New edition of Art. 186.1 Code of Criminal Procedure of the Russian Federation
1. If there are sufficient grounds to believe that information about connections between subscribers and (or) subscriber devices is important for the criminal case, the investigator may obtain this information on the basis of a court decision made in the manner established by Article 165 of this Code.
2. The investigator’s petition to carry out an investigative action regarding obtaining information about connections between subscribers and (or) subscriber devices shall indicate:
1) a criminal case during the production of which it is necessary to perform this investigative action;
2) the grounds on which this investigative action is carried out;
3) the period for which it is necessary to obtain the relevant information, and (or) the period for carrying out this investigative action;
4) the name of the organization from which it is necessary to obtain the specified information.
3. If the court makes a decision to obtain information about connections between subscribers and (or) subscriber devices, a copy of it is sent by the investigator to the relevant organization providing communication services, the head of which is obliged to provide the specified information recorded on any tangible storage medium. The specified information is provided in sealed form with a covering letter indicating the period for which it was provided and the numbers of subscribers and (or) subscriber devices.
4. The investigator’s receipt of information about connections between subscribers and (or) subscriber devices can be established for a period of up to six months. The relevant organization providing communication services, during the entire period of carrying out this investigative action, is obliged to provide the investigator with the specified information as it becomes available, but at least once a week.
5. The investigator examines the submitted documents containing information about connections between subscribers and (or) subscriber devices, with the participation of a specialist (if necessary), about which he draws up a protocol, which should indicate that part of the information that, in the opinion of the investigator, is relevant to a criminal case (date, time, duration of connections between subscribers and (or) subscriber devices, subscriber numbers and other data). Persons present during the preparation of the protocol have the right to state their comments in the same protocol or separately from it.
6. Submitted documents containing information about connections between subscribers and (or) subscriber devices are attached to the criminal case materials in full on the basis of the investigator’s decision as material evidence and are stored in sealed form under conditions that exclude the possibility of unauthorized persons familiarizing with them and ensuring their safety.
7. If there is no longer a need to carry out this investigative action, its production is terminated by decision of the investigator, but no later than the end of the preliminary investigation in the criminal case.
Monitoring and recording of negotiations - grounds
Control of telephone and other conversations - listening and recording of conversations using any means of communication, inspection and listening to phonograms; (Clause 14.1 of Article 5 of the Code of Criminal Procedure of the Russian Federation)
Monitoring and recording of conversations can be carried out in relation to persons suspected of committing medium, serious and especially serious crimes. For crimes of minor gravity, such investigative actions as monitoring and recording of conversations are not allowed. Moreover, this investigative action is applicable to persons who may have information about these crimes (medium, serious and especially serious), persons suspected of them.
Monitoring and recording negotiations is an investigative action that limits the Constitutional rights of citizens, namely Part 2 of Art. 23 Constitutions of the Russian Federation.
Everyone has the right to privacy of correspondence, telephone conversations, postal, telegraph and other messages. Restriction of this right is permitted only on the basis of a court decision.
Part 2 Art. 23 Constitution of the Russian Federation
The Criminal Procedure Code additionally duplicates this in Article 13 of the Code of Criminal Procedure of the Russian Federation.
Restriction of a citizen's right to privacy of correspondence, telephone and other conversations, postal, telegraph and other messages is permitted only on the basis of a court decision.
Part 2 of Article 13 of the Code of Criminal Procedure of the Russian Federation
Taking into account the above, the investigative action provided for in Art. 186 of the Code of Criminal Procedure of the Russian Federation is carried out on the basis of a court ruling, for which the investigator must apply to the court with a petition in accordance with Art. 165 Code of Criminal Procedure of the Russian Federation.
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 in criminal proceedings on crimes of medium gravity, serious and especially serious crimes on the basis of a judicial decisions made in the manner established by Article 165 of this Code.
Part 1 of Article 186 of the Code of Criminal Procedure of the Russian Federation
Exclusion of judicial permission when monitoring and recording conversations
It is possible to monitor and record conversations between persons who have independently provided permission to do so. This rule is relevant when a person is extorted money, and the timeliness of an investigative action can stop the crime. Such consent is taken from the person in writing; in fact, control and recording are carried out by the person who gave his consent, and not by the person suspected of a crime. It is also possible to control and record conversations without the consent of such a person in the usual manner, through obtaining a court order.
