The operative-search activity (hereinafter referred to as “the ARD”) is the functioning of authorized state bodies (both disclosed and not disclosed), aimed at preventing, terminating or revealing the circumstances of a crime, tracing people, obtaining information relevant to the safe existence of the state, and the like.
The activity under consideration is not included in the criminal proceedings, but is allocated in a separate category. Within its framework, the following operations can be carried out:
- interrogations of citizens;
- receiving the information;
- obtaining samples (used in a comparative study);
- operational procurement;
- the study of material components and documentation;
- establishing surveillance;
- personality recognition;
- the study of buildings, structures, open areas and so on;
- correspondence control;
- listening to phones;
- implementation of a trained employee;
- delivery under control;
- experiment;
- use of information from computers.
This article will not only provide general information about such activities, but also describe in detail the instructions by which the results of the ARD are provided.
Regulatory framework
The ARD is regulated by a whole set of legislative and legal acts of various levels. These include regulatory documents of various departments, for example, Instructions on reporting results to the investigator.
Such documents are at the lower level of the legislative framework, they are called by-laws. It is the standards that are at the lower level of the hierarchical structure of the legislative framework that create a detailed view of the ODP. A large number of such documents are being created at the departmental level, but many of them have limited access.
Previously, all regulatory documents were closed and related to classified materials. At the moment, some departmental and interdepartmental standards are open for reading and are freely available.
It is interesting that some of the information under the heading "secret", after some time, the state is still disclosed, because secrecy has its own term.
The main document governing the transfer of information to the investigator
It is the Instruction on how to provide the results of the ARD to the investigator, which is contained in the appendix to the joint order of the following ministries:
- Internal Affairs (No. 368);
- defense (No. 147).
As well as federal services:
- security (No. 185);
- protection (No. 164);
- Customs Service (No. 481);
- execution of sentences (No. 184);
- controlling drug trafficking (No. 97)
They also include the Foreign Intelligence Service (No. 32). The document is dated April 17, 2007.
The instruction ο providing the results of the ARD applies to the procedure for transferring materials not only to the investigator, but also:
- bodies of inquiry;
- the prosecutor's office;
- court.
The concept of the results of this activity is disclosed in the Code of Criminal Procedure of the Russian Federation (hereinafter - the Code of Criminal Procedure), namely in article 5 (paragraph 36.1). By them we mean information about the signals of the offense being prepared, occurring or occurred, the persons who prepared or conducting such offenses and who are hiding from the judiciary and other authorized persons.
The procedure for the submission of the results of the ARD, indicated in the regulatory legal act, can be used in the processing of a written request by their state bodies if there are no contradictions with other legislative acts of the Russian state. And this also applies to state bodies of other countries.
Reasons for creating a new standard
The instruction under consideration ο providing the results of the ARD was published in 2007 and replaced the instruction of the same name from 1998. The need for such a replacement is due to a number of circumstances.
In 2002, the Code of Criminal Procedure was adopted, which repealed the effect of a similar document in force on the territory of the federation. Accordingly, the old instruction ο providing the results of the ARD was based on the expired norm, some of its provisions were in conflict with the new code.
In addition, the court began to consider documents on the full cycle of the investigation, that is, not only their results, but also the documents on the basis of which they were obtained. The provision of the results of the ARD in connection with judicial practice was required to be reviewed.
As a result of the administrative reform, the powers and areas of activity of the executive bodies of the federal level were revised, which affected the ARD.
For example, in 2004 the Federal Service for Drug Control appeared. Its structural divisions are allowed to carry out a war in their field. Thus, they may also be required to provide the results of the ARD. The rules were established by the 1998 regulatory document.
An interdepartmental instruction on how to provide the results of an ARD was created without a drug control service. Its use was the only solution available. In 2006, the Federal Drug Control Service issued its order under number 147, which approved an interim instruction on the provision of the results of the ARD to the agency. Even this normative act did not completely cover the need to regulate the ARD for this service.
