States in 1972. As a

result, it was the main reason for the failure of R.

Nixon in the US presidential election. In Hungary, in

1988, covert audio monitoring was installed in

premises occupied by functionaries of a number of

opposition parties. Their use was carried out on the

personal instructions of the Minister of the Interior. A

few days later, a field officer provided the media with

a written assignment for its implementation, the

departmental instructions of the Ministry of Internal

Affairs regulating such actions. Then, in the presence

of journalists, including foreign ones, the special

equipment for audio control installed into the

premises was seized. As a result, not only the heads

of the Hungarian Ministry of Internal Affairs were

removed, but also the leaders of the state.

At the same time, it should be noted that the

subjects and objects of “auditory control” only then

will become full participants in the relevant legal

relations, when this action and all other criminal

intelligence measures will have legal force for them.

At present, the specificity of “auditory control” is

regulated by departmental regulations.

In this regard, it is also advisable to revise the list

of existing criminal intelligence measures and

additionally formulate specific actions carried out

with the use of special technical means by specialized

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subjects of technical units. Such an addition is

necessary, proceeding from the meaning of the fact

that the law lists all permitted criminal intelligence

measures, which can only be changed by legislation.

Today, in our opinion, all criminal intelligence and

technical measures performed by the internal affairs

bodies and regulated in departmental regulations have

actually dropped out of the lawful space, and their

legal control can be considered to some extent

conditional. At the same time, it is necessary to

provide for special grounds and conditions for

carrying out technical measures, as is done in relation

to criminal intelligence measures.

In the context of our research, we would like to

pay special attention to the practice of the past and

modern international criminal investigation of a

number of foreign states that use both household and

special (surveillance) equipment in their work.

It is noteworthy that the legislation of all those

countries, that fell into the scope of our research on

this problem, unconditionally recognizes the most

infringing for the rights of citizens as an action that

requires the strictest control from the state, a measure

that generally falls under the definition of

“wiretapping and control of telephone and other

negotiations” or as in the Republic of Belarus

“auditory control”.

In the process of transformation of forensic

technology into a surveillance one, certain patterns

appear that persist today. As a rule, the technical

means themselves and the principles of technological

operations of their application are borrowed. The

sources of adoption tacit techniques, tactics of using

surveillance devices are mainly developed within the

framework of criminal intelligence methods or are

borrowed from the theory and practice of intelligence

and counterintelligence.

So, one of the leaders of the Austro-Hungarian

intelligence (he is also an agent of Russian

intelligence) A. Redl “introduced a number of

improvements”, for example, imperceptible

photographing of all visitors whom he received in his

office and even recorded the conversation with them

on a phonograph with the simultaneous secret

fingerprinting of each of them in the period from 1900

to 1912 (Chernyak, 1977). It should be noted that

covert photography using long-focus optics or

cameras disguised in camouflage items began to be

used in the intelligence and counterintelligence

service of developed countries, especially for covert

surveillance and obtaining intelligence information,

already in the 30s. Since the beginning of the 40s in

the USA, Germany, England and some other

countries, wiretapping and sound recording of

telephone conversations has become widespread. To

control conversations in the room, they have begun to

use disguised microphones coupled with sound

amplifying equipment and sound recording devices.

Since the 70s the intensive development of

criminal intelligence and technical support and the

approval of surveillance devices as a relatively

independent direction in the theory and practice of

criminal intelligence and criminal procedural activity

have already begun (Mayers, 1964). In fact, today the

limits of the system of criminal intelligence and

technical support have already been clearly defined

for ongoing criminal intelligence activities and

investigative actions (Griffiths, Klein, Verdun-Jones,

1980), police intelligence and auditory control have

been improved and developed (Donovan, 1992).

In addition, the above mentioned information, in

our opinion, may be useful for Belarusian lawyers

participating in the improvement of the norms of the

Law of the Republic of Belarus “On Criminal

Intelligence Investigative Activity” and the Code of

Criminal Procedure of the Republic of Belarus. In this

context we can formulate some of our judgments.

In accordance with the provisions of Art. 37 of the

Law of the Republic of Belarus “On criminal

intelligence activities” “auditory control” is carried

out without prosecutorial sanctions, when it cannot be

postponed until a sanction is obtained for solving the

tasks of criminal intelligence activities in the fight

against grave and especially grave criminal offenses,

ensuring public and national security. However, an

official of the body performing criminal intelligence

activities that conducts “auditory control” (including

with respect to certain categories of citizens specified

in Parts 1, 2 of Article 36 of the Law) within 24 hours

sends a written notification about it to the relevant

prosecutor and within 48 hours from the moment of

commencement is obliged to obtain his authorization

or to stop carrying it out. According to a taken

decision (authorization or refusal), the prosecutor

makes an appropriate entry, which is certified with a

seal. Otherwise, such control will not be legitimate,

and its results will be unlawful for solving the tasks

of criminal intelligence activity.

