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§ 1. A modern condition of realisation of a principle of respect and observance of the rights and freedom of the person and the citizen in operativnorozysknoj to practice

In HORDES it is possible to judge a modern condition of realisation of a principle of observance of the personal rights by quantity and dynamics of references in the Constitutional Court with complaints to norms of the Law about the HORDES which file as has shown our research, increases from year to year.

If for a decade after acceptance on June, 5th, 1997 [164] first decisions under such complaints the Constitutional Court has taken out only 32 definitions the next years their number began to increase gradually and now the annual quantity of such decisions constitutes about three tens. In total to the beginning of 2017 by the Constitutional Court it is taken out more than 210 decisions under complaints of citizens to norms of the Law about HORDES. Besides, more than hundreds references are returned applicants without consideration in connection with obvious discrepancy to their statutory requirements. Thus, it is possible to establish the tendency of constant increase of quantity of complaints to norms of the Law about HORDES, that, in our opinion, is the certificate of unsatisfactory level of maintenance of the rights and freedom of the person and the citizen in operatively-search activity.

The analysis of the empirical materials collected in the course of research has allowed to reveal a number of concrete problems of practice of realisation of the principle investigated by us, demanding the permission. Among them the problem of maintenance of the right to judicial protection in the course of HORDES in which infringement it was specified in 37,1 % of the complaints of citizens studied by us in the Constitutional Court has appeared the most widespread. More often it contacts refusals of vessels in satisfaction of petitions for a recognition inadmissible proofs (34,9 %), in a recognition of infringement of the rights of applicants (28,6 %), and also with refusals in taking cognizance of complaints to actions operatively - search bodies (24,6 %). Growth of number of references about breach of law on judicial protection is marked also by the Representative under human rights in the Russian Federation [165]. Considering these circumstances, in the course of HORDES the separate section of the dissertation [166] is devoted the analysis of the mechanism of realisation of the right to judicial protection.

The problem second for prevalence, from among lifted in the constitutional complaints, equality maintenance of all before the law, on what is the attention to the question in every third of number of the references studied by us was brought. Infringement of this right communicates, as a rule, with uncertainty of the norms regulating carrying out of operatively-search actions, first of all Law item 6 about the HORDES which positions were challenged in 40,6 % of the studied references. This indicator is represented quite natural as operatively-search actions constitute the basic maintenance of HORDES that is why the most part of infringements of the personal rights is connected with their realisation.

In 36 % of the complaints studied by us constitutionality of positions of item 8 regulating conditions of carrying out ORM, in 20 % - item 7, fixing the bases of carrying out ORM, in 14 % - item 5, realisation of a principle of respect establishing a legal mechanism and observance of human rights, in 14 % - item 9, regulating the bases and an order of judicial consideration of materials about restriction of constitutional laws of citizens was challenged at carrying out ORM, in 13 % - item 11, establishing an order of use of results of HORDES.

Much less often in the constitutional complaints positions of other articles of the Law about HORDES [167] are challenged. Thus, overwhelming majority of complaints the developed practice of application of norms of the Law about the HORDES regulating carrying out of separate operatively-search actions causes, their bases, a condition and use of the received results in the course of proving.

Attracts attention that is more than half (53,1 %) the applicants challenging constitutionality of norms of the Law about HORDES, have been involved in the criminal liability for a drug trafficking, and almost every third (31,4 %) the complaint to norms of the Law about HORDES, is connected with carrying out of verifying purchase of drugs. Thus the share of the persons who have committed such crimes, according to judicial statistics, annually constitutes about 12 % from the general number condemned by vessels of the Russian Federation [168]. Comparison of these data allows to draw a conclusion, that infringement of a principle of respect and observance of the personal rights takes place in activity of operatively-search bodies on struggle against a drug trafficking more often. Necessity of perfection of mechanisms of realisation of a principle considered by us first of all in this sphere of law-enforcement activity from here follows.

Our research has shown, that the most widespread occasion of references of citizens in the Constitutional Court behind protection of the rights is the provocation of a crime which had, according to applicants, a place at carrying out of operatively-search actions. The share of such complaints has constituted 18,9 % and tends to increase that proves to be true also results of interrogation of operative employees, 13,1 which % have carried provocation to number of the most frequent infringements of the personal rights in the course of HORDES [169 [170] [171] [172]. About a wide circulation of provocations at realisation of HORDES repeatedly

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It was marked and in the legal literature.

Studying of materials of complaints to provocation of crimes at carrying out of verifying purchases has shown, that the ordinary consumers acting as intermediaries in acquisition of drugs become objects such operativnorozysknyh actions frequently instead of drug dealers. The participants of operatively-search action operating in a role of the purchaser of narcotics, quite often act as initiators of the transaction, showing thus persistence, offering their use in common, appealing to feeling of compassion to the person testing abstinentnyj a syndrome, etc. Such line of conduct of purchasers, judging by the materials studied by us, is encouraged with operative employees to what the facts when the purchaser in court confirmed testify, that he suggested the intermediary to leave as compensation a part of the got drug to itself(himself). Similar actions give the basis for a conclusion about intention formation on illegal act under direct influence of employees of law enforcement bodies that is inadmissible according to explanations of Plenum of the Supreme Court of the Russian Federation.

The analysis of materials of complaints to provocation of crimes at carrying out of verifying purchase of drugs allows to come to conclusion, that one of the reasons of it is the inefficiency of the departmental control over this action from heads of the bodies, carrying out HORDES which frequently has formal character. Examples of carrying out of verifying purchase of drugs, in particular, testify to it on the basis of the decision taken out concerning other persons or issued after actual carrying out of action; statements of such decisions unauthorized officials; absence

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In them of data on the purpose, a place, time and objects of spent actions, etc.

