1. If there are sufficient grounds to believe that telephone and other conversations of the suspect, accused and other persons may contain information relevant to the criminal case, their control and recording are allowed during criminal proceedings on crimes of medium gravity, serious and especially serious crimes on on the basis of a court decision adopted in the manner established by Article 165 of this Code.
2. If there is a threat of violence, extortion and other criminal acts against the victim, witness or their close relatives, relatives, close persons, control and recording of telephone and other conversations is allowed upon a written application of these persons, and in the absence of such an application - on the basis of a judicial solutions.
3. The investigator’s request to monitor and record telephone and other conversations shall indicate: 1) a criminal case in which the use of this measure is necessary; 2) the grounds on which this investigative action is carried out; 3) last name, first name and patronymic of the person whose telephone and other conversations are subject to control and recording; 4) the period for monitoring and recording; 5) the name of the body entrusted with the technical implementation of control and recording.
4. The resolution to monitor and record telephone and other conversations is sent by the investigator for execution to the relevant authority.
5. Monitoring and recording of telephone and other conversations can be established for a period of up to 6 months. It is terminated by decision of the investigator, if the need for this measure no longer exists, but no later than the end of the preliminary investigation in this criminal case.
6. During the entire period of monitoring and recording telephone and other conversations, the investigator has the right at any time to request from the body carrying them out a phonogram for inspection and listening. It is transferred to the investigator in sealed form with a covering letter, which must indicate the dates and times of the beginning and end of the recording of these conversations and brief characteristics of the technical means used.
7. On the results of inspection and listening to the phonogram, the investigator, with the participation of a specialist (if necessary), as well as persons whose telephone and other conversations were recorded, draws up a protocol, which must set out verbatim that part of the phonogram that, in the opinion of the investigator, is related to this criminal case. Persons participating in the inspection and listening of the phonogram have the right to state their comments on the protocol in the same protocol or separately.
8. The phonogram in its entirety is attached to the materials of the criminal case on the basis of the investigator’s decision as material evidence and is stored in a sealed form under conditions that exclude the possibility of listening and duplicating the phonogram by unauthorized persons and ensuring its safety and technical suitability for repeated listening, including in court meeting.
Article 186 of the Code of Criminal Procedure of the Russian Federation. Control and recording of negotiations (current edition)
1. Monitoring telephone and other conversations is listening and recording conversations using any means of communication, inspecting and listening to phonograms (clause 14.1 of article 5 of the Code of Criminal Procedure). This investigative action should be distinguished from similar operational investigative activities: listening to telephone conversations, audio surveillance, removing information from technical communication channels, monitoring messages. However, from the point of view of production methods, there are no fundamental differences between them, since the technical implementation of listening and sound recording itself is carried out by the operational units of technical intelligence of the FSB, the Department of Internal Affairs, the authorities for control of the circulation of narcotic drugs and psychotropic substances in conditions of secrecy, i.e. operational investigative means. There are no and cannot be procedural legal relations between the bodies listening to conversations and the persons being intercepted. Legal relations arise only when the investigator gives instructions to monitor and record negotiations, as well as when requesting and documenting the results of these actions. Monitoring and recording negotiations must be distinguished from a similar investigative action - the seizure of postal and telegraphic items. There are two main differences between them. Firstly, seizure consists of taking away material media already created by the participants in written negotiations themselves (notes, letters, paging messages, email documents). When monitoring and recording negotiations, material media - phonograms - are created on behalf of the investigator, since negotiations are conducted orally. Secondly, when monitoring and recording conversations, the main participant is a specialized body (a division of law enforcement agencies), which listens and records them, and presents the phonogram in a certain order. A regular telecom operator takes part in the extraction, through which messages are transmitted.
2. As a special condition for this investigative action, the law recognizes the existence of proceedings for a crime of medium gravity, grave or especially grave (Article 15 of the Criminal Code).
