RF Constitutional Court: ORM results are not evidence

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The results of the operational investigation are provided in accordance with the Instructions on the procedure for presenting the results of operational investigative activities to the body of inquiry, the investigator or the court” approved by a joint order dated September 27, 2013 of the Ministry of Internal Affairs of Russia, the Ministry of Defense of Russia, the FSB of Russia, the Federal Customs Service of Russia, the Foreign Intelligence Service of Russia, the Federal Penitentiary Service of Russia and IC of Russia No. 776/703/509/507/1820/ 42/535/398/68.

In many cases, the results of an operational investigation are grounds for initiating a criminal case. Traditionally, such a reason arises when receiving information about a committed or impending crime from a statement, message or other sources, when it is necessary to confirm it with relevant factual data, which is used to verify it.

With the adoption of this Instruction, the list of participants in criminal proceedings to whom the results of an operational investigation can be presented has changed. The prosecutor was excluded from the number of such participants, since the right to give instructions to conduct operational investigations was excluded from his competence. Issues related to the provision of operational and official documents to the prosecutor are regulated by other regulatory documents.

Changes in the Code of Criminal Procedure and the Law “On Operational Investigation” actually equalized the interrogator with the investigator in the powers to issue instructions to conduct operational investigation. However, despite this, the investigator is not included in the list of persons to whom the results of the operational investigation can be presented.

Regarding the provision of the results of the operational investigation obtained by the investigator, it should be said that in the situation under consideration, taking into account the new Instructions, in our opinion, they will have to be presented to the state body that is the body of inquiry and in which the corresponding investigator serves.

The legal regime for providing the results of operational investigations began to apply to cases of fulfillment of orders to conduct operational investigations, as well as based on materials from checking reports of crimes, and not only in criminal cases. (clauses 1, 9 of the Instructions).

It can be noted that employees of operational units often do not pay attention to these requirements when carrying out orders to conduct operational investigations in criminal cases. The response to the instruction is often prepared in any form, although the Instructions provide for its appropriate execution in the form of a resolution when the results of the operational investigation are presented. Violation of procedural requirements may result in the court recognizing the results of an operational investigation presented in violation of the established procedure as unacceptable evidence.

Providing the results of the operational investigation to the court

In accordance with paragraph 1 of the Instruction, it began to apply to cases of fulfillment of the request of a court (judge) to provide documents on a complaint pending before him of a person whose guilt in committing a crime has not been proven in the manner prescribed by law and who has facts of an investigation against him promptly -search activities and believes that in this case his rights were violated by the failure to provide or incomplete presentation by the body carrying out operational-search activities, information about the information received about this person within the limits allowed by the requirements of secrecy and excluding the possibility of disclosure of state secrets (clause 1).

Procedure for presenting the results of operational investigative activities

The official of the body carrying out the operational investigative activity provides the results of the operational investigative activity for the purpose of their subsequent use in criminal proceedings in accordance with the Instruction on the procedure for providing the results of operational investigative activities to the inquiry officer, the inquiry agency, the investigator, the prosecutor or the court, approved. by order of the Ministry of Internal Affairs of Russia, FSB of Russia, FSO of Russia, FCS of Russia, SVR of Russia, FSIN of Russia, FSKN of Russia, Ministry of Defense of Russia dated April 17, 2007 No. 368/185/164/481/32/184/97/147 (hereinafter referred to as the Instruction ). This interdepartmental by-law provides for the transfer of materials accompanied by the following set of documents.

1. Resolutions on the provision of the results of the operational search to the inquiry officer, the inquiry body, the investigator, the prosecutor and to the court, the presence of which is provided for in Part 3 of Art. 11 of the Law on Operational Investigations and clauses 10, 11 of Appendix 2 to the Instructions.

The resolution is drawn up in two copies and approved by the head of the body carrying out the operational investigation (chief or his deputy). The first copy of the resolution is sent to the inquiry officer, the inquiry body, the investigator, the prosecutor or the court, the second is attached to the materials of the operational accounting case, and in case of its absence, to the materials of the special nomenklatura case. This resolution allows the results of the operational investigation to be presented for verification by the inquiry officer, the inquiry body, the investigator and the court and for them to make a procedural decision in accordance with Art. 144 and 145 of the Code of Criminal Procedure of the Russian Federation, as well as for inclusion in the materials of the criminal case.

