Jurisdictional and Procedural Aspects of Judicial Consideration of Materials Related to Operational Search (Investigative) Measures

The paper identifies key areas of judicial review in the conduct of operational-search (investigative) measures and systematizes its forms, distinguishing between preliminary and subsequent control. The author highlights that the statutory regulation of judicial review in this sphere is extremely concise; therefore, many issues must be resolved both on the basis of the general meaning of the law and through the application of the rules of legal analogy. Given the high degree of similarity between operational-search (investigative) and criminal procedural legal relations, in the presence of gaps in the regulation of operational-search activities, it is methodologically appropriate to apply, by analogy, the provisions of the Criminal Procedure Code of the Russian Federation. However, such analogy cannot be absolute. Determining subject-matter jurisdiction for reviewing materials concerning the conduct of operational-search measures requires consideration of the provisions of several federal laws, namely, On Operational-Search Activity, On the Status of Judges in the Russian Federation, as well as the interpretative recommendations of the Plenum of the Supreme Court of the Russian Federation. A specific area of judicial review unique to operational-search activity is analyzed separately, namely, the review by a higher court of an application to conduct an operational-search measure in cases where a lower court has refused authorization. It is emphasized that such review by a higher court does not constitute reconsideration of the lower court’s decision. Thus, depending on the court that examined the material, the appropriate higher court is either the court of the constituent entity of the Russian Federation or the Supreme Court of the Russian Federation, rather than an appellate or cassation court. The paper also examines the procedural specifics of handling citizen complaints related to operational-search measures. Criteria are provided for distinguishing between administrative-law and criminal-procedural complaint procedures.

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