Legal and practical issues of special investigative techniques—control of means of communication performance and usage of the obtained information from criminal proceedings
y | 28 may 2024
Article Category: Research Article
Publicado en línea: 28 may 2024
Páginas: 75 - 79
DOI: https://doi.org/10.25143/socr.28.2024.1.75-79
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© 2024 Ansis Zanders et al., published by Sciendo
This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License.
When conducting investigative activities in criminal proceedings, it is necessary to comply with the aspect of respecting of human rights, because certainly when performing investigation activities, especially the special investigative activities, human rights cannot be significantly violated. However, this type of violation of human rights in a democratic society could become necessary and be justified so as to achieve the purposes written in the Law on Criminal Procedure and to fulfil the duties of the person directing the proceedings. Such justified violations of human rights have been included in both national and international legal acts that regulate issues of respect of human rights.
The Universal Declaration of Human Rights of the United Nations states that in the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and general welfare in a democratic society (United Nations Universal Declaration of Human Rights, 1948).
The Convention for the Protection of Human Rights and Fundamental Freedoms also stipulates that everyone has the right to liberty and security of a person; however, it also provides for the restriction of these freedoms to comply with the law of a democratic society (Convention for the Protection of Human Rights and Fundamental Freedoms, 1950).
Section 89 of the Constitution of the Republic of Latvia stipulates that the State shall recognise and protect fundamental human rights in accordance with this Constitution, as well as the laws and international agreements binding upon Latvia. However, the Constitution of the Republic of Latvia also regulates the conditions for limiting human rights, which unequivocally indicates that human rights are not absolute and can be limited in the interests of other members of society (Constitution of the Republic of Latvia, 1993).
Fundamental Human Rights defined in Articles 96, 97, 98, 100, 102, 103, 106 and 108 of the Constitution may be subject to restrictions in circumstances provided for by law in order to protect the rights of other people, the democratic structure of the State, and public safety, welfare and morals. Based on that which is mentioned in this article, restrictions may also be imposed on the expression of religious beliefs (Constitution of the Republic of Latvia, 1993).
Following the development of human rights protection mechanisms, technologies and other aspects, the person directing the proceedings and the subjects of operational activity more frequently use special investigative activities and operational measures carried out in a special way to effectively fight against crime.
In recent criminogenic conditions, most crimes, especially those committed through organised crime, are thoroughly prepared and carried out in conditions of secrecy. Therefore, there is no possibility to undercover all the necessary information in the criminal process about the planned crimes, the people involved in the crimes, the activities intended for the investigation of traces of crimes and countermeasures, as well as to prevent significant danger to the public by using transparent methods. Indicating the norms of the Criminal Procedure Law, Lieljuksis (2019: 599).
Conducting special investigative activities is necessary and it should comply with the legal framework that regulates the procedure for sanctioning, carrying out, recording and applying such investigative activities in criminal proceedings. Owing to the importance of evidence, which can often play a decisive role for the fair resolution of criminal proceedings, many aspects depend on the legal performance of these special investigative activities for proving the guilt of the accused person.
As stated in the decision of the Constitutional Court, the legal principle determines that the law and rights are binding on every state authority (Decision of the Constitutional Court of the Republic of Latvia, 1999). Therefore, the officials of these institutions are obliged to observe the law, including—not to allow the collection and use of information inconsistent with the purposes set out in the first part of the norm, concludes Lieljuksis (2019: 602).
This research reviews the legal framework of special investigative activities including the control of the means of communication and explores the conduct of special investigative activities and the use of the information obtained in criminal proceedings.
The purpose of this research is to explore the legal and practical issues encountered while conducting the control of special investigative activities—control of the means of communication and the use of the information obtained during the criminal process, as well as determining the most important legal issues, defining them and offering legal solutions.
With respect to the materials and methods used in the preparation of the publication, for obtaining the data necessary for the study, the authors use appropriate data-extraction methods and the instrument such as expert surveys. Using comparative and logical methods, the authors will analyse and describe regulatory enactments, court rulings, scientific literature, and expert opinions. The comparative method used in the research helps compare the provisions of the regulatory enactments with those in the scientific literature, expert opinions and those contained in the court judgements. The logical method is used for drawing conclusions. The research also uses such methods of interpretation of legal norms: grammatical and systemic. The selected material and methods have helped achieve the goal of the research.