This resolution consists of three parts: introductory, descriptive and effective.

The introductory part includes the name of the document, the place and time of its issuance, last name, first name, patronymic, position and rank (military, special) of the head of the body carrying out the operational investigation, and the grounds for issuing the decision.

The descriptive part is based on the requirements of the law and by-laws of departmental acts (Article 11 of the Law on Operational Surveillance, Clause 10 of the Instructions). It reflects the following data: as a result of which operational activities the materials were obtained, what specific materials they are, for what purposes they are provided, when and by whom a specific operational activity was authorized, the existence of a court decision to carry it out.

The effective part of the resolution formulates the manager’s decision to forward the results of the operational investigation and lists the operational and official documents to be forwarded.

A decision to make such a ruling must be preceded by a thorough analysis of the available materials. It must show that the results of the operational investigation are completely reliable and sufficient to ensure the rapid and complete detection of the crime by the methods of criminal proceedings and their use in a public criminal process.

Copies of decisions may be attached to the results of the operational investigation provided.

on carrying out certain operational operations: a) test purchase or controlled delivery of items, substances, the free sale of which is prohibited or circulation is limited: b) an operational experiment (clause 11 of the Instructions).
In addition, when conducting operational searches that restrict the constitutional rights of a person and citizen, copies of decisions
on their conduct must be attached (clause 13 of the Instructions).

The Plenum of the Supreme Court of the Russian Federation, having analyzed judicial practice in terms of assessing and using the results of operational investigations in the investigation of criminal cases, stated that the results of operational investigations related to the restriction of the constitutional right of citizens to the secrecy of correspondence, telephone conversations, postal, telegraph and other messages, as well as with the penetration in a home against the will of the persons living there (except for cases provided for by federal law), can be used as evidence in cases only if permission from the court is obtained and they are carried out by investigative authorities in accordance with criminal procedure legislation.

2. Reports on the detection of signs of a crime or reporting the results of an operational search (clause 7 of the Instructions)1 In accordance with Part 2 of Art. 474 of the Criminal Code of the Russian Federation, procedural documents can be executed in typographical, electronic or other ways, as well as in handwritten form. Photographic negatives and photographs, films, slides, phonograms, cassettes, video recordings, computer information carriers obtained during the operational investigation may be attached to these documents, drawings, plans, diagrams, acts, certificates, other documents that, in accordance with criminal procedural legislation, can be recognized as material evidence.

A report on the discovery of signs of a crime is drawn up by an operational officer and registered in the manner established by the regulatory legal acts of the bodies carrying out operational investigations.

The procedure for presenting the results of an operational investigation in the form of a message includes: 1) consideration of the need to declassify information constituting a state secret and its carriers; 2) preparation of the necessary documents for the actual transfer of the results of operational research.

Since the materials provided are subsequently included in the criminal case, they are subject to special requirements in terms of keeping the sources and methods of obtaining them secret. Such materials may be unclassified or declassified, or transferred in compliance with the rules for handling relevant documents.

3. Resolutions of the head of the body carrying out the operational investigation (the head or his deputy) on the declassification of information constituting state secrets and their carriers (clause 15 of the Instructions), on the basis of which the information contained in the materials reflecting the results of the operational investigation is declassified. In other cases, these results are provided in accordance with the rules of confidential records management.

In accordance with Art. 16 of the Law of the Russian Federation “On State Secrets”, a mandatory condition for the transfer of information constituting a state secret to authorities, enterprises, institutions, organizations (Article 27) is that they have access or a license to carry out work with information of the appropriate degree of secrecy.

Accompanying documents for the actual transfer of results (transfer by mail, transfer by courier, etc.) are drawn up in each specific case, taking into account the requirements of regulatory legal acts governing the organization of office work.

When sending and transferring materials, operational employees must take the necessary measures to ensure their safety (protection from deformation, demagnetization, discoloration, abrasion, etc.).

The procedure for presenting the results of an operational investigation is simplified if the items and documents were obtained during the operational investigation carried out on behalf of the investigator, prosecutor (court). The criminal procedural rights of the investigator to give instructions are enshrined in clause 11, part 2, art. 37, paragraph 4, part 2, art. 38 Code of Criminal Procedure of the Russian Federation.