The inefficiency of the departmental control results and in more gross violations of the rights of citizens which are expressed in falsifications at carrying out of verifying purchases of drugs. So, from materials of one of complaints in the Constitutional Court followed, that the group of operative employees has been condemned for falsification of materials of verifying purchase of drugs which actually was not spent on the basis of what innocent has illegally been involved in the criminal liability.

Another was engaged in more refined fabrication of affairs operupolnomochennyj which approved at the head obviously illegal decisions about carrying out of verifying purchases, falsified reports on delivery of the narcotic ostensibly got during verifying purchase without its actual carrying out, achieved excitation by the inspector of criminal cases and during searches at suspected persons threw it the marked monetary denominations. As a result of such criminal acts obviously innocent three persons were [173 [174]

Are involved in the criminal liability. Examples of the similar facts of falsification of verifying purchases of drugs in the legal press and a network the Internet is resulted more than enough [175 [176] [177].

Researchers carry satisfaction of departmental, corporate interests to number of the most frequent motives and the purposes of falsification of results of HORDES, including improvement of indicators of office activity of collective, satisfaction of personal interests by artificial overestimate of indicators of own work on crime control, successful advancement on an office ladder, desire to embellish the valid state of affairs on the workplace to hide the incompetence etc. From this list of motives of falsification of results of HORDES rather serious, in our opinion, the negative potential is born in itself by existing system of indicators of efficiency of operatively-search activity. So, according to our research, the greatest number interrogated (29,2 %) have carried aspiration to raise indicators of the work to number of principal causes of infringement of the personal rights in HORDES. In this connection it is impossible to disagree that departmental indicators in work play an essential role in the mechanism of decision-making and at low level of sense of justice

Executors, law-enforcement activity can «get lines,

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Mismatching the purposes which are established by the legislation ».

Eradication of practice of provocation of crimes and falsification of results of HORDES demands perfection not only the departmental control over operatively-search actions and optimisation of system of accounting indicators, but also and educational work with the staff, directed on increase of level of sense of justice of ordinary operative employees that represents itself as the major factor of maintenance of the personal rights in HORDES.

The great value in realisation of a principle investigated by us has maintenance of the right to inviolability of a private life about which protection the attention to the question in 18,3 % or nearly so in every fifth of number of the complaints studied by us was brought. Infringement of this right of 12 % of applicants connect with application of special means of audio-and videorecording in the course of carrying out of such operatively-search actions as supervision, verifying purchase, operative experiment, and some other, that, in their opinion, should be made only on a judgement.

Thus use of the writing down equipment disguised in clothes or personal things of the participant of operatively-search action, spent to premises, was regarded by applicants as infringement of their right not only to inviolability of a private life, but also on the inviolability of home. As an occasion to such complaints that circumstance acts, as a rule, that the order of application of special means on HORDES directly is not settled by the Law. Absence in the law of concrete rules of use of special means as a component of operative experiment, [178 [179] [180] providing guarantees against possible abusings, has allowed ESPCH to draw a conclusion, that intervention in the right to respect of private life has not been statutory", that is why has led to infringement of item 8 of the Convention on protection of human rights and fundamental freedoms. In this connection the given question will be in more details considered in the following section of the dissertation devoted to a legal mechanism of realisation of a principle investigated by us.

To number of problems of realisation of a principle of respect and observance of the rights and freedom of the person and the citizen demanding the permission, it is necessary to carry maintenance of the right to secret of telephone conversations about which infringement it was specified in 16 % of the references studied by us in the Constitutional Court. That circumstance testifies to its urgency, that listening of telephone conversations in modern operatively-search practice becomes one of the most widespread operatively-search actions. So, by vessels of the Russian Federation in 2016 it has been given 607,1 thousand permissions to carrying out ORM, limiting the privacy of correspondence, telephone conversations, post, cable and other messages.

Breach of law on secret of telephone conversations in some cases contacts their record without reception of the judicial permission, but with the consent of one of interlocutors by connection of fixing equipment to its phone without participation of communication statements. Such way of reception of the evidentiary information is made out as operative experiment or the private supervision accompanied by application more often

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Audio record means. [181 [182] [183]

The estimation of an admissibility of similar tactical reception of fixing of criminal activity in practice of vessels of the general jurisdiction is inconsistent enough. In one cases the conclusion that the right to secret of telephone conversations thus is not mentioned that is why judgement it is not required becomes. Illegality of record of the telephone conversations made from the user's device of one of their participants from its consent as there was no judicial permission admits other situations. Do not bring clearness in this question and decisions of the Constitutional Court of the Russian Federation. So, in one of its definitions about refusal in complaint acceptance to consideration it was noticed, that item positions 8 Laws on the HORDES, receptions of the judicial permission providing necessity, come under to application only in cases, «when the persons transferring or accepting the message, assume its confidential character and do not wish access to the transferred information of any foreign persons and bodies», and the Law on HORDES «does not interfere with distribution of the information on the transferred message someone from these citizens» [184 [185] [186]. Such streamline formulations hardly give the basis for a conclusion, that record of telephone conversations with the consent of one of the parties does not limit the right of other party to their secret.

More definitely on this question has expressed ESPCH, recognised breach of law on inviolability of private life and secret of the correspondence when in investigation soundtracks of conversations between the applicant and the witness on its business which wrote down them on the equipment given by police as such way of reception of proofs has not been provided in the law were used.