Dr iur. Aldis Lieljuksis states that the purpose of special investigative actions is to obtain information about the facts that relate to the provable circumstances in the criminal proceedings. Means and methods of operative work may be used in the acquisition of information; therefore, in such cases, investigative actions can only be carried out with the involvement of officials of institutions authorised to take operative measures by special laws. Besides, officials should be specially prepared to use special means intended for the implementation of a given task. Special actions are special and mainly differ from other investigative actions due to the fact that they take place without the persons involved in the investigative action being informed (Lieljuksis, 2019: 599).
The types of national special investigation actions of the Latvian state and the rules for their implementation and use are governed by the Criminal Procedure Law, namely in Chapter 11, named ‘Special Investigative Actions’ (Criminal Procedure Law, 2005).
The legal regulation and definition of the special investigative action—control of means of communication—is determined in Section 218 of the Criminal Procedure Law (Criminal Procedure Law, 2005). The control of telephones and other means of communications without the knowledge of the members of a conversation or the sender and recipient of information shall be performed, on the basis of a decision of an investigating judge, if there are grounds to believe that the conversation or transferred information may contain information regarding facts included in circumstances to be proven, and if the acquisition of the necessary information is not possible without such operation (Criminal Procedure Law, 2005).
The legislator determines that the special investigative actions shall be performed if, in order to ascertain the conditions to be proven in criminal proceedings, the acquisition of information regarding facts is necessary without informing the person involved in the criminal proceedings and the persons who can provide such information (Criminal Procedure Law, 2005).
In practice, the execution of special investigative actions is ensured by the person directing the proceedings, or by persons authorised in accordance with the law. Special investigative actions are carried out by the person directing the proceedings or by institutions and persons acting on their behalf, based on the decision of an investigating judge. If the use of the means and methods of an investigative action is necessary for the enforcement of such action, the performance of such operation shall only be assigned to State institutions specially authorised by law (Criminal Procedure Law, 2005). The following information shall be deemed as information acquired as a result of special investigative actions: During the course of a special investigative action, only information acquired in connection with less serious, serious or especially serious crimes shall be recorded that:
is necessary for ascertaining conditions to be proven in criminal proceedings; indicates the committing of another criminal offence, or the conditions for the committing thereof; is necessary for the prevention of immediate and significant threats to public security (Criminal Procedure Law, 2005).
Special investigative actions may be carried out only when investigating minor, serious or particularly serious crimes. The classification of crimes is regulated in the Criminal Law, namely in Section 7 of the law entitled ‘Classification of Criminal Offenses’.
Both the performer of special investigative actions and the person directing the proceedings, as well as the public prosecutor and the investigating judge must ensure that the acquired information complies with the objectives set by the Criminal Procedure Law. The person directing the proceedings, his or her involved persons, a prosecutor and the investigating judge who supervises special investigative actions shall implement all the necessary measures in order not to allow the gathering and use of information that is not in conformity with the purposes specified in Paragraph one of this Section (Criminal Procedure Law, 2005).
When analysing the legal and practical problems in the control of special investigative actions—means of communication, it should be concluded that legal scholars and experts have widely expressed their opinion and have called for a discussion related to the development of technology and the need for improvement—modernisation of legal norms.
Professor of the Faculty of Law of Riga Stradins University Faculty, Dr iur. Sandra Kaija, in relation to the dynamics of the field of proof and technological development, points out that the field of proof is dynamic and subject to continuous changes. It is necessary to take into account both, for example, changes in the field of development of the latest technologies as well as amendments to regulatory acts. They do not permit stagnation and require knowledgeable appliers of legal norms. Sometimes, the legislator also takes care of such legal norms that suggest what the purpose of this norm is, as well as how to properly understand and apply it (Kaija, 2019).
When analysing the legal regulation of investigative activities established in the Criminal Procedure Law by analogy with the legal regulation of operational activities established in Section 6 of the Law on Operational Activities, we should note the opinion of the associate professor of Riga Stradins University, Dr iur. Aldis Lieljuksis.