When providing the results of an operational investigation, the question of the obligation and limits of reporting to the investigator information about the technical characteristics of the means used in conducting the operational investigation is quite acute. It should be noted that it is difficult to do without this information, since the use of technical means with other characteristics during inspection in a criminal case can lead to distortion of the facts and circumstances captured on the relevant media, and, as a result, difficulties will arise in determining their significance for the criminal case .

The materials received from the operational unit within 10 days, and in urgent cases, are immediately studied, analyzed and assessed by the investigator from the point of view of the sufficiency of the data available in them to initiate a criminal case. The criterion for assessing the readiness of operational materials for initiating a criminal case is the presence in them of sufficient data indicating the signs of a crime, including time, method of commission, damage, specific circumstances, information about the persons involved in the crime.

To make a decision on the possibility of their further use, the investigator also takes into account the following circumstances:

• availability of information about who the document comes from and how it is attached to the materials of the criminal case (covering letter, report, protocol, etc.);
• presence of required details and signatures of authorized persons in the documents;
• an indication of the source and circumstances of obtaining the recorded data;
• How fully are individual episodes of the crime documented; special attention is paid to the existence of grounds for initiating a criminal case;
• whether the collected materials are sufficient to conduct an investigation.

Materials are transferred to resolve the issue of initiating a criminal case to various investigative territorial bodies, taking into account the requirements for jurisdiction provided for

Part 2 Art. 151 Code of Criminal Procedure of the Russian Federation. Investigators of the Investigative Committee of the Russian Federation play a significant role in the investigation of crimes.

Further use of the results of the operational investigation for initiating a criminal case and conducting a preliminary investigation is carried out according to a joint plan approved by the heads of the inquiry body and they comprehensively evaluate the collected materials and determine the order and directions of their use.

In the system of the Ministry of Internal Affairs of Russia, the interaction of an operational officer with an investigator in the process of solving and investigating crimes is regulated by departmental by-laws.

If it is impossible to use the results of the operational investigation, the investigator returns materials with a detailed justification of the reasons for such a decision, which can be presented in writing in the form of a certificate. At the same time, he indicates the facts, circumstances that need to be further verified, and documents that need to be requested. If the head of the operational apparatus does not agree with the investigator’s decision, all materials with his objections in writing are sent to the head of the higher preliminary investigation body.

If the decision to use the results of the operational investigation is made, then the issues of the inadmissibility of disclosing information about the time and place of the operational investigation, the forces and means involved in their implementation, etc. are also resolved. In a number of cases, at the stage of initiating a criminal case, some of the operational information can be familiarized with the heads of investigative units and investigators who will directly investigate the crime.

The main task of the operational officer who has received the specified results of the operational investigation is not only their timely and high-quality execution, but, above all, the creation of prerequisites for their proper legalization or transformation into evidence provided for by criminal procedure legislation.

Declassification

According to established practice, investigators often demand from employees of operational units that, when presenting the results of the operational investigation, they are given a resolution on the declassification of information constituting state secrets and their carriers. This mechanism, which is in demand in practice, is reflected in the Instructions (paragraph 1, paragraph 14). At the same time, the new Instructions clarify that the specified resolution is drawn up in two copies, the first of which is sent to the investigator, interrogating officer or to the court, and the second is attached to the materials of the operational accounting case or to the materials of the nomenklatura case.

According to paragraph 12 of the Instructions, in the event that the investigator or interrogator is presented with the results of operational investigative activities obtained during the operational investigation, which limit the constitutional rights of a person and citizen, they must be accompanied by copies of court decisions authorizing the implementation of the relevant measures.

Quite a lot of questions arise in practice regarding the need to classify and declassify these decisions in the prescribed manner. An analysis of judicial practice shows that in a number of constituent entities of the Russian Federation, court decisions, according to which these operational measures are carried out, are not classified as confidential.

Without recording in the descriptive part of the resolution information about the sources of the operational investigation related to information constituting a state secret, the judges, apparently, understand that this document may subsequently end up in the case materials and its contents will be available to the suspect (accused), which may lead to negative consequences.

