The Constitutional Court declared that Part 3 of Art. 138 of the Criminal Code

[Частный детектив Воронеж]

On March 31, 2011, the Constitutional Court of the Russian Federation declared the provision of part 3 of Article 138 of the Criminal Code of the Russian Federation not contradicting the Constitution, since it assumes that criminal liability is incurred for the production, sale or acquisition of special technical equipment designed to secretly receive information if these actions are carried out without appropriate licenses, and the special technical means themselves are designed and designed specifically for the secret (i.e., secret, non-obvious) obtaining of information affecting the constitutional rights of the individual.
The case was examined on February 16, 2011 based on complaints by citizens of S.V. Kaporin, I.V. Korshun, S.V. Mironov, C.I. Soloviev and A.G. Trubin.

reference
Part 3 of Art. 138 of the Criminal Code of the Russian Federation provides for criminal liability for the illegal production, sale or purchase of special technical equipment intended for the tacit receipt of information.
Such special technical means include, for example, devices for secretly receiving acoustic information, visual observation, and listening to telephone conversations. The free circulation of such special devices is prohibited by federal law, only law enforcement officers and special services are allowed to use them in the course of operational search activities. The development, production, sale and purchase of special technical equipment can be carried out solely on the basis of a license issued by the FSB of Russia.

Background
1. Entrepreneurs from Petropavlovsk-Kamchatsky S.V. Kaporin, from Komi C.I. Soloviev and a resident of Kostroma S.V. Mironov are accused of illegally purchasing and selling video surveillance devices camouflaged as household items (ballpoint pens and car alarm systems with built-in camcorders and microphones). Entrepreneurs specialize in retailing technical devices. They bought special equipment in a free trading network and sold in stores. Citizen S.V. Mironov purchased these devices over the Internet also for subsequent sale. All three were brought as criminal defendants in 2010.
2. An entrepreneur from Zelenograd I.V. Korshun is engaged in the production of professional audio and video recording equipment. On February 10, 2000, he was sentenced to a fine of 200 minimum wages for illegal production and sale of a remote acoustic control device. The device was highly sensitive, camouflaged and could only be detected using special tools. It was intended to control the operation of the security system (apartment, office) and received acoustic information.
3. A resident of Arkhangelsk, A.G. Trubin, on May 22, 2008, was sentenced to 1,5 years of imprisonment by a sentence of a justice of the peace. The court concluded that the devices manufactured by A.G. Trubin (four radio microphones mounted in a case from lipstick) are included in the list of special technical equipment designed to secretly obtain information during operational-search activities. For the production and marketing of such special equipment, it is necessary to have an appropriate license, which A.G. Trubin did not have. The applicant's complaints were dismissed and the sentence entered into force in January 2010.

Applicants Position
The applicants believe that the contested norm, due to its ambiguity, provides the law enforcer with unreasonably wide margins of appreciation. The absence in it of a clear concept of special technical means intended for secretly obtaining information, signs and criteria for delimiting from technical means permitted for circulation; Allows any device for receiving, transmitting and recording information to be attributed to the subject of a crime. The citizen, on the other hand, lack of certainty, clarity and specificity of the regulations, does not allow us to foresee the consequences of his actions, to distinguish between lawful behavior and unlawful behavior.
Thus, according to the applicants, the constitutional principles of equality and justice, as well as their constitutional rights, including freedom of information and judicial protection, are violated.

Court Position
The constitutional rights of individuals to privacy, personal and family secrets, protection of their honor and good name, privacy of correspondence, telephone conversations, postal, telegraph and other messages, as well as inviolability of the home are under special protection of the Constitution. In this case, storage, use and dissemination of information about the private life of a person without his consent is not allowed. Accordingly, the collection of information involving the violation of these rights is also not allowed.
Based on this, the federal legislator determined the legal basis for the production, marketing and acquisition of special technical equipment intended specifically for the tacit receipt of information. Legal liability measures have also been established, including criminal sanctions, for the illicit trafficking of special equipment.
Federal law prohibits the free circulation of such special equipment with which it is easy to violate the rights of citizens guaranteed by the Constitution. It establishes the mandatory licensing of their production, acquisition and marketing and allows their use only in the process of implementing the operational-search activity prescribed by law.
On the basis of federal laws, the Government determines the lists of such special equipment, their properties and features, which makes it possible to distinguish them from ordinary devices designed for domestic use. One of the main criteria in this case is the necessary qualities that were specially given to special equipment (technical revision, camouflage was carried out) precisely for secret, non-obvious receipt of information by people who do not have legal grounds.
Accordingly, when bringing a person to criminal responsibility, it must be established not only the fact of production, sale or acquisition of special technical equipment intended for the tacit receipt of information, but also the illegality of the relevant actions and the intent to commit them must be proved.
Thus it is provided h. 3 Article. 138 of the Criminal Code of the Russian Federation, criminal liability is incurred for the production, sale or acquisition of such special technical equipment that is designed (developed, adapted, programmed) specifically for secret (i.e. secret, non-obvious) receipt of information affecting personal rights guaranteed by the Constitution of the Russian Federation.
It is in this sense that the provision of Part 3 of Art. 138 of the Criminal Code of the Russian Federation is recognized as not contradicting the Constitution of Russia. Consequently, any other interpretation is excluded in law enforcement practice.
Decisions in the applicants' cases, based on this statute as interpreted at variance with the constitutional legal sense established by the Constitutional Court of the Russian Federation, are subject to resolution in the manner prescribed by law.

The process was chaired by ZORKIN Valery Dmitrievich
The judge-speaker was Nikolai V. Seleznev

 

[Anonymous]

That is, if I keep a tracker in my car - this is not a special device, but if I accidentally dropped it in the person’s office, and after that, to find it, I turned on the coordinate pick-up function and accidentally listened and wrote down what people around were saying there, then the composition will be?

There is no intent on committing unlawful acts ....: lol:

Similarly:
Recording the sounds of the noise of the city, I accidentally directed the microphone into the windows of someone’s office and became an accidental witness to a conversation between two unknown people who were discussing the possibility of raider capture of a competing company, then this is normal, as it should be ...: lol:

Dare colleagues, the list of special tools has not been, and is not. Now, to law enforcement officers, in addition to proving the fact of the presence of a specially adapted device, the court also added the obligation to prove intent on secretly receiving information and the fact of receiving this information.
Therefore, store your special equipment separately from the information received with the help of them.
Glory to our COURT.