Legislative replacement of operational and investigative activities with criminal intelligence – reform of legal regulation of the activities of law enforcement agencies and special services or its illusion?

The article examines the existing proposal to legislatively replace operational and investigative activities (hereinafter referred to as OIA) with the so-called «criminal intelligence» through the adoption by the Verkhovna Rada of Ukraine of the Law of Ukraine «On Criminal Intelligence». Based on an analysis of the arguments presented by its initiators and supporters, as well as its opponents, the author presents his own position on this issue. In particular, it is substantiated that such an approach to solving the problem of strengthening the capabilities of domestic law enforcement agencies and special services in the sphere of ensuring national security and combating crime is flawed. First, the very title of such a law – «On Criminal Intelligence» — as well as the use of the same term to denote the activities of Ukrainian law enforcement agencies and special services aimed at obtaining preventive information in the field of combating crime, is considered incorrect. According to the scientific interpretation of the phrase «criminal intelligence», its subjects are not the relevant operational units of Ukrainian law enforcement agencies and special services, but rather certain structural elements of criminal groups. Second, the activity of obtaining information about the preparation of criminal acts, indications of criminal activity, and the persons involved, carried out by the aforementioned state institutions defined by law, could be referred to as «anti-criminal intelligence», «police intelligence», or «law enforcement intelligence», but not «criminal intelligence». However, unlike operational-special activities such as counterintelligence (CIA) and special anti-criminal activity (SACA), it does not include measures to prevent and suppress intelligence-subversive and criminal activities, respectively. Therefore, it has a limited purpose, as it performs only one function — an informational one (satisfying specific information needs). For this reason, the proposal to legislatively replace OIA, which is currently considered, under existing legislation, a generic category in relation to counterintelligence activity (CIA) and intelligence activity (IA), with «criminal intelligence» is regarded as unacceptable both from the perspective of theory and operational practice. Instead of properly reforming the normative legal definition and support of the special activities of Ukrainian law enforcement agencies and special services as a specific mechanism for counteracting threats to national security and combating crime, especially under the current conditions of repelling the full-scale military aggression of the Russian Federation, such a proposal essentially creates the illusion of solving the stated problem. To eliminate the existing gaps, inconsistencies, contradictions, and other shortcomings of current legislation in defining and regulating the special activities of Ukrainian law enforcement agencies and special services aimed at ensuring national security and combating crime, it is proposed to develop a draft Law of Ukraine «On Special Anti-Criminal Activity» and adopt it through the Verkhovna Rada of Ukraine in place of the Law of Ukraine «On Operational and Investigative Activities». In this normative legal act, considering that special anti-criminal activity (SACA), along with counterintelligence activity (CIA) and intelligence activity (IA), constitutes a component of operational-special activity, it is proposed to define the concept of «special anti-criminal activity», establish the organizational and legal foundations of this type of activity of Ukrainian law enforcement agencies and special services in the sphere of combating crime, and grant the subjects of SACA the right to conduct intelligence measures to obtain preventive information on the preparation and commission of crimes and the persons involved.