Problems of realization of the right of bodies carrying out operational-search activities to seize documents, objects, materials during operational-search activities

To date, various operational-search practices have developed for the seizure of objects of operational interest in the course of conducting operational-search activities. There are different approaches to its assessment by the investigating authorities, the prosecutor’s office and the court. This fact is due to the peculiarities of the legal regulation of operational-search activities and the rights that the law gives to the bodies engaged in operational-search activities. While securing the right to confiscate documents, items, materials in the course of openly conducting operational-search measures, the legislator did not provide for mechanisms for the implementation of this right. The very possibility of such a seizure, as a rule, is associated with the need to overcome opposition on the part of the persons against whom the relevant measures are being taken, which in turn necessitates the use of coercive measures. But the Federal Law “On Investigative Activities” does not fix these measures, grounds, conditions, and the procedure for their implementation. The purpose of this study is to propose options for resolving this contradiction, to determine the mechanisms for exercising the right of bodies engaged in operational-search activities to seize objects of operational interest. The article reflects and substantiates the position of the authors, according to which the current legislation, contrary to the emerging practice, does not allow for forced seizure during the open conduct of operational-search activities, provided by coercion aimed at restricting the rights and freedoms of citizens. In this regard, two options for solving the problem are proposed. First, to limit the right to exemption, the possibility of which is provided exclusively for the covert form of operational-search activities. The second option (which seems preferable due to the prevailing features of modern crime, practice and the needs of counteracting it) provides for the consolidation in the Federal Law “On Operative-Investigative Activities” of coercive measures aimed at ensuring the implementation of this right, the grounds and conditions for their application.