The work includes a comprehensive study of the issues of regulation and the practice of using confidential cooperation in criminal proceedings. In particular: a comprehensive review of scientific approaches to key issues of the use of confidential cooperation in criminal proceedings is conducted; the history of the formation of confidential cooperation as a means of investigating criminal offenses through the prism of the experience of operative investigative activity and the European integration of the criminal process is investigated; foreign experience is studied and international standards for the use of confidential cooperation during the investigation of criminal offenses are systematized; the circle of persons who may be involved in confidential cooperation, their procedural rights, obligations and guarantees of activity are determined; a clear algorithm for involving persons in confidential cooperation is formed and scientifically substantiated, taking into account the requirements of the secrecy regime; legal guarantees of the realization of the right to safety of persons involved in confidential cooperation are considered, as an important condition for its effectiveness; the problems of granting access to state secrets and access to secret materials of criminal proceedings to persons involved in confidential cooperation are investigated; the specifics of conducting various covert investigative (search) actions (hereinafter referred to as the CISA) with the participation of a person involved in confidential cooperation are considered; all types of evidence that can be obtained as a result of the CISA with the participation of a confidential employee are characterized, and their procedural features are determined.
In the first chapter of the work, attention is focused on the general theoretical aspects of the researched issues. It is established that the majority of lawyers today consider confidential cooperation only an auxiliary tool for the successful conduct of other CISA, in some places – exclusively as an agent method of obtaining information by operational units (replacing the concept of confidential cooperation in criminal proceedings with the concepts of confidential and secret cooperation during operational investigative activities). Specific features of confidential cooperation as an independent CISA are singled out. The experience of using informants, agents, proxies, etc. in the USA, Germany, France, Italy, Belgium, and the Netherlands is studied, and the features of the most effective foreign models of cooperation with individuals are analyzed. Along with this, the criteria for ensuring a fair trial are systematized, developed by the European Court of Human Rights during the review of complaints about violations of Art. 6 of the Convention on the Protection of Human Rights and Fundamental Freedoms.
The second section of the work deals with the issues related to the determination of the procedural status in criminal proceedings of persons involved in confidential cooperation through the systematization of their procedural rights and obligations, guarantees of activity. Along with proposals to grant the confidential status of a witness, victim or suspect, the expediency of classifying persons who act as informants and contribute to the organization and conduct of the CISA in criminal proceedings and do not take an active part in the conduct of other CISA to “other persons” within the meaning of Part 6 of Art. 246 of the CPC, which will allow them to be kept confidential in the absence of grounds for the application of security measures.
In the third section of the work, attention is focused on the issues of the procedure for obtaining evidence in criminal proceedings with the participation of a confidant, the problems of research and evaluation of such evidence. It is established that obtaining admission and access to state secrets for a confidant within reasonable time limits in accordance with current legislation is impossible, while this does not affect the admissibility of evidence obtained with the help of a confidential employee. It is argued that the use of confidential cooperation as an independent CISA provides an opportunity to guide law enforcement officers on the expediency of drawing up a protocol based on the results of such CISA. It is proposed to use such protocols during the preparation of other CISA, to refer to them in the relevant petitions, decisions and resolutions, without disclosing the real data of the confidant. Attention is focused on the fact that the confidant must be granted all procedural opportunities, which, in accordance with Art. 104 of the CPC, provides for the procedure for reviewing and signing the protocol.
