Jealous wife instead of intelligence: why change the law on spy gadgets

[НСК-СБ]

Jealous wife instead of intelligence: why change the law on spy gadgets.

The Prosecutor General’s Office completed the verification of criminal cases involving the use of “spy gadgets” and came to the conclusion that the law “has costs”. Under current law, you can even be prosecuted for buying a pen with a voice recorder. Pravo.ru experts told why such a law is needed and how to change it.
Humanization from Medvedev

In 2011, the State Duma considered and adopted an extensive package of amendments to the Criminal Code, written by incumbent President Dmitry Medvedev. Changes by opinion of the author The project was aimed at "further humanizing the criminal law." Together with the package, clause 3 of article 138 was replaced by a new article 138.1 of the Criminal Code of the Russian Federation: instead of “illegal marketing and production of funds for secretly receiving information”, “illegal circulation” of the same funds appeared. Special technical means are instruments and devices designed or programmed for secretly receiving and recording acoustic information, listening to telephone conversations, intercepting information from technical communication channels, and also researching objects and documents. The current article implies a restriction of liberty of up to four years or fines of up to 200,000 rubles. In addition, a restriction on the right to hold certain posts for up to three years may be introduced.

"Now, this article mainly attracts people ordering" toys "through Chinese sites: pens, watches with a video camera, etc. Police officers tritely make positive statistics on solving crimes in such situations, instead of engaging in disclosure and prevention real socially dangerous offenses, "said Sergey Tokarev, partner, head of criminal practice, attorney at Jorn Thorn, a former investigator.

James Bond Syndrome
https://pravo.ru/news/view/117323/
An article for a "jealous wife"
In 2014 Vladivostok resident tried to sell a pen with a hidden video recorder. Law enforcement officers bought it. The man was fined 10,000 rubles.
https://pravo.ru/news/view/117323/
In 2015 she was convicted of a woman who tried to monitor her husband with a fountain pen with a camera and voice recorder, and the police detained her when she received the goods in the mail. The court sentenced her to a fine of 10,000 rubles.
https://pravo.ru/news/view/117323/
In 2017 "Pokemon catcher in the temple" was accused, including under Art. 138.1 of the Criminal Code, a pen with a camera was found during the search. As a result, the blogger received a suspended sentence of 2 years and 3 months.
The list of such “toys” is extensive: a GPS tracker, a fountain pen with a video camera, in accordance with the law, are special technical equipment designed to tacitly receive information, says a partner at the law office ZKS Alexey Novikov. "In fact, the legislator, including the indicated norm of the law in the Criminal Code, had in mind really serious spy devices that could harm citizens, organizations and the security of state structures as a whole. However, to distinguish between so-called household devices and serious spy equipment, both the legislator and while the direct law enforcement authorities, taking advantage of this legal gap, approached the process formally and applied the article as it was written without going into the essence and attracting ordinary consumers, “spies”, thereby increasing crime detection statistics and showing their productive work, "said Novikov. The situation in his opinion could be reversed by clear explanations of which particular means are prohibited.

Work on the "costs"
By the seventh year of the existence of the article, 1,177 people were convicted. In 2017, the farmer's villagers turned to Vladimir Putin, who was prosecuted for a tracker on a cow. After the appeal, the persecution was stopped, and the president admitted that he did not even know about the existence of such an article. From that moment until April of this year, the Prosecutor General’s Office began checking all cases on it. “A special working group has been set up that is preparing an amendment of the law. In order to avoid unnecessary criminal prosecution when the device is purchased by citizens for their domestic needs. Or when administrative law can be dispensed with instead of criminal law,” the Prosecutor General’s office quoted Kommersant as saying. Another accused in the article already in 2018 was the founder of the VkusLab food delivery service, Artem Laptev, who used GPS trackers for the company's couriers.

Valery Volokh, the head of the criminal law practice of A-PRO JSB, believes that the article could be corrected by introducing a criminal purpose into the text of the law: this would allow separating real crimes from everyday everyday activities. “In each specific case, law enforcement agencies are faced with a problematic question: should the item be classified as such or not. I believe that the article should also be specified in this regard,” Volokh said.

Other non-criminal offenses
Courts and judges 11 relatively “ridiculous” ways to become a defendant in a criminal case
In addition to article 138.1, other issues are raised in the Criminal Code by experts. If the statement of the Prosecutor General’s Office can serve as the beginning of decriminalization of “spy gadgets”, then in other areas the law also requires additional reflection. Valery Volokh notes article 175 of the Criminal Code: “It establishes criminal liability for the acquisition of property that was obviously obtained by criminal means. Russian society has not yet reached the proper level of legal awareness, and for most ordinary people, the purchase of a thing that was previously stolen from the owner does not seem criminal,” comments he. Article 205.6 on non-reporting of a crime is also, according to Volokh, controversial, and criminal liability for not filing a notification of another citizenship also raises questions: “If such an act is committed, there can be no question of any public danger,” he summarizes.

So far, no real legislative measures have been taken to decriminalize or amend article 138.1, and "spy gadgets" are available for purchase on online store sites.

• Ekaterina Borzenkova

 

[НСК-СБ]

Businessman tracked by GPS
Buying courier trackers could turn into a criminal case
05/04/2018

The Moscow Investigative Committee is deciding whether to institute criminal proceedings against the founder of the VkusLab food delivery service, Artem Laptev, who bought GPS trackers in China for his couriers. The devices were supposed to be used with the knowledge of employees, but investigators saw signs of a crime under Art. 138.1 of the Criminal Code of the Russian Federation (illegal acquisition of special technical equipment intended for secretly obtaining information). At the end of April, the Prosecutor General's Office admitted that this norm of the Criminal Code needs to be adjusted.

