Peculiarities of implementation of operational and investigative activities in cases of crimes against the person

At the beginning of the twenty-first century, the problem of combating crime in the socioeconomic life of the country continues to be one of the main ones. The formation and development of methodological recommendations for the disclosure of certain types of crimes are closely interrelated with the operational investigative characteristics of crimes of the type of crimes. Operational investigative activities against a person are also among such crimes. In the theory of operational investigative activity, as a branch of legal knowledge, an independent operational investigative characteristic of a particular type of crime is considered.

The operational investigative characteristic of crimes against the person can be defined as a scientifically developed system of generalized data on the most typical operationally significant signs of a crime, manifested in the features of the object of criminal encroachment, methods of committing a crime [5].

Since the activities of operational units are aimed at identifying, uncovering or preventing crimes, it is first of all necessary to have a correct understanding of the features of the criminal law qualification of acts that are the object of operational investigative activities and the state of crime in general.

The personality is characterized by civil psychology, manifested in civic activity, labor psychology, manifested in professional activity, home psychology and correct behavior, legal psychology and appropriate actions; finally, the psychology of "I" (self-esteem, "I").

Currently, in order to study the problem and assess the characteristics of those interested in operational investigative activities they attract the attention of many domestic lawyers and psychologists.

The results of Operational Investigative Activities against a person can certainly meet the requirements of relativity, that is, contain information about facts and circumstances that are relevant to a criminal case [4].

However, the results of Operational Investigative Activities are formed outside the criminal process, not from sources established by the criminal procedure law, outside the conditions and procedure provided for by it, – subjects of Operational Investigative Activities, and not criminal procedural activities. In this regard, they should be considered as meeting the requirements of acceptability [3, p. 56].

In the ratio of the results of Operational Investigative Activities and evidence, there are similarities of their informational nature and differences in the legal regimes for obtaining them. Admissibility is the criterion by which the differentiation of evidence and the results of Operational Investigative Measures takes place. As a result of the desire to increase the effectiveness of the results of the preliminary investigation due to the active involvement of operational information, the issues of protecting human rights and freedoms in criminal proceedings recede into the background [5, p. 34].

The number of complaints related to the use of the results of investigative activities in criminal proceedings is significantly increasing, coming to various judicial bodies, including the Supreme Court of the Russian Federation and the Constitutional Court of the Russian Federation, the European Court of Human Rights, which indicates the presence of a number of unresolved problems. Criminal punishment for committing crimes against the person is provided for in the Criminal Code of the Russian Federation.

It is worth noting that many legal scholars note the conflict between the above-mentioned article and the norms of criminal procedure law, which has not been resolved by the legislator to date [5, p. 85].

The main groups of crimes against the person are murder and rape. These crimes pose the greatest public danger. Despite the difference in criminal law characteristics, these crimes can be grouped into one group based on criminalistically significant features. The presence of a single generic object, which is a person's personality, determines in many ways the similarity of the mechanism of these crimes and its reflection.

Thus, Article 89 of the Code of Criminal Procedure of the Russian Federation states that the use of the results of Operational Investigative Activities is prohibited if they do not meet the requirements for evidence. As E.A. Dolya noted, the literal interpretation of this norm actually excludes the possibility of using the results of Operational Investigative Activities for proving in a criminal case, since such results are not subject to compliance with all the requirements for proof in a criminal trial [1].

This norm has not yet been abolished, and I think only because it does not carry a legal burden, has no regulatory requirements, and does not fulfill a legal function. People who commit crimes against the person have their own characteristics. The data of his criminological study can be applied in such areas as the correction of convicts or in the investigation of criminal cases, as well as in the prevention and improvement of criminal and other laws.

If we take into account the various objective needs of practice in the use of operational investigative capabilities in the investigation of crimes against the person, there is a need to develop the institution of using the results of operational investigative activities in proving criminal cases, without weakening the guarantees of protection of the rights of its participants [6].

It follows from the above that the strict requirement established in the collection of evidence makes it possible to use the results of Operational Investigative Activities against a person only in an indirect form. This form involves a procedure for converting the results of an investigation into procedural evidence in a case through the use of criminal procedural mechanisms.

In this regard, the correct procedure is considered to be the use of operational data in evidence, in which the results of Operational Investigative Activities against a person are considered only as information about the sources of information, which can later become evidence through obtaining and providing it in accordance with the legal procedure established by law [4].

In this regard, the Constitutional Court of the Russian Federation has repeatedly stated in its decisions, in accordance with the current criminal procedure legislation, the results of the MPM are not evidence, but only information about the sources of those facts that, having been obtained in compliance with all the requirements of the Federal Law on Operational Investigative Activities against a Person. Which can become evidence only after they have been properly secured procedurally, directly on the basis of the relevant norms of the Code of Criminal Procedure of the Russian Federation.

The possibility of using the results of operational investigative activities as evidence in criminal cases is actually confirmed by the Plenum of the Supreme Court of the Russian Federation [5, p. 65].

If it is necessary to declassify the information contained in the materials reflecting the results of Operational Investigative Activities, the head of the body carrying out Operational Investigative Activities issues a resolution on declassification of information constituting the state the secret, and their bearers.

In case of presentation to the inquirer, the body of inquiry, the investigator, the prosecutor or to the court of the results of Operational Search Activities obtained during Operational Search Activities that restrict the constitutional rights of a person and a citizen, copies of court decisions on conducting Operational Search Activities are attached to them [3].

Currently, the results of Operational Investigative Measures are recognized as evidence in a criminal case if they are obtained from sources provided for by criminal procedure legislation, the implementation of which is possible only within the framework of the current legal regulation of evidentiary activities.

At the same time, it should be borne in mind that operational investigative and criminal procedural activities are two types of activities independent of each other, each of which has its own distinctive character.

But for more effective and timely prevention and suppression of crime, it is believed that the results of operational investigative activities against a person must be put on a par with the types of evidence listed in Article 74 of the Code of Criminal Procedure of the Russian Federation [1].

Such a change will allow the preliminary investigation authorities to collect evidence without unnecessary procedural red tape, and, finally, barriers to the use of operational information to establish various circumstances will be removed.

The legislator primarily associates the need for operational investigative measures with the initiated criminal procedural activities. In this case, there is a situation when not procedural activity is initiated, but operational investigative [5].

Proving in this case may be the most desirable way to obtain information necessary for the in- vestigation and consideration of a criminal case, but due to the fact that it is impossible to do without operational investigative information, better elaboration of ways to translate such information into evidence is necessary. Therefore, the results of operational investigative activities against a person can be used in criminal proceedings bypassing the stage of proof.

Thus, the following conclusion can be drawn that the analysis of the Federal Law of the Russian Federation "On operational investigative activities" showed that the legislator only fixes the concept of the results of operational investigative activities, but does not disclose their content [2].

In turn, this gap does not allow the tacit nature of the content of the results of operational investigative activities, since the content, and in particular, the essence of this concept is difficult to comprehend based only on the name itself.

Operational investigative measures of Operational Investigative Activities against a person represent specific forms of Operational Investigative Activities by operational staff on the basis and in accordance with the procedure provided for by the norms of Russian legislation. They can be characterized as a targeted orientation, internal consistency, implemented in vowel or tacit forms.