However, according to paragraph 309 of the List of documents of federal courts of general jurisdiction indicating storage periods, the log of decisions on issuing permits to conduct operational investigations is classified “secret”. This largely determines the corresponding regime of state secrets for the decisions themselves taken into account in this journal.

RF Constitutional Court: ORM results are not evidence

The Constitutional Court issued Ruling No. 2801-O/2017 on the refusal to accept for consideration the complaint under Art. 89 “Use in proving the results of operational investigative activities” of the Code of Criminal Procedure of the Russian Federation. According to the applicant, this legal provision contradicts the Constitution of the Russian Federation, since it allows the results of secret audio and video recordings obtained without a court decision and without declassifying information about the characteristics of technical means used during operational-search activities to be accepted as evidence in a criminal case.

Refusing the applicant, the Constitutional Court of the Russian Federation again indicated that the use of technical means of recording observed events does not predetermine the need to issue a special court decision, which is recognized as a prerequisite for carrying out certain operational investigative measures that limit the constitutional rights of a person and citizen. And the implementation of covert operational activities in compliance with the requirements of secrecy and classification of information in the field of operational-search activities, including information about the means used, in itself also does not violate the rights of citizens.

The Constitutional Court recalled that, according to the Code of Criminal Procedure of the Russian Federation, evidence in a criminal case is “any information on the basis of which the court, prosecutor, investigator, inquirer, in the manner prescribed by this Code, establishes the presence or absence of circumstances that are subject to proof in criminal proceedings, as well as other circumstances relevant to the criminal case.”

At the same time, the Court emphasized that the results of operational-search activities are not evidence, but only information about the sources of those facts that, being obtained in compliance with the requirements of the Law on Operational-Investigative Activities, can become evidence only after they have been confirmed through the proper procedural means.

Commenting on the definition, lawyer of the law firm "ZKS" Kirill Makhov noted that the Constitutional Court of the Russian Federation correctly noted that the use of technical means of recording the observation of events in itself does not imply the need for a special court decision when conducting operational investigation - this is only necessary in the case of conducting operational investigation, limiting the constitutional rights of citizens, which can, among other things, be implemented using technical means.

The expert added that information (audio and video recordings) obtained during the operational investigation using technical means of recording becomes evidence in a criminal case after an inspection of the digital drive on which the recording data is located and the appropriate decision is made to recognize it as material evidence. But in practice, questions often arise precisely about the procedure for submitting ORM data to the investigative body.

“Orders of the Ministry of Internal Affairs of Russia No. 776, Ministry of Defense of Russia No. 703, FSB of Russia No. 509, FSO of Russia No. 507, FCS of Russia No. 1820, SVR of Russia No. 42, FSIN of Russia No. 535, FSKN of Russia No. 398, IC of Russia No. 68 dated September 27, 2013 d. “On approval of the Instruction on the procedure for presenting the results of operational investigative activities to the investigative body, investigator or to the court” defines the procedure for the presentation by operational units of bodies carrying out operational investigative activities, the results of operational investigations to the investigative agency, investigator or to the court if they contain sufficient data indicating signs of a crime. And if violations of this instruction are detected, it is possible during the preliminary investigation and in court to declare the evidence obtained during the operational investigation inadmissible,” the lawyer said.

Kirill Makhov added that very often law enforcement officers have questions about the legality of operational investigations and, as a consequence, the recognition of these results as evidence. The definition of the Constitutional Court of the Russian Federation once again confirms that the study of materials of a criminal case, and in particular materials of conducted operational investigations, must be approached with special care.

Associate Professor of the Department of Criminal Procedure Law of the University. O.E. Kutafina Artem Osipov explained that this definition reflects the established legal positions of the Constitutional Court of the Russian Federation regarding the constitutional and legal meaning of the provisions of Art. 89 Code of Criminal Procedure of the Russian Federation.

At the same time, the expert expressed regret that these legal positions over the years have not led to overcoming one of the main paradoxes of modern evidentiary law, associated with the uncertainty of the conditions and forms of transformation of the results of operational investigations into evidence in criminal cases. According to him, the situation is aggravated by the inconsistency of many provisions of the Russian Law on operational-search activities with international standards of legal certainty, to which the ECHR has repeatedly drawn its attention in a number of decisions (“Akhlyustin v. Russia” of November 7, 2022, “Veselov and others v. Russia "of October 2, 2012, "Bykov v. Russia" of March 10, 2009 and others).