The considered problem is generated, in our opinion, by attempts of extensive interpretation of legislative norms by operative employees as the Law on HORDES regarding sixth item 8 resolves listening of telephone conversations without a judgement under the statement or the written approval of the person in case of occurrence of threat of his life, to health or the property. Having provided such norm, the legislator, on - visible, recognises that in situations of occurrence of real threat to the specified values the person can go on time restriction of the right on secret of the telephone conversations conducted from its phone that is why in cases, for example, bribe extortion this norm can be applied. However in the absence of threat to life, to health or the property of the person the law does not provide possibility of record of telephone conversations with the consent of one of the parties without a judgement that is why such actions are inadmissible.

Breach of law on secret of telephone conversations by authors of complaints in the Constitutional Court quite often contacts groundlessness of decisions on their listening, accepted in the absence of concrete data that they really have data on grave crime fulfilment by other persons, or a listening orientation on gathering of the information on signs of committed other crime, unlike for what person as a result has been made accountable. The analysis of materials of such complaints testifies that petitions of [187 [188] [189] operative divisions for necessity of listening of telephone conversations really are based very superficially, without a statement of the objective and sufficient data allowing court to prove necessity and harmony to protected values of the permission to listening of telephone conversations.

Restriction of the right on secret of telephone conversations as has shown our research, in some cases communicates applicants with carrying out of electronic supervision in office accommodations as the audio-and videorecording equipment, established in office offices of the persons suspected of participation in fulfilment of crimes, carries out fixing not only oral conversations, but also including the conversations conducted both on office, and by a personal mobile phone. On this question the Constitutional Court noticed, that operatively-search supervision with use of special means is directed on reception of the information on signs of criminal activity of the person and does not assume simultaneous listening of telephone conversations observable [190]. From here there is a question: What to do with that part of private record in which the conversations conducted by phone are fixed, especially in cases when speech of both interlocutors is audible and whether reception of the judicial permission is necessary for such cases?

In search of the answer to this question we analyzed judiciary practice of the Supreme Court of the Russian Federation therefore it was possible to find out the decision by which illegality of the latent video observation in office accommodation in which course telephone conversations of the observable person [191] have been written down has been established. The system analysis of these two decisions of superior courts allows to agree with a conclusion that if at carrying out of electronic supervision in office accommodations fixing of telephone conversations of object of supervision the judgement on listening of telephone conversations [192 [193] is necessary to receive is planned. Thus, in the conditions of legal neuregulirovannosti a case in point realisation of a principle of maintenance of the personal rights can be reached only on the basis of system interpretation pravoprimenitelem norms of the Law about the HORDES, stated in decisions of superior courts on concrete affairs.

In 17,1 % of the constitutional complaints studied by us the attention to the question on breach of law on freedom and the inviolability of person, guaranteed by item 22 of the Constitution of the Russian Federation that was expressed, as a rule, in detention of applicants at carrying out of operatively-search actions, including with use of handcuffs, compulsory dostavlenii and deduction in office accommodations without corresponding remedial registration, manufacture of personal inspection, an identification of the person, compulsory daktiloskopirovanii, photographing, reception of samples for comparative research was brought. In some cases unreasonable application of forced measures comes to an end with bringing to criminal liability for operative employees.

So, operupolnomochennyj criminal investigation department by a court sentence has been recognised by guilty of the excess of official powers expressed in application of handcuffs for compulsory dostavlenija of the person from its workplace in a premise of law-enforcement body for the purpose of carrying out of interrogation in spite of the fact that delivered voluntary has agreed to proceed and did not try to render disobedience. According to materials of other constitutional complaint, the applicant after check of documents has been detained and delivered in law enforcement body for an identification of its person where contained within two hours per the isolated premise then has been released without registration of the report and an explanation of the reasons dostavlenija [194]. In the decision of the Constitutional Court under this complaint it has been noticed, that the identification of the person spent within the limits of HORDES does not assume application of such coercive measure, as detention of the identified person [195 [196]. From this it is possible to draw a conclusion, that in business of the applicant operative employees were beyond the powers.

At the same time the right to inviolability of person should be limited in case of application of such tactical reception, as detention with polichnym with which verifying purchases of drugs and operative experiments concerning bribe takers, as a rule, come to the end. As the Law on HORDES of it does not provide, operative employees, as a rule, at such zaderzhanijah apply administratively - legal procedures. However it too contradicts a legal position of the Constitutional Court according to which administrative detention as the measure of maintenance of manufacture on affairs about administrative violations cannot be applied in affairs about the criminal

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Offences.

Such situations as fairly marked S.I.Davidov, often enough arise in operatively-search practice of crime control which is inconceivable without application of forced measures in the course of suppression, disclosings of crimes and detention of persons involved in them that is why he has suggested to return to a question on legislative fastening of the right of operatively-search bodies to make detention of the persons suspected of committing a crime within the limits of operatively-search activity [197 [198] [199]. Such position is divided by variety of other scientists in which opinion, the problem of compulsory detention at carrying out of operatively-search actions is necessary for solving at legislative level. At the same time to the decision of this question the principle of respect and observance of the personal rights in HORDES does not suppose manufacture of detention on the basis of norms the Law on HORDES or KoAP the Russian Federation.

With a problem of detention with polichnym in the course of HORDES of the persons who have committed crimes, inseparably linked a question on a legal regime of their personal inspection (search) with which according to tactical rules detention of the suspected person always should come to the end. Thus personal inspection (search) limits not only the right to inviolability of person, but also the right to advantage of the person about which infringement it was specified in 22,3 % of the constitutional complaints studied by us.

The right to advantage of the person underlies all system

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Born and inalienable rights of the person also is the major valuable criterion defining the requirements to forming of relations between the state and the person [200]. As personal inspection as the forced measure sharply mentions honour and advantage of the citizen and has on it strong mental influence, there is a necessity of accurate legal regulation of procedure of its application.v same time the Law on HORDES, as well as in a case with detention, does not provide carrying out possibility dosmotrov that is why operative employees as a legal basis of the actions use positions of other acts.