However, Part 4 of Art. 37 of the Law denies the

possibility of using incriminating information

received within 48 hours in relation to a person who

actually prepares or who has already committed a

crime. In this case, it is obvious that the legislator, on

the one hand, protects the constitutional rights of

citizens from unjustified persecution with the

specified wording, and on the other hand, makes it

difficult to implement the principle of inevitability of

punishment.

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In our opinion, the problem can be solved by

adjusting the corresponding norm. The provision of

Part 4 of Art. 37 of the Law shall be amended as

follows: “Information obtained during a criminal

intelligence activity, the conduct of which without the

sanction of the prosecutor or his deputy was

recognized by the prosecutor or his deputy as

unreasonable, cannot be used to perform the tasks of

criminal intelligence activities, except for cases of

obtaining information about a crime is being

committed or have been committed”.

Thus, the range of situations in which auditory

control can be carried out without the sanction of the

prosecutor is quite wide, but certain provisions of the

law, in our opinion, require clarification or

adjustment.

It is also impossible not to pay attention to the fact

that the legislator in a number of situations has

established the term for the “auditory control” (Part 1

of Article 41 of the Law); it can also be performed in

accordance with the terms of conducting a law

enforcement operation in relation to a certain

category of citizens suspected of committing crimes

(Paragraph 1 of Part 1 of Article 42 of the Law);

connected with the adoption of a decision on the end

of the preliminary investigation in a criminal case

(Part 3 of Article 42 of the Law). In the first case, this

period in accordance with Part 2 of Art. 43 of the Law

can be extended by the prosecutors of the regions, the

city of Minsk or their deputies for up to 180 days, by

the deputies of the Prosecutor General – up to 365

days, by the Prosecutor General or the person

performing his duties – up to 545 days.

Thus, we see that the term of the “auditory

control” is long and there is every reason to consider

them sufficient to solve the problem in a particular

case. However, in cases of combating organized

crime and threats to national security, we believe that

it is permissible to repeat the criminal intelligence

measures of “auditory control”, and in other cases it

is not. The repetition or duplicity of its conduct in

relation to the same citizen (citizens) within the

framework of the same law enforcement operation

may lead to provocation. The situation slightly

changes when there is a need to repeat (reduplicate)

auditory control to substantiate new circumstances of

a committed (committing or planning) crime or to

identify other previously unknown participants in a

criminal act.

In conclusion, based on the consideration of the

case Ramanauskas v. Lithuania, it is obvious that the

role of field officers in the “auditory control” should

be reduced to passive recording of the stages of

conversation (negotiations) of the object, so as not to

influence the formation of their intent to commit a

crime. Active connection is possible only at the final

stage of an attempt to commit a crime (for example,

after obtaining a clear consent of the person to receive

a bribe and the fact of receipt). At the same time, the

given example is very specific. Since “auditory

control” is practically impossible without

provocation. If we take a broader approach to this

issue, then, despite the seemingly biased (from the

point of view of law enforcement officers) position of

the ECHR, since it does not allow state intervention

without “strict necessity” (especially without prior

judicial control) in relations between a citizen and

society. However, the ECHR still allows special

methods of investigating crimes in exceptional cases.

4 CONCLUSIONS

The study makes it possible to eliminate a number of

inaccuracies in the formulation of new legal novels

regulating the considered activity, and it is

distinguished from other covert operations, which

allows, on the one hand, law enforcement practice to

avoid violations of the law, and on the other hand,

protects against legal lawlessness in relation to

persons involved in the field of criminal intelligence

activities.

“Auditory control” as a criminal intelligence

measure consists in the fact that its subjects secretly

receive and record with the help of technical means

sound (acoustic) information transmitted via

telephone lines or other types of voice

communication, for solving problems of criminal

intelligence activity. As a rule, “auditory control” is

accompanied by the fixation of the received

information on magnetic carriers. The editorial

changes to the Law of the Republic of Belarus “On

criminal intelligence activity” (Part 4 of Article 37)

have been scientifically substantiated, and some more

areas of its improvement have been identified.

However, the traditional forces, means and

methods of criminal intelligence activity are not able

at the present stage to fully ensure a sufficient level

of obtaining the necessary intelligence information

for taking adequate measures to combat crime.

Increasing the intelligence awareness of law

enforcement staff is possible by introducing new

means and methods of intelligence and technical

infiltration into the illegal environment.

Thus, the conduct of a criminal intelligence

measure “auditory control” requires of scientists and

practitioners to take a fresh look at its practice and

legal foundations in the Republic of Belarus.

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