“Evidence of this discrepancy is the absence of an independent procedure for authorizing a number of operational activities associated with the risk of provocative influence from the authorities, and the absence of provisions for judicial authorization of the use of technical means of recording the behavior and conversations of persons involved in operational activities outside their home. The absence of mechanisms of judicial control, the scope of which would include an assessment of the necessity and proportionality of the operational activities carried out by the goals provided for by law, does not allow us to consider the fruits of such activities both as a source of appropriate evidence and evidence in the proper sense of the word. Nevertheless, in practice, courts of general jurisdiction, when considering criminal cases, in the vast majority of cases refer in their guilty verdicts to the results of operational investigations precisely as evidence, listing the testimony of witnesses, reports and memos separated by commas,” explained Artem Osipov.

The expert concluded that the lack of fundamental novelty in the definition of the Constitutional Court of the Russian Federation indicates that it will not lead to a noticeable change in law enforcement practice.

Lawyer of the Administration of the Krasnodar Territory Alexey Ivanov, in turn, noted that the willing use of the results of operational investigations as evidence, not only by law enforcement agencies, but also by the courts, is not a secret. “Despite the fact that previously the Constitutional Court of the Russian Federation has repeatedly stated that “the results of operational-search activities are not evidence, but only information about the sources of those facts,” this is not of decisive importance for the law enforcement officer. And lawyer’s objections and references to the legal positions of the Constitutional Court of the Russian Federation are often not taken into account, which only encourages law enforcement agencies to use such “surrogates” as evidence,” the expert noted.

Alexey Ivanov believes that the applicant posed a pressing and long-standing question: to what extent does the practice of admitting the results of secret audio and video recordings obtained without a court decision as evidence in a criminal case comply with the Constitution?

“It is a pity that once again, when considering a most fundamental issue, the Constitutional Court of the Russian Federation did not find grounds to consider the complaint on its merits. Alas, this has long become a sad trend in the activities of the Constitutional Court. And the reluctance to consider complaints on the most important issues affects law enforcement practice and negatively affects the rights and freedoms of Russian citizens,” concluded Alexey Ivanov.

Providing the results of operational investigations for the preparation and conduct of procedural actions

The Instructions clarify the requirements for the results of operational investigations submitted for the preparation and implementation of procedural actions.

In accordance with paragraph 19, they must contain information about the location of persons hiding from investigation and trial; about persons who became aware of circumstances relevant to the case; about possible sources of evidence; on the location of objects and documents that can be recognized as material evidence; about other facts and circumstances that make it possible to determine the scope and sequence of procedural actions, choose the most effective tactics for their production, and develop the optimal method of investigation in a specific criminal case.

The instruction imposes obligations on the body carrying out the operational investigation, when transferring to the investigator and the inquiry body the phonogram obtained during the operational investigation, to attach to it a paper recording of the negotiations (clause 17).

The results of the operational investigation are presented in the form of a report on the detection of signs of a crime or a report on the results of the operational investigation in accordance with the form available in Appendix No. 1 to the Instructions.

This report (message) is compiled by the person who carried out the operational investigation. The report (message) is registered.

Everything about criminal cases

All materials on ORD

Instructions

“On the procedure for presenting the results of operational investigative activities to the body of inquiry, investigator or to the court” (approved by Order of the Ministry of Internal Affairs dated September 27, 2013)

TABLE OF CONTENTS

Abbreviations used: ORD

- “operational-search activities”,
ORM
- “operational-search activities”.

I). General provisions

of results by operational units of bodies carrying out operational investigative activities

operational-search activities to the body of inquiry, investigator or court if they contain sufficient data indicating signs of a crime, as well as in the following order:

- fulfilling the instructions of the inquiry officer, the inquiry body, the investigator, the court decision on conducting operational-search activities in criminal cases and the materials of verification of reports of crimes in their proceedings.