As has shown our research, more often in reports of personal inspections references to item 3 of item 48 of the Federal act «About narcotics and psychotropic substances» [201 [202] [203] are contained. According to this norm officials of the bodies, carrying out HORDES, at the control over storage, transportation or transfer of narcotics, psychotropic substances and them prekursorov are allocated by the right to carrying out of examination of citizens, post and luggage departures, vehicles and transported cargoes in the presence of good causes to believe, that illegal storage, transportation or transfer of the specified substances are carried out. However application of the given norm as a carrying out legal ground dosmotrov persons detained during operatively-search actions is represented to us far not always lawful. The mentioned position as it was marked in the legal literature, can be applied only in system unity from the item 1 same article of the given Law providing possibility of an establishment in separate territories of the control special administratively-legal regime over storage, transportation or transfer of narcotics, psychotropic substances and them prekursorov. From here follows, that the specified norm can form the basis for personal inspection of citizens only in case in territory where it is spent, is established special administratively-legal regime. If the decision on it of public authorities is absent, carrying out dosmotrov on the basis of the specified norm will be wrongful.

As a legal basis of personal inspection operative employees often enough use also positions of item 27.7 KoAP the Russian Federation [204 [205], that also it is represented illegal as personal inspection is carried out with a view of detection of tools of fulfilment or administrative violation subjects. At the same time the basis for carrying out of operatively-search actions is presence of data on crime signs, instead of administrative violation.

In many cases operative employees at carrying out of personal inspections detained sbytchikov drugs as a legal basis of the actions refer to item 8 of a part of first item 6 of the Law about the HORDES, fixing possibility of carrying out of inspection of premises, buildings, constructions, sites of district and vehicles. However the name of this action limits the list of surveyed objects in which live persons that is why the specified norm does not grant the right to personal inspection carrying out are not included. This circumstance was marked repeatedly by the Constitutional Court, underlining, that Law item 6 about HORDES does not regulate procedure of personal inspection which can take place as it should be and on the bases established KoAP the Russian Federation, and a personal search

LLG

The suspect (convicted) - UPK the Russian Federation.

The Supreme Court of the Russian Federation noticing adheres to the same interpretation also, that the arrested person on the basis of operatively-search data the defendant was suspected of criminal offence fulfilment that is why its detention should be made according to ugolovnoprotsessualnym the law. As instead of the detention report the statement of personal inspection of the arrested person in which there were no instructions on an explanation to the arrested person of its rights provided by item 46 UPK the Russian Federation, and also the bases and motives of detention the conclusion has been drawn has been drawn up, that detention and examination in this case have been spent with infringement of requirements of the criminal procedure legislation [206].

Breach of law on advantage of the person, freedom and inviolability of person have been established by court and in a situation when operative employees, spending inspection of a premise of youth cafe on the basis of data on the use in it of narcotics, have detained, have screened and delivered in a premise of law enforcement body of the applicant, and then in 5 hours have released it, not having found out at it neither drugs, nor signs of narcotic intoxication [207].

Necessity of maintenance of guarantees of the right to inviolability of person and advantage of the person at carrying out of personal inspections (searches) of the persons catch red-handed in the course of realisation of operatively-search actions, causes requirement for legal regulation of procedures of such examination for the Law about HORDES. One of possible variants of the permission of this problem has been offered by professor V.F.Lugovikom in the author's project of the operatively-search code providing legislative fastening of a preventive punishment in operatively-search activity, including detention, dostavlenija and

Personal inspection. Realisation by the legislator of this offer would allow to enter, in our opinion, into a legal field of action of the operatively-search services, interfaced to restriction of constitutional laws on inviolability of person and advantage of the person.

It is necessary to carry a possibility of acquaintance with documents and the materials directly mentioning the rights of citizens to number of problems of operatively-search practice, guaranteed ch. 2 items 24 of the Constitution of the Russian Federation about which infringement the attention to the question in 10,9 % of the constitutional complaints studied by us was brought. Thus in 8,6 % of cases as an occasion to references in the Constitutional Court refusals of operatively-search bodies have served in granting to applicants of copies of available judgements on carrying out of operatively-search actions, and in 6,3 % - refusals in acquaintance with the information on results of the HORDES, formed the basis for acceptance of such decisions. By a recognition of 6,1 % of the interrogated operative employees refusal in acquaintance with the data received during HORDES, is one of the most frequent infringements of the personal rights in operativnorozysknoj to practice.

The analysis of materials of the constitutional complaints connected with this problem, shows, that operative employees at representation to the inspector of results of the operatively-search actions spent on the basis of a judgement, these decisions leave in affairs of the operative account because of fear to break a privacy mode as the security classification it appropriated court. As the bases for refusal in granting of judgements to the protection party position of a part of third item 12 of the Law about HORDES according to which the judgement on the right of carrying out of operatively-search actions is stored only in operatively-search bodies, as a rule, is used. [208]

In decisions of the Constitutional Court under such complaints it was repeatedly specified, that results operatively-search

The actions spent on the basis of a judgement, should be transferred to the inspector only together with such decision, and the right convicted on reception of its copy can be realised also by an inquiry direction in the body which is carrying out operatively-search activity [209]. Necessity of representation of results of HORDES together with judgements is fixed also in item 12 of the corresponding interdepartmental Instruction [210]. Thus, developing practice of realisation of the right of citizens on acquaintance with documents and the materials directly mentioning their rights, contradicts legal positions of the Constitutional Court, and also requirements of the subordinate legislation normative act.

