Key Findings and Recommendations

The analysis of the current legislation and practice has identified the main problems associated with the operative activity in law enforcement agencies. In light of overwhelming and uncontrollable power of law enforcement agencies, working on crime prevention, detection and eradication with an operative activity using same standards, endangers the protection of fundamental human rights and increases the risk of applying this mechanism for social control.

More specifically, the following problematic issues were identified in the study:

• Within the existing legislative order, it is unclear exactly what the purpose of the operative activity has and what kind of action does it represent - a procedural or preventive mechanism;
• The attitude towards objectives and goals of operative activity of relevant agencies is not coherent either. In many cases, it is used as a preventive or crime detection tool, and in most cases, it is used as an auxiliary mechanism for investigation;
• From a practical point of view, assignment of the status of auxiliary investigative mechanism to the operative activity is related not so much to the shortcomings of the Criminal Procedural Code or lack of appropriate mechanisms, but to the “flexibility” of operative activity;
• The practical “flexibility” of the operative activity, in contrast to procedural acts, is expressed in the simplicity of its implementation and less procedural constraints, which makes work of investigative bodies easier;
• In practice, operative activity artificially and along with Procedural Code, establishes mechanism responding to the received crime-related information. It also forms the information verification stage, the so-called pre-investigation phase, which contradicts the Procedural Code;
• Several legislative measures are operative, police and investigative acts at the same time. Consequently, in a specific case, it is impossible to determine under what law and under what conditions the relevant person is taking certain measures (for example, questioning, identifying a person);
• The country lacks a unified, interdisciplinary strategy that ensures equal involvement of different actors at the crime prevention stage;
• The lack of unified prevention strategy largely results in the intensive involvement of law enforcement agencies in the process of crime prevention, the use of mechanisms incompatible with crime prevention, including operative activity;
• Public openness towards investigators is low, which in turn impedes their communication with members of society and access to information relevant to the circumstances of the case within the scope of the investigation;
• “Extracting” important information from the public with operative work is done easily, which encourages investigative bodies to take operative measures and involve confidants even during the course of an investigation;
• The principles set out at the legislative level for operative activity, are inconsistent with their use in practice. Operative measures are often used not only in cases directly defined by the law but without appropriate grounds as well, to avoid potential, abstract danger, and possible criminal activity;
• The legislation does not contain a unified standard regarding the timeframe of operative measures and time limitation for each measure depends on its ground of application;
• Only operative activity conducted by a prosecutor or investigator with the prosecutor’s consent is limited in time. In other cases, it may be carried out indefinitely on the basis of the discretion of the agencies concerned;
• Operative activity is carried out only on a formal basis. Unlawful behaviour is not differentiated by its severity or nature. Therefore, the operative activity of any degree/severity, is used simultaneously to prevent and detect crime and administrative misconduct;
• Despite implemented legislative changes, the Law on Operative-Investigative Activity still contains measures that are characterized by a high risk of violating the right to privacy and is conducted without proper judicial authorization;
• The law does not include detailed procedural regulation for implementing covert activities within the scope of operative activity. The law does not specify person/authority conducting these activities and the person/authority issuing the permit for it, it does not directly define the object of a specific activity (controlled delivery /controlling purchase);
• Within the scope of an operative activity, the legislation does not hedge the risks of provoking a crime. The Procedural Code does not directly consist the mechanisms affecting the provocation risk assessment and outcome of the criminal case;
• Law enforcement agencies are actively using informants, so-called confidants while conducting the operative activity. The legislation does not foresee the control of confidants’ activities. Therefore, the risk of abusing authority or provoking a crime within the scope of operative activity by such person is not hedged;
• Almost all investigative bodies and law enforcement agencies have operative authority; including bodies wherein activity and specifics of the operative power are not primarily related to the matters of investigation and/or public safety;
• Investigative and operative powers of the relevant bodies are not clearly differentiated neither on the structural, nor on the official level, which leads to overlapping and duplication of competence;
• Prosecutorial and judicial supervision mechanisms are weak and mostly of fictitious nature;
• The right to plan, execute and supervise operative activity is at the same time directly placed under the mandate of agency implementing the measure.

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