- fulfillment of the request of the court (judge) to submit documents on the complaint pending before him of a person whose guilt in committing a crime has not been proven in the manner prescribed by law and who has facts of operational investigative measures being carried out in relation to him and believes that violations have been made in this case his rights regarding the failure to provide or to provide incompletely by the body carrying out operational investigative activities information about information received about this person to the extent permitted by the requirements of secrecy and excluding the possibility of disclosure of state secrets.

2) The procedure established by these Instructions for presenting the results of operational investigations is applied when presenting the results of operational investigations in accordance with requests from international law enforcement organizations and law enforcement agencies of foreign states.

3) The legal basis for presenting the results of an operational investigation to the body of inquiry, investigator or court (judge) is the Constitution, Criminal Procedure

code (note - first of all
89 Code of Criminal Procedure
),
Law
on operational activity of 07/05/1995. N 144-FZ, other regulatory legal acts regulating relations in the field of operational investigative and criminal procedural activities, as well as this Instruction.

4) Authorized officials (bodies) are presented with the results of operational research activities that comply with the requirements established by this Instruction and can:

- serve as a reason

and
the basis
for initiating a criminal case.

- be used for the preparation and implementation of investigative and judicial actions provided for by the Criminal Procedure Code.

- used in evidence

in criminal cases in accordance with the requirements of criminal procedure legislation regulating the collection, verification and evaluation of evidence.

5) In cases where it is necessary to involve in the production of procedural actions persons embedded (infiltrated) into organized criminal groups, criminal communities (criminal organizations), full-time secret employees of bodies carrying out operational intelligence activities, as well as persons who provide or have provided confidential assistance to these bodies basis, ensuring their safety in conditions of secrecy and confidentiality is carried out in the manner determined by legislative and other regulatory legal acts, regulatory legal acts of bodies carrying out operational investigations.

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Errors

Errors during transmission

results of operational-search activities

II). Presentation of the results of the operational investigation to authorized officials

6) The results of operational research are presented in the form:

a) report

about detection of signs of a crime.

b) or reports on the results of operational-search activities.

7) A report on the discovery of signs of a crime is drawn up by an official of the body carrying out the operational investigation in accordance with Article 143 of the Code of Criminal Procedure

and is registered in the manner established by the regulatory legal acts of the bodies carrying out operational investigative activities.

The procedure for presenting the results of an operational investigation in the form of a message (report) is carried out in accordance with the rules established by paragraphs 8 - 14 of these Instructions, and includes:

— consideration of the need for declassification

information constituting a state secret contained in the presented results of the operational investigation, and their carriers.

— preparation of the necessary documents and actual transfer of the results of the operational investigation.

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Inadmissibility

Invalid results

ORD is a violation of No. 144-FZ and Instructions

9) Presentation of results

Operational investigation of authorized officials (bodies) for carrying out an inspection and making a procedural decision in accordance with Articles
144
and
145 of the Code of
, as well as for inclusion in a criminal case, is carried out on the basis of a resolution of the head of the body (unit) carrying out the operational investigation (chief or his deputy).

The said resolution is drawn up in 2 copies, the first of which is sent to authorized officials (bodies), the second is attached to the case

operational accounting or, in case of its absence, to the materials of the nomenclature (letter) file.

10) When presenting to authorized officials (bodies) the results of operational investigations obtained during the conduct of:

— test purchase or controlled delivery of items, substances and products, the free sale of which is prohibited or the circulation of which is limited,

— as well as operational experiment or operational implementation,

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- Article 8 N 144-FZ list of operational procedures requiring - only decisions of the head

they are accompanied by a resolution from the director

of the body carrying out the operational investigation (chief or his deputy) on the conduct of this operational investigation.

Copies of these decisions of the body carrying out the operational investigation are subject to storage in the materials of the operational accounting file, materials of the operational audit, or, in their absence, are attached to the materials of the nomenclature (letter) file.

11) If, as a result of a test purchase, it was not possible to document the illegal act being prepared, committed or committed, then its results are attached to the materials of the repeated test purchase or to other ORM materials containing signs of a crime, which are presented to authorized officials (bodies) in the manner established this Instruction.

12) In the case of presentation to authorized officials (bodies) of the results of operational investigations obtained during operational investigations, which limit the constitutional rights of a person and citizen to:

- confidentiality of correspondence, telephone conversations, postal, telegraph and other messages transmitted over electrical and postal networks,

- as well as the right to inviolability of home,

copies of court decisions on conducting operational investigations are attached to them.