For the decision of this problem we offer two alternative variants. First, it is possible to go on a way of addition of point 12 of the specified Instruction the position according a right bodies, carrying out HORDES, to declassify judgements on carrying out of operatively-search actions, to copy them and to assure its head allocated with power on declassification of results of HORDES. As other variant it is possible to suggest for the legislator to add a part the fourth item 11 of the Law about HORDES with the position, obliging to represent results of operatively-search actions together with a judgement copy on which basis they were spent, i.e. in essence reproducing the maintenance of point 12 of the mentioned Instruction. At the same time in the conditions of a legislative blank in the mentioned question the principle of respect and observance of the personal rights in HORDES can be provided in practice by use of the resulted legal position of the Constitutional Court.

Enough a serious problem of realisation of a principle of respect and observance of the personal rights in HORDES is maintenance of the right to the half-doctrine of the qualified legal aid at carrying out operativnorozysknyh actions. About infringement of this right guaranteed by article 48 of the Constitution of the Russian Federation, the attention to the question in 13,1 % of the complaints studied by us was brought, and refusal in access to the lawyer at 9,1 % of applicants became the basic occasion to their reference in the Constitutional Court.

The analysis of materials of these complaints has shown, that breach of law on access to the lawyer communicates first of all with nerazjasneniem this right and with refusals in granting of the lawyer at carrying out of interrogations of the persons suspected of committing a crime, their personal inspections, dosmotrov things belonging to them and vehicles, inspection office or premises, reception of samples for comparative research [211 [212].

The problem of restriction of the right to access to the lawyer in the course of HORDES has been put for the first time in the constitutional complaint convicted in which relation on the basis of the commission of the inspector interrogations in the conditions of an investigatory insulator for lack of the defender and without an explanation to it of the right to refuse participation in such actions were spent. The constitutional Court in the decision under this complaint has explained, that the norms regulating carrying out of interrogations of citizens on the instructions of the inspector, the Russian Federations fixing do not come under to application to convicted without positions UPK

Guarantees of the rights of this participant of legal proceedings, including the right to access

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To the lawyer.

This conclusion has received the development and a concrete definition in variety of other decisions of the Constitutional Court from which sense follows, that refusal in the admission of the lawyer at carrying out of operatively-search actions is possible only in those cases which carry «urgent and sudden character» and prepare in the conditions of privacy. At carrying out of the actions which are not answering to these conditions, operative employees, proceeding from a principle of respect and observance of human rights, should create conditions for realisation of the right to the qualified legal aid. It concerns first of all carrying out of interrogations of arrested persons on suspicion in fulfilment of crimes of persons, public inspections of premises and vehicles, gathering of samples for comparative research and some other operatively-search actions which are not carrying urgent and sudden character. Thus creation of conditions should include an explanation to citizens of the right to the qualified legal aid, satisfaction of the request for the admission of the lawyer, possibility granting to contact the lawyer by phone etc. Taking into account stated refusal in the admission of the arrived lawyer to participation in inspection of dwelling of the detained person as it took place in business of one of applicants [213 [214] [215] [216], it is represented wrongful and breaking a constitutional law on the qualified legal aid.

The problem of participation of the defender in operatively-search activity yet has not received sufficient theoretical study. One of the first it was mentioned by A.V.Tchurkin in which opinion, despite lacking in the Law on HORDES of corresponding instructions, participation of the defender is admissible at carrying out of half from among the operatively-search actions listed in it. Not seeing any legal obstacles for the admission of the defender in HORDES, he suggests to start with analogy of criminal procedure relations and to be guided by positions UPK the Russian Federation regulating participation of the defender in criminal trial. Thus it gives recommendations not only about realisation of the right of the person who have become by object of HORDES, on the invitation of the defender, but also on obligatory participation of the defender at carrying out of operatively-search actions for analogy with ch. 1 item 51 UPK the Russian Federation also is offered to fix in the Law on HORDES a duty of operatively-search bodies to provide realisation of the right to access to the lawyer.

This idea has found the partial reflexion in the draught federal law № 187670-5 from June, 15th, 2010 to which was offered to add Law article 8 about HORDES with position about obligatory participation of the defender (lawyer) at carrying out of interrogation suspected or convicted, held in custody if the interrogated person in writing has not refused such help, and obligatory participation of the defender (lawyer) in case interrogated is minor, or not able independently to carry out the right of defence owing to physical either mental lacks, or not known language on which interrogation is led. However the given bill has been dismissed by the decision of the State Duma from November, 11th, 2016 № 236-7 GD. To one of the reasons of such decision became including a negative response of the Government [217 [218]

The Russian Federation in which opinion, participation of the lawyer (defender) at carrying out of operatively-search interrogation contradict such principles of HORDES as conspiracy and a combination of public and private methods and

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Means.

The specified bill has not found support and among scientists. Making common cause with opinion of the governmental experts on inconsistency of an offered innovation with branch principles of HORDES, O.A.Vagin, besides, noticed, that inclusion in the Law on HORDES of positions about obligatory participation of the defender at carrying out operatively - search actions concerning suspected or convicted would lead to regulation of criminal procedure relations in the law of other branch accessory and would contradict general provisions of the criminal procedure law, and the right of defence of public operatively-search actions suspected or convicted at carrying out quite can be provided within legal instructions UPK the Russian Federation. Thus it underlined, that «guaranteed by the Constitution of the Russian Federation the right to the defender (lawyer) to not identically right to reception of the qualified legal aid which is formulated as the right, comes under to realisation exclusively at will of the legal owner and does not assume a duty of the state bodies to provide anyway such right as, however, does not suppose also its restriction» [219 [220]. On same T.G.Morshchakova paid attention also, noticing, that the constitutional instructions about the right to the qualified legal aid, and in the criminal trial is indispensable through participation of the lawyer have different sphere of action.