According to Kommersant, Artem Laptev, in 2017 he wanted to develop an application that would allow the client to see the courier movement on the map in the smartphone in order to calculate the delivery time of food. “This technology is implemented in taxi call applications. But there, drivers use their phones, which are constantly charging, as a coordinate transmitter, ”the entrepreneur says.“ And the courier is on his feet all day, he has nowhere to recharge the phone. ” According to him, in Russia a certified tracker cost at that time about 7 thousand rubles, a similar device from China would cost only 500 rubles. “When you need a lot of devices and you are afraid that the courier will lose it, there is a desire to save,” the entrepreneur admits. Mr. Laptev made an order on AliExpress in July 2017, but did not receive any devices. But on April 19, 2018, he received a summons from the Koptev department of the Investigative Committee. “The document didn’t indicate why I was being called, but the investigator’s phone number was indicated,” the businessman said. “I called, and the investigator friendly says: it’s okay, your phone number appeared in some other case, pure formality, run in give explanations for 15 minutes. ”

What equipment can not be imported to Russia
Mr. Laptev came to the investigator without a lawyer. “He asked me some questions about a long-forgotten order with AliExpress, I confirmed the purchase,” the businessman says. “That turned out to be sufficient - the investigator saw signs of a crime under Art. 138.1 of the Criminal Code. I didn’t even know about that. ” As it turned out, the order still arrived in Russia, but it was detained at customs and sent for examination. They saw that in plastic boxes for 500 rubles. There are not only trackers, but also built-in microphones. This gave reason to consider the devices "intended for secretly receiving information."

Mr. Laptev arrived at the second meeting with the investigator with a lawyer. Together they tried to explain what couriers should have known about finding the tracker in a bag of food. “The investigator was sympathetic, but said that he was not writing laws. According to him, now I have two options: to write a confession with remorse and receive a small fine, or to sue for a long time and prove innocence, ”Mr. Laptev says.“ I said that I did not consider myself guilty. The investigator replied that he would decide on the initiation or non-initiation of proceedings. I can earn a criminal record out of the blue without committing any crime. But all visa departments, all employers must ask if there was a criminal record, and this may be a reason for refusal. In addition, I work in the financial sector and will no longer be able to occupy certain career posts. ”
For the turnover of what "special technical means" faces criminal punishment
Recall that until 2011, the punishment for illegal trafficking of technical means for secretly obtaining information was provided for in Part 3 of Art. 138 of the Criminal Code. Then this crime was singled out in a separate article - 138.1, and the maximum sentence was increased from three to four years in prison. All these years there has been an increase in the number of sentences. According to the statistics of the judicial department under the Supreme Court of the Russian Federation, 72 people were convicted under this article in 2012, and 254 people were already convicted in 2017 (zero is acquitted, the charge was dropped for lack of corpus delicti in one person). Some of these convicts were also charged under other articles. In the statistics for 2017, Kommersant found 177 convictions, which referred only to Art. 138.1 of the Criminal Code. Four people were sentenced to imprisonment (three received up to one year, one person up to two years). 11 citizens were fined up to 5 thousand rubles, 101 people received a fine from 5 thousand to 25 thousand rubles, 60 convicts - from 25 thousand to 100 thousand rubles. One sentence indicates the maximum possible fine - from 100 thousand to 300 thousand rubles.

Earlier, Kommersant told the story of Muscovite Alexei Sokolov, who was accused of buying and subsequently selling a Chinese keychain with a hidden video camera. The accused himself explained that he ordered the keychain as a DVR for the motorcycle helmet, but was disappointed in the quality of the picture and decided to resell it in order to return the money spent. While the investigators dealt with his case, Mr. Sokolov spent four months in jail. As a result, the state prosecutor asked him to be sentenced to a fine of 100 thousand rubles, but the judge sentenced him to “imprisonment” - four months in prison.
What gadgets can count on "amnesty"
“Criminal devices are those that are designed for covert surveillance. This is decided by technical experts - and they look only at the initial function of the device, ”explains Ivan Pavlov, a lawyer for the human rights“ Team 29 ”.“ Let's take a recorder in a fountain pen. The purpose of the pen is to write on paper. The expert considers the addition of the dictaphone function as an attempt to disguise a listening device by the handle. Was there a criminal intent, the investigator decides. ”

Problems with the application of Art. 138.1 of the Criminal Code were recognized more than once, and at the highest level. In December 2017, President Vladimir Putin was told at a press conference the story of a large farmer from the Kurgan Region who ordered a GPS beacon to track a cow. The man was detained at the rural post office upon receipt of the parcel; he was charged under Art. 138.1 of the Criminal Code. “I don’t even know that there is such an article,” President Putin said. “I don’t understand what the problem is with the cow. Probably, it needs to be somehow regulated, I will try to do it. ” After that, the case against the farmer was dismissed, and the Prosecutor General’s Office began a large-scale verification of all criminal cases brought under Art. 138.1 of the Criminal Code. “We will study whether there are excesses in the regions using this norm,” said Alexander Kurenoy, the official representative of the department at the end of 2017. As Kommersant found out, this check ended two weeks ago, at the end of April 2018. In an interview with Kommersant, Mr. Kurennoy said that the department concluded that the law "has costs." “A special working group has been created that is preparing an adjustment to the law,” said the representative of the Prosecutor General’s office. “So that there is no unnecessary criminal prosecution when the device is purchased by citizens for their domestic needs.” Or when, instead of criminal law, it’s quite possible to get along with administrative ones. ”
Alexander Chernykh
Businessman tracked by GPS