Nusikalstamos veikos imitacijos modelio ir slaptosios operacijos vieta operatyvinėje veikloje

Abstract

Implementation of the opportunities offered by operational activities in the fight against criminality and increasingly wider application of the results of these activities in the criminal proceedings brought about certain issues related to the usage of certain concepts in the operational activity. The actors of operational activity who resorted to the principle active operation would be increasingly more often faced with a necessity to interfere with criminal processes in order to uncover criminals. The whole of such operational activities, which would result in the detention of persons on the crime scene and with evidence, did not have any legally valid name. The Law on Operational Activities used a concept of a mode of conduct simulating a criminal act, which by misconception became popular and came into use to denote actions in any intelligence operation. The term became popular in the media, households but the most problems resulted from incorrect perceptions of the concept in the law enforcement institutions, what brought about negative legal consequences. One of the consequences was the problem of wrong identification of the concept of the mode of conduct simulating a criminal act with the concept of an undercover operation. The article expands on the substance and legal nature of both concepts. The mode of conduct simulating a criminal act that is in fact actions with formal features of a criminal act should be differentiated from an undercover operation as a whole of operational activity aimed at the detention of the criminal on the crime scene and with evidence.
The article tries to reveal the substance of the mode of conduct simulating a criminal act and the substance of an undercover operation and their relationship in the operational activities. That is done by the analysis of legal acts, taking real life examples and referring to the experience of the foreign states.
The mode of conduct simulating a criminal act means only a right to undertake actions, which have formal features of a crime, but does not entail the liability, and helps to gain trust and successfully implement the methods of operational activity. The trust is necessary to the undercover agents infiltrated into criminal groups. The mode of conduct simulating a criminal act is used in all the cases where it is impossible or very difficult to gain trust. For example, by using the method of agents, when an undercover employee is infiltrated into a criminal group in order to collect information on the activity of the group, which may be possible only after gaining trust, a mode of conduct simulating a criminal act is used (for instance, a gun or narcotic substances are carried illegally), but in such a case there is no undercover operation ongoing.
In the cases when criminal activity is uncovered or criminal act is attempted and a criminal needs to be detained on the crime scene with evidence, an undercover operation is carried out.
The article also gives an overview of the issues related to a provocation, a method used in active operational actions.