Sharing of a position about redundancy and groundlessness of inclusion in the Law on HORDES of the positions fixing participation in this activity of defenders (lawyers), we recognise that operatively-search activity inherently has mainly private character that is why we believe, that maintenance of the right to the qualified legal aid at carrying out of public operatively-search actions can be provided by correction of actions pravoprimenitelej on the basis of norms of the current legislation in their interpretation by the Constitutional Court.

Results of our research testify to potential possibility of the decision of this problem. So, 39,9 % of the interrogated operative employees on a question on presence of the right to the lawyer at the person in which relation public operatively-search action is carried out have answered, that the citizen has such right in all cases if he insists on it; 16,1 % have answered, that the right to the lawyer at the person appears when action does not carry sudden character. Thus, more than half interrogated (56 %) recognise presence of the right to the qualified legal aid in HORDES. Thus 28 % interrogated believe, that such right at the persons who have become by objects of HORDES, no as on HORDES it does not provide the Law, and 16,1 % were at a loss with the answer to this question.

Are interesting in this connection answers to a question on how operative employees arrive when detained by them on suspicion in committing a crime the citizen demands immediately to give it the lawyer: 13,7 % interrogated have specified, that give the chance to the arrested person to cause the lawyer, and 4,8 % cause the lawyer on duty, i.e. 18,5 % [221] undertake measures on realisation of the right to the lawyer. 48,8 % of respondents do not undertake such measures, but thus explain, that the lawyer will be given by the inspector by manufacture of investigatory actions, i.e. they, in essence, are guided by the current legislation. 11,9 % of respondents in such cases explain, that the Law on HORDES to it does not oblige them, than actually evade from a duty on an explanation of the rights. From here it is possible to draw a conclusion, that level of sense of justice of considerable number of operative employees requires certain updating for formation at them conviction in compulsion of maintenance of the right to access to the lawyer in operatively-search practice. As a whole it is necessary to notice, that the problem of participation of the lawyer in carrying out public operativnorozysknyh actions demands separate independent research for development of more accurate mechanisms of its permission.

The research carried out by us has shown, that at realisation of HORDES breach of law on the inviolability of home is extended enough at carrying out of operatively-search actions about what it has been specified in 7,4 % of complaints. This circumstance have confirmed and the employees of operative divisions interrogated by us, 21,9 which % recognised, that more often the rights of citizens are broken at inspection of premises. Statistical data of Judicial department testify to scales of application of inspection of premises at the Supreme Court of the Russian Federation according to which in 2015 by vessels of the Russian Federation it has been given out about 39 thousand the permissions allowing operatively-search services to get into premises of citizens [222], and in 2016 - 36,5 thousand [223]

Breach of law on the inviolability of home communicates applicants, as a rule, with carrying out of inspection of dwelling without a judgement on the basis of ostensibly received consent of persons living in it though they actually did not give such consent.

As characteristic it is possible to give an example, when the operative employee as the basis of inspection of dwelling has shown the written order of the head about carrying out of public inspection of dwelling with the consent of its owner and has suggested to undersign for acquaintance with it. Subsequently this list has been used by the official as the certificate of reception of the voluntary consent to carrying out

Inspections [224 [225]. In this case it is easy to understand, that the consent of the owner of dwelling has been received as a result of its introduction in error about legality of the order shown to it as in one normative act possibility of inspection of dwelling on the basis is not provided

Orders of the head of the body, carrying out HORDES. In other constitutional complaints the facts, when the consent to apartment survey under psychological pressure of operative employees were mentioned

Subscribed already after action end indoors

Law enforcement body. At the same time the legislative requirement of maintenance of the right of the inviolability of home as it was marked by authors of comments to the Law on HORDES, means an interdiction for penetration into premises if on it there is no clearly expressed consent of persons living in it [226]. It is quite obvious, that such consent should arrive prior to the beginning of inspection, and deception about ostensibly available lawful basises for intrusion into habitation should be carried to inadmissible tactical receptions.

In the constitutional complaints the original form of breach of law on the inviolability of home, consisting in repeated inspections of apartment of the applicant (three times privately, and fourth time publicly) on the basis of the same judgement was described rather. Not challenging validity of spent inspections, the applicant insisted only on their illegality as each inspection, in its opinion, should be spent on the basis of a separate judgement with what, in our opinion, also it is impossible to disagree.

Widespread enough occasion to complaints to public inspection of the premises spent on the basis of judgements, actual substitution by this operatively-search action of the search spent out of remedial frameworks is. The attention of the researchers who have stated different sights at its decision was already paid to this problem: from a full interdiction for carrying out of public inspections [227 [228] to a recognition of such practice legitimate [229 [230]. Thereupon tactics of carrying out of inspection should be selected taking into account judicial interpretation of the mentioned question. So, in one of the cassation definitions the Supreme Court of the Russian Federation recognised as illegal the public inspection of premises spent on the basis of a judgement as the consent to penetration into dwelling from their owners it has not been received. Thus the court has established, that on sense of positions of the Law about HORDES operatively-search inspection should be carried out privately and cannot be directed on detection of proofs on criminal case, and the public form has actually transformed it into a search before criminal case excitation. At the same time in many other things cases courts recognise as lawful public inspection of premises if they were spent on

The basis of a judgement irrespective of presence of the consent of the living

231

There persons.

In turn, the European court, having drawn a conclusion about infringement of the rights of the applicant by compulsory public inspection of inhabited it inhabited and uninhabited premises, motivated it with absence in the court decision of occasions and the bases for inspection manufacture, and also its purposes and problems as which it would be possible to recognise sufficient and proportional for restriction of the right on the inviolability of home. The analysis of the maintenance of this decision shows, that, not calling into question possibility of carrying out of public inspection of premises, ESPCH has seen infringement of the rights only in deficiency of the maintenance of the judicial decision, its resolving. Differently, be in the judicial decision occasions and the bases for inspection manufacture, and also its purpose and the problems are in details stated, allowing to recognise as their sufficient and proportional to the limited rights decision ESPCH would be other.