3. Without a court decision, this investigative action is carried out upon a written statement from one of the participants in the negotiations, when there is a real threat of violence or extortion against the victim, witness, or their relatives. In this case, however, the negotiations of the other negotiator are recorded without his consent and without a court decision. This, in our opinion, contradicts the Constitution of the Russian Federation, which provides that restrictions on the right to privacy of telephone conversations are allowed only on the basis of a court decision (Part 2 of Article 23) and establishes a ban on the collection, storage, use and dissemination of information about the private life of a person without his consent (Part 1, Article 24).
4. The technical implementation of control and recording of negotiations is not regulated by criminal procedural rules. As a result, conversations of all persons using a certain telephone or located in a certain room are recorded. At the same time, procedural law allows for control and recording of negotiations in relation to a certain person. The problem of the evidentiary value of recorded conversations of other persons, which were actually recorded without a court decision, arises. For example, conversations of a lawyer suspected of giving bribes are intercepted. As a result, conversations of his wife on the home phone and other lawyers on the work phone were recorded. It seems that the legislator should establish the obligation of the authorities conducting wiretapping of conversations to immediately remove from the recording the conversations of persons not related to the given case, and also provide in the law a ban on the use of such “extra” recordings as evidence, materials of operational investigations, etc. d.
Comment source:
Ed. A.V. Smirnova “COMMENTARY ON THE CRIMINAL PROCEDURE CODE OF THE RUSSIAN FEDERATION” (ARTICLE BY ARTICLE), 5th edition
SMIRNOV A.V., KALINOVSKY K.B., 2009
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Control of negotiations
- part 1 186 of the Code of Criminal Procedure
control of negotiations if sufficient data is available
- part 1 186 of the Code of Criminal Procedure
Negotiations are not controlled if the severity is minor
Reasons
- Part 2 186 Code of Criminal Procedure
control of negotiations at the request of a person in the event of threats received
- Part 2 186 Code of Criminal Procedure
control of negotiations based on a court decision
Petition to court
- Part 3 186 Code of Criminal Procedure
The investigator's petition shall indicate:
— clause 1 part 3 186 Code of Criminal Procedure
criminal case
— clause 2, part 3, 186 Code of Criminal Procedure
grounds
— clause 3, part 3, 186 Code of Criminal Procedure
Full name of the person
— clause 4, part 3, 186 Code of Criminal Procedure
control period
— clause 5, part 3, 186 Code of Criminal Procedure
name of the performing organ
Termination
- Part 5 186 Code of Criminal Procedure
control of negotiations is terminated by the investigator
- Part 5 186 Code of Criminal Procedure
control is terminated no later than the end of the investigation
Procedure
- Part 4 186 Code of Criminal Procedure
the decision is sent to the executor
- Part 5 186 Code of Criminal Procedure
up to 6 months
- Part 6 186 Code of Criminal Procedure
the investigator has the right to request a phonogram at any time
- Part 6 186 Code of Criminal Procedure
phonogram in sealed form indicating technical means
Listening to the soundtrack
- Part 7 186 Code of Criminal Procedure
protocol on the results of listening to a phonogram
- Part 7 186 Code of Criminal Procedure
with the participation of a specialist
- Part 7 186 Code of Criminal Procedure
with the participation of persons whose conversations are recorded
- Part 7 186 Code of Criminal Procedure
the part relevant to the case is stated verbatim
- Part 7 186 Code of Criminal Procedure
comments from those involved
After inspection
- Part 8 186 Code of Criminal Procedure
included as evidence
- Part 8 186 Code of Criminal Procedure
kept sealed
Additional Information
- Part 1.1 170 Code of Criminal Procedure
during inspection, there must be either witnesses or technical equipment
- part 1 165 of the Code of Criminal Procedure
monitoring of telephone conversations requires judicial authorization
Participation of witnesses
Participation of witnesses
or the use of technical means to control negotiations
Article 186 of the Code of Criminal Procedure. Control and recording of negotiations
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- Article 8 N 144-FZ wiretapping telephone conversations
1) If there are sufficient grounds to believe that telephone and other conversations of the suspect, accused and other persons may contain information relevant to the criminal case, their monitoring and recording is permitted,
in criminal proceedings on crimes of average gravity, serious and
especially serious crimes on the basis of a court decision adopted in the manner established by 165 of the Code of Criminal Procedure.