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 court decision.
Part 2 Art. 186 Code of Criminal Procedure of the Russian Federation
Commentary on Article 186.1 of the Code of Criminal Procedure of the Russian Federation
1. This article establishes the procedure for carrying out a new investigative action. The legislator does not directly indicate the name of this investigative action. Based on the title of the commented article, it is recommended to call it obtaining information about connections between subscribers and (or) subscriber devices. It should be borne in mind that a separate element of the content of this investigative action includes the examination of the relevant type of information provided by the organization providing communication services.
2. Based on the content of part 1 of the commented article, as well as clause 12 of part 2 of art. 29 of the Code of Criminal Procedure, the decision to obtain information about connections between subscribers and (or) subscriber devices can only be made by a court represented by a judge of a district court or a military court of the appropriate level.
3. Moreover, the wording used in Part 1 of Art. 186.1 of the Code of Criminal Procedure should be interpreted literally. Receiving, and even more so requesting, information about connections between subscribers and (or) subscriber devices cannot be carried out on the basis of a single decision of the investigator (inquiry officer, etc.) without obtaining a court decision, even in exceptional cases. Rules Part 5 Art. 165 of the Criminal Procedure Code do not apply to obtaining information about connections between subscribers and (or) subscriber devices.
4. The factual basis for obtaining information about connections between subscribers and (or) subscriber devices occurs if there is a sufficient body of data (evidence or evidence together with operational intelligence information) to make this decision, allowing one to believe that this kind of information may contain data relevant to the criminal case.
5. The investigator (inquiry officer, etc.) and the court should not have indisputable confirmation that information about connections between subscribers and (or) subscriber devices will contain data relevant to the criminal case. It is enough that there is evidence from the analysis of which an appropriate assumption could be made.
6. The legal basis for obtaining information about connections between subscribers and (or) subscriber devices is always a court decision. This decision is made in the usual manner by a judge of a district court or military court of the appropriate level at the place of the preliminary investigation (inquiry) or at the location of the relevant organization providing communication services that will provide the type of information in question.
7. The decision is made in accordance with Art. 165 Code of Criminal Procedure of Russia. Moreover, the procedure for obtaining a court decision on obtaining information about connections between subscribers and (or) subscriber devices is as follows. The investigator (inquirer, etc.), with the consent of the head of the investigative body, initiates a petition before the court to carry out an investigative action related to obtaining information about connections between subscribers and (or) subscriber devices, for which a decision is made.
8. A resolution signed by the investigator (inquiry officer, etc.) and the head of the investigative body to initiate before the court a petition to carry out an investigative action regarding obtaining information about connections between subscribers and (or) subscriber devices, with materials confirming the existence of factual grounds for making the sought decision, goes to court.
9. Within 24 hours from the moment of receipt of the said petition, the decision of the investigator (inquiry officer, etc.) together with the received materials must be considered by the judge alone in a court session with or without the participation of the prosecutor and (or) investigator (inquiry officer, etc.).
10. Having considered the said petition, the judge has the right to make a decision to authorize an investigative action related to obtaining information about connections between subscribers and (or) subscriber devices. The decision to authorize the production of the required procedural action cannot be formalized by a judge’s resolution based on the decision of the investigator (inquiry officer, etc.) who filed a petition to carry out an investigative action related to obtaining information about connections between subscribers and (or) subscriber devices. The judge does not have the right to make this decision without the investigator (inquiry officer, etc.) filing a corresponding petition before him. Moreover, the petition must be specifically for an investigative action related to obtaining information about connections between subscribers and (or) subscriber devices. To make a court decision to authorize an investigative action related to obtaining information about connections between subscribers and (or) subscriber devices, it is not enough, for example, a petition from an investigator (inquirer, etc.) to monitor and record telephone and other conversations.
11. The grounds for examining documents containing information about connections between subscribers and (or) subscriber devices differ from the grounds for conducting investigative actions related to obtaining information about connections between subscribers and (or) subscriber devices. The inspection takes place after a decision has been made to carry out an investigative action related to obtaining information about connections between subscribers and (or) subscriber devices. Therefore, the actual basis for examining documents containing information about connections between subscribers and (or) subscriber devices are the relevant documents received by the investigator (investigator, etc.) from the management of the organization providing communication services.