The above-stated allows to draw a conclusion on an admissibility of compulsory public inspection of premises in the presence of the judicial permission which, in our opinion, should have exclusive character and be applied only in cases, being urgent and able to lead to fulfilment heavy or especially grave crime, or to loss of searched subjects, values and substances. As the purpose of such inspection necessity of revealing and suppression of crimes, and also detection and withdrawal from an illegal turn of the weapon, drugs, explosive, poisoning and other substances and the subjects representing potential danger to associates should act. [231 [232]

The judicial decision on carrying out of public inspection of dwelling, except motivation and validity compulsory condition, should contain instructions on required subjects, substances and the values which are coming under to detection and withdrawal from an illegal turn, transfer of the actions resolved by court pravoprimenitelej, the rights of owners of a premise excluding any restriction (including by compulsory opening of locks and infringement of integrity of things), a mark about acquaintance with the decision of interested persons and an explanation of the right to its appeal. All listed conditions of carrying out of public inspection of dwelling should be fixed in the Law on HORDES.

In modern conditions the great value gets the property right maintenance, which restriction as marked V.D.Zorkin, within the limits of the criminal trial is one of system problems of mutual relations of law enforcement bodies and business. This conclusion, in our opinion, to the full concerns also to operatively-search activity.

The question on private property breach of law at carrying out of operatively-search actions was put in 5 % of the constitutional complaints studied by us. Presence of this problem have noted and the interrogated operative employees, 8,3 % from which number have confirmed prevalence of the facts of unreasonable withdrawal of documents, subjects and materials during carrying out of operatively-search actions. It, as a rule, is connected with wrongful withdrawal of the various goods, production of manufacture, the equipment, office technics, etc. in the course of inspections, verifying purchases, gathering of samples for comparative research and some other actions. So, withdrawal at the private businesswoman in the course of gathering of samples for comparative research of jewels in which it traded, and documents, [233 [234] became an occasion of one of complaints

Concerning activity of its shop. The arbitration court recognised actions of operative employees illegal and has obliged to return to the declarant

235

The documents withdrawn from it and values.

As occasion to other complaint carrying out of inspection of premises of one of the financial companies in which course some portable computers, including belonging personally to employees of the company have been withdrawn more than 40 system computer blocks, office equipment and all documentation of the company has served. At carrying out of inspection the rights, including to the appeal of actions pravoohranitelej have not been explained owners of a premise and persons being in it, they have been limited in a freedom of movement, deprived possibility of entering of remarks and additions in the withdrawal report, it has not been give possibility of the invitation of the lawyer [235 [236] [237]. The analysis of the materials presented by the applicant testifies, that the actual search has been conducted in company office without criminal case excitation, without the decision of the inspector and without granting of guarantees of the personal rights provided UPK the Russian Federation. Such actions contradict a legal position of the Constitutional Court which repeatedly noticed, that operatively-search actions cannot substitute for themselves the investigatory actions spent with observance of the criminal procedure law. In both resulted examples the private property right, in our opinion, was, certainly, is mentioned.

The research carried out by us has allowed to establish, that one of the reasons of lacks of realisation of a principle of observance of the personal rights is the weak knowledge and use by operative employees of legal positions of the Constitutional Court. About it 54,9 % of definitions of the Constitutional Court, in particular, testify to refusal in acceptance of complaints to norms of the Law about HORDES to consideration in which reasoning references to former legal positions of the Constitutional Court were contained. Thus 10,6 % of decisions were directly motivirovany that the attention to the question brought by the applicant is already resolved in one of former decisions of the Constitutional Court. Non-observance of legal positions of the Constitutional Court in affairs of applicants became one of occasions for 8 % from number of all arrived complaints of citizens on the Law on HORDES.

One of the reasons of non-use of legal positions of the Constitutional Court in operatively-search practice as it was possible to us to establish, is their weak knowledge operative employees. So, during the interrogation of 32,7 % of respondents spent by us have noticed, that with decisions of the Constitutional Court concerning Law application about HORDES get acquainted regularly in system of office preparation, 38,7 % have specified, that get acquainted seldom, and 28,6 % do not get acquainted absolutely. Even worse level of awareness on decisions of the European court under human rights with which 17,3 % interrogated get acquainted regularly, 30,4 % - are rare, and 52,4 % - do not get acquainted absolutely. Thus during interviewing of operative employees the part suppressing them could not name any decision of the Constitutional Court concerning application of norms of the Law about HORDES, and from among decisions of the European court under human rights about half prointerviewed could name only the decision on business «Vanjan against Russia». About the same situation with acquaintance of operative structure with judicial legal positions concerning HORDES have confirmed and the teachers of chairs who are carrying out vocational training of the future operative employees prointerviewed by us. From here follows, that level of knowledge of legal positions of the specified vessels is in the lowest condition.

During research we had been analysed uchebno-methodical maintenance of a course «Operatively-search activity» in which course it was possible to establish, that authors of the educational and scientific literature pay certain attention to questions of realisation of judicial legal positions in operatively-search activity. So, one of the most popular comments to the Law on HORDES as appendices contains texts of the most significant for practice of decisions of the Constitutional Court and the European court under human rights, the Ministry of Internal Affairs of Russia is published by the centralised circulation two manuals, devoted to questions of application of legal positions of the Constitutional Court, to the same questions are devoted a number of high school editions [238 [239] [240]. Thus, experts create certain uchebno-methodical base for finishing of legal positions of the Constitutional Court to pravoprimenitelej, however in curricula to these questions while obviously insufficient attention is paid.