2) Monitoring and recording of telephone and other conversations is permitted:
Url Additional information:
— Article 8 N 144-FZ voluntary wiretapping of one’s conversations
- if there is a threat of violence, extortion and other criminal acts against the victim, witness or their close relatives, relatives,
close persons, upon a written statement from these persons,
Url Additional information:
- part 1 165 of the Code of Criminal Procedure
control of telephone conversations, requires judicial authorization
- and in the absence of such a statement - on the basis of a court decision.
3) The investigator’s request to monitor and record telephone and other conversations shall indicate:
1). a criminal case in which the use of this measure is necessary;
Url Additional information:
- P.
Plenum No. 19, the court is obliged to check the grounds
2). the grounds on which this investigative action is carried out;
3). last name, first name and patronymic of the person whose telephone and other conversations are subject to control and recording;
4). period for monitoring and recording;
5). name of the body entrusted with the technical implementation of control and recording.
4) The decision to monitor and record telephone and other conversations is sent by the investigator for execution to the relevant authority.
5) Monitoring and recording of telephone and other conversations can be established for a period of up to 6 months.
It stops:
- by decision of the investigator, if this measure is no longer necessary,
- but no later than the end of the preliminary investigation in this criminal case.
6) During the entire period of monitoring and recording telephone and other conversations, the investigator has the right at any time to request from the body carrying them out a phonogram for inspection and listening.
It is transferred to the investigator in sealed form with a covering letter, which must indicate:
— dates and times of the beginning and end of the recording of these conversations;
— and brief characteristics of the technical means used.
Url Additional information:
- Part 1.1 170 Code of Criminal Procedure
during inspection, there must be either witnesses or technical equipment
7) The investigator draws up a protocol on the results of the inspection and listening to the phonogram,
— with the participation of a specialist (if necessary),
— as well as persons whose telephone and other conversations are recorded,
The protocol must set out verbatim that part of the phonogram that, in the opinion of the investigator, is relevant to this criminal case.
Persons participating in the inspection and listening of the phonogram have the right to state their comments on the protocol in the same protocol or separately.
Phonogram in full:
Url Additional information:
- Part 2 81 Code of Criminal Procedure
recognition as material evidence and inclusion
- is attached to the materials of the criminal case on the basis of the investigator’s decision as material evidence;
- and is stored in a sealed form under conditions that exclude the possibility of listening and duplicating the phonogram by unauthorized persons and ensuring its safety and technical suitability for repeated listening, including in court hearings.
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Criminal Procedure Code of the Russian Federation, Article 186 of the Code of Criminal Procedure of the Russian Federation
1. If there are sufficient grounds to believe that telephone and other conversations of the suspect, accused and other persons may contain information relevant to the criminal case, their control and recording are allowed during criminal proceedings on crimes of medium gravity, serious and especially serious crimes on on the basis of a court decision adopted in the manner established by Article 165 of this Code.
2. If there is a threat of violence, extortion and other criminal acts against the victim, witness or their close relatives, relatives, close persons, control and recording of telephone and other conversations is allowed upon a written application of these persons, and in the absence of such an application - on the basis of a judicial solutions.
3. The investigator’s request to monitor and record telephone and other conversations shall indicate:
- 1) a criminal case in the proceedings of which it is necessary to use this measure;
- 2) the grounds on which this investigative action is carried out;
- 3) last name, first name and patronymic of the person whose telephone and other conversations are subject to control and recording;
- 4) the period for monitoring and recording;
- 5) the name of the body entrusted with the technical implementation of control and recording.
4. The resolution to monitor and record telephone and other conversations is sent by the investigator for execution to the relevant authority.
5. Monitoring and recording of telephone and other conversations can be established for a period of up to 6 months. It is terminated by decision of the investigator, if the need for this measure no longer exists, but no later than the end of the preliminary investigation in this criminal case.
6. During the entire period of monitoring and recording telephone and other conversations, the investigator has the right at any time to request from the body carrying them out a phonogram for inspection and listening. It is transferred to the investigator in sealed form with a covering letter, which must indicate the dates and times of the beginning and end of the recording of these conversations and brief characteristics of the technical means used.