Procedure for transferring materials to an investigator
The provision of the results of the ARD to the investigator is necessary in order to use them to build the evidence base and initiate criminal proceedings. It is important that the investigation materials are fully compatible with the current Russian legislation. Otherwise, they are not taken into account when considering the case.
For example, there is evidence which, although it is obvious that they compromise the offender (or prove the innocence of a citizen), cannot be brought to court because the latter does not have the right to take them into account.
The instruction ο providing the results of the ARD to the investigator implies two forms of tracking materials:
- report;
- message ο results of the Horde.
It is important to note that the report contains signs of a crime, is prepared on the basis of Article 143 of the Code of Criminal Procedure of the Russian Federation and is subject to registration in the prescribed manner.
Transfer of materials to the inquiry agency
The results of the ARD can be transmitted not only to the investigator, but the results of the ARD can be presented to the inquiry body and the inquiry officer, prosecutor or the court. This has already been said above.
This allows you to apply instruction No. 776 ο the procedure for providing the results of the ARD. Inquiry is a type of pre-trial investigation of a crime. It spreads most often to acts of small and medium severity.
Picking documents
Order No. 776 ο providing the results of the ARD implies the transfer of documentation and material things with the following supporting documents:
- Decision. Its form is established by Appendix No. 2. It can be found in the Instructions ο the procedure for providing the results of the ARD. The documentation is prepared in duplicate: the first is included in the accompanying documentation for the results of the ARD, the second remains in the organization that compiled it, and is attached to the case. It is subject to approval by the management of the sending organization. According to the decree, the materials are transferred, checked, included in the criminal proceedings and a procedural decision is made (articles numbered 144 and 145 of the Code of Criminal Procedure of the Russian Federation). The document begins with the introductory part, where its details are disclosed, given to the head of the body that conducted the ORD, the grounds for drawing up the decision. The following describes the events themselves, during which the materials were received, why they are transmitted, information ο permission to act. The final part contains a decision ο transferring the results of the ARD and a list of the documentation to be sent. Before transferring the materials, it is necessary to analyze them for completeness, sufficiency for the positive completion of the investigation of the crime, the possibility of making them public.
- Report on the detection of evidence of a crime or report on the results of the ARD. The message form is established by Appendix No. 1 to the instructions ο providing the results of the ARD. Material evidence recognized in accordance with the current legislation of the state may be attached to it. These include photographic materials, digital media, diagrams, acts, documents and the like. The report is subject to compilation and registration by an ordinary employee. The procedure for submitting the results of the ARD to the investigator in the form of a message contains a study of the obligation to declassify the transmitted data, which is the secret of the state, as well as the subsequent documentation and transfer of materials.
- Decree ο declassification of information that constitutes state secret, and their carriers. The appearance of the document is presented in Appendix No. 3 of the order ο providing the results of the ARD. Article number 27 of legislative act No. 5485-I of July 21, 1993, On State Secrets, states that in order to work with the information in question, it is necessary to obtain a license permitting this type of activity, with a distinction in terms of secrecy.
In the event that operational-search measures are carried out in the form of a test purchase or controlled delivery in respect of substances in limited circulation, a decision is drawn up and transmitted with the rest of the results ο to conduct the event itself.
It is signed by management and published in two copies, the first of which remains in the body that composed it. The same procedure applies in cases of restriction of the rights of citizens provided for by the Constitution. For example:
- the inviolability of the home;
- talking on phones and the like.
Material Requirements
Internal rules of paperwork set nuances regarding the actual transfer of materials. It is precisely determined how to send documents (by mail, courier, in person, etc.), with which accompanying papers, and so on.
At the same time, it is important to transfer the documentation, as well as material and material evidence in integrity and safety, so that they are accessible for reading and use. So, electronic information carriers should be protected from demagnetization, photo materials - from loss of color, and so on.