Subjects of operational activities should take into account the achievements of technical progress in information processing and storage, for example, smartphones, which can only be used for simple communication, as well as automatic data-processing systems which offer the possibility of storing documents and photos as data and conducting a conversation with the help of an automatic data-processing system, e.g. Skype. Therefore, a search of the smartphone of the detained person without the approval of the judge of the Supreme Court is not permissible (Lieljuksis, 2021: 168).
Nowadays, internet telephony services are rapidly developing, when verbal conversations are carried out by using internet protocols (mainly VoIP or XMPP), because special software for such purposes is even widely offered for free, including ICQ, SKYPE, GOOGLE TALK and others, the use of which allows significant saving of financial resources, especially if the conversation takes place with a person in another country. Facsimile communications, video conferences and other types of communications can also be implemented via the internet, says forensic expert Miķelsons (2005).
The decision of the judges of the Department of Criminal Cases of the Senate of the Republic of Latvia, A. Polakovs, P. Dzalbe and A. Nusberga, of 23 September 2015, in case No. SKK—297/2015 analyses the point of view of the defence regarding the application of the control of the means of communication of the special investigative actions and the review of the information stored in the phone (Department of the Criminal Cases of the Supreme Court of the Republic of Latvia, 2015).
According to the opinion of the defence, the inspection of the Sony Ericsson mobile phone seized from the person during the administrative detention was carried out in violation of Section 218 of the Criminal Procedure Law, because the information stored on the phone was examined and recorded in the protocol during the inspection, which was carried out on the basis of Section 159 of the Criminal Procedure Law. In accordance with Section 159 of the Criminal Procedure Law, in order to find traces of a criminal offence and to ascertain other significant conditions, a visual inspection may be performed of the item or another object. Inspection of the information accumulated in the phone shall be deemed as a control of means of communication for the purpose of Section 218 of the Criminal Procedure Law, rather than visual inspection of the objection. The defence counsel considers the fact that due to the above-mentioned violations, the information about the facts acquired during the inspection of the phone, in accordance with Section 130, Paragraph three of the Criminal Procedure Law, are to be considered as restrictedly admissible (Decision of the Department of Criminal Cases of the Supreme Court of the Republic of Latvia, 2015).
Regardless of the fact that the court does not agree with the opinion provided by the defence, the opinion provided by the defence continues to call for a discussion on the acquisition and use of the information stored on the phone in criminal proceedings.
The Head of the State Police, Kurzeme Region Department Criminal Police Bureau, Ventspils Regional Division, Jurijs Jeleckihs, having personal experience of more than 10 years in the work of Criminal Police, indicates the following.
Currently, there is one technological problem affecting the acquisition of evidence. Nowadays, technology is very advanced and criminals mostly communicate in the cyber environment using various apps such as ‘Telegram’, ‘Signal’, ‘WhatsApp’ and others. Criminals only use the mobile phone as an object that receives and transmits data. The data transmitted by the app is usually encrypted, which makes it difficult or impossible to intercept (Jeleckihs, 2021).
Taking into account the above-mentioned opinion, that the meaning of such a special investigative action is as a control of means of communication and is a measure to be carried out in a special way in the course of operational activity—operative secret hearing of non-public conversations by telephone— loses its relevance every year. The recommendation is to find a technological solution that would enable law-enforcement authorities to intercept data in the cyber environment, on applications such as ‘Telegram’, ‘Signal’ or ‘WhatsApp’, as well as to create new or supplement existing special investigative actions and operational activities that will enable the law-enforcement authorities to work more efficiently (Jeleckihs, 2021).
Dr iur. Jānis Baumanis indicates the following problems. Another problem, which also seems absurd to the author, is related to the provision in Section 218 of the Criminal Procedure Law that the control of means of communication is carried out not against the person, but against the telephone. All that a person has to do is keep changing the phone so that the investigator must constantly write proposals, run to the investigating judge and perform many other highly bureaucratic procedures to control the means of communication. The author believes that it would not only be useful, but even logical, if the control of means of communication were to be carried out against the person, and not the phone. Such an arrangement would even ensure greater control over the fact that the special investigative action is carried out against the specific person, rather than recording the conversations of other persons who, for example, borrowed the phone from the person to make a call. Even now, in practice, an error can often occur, for example, by incorrectly recording the phone number in the proposal; thus, the said error also appears in the decision. Then, of course, the person directing the proceedings ceases to control the means of communication and again writes many different documents. Besides, it may often be the case that a person starts a conversation, for example, with a lawyer who provides legal assistance, which in accordance with Section 122 of the Criminal Procedure Law, cannot be overheard. Then the special investigative action is stopped and the conversation is deleted. The author does not find the need to assess the performance of special investigative actions against equipment (telephone) during the pre-control, because human rights are violated for people, not equipment (Baumanis, 2018).
