NB: The article was published in the “Dzerkalo tyzhnya. Ukraine” newspaper No. 15 (April 22 – April 27).
On April 4 a draft law “On Detective Operations” (No. 6284) was registered in the Verhovna Rada. This law is going to replace the old one of 1992, which was adopted when Ukraine wasn’t a member of the Council of Europe, didn’t have its own Constitution and had no intentions to join the EU.
Experts and scholars assert that the applicable law doesn’t meet either European standards of secret surveillance carried out by law enforcement bodies, nor modern acts of Ukrainian criminal procedural law.
Last time the question about Detective Operations was raised was the end of 2016, when parliamentarians failed voting for a similar draft law No. 4778, which had to maintain that soviet institution at least for some time.
Detective Operations institution was developed in the middle of XX century within the soviet criminal justice and presented a set of secret actions, which were fixed as operating guidelines with appropriate security label. Interference into people’s private life during such undercover surveillance was considered normal. Legislation of the Soviet Union lacked real guarantees of human rights. Despite a number of transformations, current Detective Operations institution has been inherited from the Soviet Union. But now it contains not only investigative measures, directed at acquisition of evidence within the criminal proceeding, but also norms of intelligence and counterintelligence activities, verification when providing an access to the state secret.
But we have to pay attention to the question whether we need an independent Detective Operations institution parted from the criminal process.
As long as the CPC of 1960 that provided for the order to carry out tacit actions by law enforcement bodies was in force, the Law on IA supplemented the criminal-procedural legislation by relevant regulations. In 2012 new CPC was adopted and the Institution of Undercover Investigative Actions (UIA) in the criminal proceeding, provided for by Article 21 of the CPC, had to replace the IA Institution in regard to documentation of criminal activity. Main undercover activities now are carried out according to provisions of the CPC – entry and inspection of places closed to the public, dwellings or other property of a person; identification of location of a radioelectronic device; control over the crime (for example, operational procurement).
Besides, if law enforcement officers have any information about preparation, intention or perpetration of a crime that they’ve obtained via undercover actions, they have to enter this information in the Integrated Register of Pre-Trial Investigations (IRPTI) according to Article 214 of the CPC.
But employees of pre-trial investigation bodies still try to use the easiest way – restore pre-trial inspections and avoid starting criminal proceedings at the beginning of the investigation, as it is required by the CPC.
Thus, today an idea to abandon the soviet IA Institution in favour of the criminal procedural law, which includes a number of guarantees and preventers of human rights violations, in particular during interference into private life, seems pro-European.
At the moment two draft laws – 5177 and No. 5177-1 are registered in the Verhovna Rada. These draft laws will adjust a number of provisions on the pre-trial investigation bodies in accordance with new edition of the Constitution. For example, the draft law No. 5177-1 considerably cuts authorities of operational units that carry out IA.
On political legal level bodies that have operational departments and carry out investigative actions don’t fully support an idea to abandon the IA Institution.
Meanwhile, there are only four types of activities beyond criminal proceedings that are not directed at obtaining or verification of evidences within it. By normalizing them on the level of specific legislation it is possible to reach a consensus between parliamentarians and bodies that carry out IA, regarding updated legislation and abrogation of the law on the IA. This step will help to introduce European mode of control over undercover actions in criminal proceedings.
The first type of activity beyond the CPC of Ukraine is involvement of undercover employees (agents), who got involved to undercover operations within confidential cooperation with operational department of law enforcement body.
Usually agents fulfill missions assigned by operational departments on identification and prevention of crimes, for example, they get inside the criminal for intelligence purposes.
Meanwhile, Article 275 of the CPC of Ukraine states that when conducting covert investigative actions, investigator may use information obtained as result of confidential cooperation with other persons. But creation of a pool (web) of agents in such way is impossible because agents are getting involved ad hoc in case if there is a criminal proceeding.
It is interesting that as opposed to special laws of the National Bureau of Investigation and the Security Service of Ukraine that contain provisions on involvement of official and undercover agents, special laws of the NABU and the National Police don’t stipulate for such authorities.
In our opinion, the situation can be resolved if mentioned bodies will be authorized to create a web of agents by introducing changes into special laws.
Moreover, the question of the agents chain is related to the institution of exposers. Exposer is a person, who discloses information about harm or threat to public interests from the side of other persons, if the exposer has obtained this information due to certain activities. The Law “On Prevention of Corruption” provides for the state protection of such individuals, so, considering reformation of the legislation, the IA agents have to be adjusted in accordance with standards of exposers’ work.
Second form of activity is a protection of certain categories of people, including employees of law enforcement bodies.
At the moment intelligence tracking case of the “Defense” category can be started if there is sufficient information, obtained according to legal requirements, that has to be verified with the help of intelligence tracking measures and actions, about real threat to life, health, dwellings, property of courts’ and law enforcement agencies’ employees because of their professional service. It also concerns individuals, who participate in criminal proceedings, members of their families and close relatives. This list also includes employees of Ukrainian intelligence bodies, their close relatives and individuals, who cooperate / have cooperated confidentially with Ukrainian intelligence bodies and members of their families, due to professional responsibilities.
Provisions directed at protection of law enforcement employees, court officials and participants of a criminal proceeding, can be transferred to the law on state protection of law enforcement officers.
Third type – intelligence and counterintelligence activities are carried out by departments of internal and personal security of the State Border Service and the State Security Administration (SSA) according to laws of Ukraine “On Counterintelligence Activities” and “On Intelligence Tracking Activities”.
The purpose of intelligence tracking activities is to search and record factual data about intelligence and subversive activities of foreign special services and organizations, and also to get information necessary for protection of citizens, society and the state.
But this is not a question of a report on a criminal offense that has been committed or after the law enforcement body has learned on its own from any source, about circumstances which are likely to indicate that a criminal offence has been committed (Article 214 of the CPC of Ukraine).
Thus, in order to protect sovereignty and territorial integrity of Ukraine it is necessary to introduce relevant changes into the special law on intelligence and counterintelligence activities.
Fourth type – access to the state secret, which can be a reason for investigative activities and is implemented by the Ukraine Security Service. At that, terms of access are regulated by the special law “On the State Secret” and authorities to exercise covert measures on inspection of a person in order to provide access to the state secret can be provided by the special law in the field of the state security.
Thus, when registering the draft law in the Verhovna Rada the legislator has to answer the essential question: whether it is reasonable to keep the soviet institution of the IA. In our opinion, the IA Institution must be eliminated and replaced by the Institution of Undercover Investigative Actions, which was established in 2012. This Institution provides more guarantees to average citizen of Ukraine while legally restricting human rights by covert activities comparing to the CPC of 1960, which lacked outlines of the procedure.
It is important to pay attention to mentioned propositions about regulation of certain activities in relevant special legislation when abrogating the law. Instead, replacing the IA Institution by the UIA Institution we make a step towards transformation of the soviet crime control mode, which was aimed at reproduction of the law enforcement system, into the European one – aimed at satisfaction of people’s needs.
lawyer, expert of the group “Police under control”
and the RPR working group on the law enforcement reform