Several Problematic Issues of Legal Regulation of Wiretapping as an Operational-Investigative Measure

Abstract

The article highlights a number of problematic issues of the legal regulation of wiretapping during the operational search activity; analyzes the operativesearch legislation.In the decision of the European Court of Human Rights on the case of "Roman Zakharov v. Russia" a general conclusion was drawn that the Russian legislation regulating wiretapping does not meet the criteria of "quality of law" and is not able to restrict the use of unspoken observation methods only to the cases, when it is "necessary in a democratic society". The adoption of this Decision by the European Court of Human Rights was aimed at bringing the legal norms governing the wiretapping of telephone conversations in accordance with international standards. In addition, the authors examined the decisions of the Constitutional Court of the Russian Federation on complaints of citizens on violation of their constitutional right to the secret of telephone conversations. The article examines the problem of judicial supervision over the procedure for the application of operational search measures that limit the constitutional right to the privacy of correspondence, telephone conversations, postal, telegraphic and other communications, without preliminary judicial decision in cases that do not tolerate delay. Taking into account the legal positions of the European Court of Human Rights and the Constitutional Court of the Russian Federation, proposals were made to improve legislative norms and law enforcement practice.

DOI 10.14258/izvasu(2017)6-20