In order to eliminate the above-mentioned problem, first of all, the name of the special investigative actions—control of means of communication—should be changed to, for example, control of communication of a person in the means of communication. Accordingly, in Section 218 of the Criminal Procedure Law, the emphasis should be shifted from the equipment to a person, for example, formulating this norm as follows: The control of communication of a person made by telephone and other means of communication without the knowledge of the members of a conversation or the sender and recipient of information shall be performed, on the basis of a decision of an investigating judge, if there are grounds to believe that the conversation or transferred information may contain information regarding facts included in circumstances to be proven, and if the acquisition of necessary information is not possible without such operation (Baumanis, 2018).
In order to avoid misunderstandings regarding the fact that within the framework of this activity, not only the information expressed by a specific person can be recorded but also the information provided by all persons involved in the communication, including texts, images, videos and other forms, this section should be supplemented with the notice that, when performing control of the communication of a person by communication means, the information provided by all participants of communication, including the persons present (conversations, texts, images, videos and other information) should be recorded (Baumanis, 2018).
The improvement of the above-mentioned norm should also take into account the problems identified in the opinion of the Ombudsman of the Republic of Latvia of 19 April 2018 in review case No. 2018-23-4AD regarding the right to the confidentiality of communication with the defence counsel, when performing the control of the means of communication, by creating procedures that would ensure the immunity determined in Section 122 of the Criminal Procedure Law, as well as in other norms (Baumanis, 2018).
On the other hand, the prosecutor of the General Prosecutor’s Office of the Republic of Latvia, Visņakovs (2021) indicates the need to improve the norms of the Criminal Procedure Law, in relation to the person to be interrogated.
The Criminal Procedure Law in connection with special investigative actions, by analogy with the Operational Activities Law, should be supplemented with a norm on deviating from the decision of the investigating judge. Currently, the criminal process is missing a norm, which would indicate what should be performed if, for example, a person who is not specified in the decision of the investigating judge is overheard under the control of means of communication (Višņakovs, 2021).
When analysing the above-mentioned aspect, it should be concluded that with the development of technologies, the special investigative action—control of means of communication—has lost its importance, which the legislator had foreseen several years ago when including it in the Criminal Procedure Law. Nowadays, when controlling a smartphone and performing control of communication, as a minimum, the person’s movement is also controlled. The amount of acquisition of information depends on the methods of the operational work, that is, how this control is implemented. Based on the norms of the Criminal Procedure currently being in force, in controlling a smartphone, one should authorise several special investigative actions, which would cover the legal acquisition of information. In the future, the above-mentioned legal norm should be clarified or the Criminal Procedure Law should be supplemented with a more modern rule for the special investigative actions, proportionate to the development of technology. The above-mentioned amendments-supplements to the norms of the Criminal Procedure Law should also be carried out in order to solve the legal and practical problem situations indicated by experts and legal scholars when conducting special investigative actions—control of means of communication.
With the development of technology, the special investigative action—control of means of communication—has lost its importance, which the legislator had foreseen several years ago when including it in the Criminal Procedure Law. Communication between individuals is maintained using technological solutions that are not controllable through the control of means of communication.
Based on the provisions of Section 218 of the Criminal Procedure Law, the control of means of communication is carried out not against a person, but against a means of communication.
The Criminal Procedure Law is missing a norm that would regulate the actions to be taken if a person who is not specified in the decision of the investigating judge is overheard under the control of the means of communication.
Section 218 of the Criminal Procedure Law should be clarified or the Criminal Procedure Law should be supplemented with a more modern norm for special investigative actions, commensurate with the development of technology.