12. A special resolution on the inspection of documents containing information about connections between subscribers and (or) subscriber devices, in addition to the one in which the decision was made to authorize the conduct of investigative actions related to obtaining information about connections between subscribers and (or) subscriber devices, no need to take it out.
13. Accordingly, the legal basis for inspecting documents containing information about connections between subscribers and (or) subscriber devices is a court decision to authorize an investigative action related to obtaining information about connections between subscribers and (or) subscriber devices. The procedural decision to inspect documents containing information about connections between subscribers and (or) subscriber devices does not require additional documentation.
14. Let’s move on to an explanation of the provisions enshrined in Part 2 of the commented article. Here are the rules relating to the execution of a petition from an investigator (investigator, etc.) for permission to conduct an investigative action concerning the receipt of information about connections between subscribers and (or) subscriber devices. Based on these rules, the investigator (inquiry officer, etc.) draws up the corresponding petition in the form of a reasoned resolution to initiate a petition before the court for permission to conduct an investigative action related to obtaining information about connections between subscribers and (or) subscriber devices.
15. Part 2 of the commented article does not say anything about the need to reflect in the petition data about a specific subscriber (subscribers), information about the connection with which the preliminary investigation authorities are interested. The legislator does not limit the circle of subscribers, connections between which can be established during the conduct of the investigative action in question. Meanwhile, it should be borne in mind that these are usually the accused, suspects and persons who are related to them, friends (their acquaintances). At the same time, it is impossible to deny the possibility, if there are factual grounds, of obtaining information about connections between any other persons and (or) subscriber devices belonging to the latter. Such persons may include a victim, a witness, and even a person who knows nothing about the crime under investigation and the circumstances to be proven in a criminal case.
16. Part 5 of the commented article establishes specific requirements applied to the procedure for inspecting documents containing information about connections between subscribers and (or) subscriber devices. These rules are in effect after the investigator (interrogating officer, etc.) has received the relevant documents.
17. Immediately after receiving properly sealed documents containing information about connections between subscribers and (or) subscriber devices, the investigator (investigator, etc.) must begin examining them.
18. The protocol for the inspection of documents containing information about connections between subscribers and (or) subscriber devices indicates by whom and which documents were inspected.
19. Inspection of documents containing information about connections between subscribers and (or) subscriber devices is usually carried out at the place of the preliminary investigation - in the office of the investigator (investigator, etc.). In order to reduce the likelihood of disclosure of the secret of the investigative action in question, it is recommended to warn the inspection participants, if any, about the non-disclosure of preliminary investigation data in accordance with Art. 161 Code of Criminal Procedure of Russia.
20. Each time a new document is received containing information about connections between subscribers and (or) subscriber devices, a separate inspection protocol is drawn up. But what if several documents of this kind were received on the same day? Should they be examined during one or more investigative actions? There will be no violation of the law in either case.
21. The inspection protocol of a document containing information about connections between subscribers and (or) subscriber devices is drawn up according to the general rules for drawing up an investigative action protocol (Articles 166 and 167 of the Criminal Procedure Code of Russia) and, in particular, an inspection protocol (Article 180 of the Code of Criminal Procedure Russia).
22. The protocol should reflect which documents were inspected. This requirement directs the law enforcement officer to reflect in the protocol the type, date of the document being sought, data about its addressee and sender, and the seals and stamps present there. The inspection of the documents in question should not be limited only to its contents (the contents, for example, of the text of the letter itself).
23. In part 7 of the commented article, the legislator provided for two types of factual grounds for making a decision to terminate the investigative action being analyzed:
1) there is no longer a need for this measure;
2) the preliminary investigation into this criminal case has been completed.
24. The need to apply such a measure as obtaining information about connections between subscribers and (or) subscriber devices may no longer be necessary for various reasons. Most often, this is the solution of tasks for the fulfillment of which the investigative action is carried out (identification of all persons involved in the commission of a crime, the location of the wanted person, the weapon of the crime or all objects of the criminal attack, the seizure of the necessary evidence, the establishment of other circumstances relevant to the criminal case, and etc.).
25. See also commentary to Art. 450 Code of Criminal Procedure of Russia.
