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
Everything about criminal cases
Go to the text of the Code of Criminal Procedure
Url Additional information:
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
Url Additional information:
- 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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In what cases are such actions considered illegal?
Recordings of negotiations made not in accordance with the conditions listed in Art. will be considered illegal. 186 Code of Criminal Procedure of the Russian Federation.
It should be taken into account that the investigator has the right to entrust wiretapping to the investigative body under clause 4 of part 2 of art. 38 of the Code of Criminal Procedure of the Russian Federation and the Federal Law on operational activities. Then this will no longer be considered an investigative action, but an operational-search activity.
The records will be provided to the investigator in accordance with regulations, along with a written form of their recording. The purposes of monitoring and recording conversations in this case are solely auxiliary in nature for the investigation of the crime.
All other cases, without warning the citizens themselves, will be considered offenses, since Part 2 of Art. 23 of the Constitution of the Russian Federation provides them with the right to privacy of correspondence, telephone conversations, etc.
How to protect your rights
If you suspect that your phone or smartphone is being tapped, then you should know that this is illegal under several legislative acts.
Firstly, the right to privacy of telephone conversations is ensured by Art. 23 of the Constitution of the Russian Federation, which can be referred to, since it is the main legal act of the country.
Secondly, liability for such actions is provided for under Art. 137 and art. 138 of the Criminal Code of the Russian Federation. If the first provides for penalties for disclosing the secrets of telephone conversations, then the second - for collecting and receiving information about the personal lives of persons without their permission.
Criminal Procedure Code of the Russian Federation:
Article 186. Control and recording of negotiations
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.
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