If necessary, operational state bodies have the right to conduct both public and secret activities that are within their competence and permitted by the existing law on operational-search activity. In this case, in no case can such measures be correlated with investigative ones, since the legal basis of the ORD (operational-search activity) is completely different. This can be directly seen even from its name.
So, for example, the word “operational” appears in it, which means “urgent”. And such measures were just allowed in order to fully carry out the procedure for the disclosure of complex cases for which simple investigative actions are simply not enough. This article will further describe what constitutes the legal basis of the ARA in the current legislation.
Detective activity - what is it?
Before directly addressing the concept of the legal basis of the ARD, it is necessary to understand what the legislator puts into the mentioned term. At present, this definition includes various types of activities carried out publicly and behind the scenes by departments of state bodies with authority over them, according to the Federal Law "On the operational-search activity." Within the limits of these powers, to carry out the assigned tasks, they can carry out various operational-search measures. We are talking about protecting life, health, property, human and civil rights and freedoms, as well as protecting the whole society and the state itself from criminal attacks.
As you can see, this definition is very detailed, because, according to the legal framework of the ARD, the relevant authorities can carry out various actions in order to fully serve as a form of law enforcement. However, the task of the ARD as a whole relates more to the following areas:
- obtaining information and identifying signs of criminal activity, including hidden;
- the search for criminals who are hiding after committing an offense.
Principles
At the moment, the described type of activity is strictly controlled and can only be carried out using specific means. The legal basis of the ARD is implemented only with the help of operational-search measures on the basis of principles, which include:
- Legality is an imperative method, implying that only what is directly permitted by law is permitted.
- Respect and full observance of the rights and freedoms of a person and citizen established in Russia.
- Conspiracy. Since the ARD is mainly a kind of intelligence activity, the law allows its employees to use fake documents, if necessary, or to encrypt their personalities or the identities of citizens who provide assistance in business.
- Simultaneous combination of vowels and unspoken working methods to get the best result. The choice of measures and means in this situation is completely determined on the basis of the situation and directly by the body that carries out specific actions.
Defining the legal framework
In fact, there is no particular general definition of the legal framework for the ARD. This can be done based on the articles of federal law. At the moment, it is customary to define them in the form of a combination of legislative and other legal norms of various levels, which are designed to regulate any relations arising as a result of operational-search activity. As you can see, this definition is very vague and can relate to a huge number of acts, therefore, in general, the legal basis of the ARD is a large number of documents.
Legal basis documents
According to article 4 of the Federal Law "On Operational Investigation Activities", it can be clearly understood that the legal basis of the ARD is international treaties, the Constitution of the Russian Federation, the Federal Law, the Federal Law and by-laws. Together, they make up the legislative framework on this issue. They are conventionally divided into 4 groups:
- The first legal basis of the ARD, in accordance with the hierarchy, is based on international legal acts.
- The second group includes the constitutional section, but it includes not only articles of the Constitution, but also decisions of the Constitutional Court on these issues.
- National legislation, that is, various Federal Laws and Federal Laws.
- By-laws, otherwise Presidential decrees, government acts and others.
In more detail, all of these legal frameworks of the ARD will be discussed below.
International acts
International acts represent a certain basis that enables the different countries that have ratified them to build the backbone for operational-search activities.
In the Russian Federation, such acts include:
- Universal Declaration of Human Rights.
- UN International Covenant on Civil and Political Rights.
- European Convention for the Protection of Human Rights and Fundamental Freedoms.
All of these multilateral treaties allow Interpol, as well as the Anti-Terrorism Center and the Organized Crime Coordination Bureau, to act actively in the international space and in Russia.
Constitution
It is the constitutional level that secures the legal foundations of the ATS ODS. In addition, the legal base is clearly fixed here, which is in charge of the area of operational-search activity and defines the boundaries of its further development. The national legislation does not and should not have rules of law that are priority or do not meet the requirements of the Constitution of the Russian Federation, since it is this law that is the most important law.
In particular, the legal foundations of the ARD, studied by a separate course at the Plekhanov University, include the following rights to these norms:
- Recognition of a person, his rights and freedoms as the main value of the state.
- The equality of all citizens of the country before the law.
- The presumption of innocence.
- A guarantee of judicial protection and many other rules.
In addition, in the Constitution you can find articles that enshrine the powers of state bodies in adopting legislation in the fight against crime, as well as a number of restrictions that cannot be violated.