7. On the results of inspection and listening to the phonogram, the investigator, with the participation of a specialist (if necessary), as well as persons whose telephone and other conversations were recorded, draws up a protocol, which must set out verbatim that part of the phonogram that, in the opinion of the investigator, is related to this criminal case. Persons participating in the inspection and listening of the phonogram have the right to state their comments on the protocol in the same protocol or separately.
8. The phonogram in its entirety is attached to the materials of the criminal case on the basis of the investigator’s decision as material evidence and is stored in a sealed form under conditions that exclude the possibility of listening and duplicating the phonogram by unauthorized persons and ensuring its safety and technical suitability for repeated listening, including in court meeting.
Commentary on Article 186 of the Code of Criminal Procedure of the Russian Federation
1. The commented article establishes the procedure for monitoring and recording telephone and other conversations conducted using communication means (for example, conversations using radio stations). The purpose of this investigative action is to collect information relevant to the criminal case, as well as to ensure the safety of the victim, witness or their close relatives, relatives or close persons.
2. According to the general rule established in part 1 of the commented article, an investigative action is carried out in cases where the negotiations of the suspect, accused and other persons may contain information relevant to the criminal case. An additional condition is that control can be carried out in criminal cases of crimes of medium gravity, serious and especially serious acts (parts 3–5 of Article 15 of the Criminal Code of the Russian Federation).
3. Monitoring and recording of telephone conversations is carried out on the basis of a court decision (Article 165 of the Code of Criminal Procedure of the Russian Federation). An exception is the provision of part 2 of the commented article, since this investigative action can also be carried out on the basis of a statement from the person against whom threats are received. However, this may be the case when threats are made by telephone. It should also be borne in mind that incoming calls to the applicant’s phone are monitored.
4. Part 3 of the commented article establishes the requirements for the investigator’s decision. Among other information, it must indicate the specific grounds for carrying out this investigative action, the period, as well as the telephone numbers from which information will be taken.
This document, after its approval by the head of the investigative agency, is sent to the district court, where the judge makes a decision to allow or refuse to monitor and record telephone and other conversations. The resolution sets out the essence of the investigator's petition, as well as the grounds for the court decision.
If it was necessary to carry out this investigative action during the inquiry, then the decision of the investigator to initiate a petition before the court must be agreed upon with the prosecutor.
5. The judge’s decision is sent for execution to the appropriate body (Part 4 of the commented article). Technical support for monitoring and recording conversations is carried out by the relevant units of the federal security service. If the federal security service agencies at communication facilities do not have the necessary operational and technical capabilities, these activities are carried out by the internal affairs bodies of the Russian Federation.
6. The maximum possible period for monitoring and recording telephone and other conversations in accordance with Part 5 of the commented article is 6 months. However, this investigative action can be terminated before the expiration of this period (for example, if a preventive measure in the form of detention is applied to the person or if the period for the preliminary investigation has expired). In any case, the authorities responsible for monitoring and recording negotiations must be immediately notified of the decision.
7. The investigator’s decision to terminate the monitoring and recording of telephone and other conversations, among other information, indicates when, on the basis of the decision of which judge, the monitoring and recording of conversations began, as well as the reasons for its termination.
8. Parts 6–8 of the commented article establish the procedure for research and subsequent storage of a phonogram.
Having received the phonogram, the investigator listens to it. The protocol for examining and listening to the phonogram must indicate the listening conditions, provide information about the equipment on which the phonogram was listened to, etc. Also, the results of inspection and listening to the phonogram are necessarily recorded: the presence and integrity of packaging and seals; the individual characteristics of the phonogram being examined are indicated; the entire phonogram or that part of the phonogram which, in the investigator’s opinion, is relevant to the given criminal case, is presented verbatim. In any case, listening to a telephone message involves the persons whose conversations were recorded, as well as, if necessary, a specialist.
The phonogram is attached to the materials of the criminal case as material evidence, stored in the criminal case and transferred along with it (Articles 81–83 of the Code of Criminal Procedure of the Russian Federation).
