Operational and investigative activities: domestic scientific opinion on legislative reform

The article examines the problem of legislative reform of operational and investigative activities (hereinafter referred to as OIA). The existing approaches of domestic scientists to its solution are considered. It was found that today they offer the following: – development and adoption of an operational-investigative code that would be able to regulate comprehensively all aspects of this type of special state activity; – development and adoption of a new, more substantial in content and more clearly structured law, compared to the current one, on the regulation of OIA; – development and adoption of a new «narrow» Law to replace the current Law, the provisions of which would regulate only general issues of the OIA, and also provide that the specifics of its organization and tactics are determined in the subordinate regulatory legal acts RLA (departmental and interdepartmental nature) determined by the legislation of the relevant entities; – recognition of the Law of Ukraine «On Operational and Investigative Activities» as expired since the OIA has actually been replaced by covert investigative (search) actions, which are provided for by the new Criminal Procedure Code of Ukraine, which entered into force in 2012; - development and adoption of the Law of Ukraine «On Criminal Intelligence instead of the Law of Ukraine «On Operational and Investigative Activities». The analysis results justify that the above approaches cannot solve the problem of proper legislative support for the activities of law enforcement agencies and special services of Ukraine in ensuring national security and combating crime, since they all stem from the legislator's misconception when adopting the Law of Ukraine «On Operational and Investigative Activities» in 1992 that OIA is a system whose elements are intelligence and counterintelligence activities. OIA is actually only one of the elements of covert - operational activities (hereinafter — OA). OA as a system, along with OIA, includes: operational search activities (OSA), operational prevention activities (OPA) — unspoken prevention; operational termination activities (OTA) and operational oversight activities (OOA). OA is a subsystem, a structural element of counterintelligence (CIA), intelligence (IA) and special anti-criminal activities (hereinafter - SACA), that is, OA acts as a derivative, a specific category in relation to them. In turn, CIA, IA and SACA collectively form another, general system – operational-special activities (hereinafter – OSA), and act as its varieties. Therefore, OSA is a generic category for them, and OIA, as a type of OA, is only a subspecies of OSA. Therefore, OIA cannot be a term and concept that would determine the general definition of special activities of law enforcement agencies and special services, since it itself is only a subspecies of this activity. In order to improve the legal framework for the special activities of law enforcement agencies and special services of Ukraine to ensure national security and combat crime, it is considered appropriate to replace the Law of Ukraine «On Operational and Investigation Activities» to develop and adopt the Law of Ukraine «On Operational and Special Activities», which would define its concepts, structural elements, and basic organizational principles.