The above-stated allows to conclude, that the principle of respect and observance of the personal rights in operatively-search practice is realised far not to the full as observance first of all such constitutional laws as the right to judicial protection, to equality of all before the law, on inviolability of person and advantage of the person, on inviolability of a private life, on secret of telephone conversations, the inviolability of home, the rights to acquaintance with the materials directly mentioning the rights of citizens is not provided, the property right and some other rights guaranteed by the Constitution of the Russian Federation.

Infringement of the specified rights occurs more often at realisation of the operatively-search activity directed on revealing and disclosing of crimes, connected with a drug trafficking, and is concrete at carrying out of such operatively-search actions, as verifying purchase, operative experiment, listening of telephone conversations, supervision with use of special means, inspection of inhabited and uninhabited premises.

One of widespread infringements of the personal rights in the course of application of verifying purchase and operative experiment is use of the tactical receptions supposing possibility of provocation of crimes.

The developed practice of detention with polichnym will not be adjusted with a principle of respect and observance of the personal rights in operatively-search activity at carrying out of operatively-search actions which supposes illegal substitution of criminal procedure procedures by their administrative analogues and leads to unreasonable restriction of the rights on a personal immunity, its advantage, and also on reception of the qualified legal aid.

Infringement of a principle of respect and observance of the personal rights in operatively-search activity is shown also in the developed practice of refusals to the persons who have become by objects of operatively-search actions, in acquaintance with judgements on which basis they were spent.

The reasons of the infringements of a principle of respect revealed by us and observance of the personal rights in operatively-search activity have multifactorial character and are caused first of all by imperfection of the operatively-search legislation, an inefficiency of the judicial and departmental control over carrying out of operatively-search actions, any interpretation and non-use of legal positions of the Constitutional and Supreme vessels concerning operatively-search activity, and also insufficient level of sense of justice of operative employees and their heads.

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A source: SHATOHIN IVAN DMITRIEVICH. the PRINCIPLE of RESPECT And OBSERVANCE of the RIGHTS And FREEDOM of the PERSON And the CITIZEN In OPERATIVELY-SEARCH ACTIVITY. The DISSERTATION on competition of a scientific degree of the master of laws. Barnaul. 2018

More on topic § 1. A modern condition of realisation of a principle of respect and observance of the rights and freedom of the person and the citizen in operativnorozysknoj to practice:

  1. § 3. The Judicial review in the mechanism of realisation of a principle of respect and observance of the rights and freedom of the person and the citizen in operativnorozysknoj activity
  2. § 1. Historical preconditions of fastening of a principle of respect and observance of the rights and freedom of the person and the citizen in operativnorozysknoj activity
  3. § 2. The Legal mechanism of realisation of a principle of respect and observance of the rights and freedom of the person and the citizen in operatively-search activity
  4. § 2. Concept of a principle of respect and observance of the rights and freedom of the person and the citizen of operatively-search activity and the mechanism of its realisation
  5. CHAPTER 1. THEORETICAL BASES of the PRINCIPLE of RESPECT And OBSERVANCE of the RIGHTS And FREEDOM of the PERSON And the CITIZEN In OPERATIVELY-SEARCH ACTIVITY
  6. CHAPTER 2. PERFECTION of the MECHANISM of REALIZATION of the PRINCIPLE of RESPECT And OBSERVANCE of the RIGHTS And FREEDOM of the PERSON And the CITIZEN In OPERATIVELY-SEARCH ACTIVITY
  7. SHATOHIN IVAN DMITRIEVICH. the PRINCIPLE of RESPECT And OBSERVANCE of the RIGHTS And FREEDOM of the PERSON And the CITIZEN In OPERATIVELY-SEARCH ACTIVITY. The DISSERTATION on competition of a scientific degree of the master of laws. Barnaul, 2018 2018
  8. 2.1. Realisation of the constitutional principle of equality of the rights and freedom of the person and the citizen irrespective of a state of health in the legislation on the psychiatric help
  9. §2.2. Criminally-right protection freedom of worship and creeds and a principle of equality of the rights and freedom of the person and the citizen
  10. judicial protection of the constitutional principle of equality of the rights and freedom of the person and the citizen irrespective of a state of health
  11. the maintenance of the constitutional principle of equality of the rights and freedom of the person and the citizen irrespective of a state of health in Russia
  12. § 3 Fastening of the protected content of rights and freedom of the person and the citizen in modern international law
  13. §3. Konstitutsionalizatsija the rights to judicial protection of fundamental laws and freedom of the person and the citizen and arbitration judiciary practice
  14. §3. Konstitutsionalizatsija the rights to judicial protection of fundamental laws and freedom of the person and the citizen and arbitration judiciary practice
  15. CHAPTER 2. MAINTENANCE AND PROTECTION OF THE CONSTITUTIONAL PRINCIPLE OF EQUALITY OF THE RIGHTS AND FREEDOM OF THE PERSON AND THE CITIZEN IRRESPECTIVE OF THE STATE OF HEALTH IN THE RUSSIAN LEGISLATION
  16. 3.2. Features of legal regulation of the organisation and police activity on maintenance of constitutional laws and freedom of the person and the citizen in the Russian Federation: a modern condition and dynamics of development
  17. CHAPTER 1. TEORETIKO-LEGAL QUESTIONS OF LEGAL REGULATION OF THE CONSTITUTIONAL PRINCIPLE OF EQUALITY OF THE RIGHTS AND FREEDOM OF THE PERSON AND THE CITIZEN IRRESPECTIVE OF THE STATE OF HEALTH
  18. §1.1 Concept and essence of the rights and freedom of the person and the citizen