13) Presentation of the results of operational investigations containing information:

— on the organization and tactics of conducting operational search and operational technical activities,

- technical means used in their implementation,

- about full-time secret employees of operational-technical and operational-search units, must necessarily be agreed upon with the executors of the relevant activities and carried out in accordance with the requirements for handling information constituting a state secret.

14) If it is necessary to declassify information contained in materials reflecting the results of an operational investigation, the head of the body carrying out the operational investigation (the head or his deputy) issues a resolution on the declassification of information constituting a state secret and its carriers.

The said resolution is drawn up in 2 copies, the first of which is sent to the authorized official (body), the second is attached to the case

operational accounting or, in case of its absence, to the materials of the nomenclature file.

In other cases, the results of an operational investigation containing information constituting a state secret are presented in accordance with the established procedure for conducting secret records.

15) The method of actual transfer of the results of the operational investigation to the authorized official (body) (forwarding by mail, delivery by courier and other methods) is selected by the body carrying out the operational investigation in each specific case, taking into account the requirements of regulatory legal acts governing the organization of office work.

16) To the documents specified in clause 6

Instructions are attached (if any) received (completed) during the operational investigation:

— materials of photography and filming, audio and video recordings.

- and other information media, as well as material objects that, in accordance with criminal procedural legislation, can be recognized as material evidence.

When the message (report) must reflect information about:

- time,

- place,

— and the circumstances of receipt of the attached materials, documents and other objects obtained during the operational investigation.

If necessary, a description of the individual characteristics of the specified materials, documents and other objects can be set out in a separate appendix to the message (report).

17) The body carrying out the operational investigation, when preparing and processing materials, documents and other objects received during the operational investigation for transfer to authorized officials (bodies), must take the necessary measures for their safety and integrity (protection from deformation, demagnetization, discoloration, erasing and others). When submitting a phonogram, a paper recording of the negotiations is attached to it.

It is allowed to present materials, documents and other objects obtained during the operational investigation in copies (extracts), including transferring the most important parts (conversations, stories) to a single medium, which must be indicated in the message (report), and on paper conversation recording medium. In this case, the originals of materials, documents and other objects obtained during the operational investigation, if they were not subsequently requested by the authorized official (body), are stored in the body that carried out the operational investigation until the completion of the trial and the entry into force of the verdict or until termination criminal case (criminal prosecution).

III). Requirements for the results of operational investigations submitted to authorized officials

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Results of the operational investigation to initiate a case

— Art.11

N 144-FZ, the results of an operational investigation may be the reason and basis for a criminal investigation

— clause 18

Instructions requirements for the results of an operational investigation to initiate a case

18) The results of the operational investigation submitted to resolve the issue of initiating a criminal case must contain sufficient data indicating the signs of a crime, namely:

- information about where, when, what signs and what kind of crime were discovered.

— under what circumstances they were discovered.

- information about the person (persons) who committed it (if they are known), and eyewitnesses of the crime (if they are known).

- about the location of objects and documents that can be recognized as material evidence in a criminal case.

- about any other facts and circumstances relevant to resolving the issue of initiating a criminal case.

Is declassification required to initiate a case?

19) The results of the operational investigation submitted for the preparation and implementation of procedural actions must contain information (if such is established) about:

— the location of persons hiding from the preliminary investigation authorities and the court.

- about persons who know the circumstances and facts relevant to the criminal case.

— about possible sources of evidence.

- about the location of objects and documents that can be recognized as material evidence in a criminal case.

- about other facts and circumstances that make it possible to determine the scope and sequence of procedural actions, choose the most effective tactics for their production, and develop the optimal method of investigation in a specific criminal case.

20) The results of operational investigative activities presented for use in evidence in criminal cases must:

- allow the generation of evidence that meets the requirements of criminal procedural legislation for evidence in general, for the relevant types of evidence. - contain information relevant to establishing the circumstances

subject to proof in a criminal case,

— indications of operational-search activities during which the alleged evidence was obtained,

- as well as data that allows you to check

in criminal proceedings, evidence generated on their basis.

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