The documentation must necessarily contain information on the equipment used, which was used to obtain the results of the ARD. When re-conducting such events and using funds with other characteristics, data discrepancies may result.
Each material must be uniquely identified, the characteristics of objects are described in detail. It is allowed to transfer some data in the copied version, for example, recording telephone conversations. They can be placed on one medium, the look of which is established by the body that initiated the implementation of the operational-search activities. In this case, the originals remain in the indicated initiating organization, where they are stored until the court hearings and the court decision comes into force.
Verification of documents
From the moment the results of the ARD get into the appropriate body, ten days are allotted for their study and analysis. In some cases, these actions are carried out immediately. The official shall establish the sufficiency of information that speaks of the signs of a crime, in particular time, damage, method of commission, circumstances, persons involved in the crime.
Materials that meet the following requirements can be used:
- represent data on the source of the document, accompanying paper;
- availability of the necessary details and signatures of persons authorized accordingly;
- availability of grounds for initiating proceedings, full description of the circumstances of the crime;
- sufficiency of information for further actions.
If the person checking the documents has comments, he sets them out in the form of a certificate and returns them for revision. The specified paper should contain specific recommendations for revision. For example, what circumstances of the crime should be considered in more detail, with what documents to support this or that information.
The head of the operational unit, in case of disagreement with the results of the examination of the materials, has the right to object by contacting a higher investigating authority.
By transmitting the results of the ARD, the operations officer’s work on the case does not stop; he interacts with the investigator or other person in accordance with the regulatory acts of the agency.
If the materials necessary for office work satisfy the requirements, a decision is made ο non-disclosure of information ο time and place of events of operational-search nature, resources used in this case.
In some cases, heads of units and investigators directly involved in the case are entitled to familiarize themselves with some information.
The sequence of the preliminary investigation is regulated by Article 151 of the Code of Criminal Procedure. In accordance with the specified norm, the addressee is selected to receive the results of operational investigative activities.
Actions of the investigating authorities
On the basis of clause 11, part 2 of Article 37 of the Code of Criminal Procedure, the prosecutor has the authority to request the materials of the criminal case from the inquiry bodies and transfer them to the investigator, if there is good reason.
The investigator has the right in writing to instruct the inquiry body to conduct search activities in an operational way and other procedural actions, to receive assistance in their implementation. This provision is enshrined in paragraph 4 of part 2 of article 38 of the Code of Criminal Procedure.
After transmitting the results of the ARD to the appropriate body, a joint action plan is drawn up, which is subject to approval by the leadership of the inquiry body. Materials are studied from all sides, and the procedure for their further application is being developed.
The Investigative Committee of the Russian state occupies a special place in the bodies conducting the preliminary investigation. In the above-mentioned sequence of transferring cases, he comes first.
Security of those responsible for the transfer of documents
The person authorized to compile and transmit the results of the ARD must not only on time and correctly carry out all the design actions. It is very important that these materials become the basis for further investigation, could be used in proving the guilt of the offender.
In some cases, participants in operational-search events may be in danger, because measures are being developed to protect them. In so doing, they are guided by legislative act No. 45- dated 05.204.1995, which contains measures to protect law enforcement officials, regulatory authorities, as well as judges.
Advice and supervision of lawyers
Covert employees are involved in search activities, some are introduced into criminal groups, and individuals who act in confidence are used. Posting information ο them is allowed only with the written permission of the entities and in the cases described in federal laws. If the conditions described here cannot be met, then the results of the ARD are not transmitted.
Procedural moments often become a significant obstacle in bringing a criminal case to closure. Therefore, compliance with the procedures established by state law, as well as documentation requirements, become extremely important procedures.
Misses of operational employees in the preparation of documentation, material evidence based on the results of the ARD are often used by defense lawyers. At the request of the court, such information should be transferred to the case, a refusal on the basis of maintaining state secrets is considered unlawful.