Legislative level
To this level, according to the concept of the legal basis of the ARD, it is customary to attribute various federal laws. However, the main basis here is built precisely on the Federal Law "On the operational-search activity", which directly regulates the foundations, as well as the Criminal Code and the Code of Criminal Procedure. Below we will separately consider federal law and its dogmas.
By-Law Level
This level is also regulated by a large number of completely diverse legal acts, which can be divided into acts of legislative and executive authorities up to the level of local self-government. These include the presidential decree "On streamlining and conducting operational-search measures using means of technology", acts of the government "On the procedure for admitting citizens of the Russian Federation to state secrets" and many others.
Federal Law "On operational search activity"
This act aims to regulate the foundations of the ARD. It not only clarifies the very concept of such activities, but also defines the tasks and principles on the basis of which the appropriate authorities should carry out it. It is here, in Article 4, that the legal framework of the ARD is defined.
Alferov V. Yu., Grishin A.I. and Ilyin N.I. in a training manual devoted to the described concept, disclose in detail all aspects of this law, such as how the operational-search measures are carried out, lead to documentation requirements, and also a list of bodies that can carry out these actions, and specify their authority.
Structure of law
The named law consists of 6 chapters and a preamble. The preamble states that this federal law determines the procedure and content of the operational-search activity that is carried out on the territory of the Russian Federation, as well as the system of legality during the events. Each chapter is dedicated to a separate topic:
- Here, the general provisions are fixed, that is, the very definition of the ARD, the tasks, principles and bases on which it can be implemented.
- We are talking about a list of operational-search measures with their listing and procedure.
- The chapter is devoted to bodies that, according to the law, have the right to carry out an ARD, as well as the conditions for their activities.
- It provides for the actions of officials in relation to people who have assisted in assisting with the events.
- The question is being solved of how the financing of the ARDS is proceeding correctly and from what sources it is allowed to take funds.
- The chapter is based on the control and supervision of the conduct of the ARD, both departmental and non-departmental.
Territoriality
By itself, the law on the ARD recognizes the principle of territoriality, that is, it can be implemented only within the borders of the Russian Federation, with rare exceptions.
It is also quite clearly spelled out in completely different acts:
- If the crime was committed outside the country, then, according to the Criminal Code of the Russian Federation, there is the possibility of an ORD outside the Russian Federation.
- The law on international treaties also provides a loophole, making it possible to carry out a horde of operations outside the country. However, the application of this act is quite difficult, since a special agreement is required.
- Conducting an ARD is possible on board ships of foreign states that take place in territorial seas, but only for this period of time and in cases where the consequences of the crime extend to Russia, such as the transport of drugs or psychotropic substances.
- The Federal Law can, if necessary, be applied on territories belonging to the continental shelf and to the exclusive economic zone.
All these exceptions are enshrined in law, and in all other cases, the principle of territoriality is mandatory.
Operational Investigation Services
The law expressly stipulates which particular authorities can carry out operational investigative activities. They include:
- The internal affairs bodies of the country.
- Bodies of the federal security service and state security.
- Customs.
- Foreign Intelligence Services.
- The Federal Service for the Execution of Sentences and bodies exercising control over the circulation of drugs and psychotropic substances.
This list may be modified only with the entry into force of the new federal law. The heads of the competent authorities directly determine the list of operational units that should carry out activities, as well as their authority and organization.
Units themselves are established through relevant legislative acts, in addition to the Federal Law "On the operational-search activity." Such laws include the Federal Law "On Police", "On the Federal Security Service" and others.
Conclusion
In general, numerous researchers equally share and define the legal basis of the ARD. In Saratov, for example, where is one of the branches of the Russian Economic University. Plekhanov, the most extensive work on this topic was created. It is in it that the 4 legal bases listed above are distinguished - constitutional, international, legislative and by-laws.
Such a separation system has long been recognized as the most optimal, since it allows you to divide numerous legal acts into a hierarchical system of influence. However, there are still disputes that arise around which particular acts are considered to be more influential in Russia - the Constitution or international declarations or pacts.
The most detailed legal basis for this activity is enshrined in Russia in the Federal Law "On the operational-search activity", which clearly regulates which authorities should carry it out and which measures are allowed to be carried out. Deviation from these principles is considered a violation of the law.