Legal aspects of using chemical traps.
Legal aspects of using chemical traps.
V. Pogulyaev
Information protection. Confidential No. 3, 2004
The use of chemicals as one of the measures to ensure the safety of objects helps to prevent and more quickly solve many categories of crimes. In detective films, we have often seen how thieves, when trying to commit thefts, encounter various security tricks, including devices that spray indelible paint. When the dye gets on the hands or face of the intruder, it makes him, to put it mildly, more noticeable to others. However, this method has not yet become widespread in Russia, despite the presence of a fairly wide category of people potentially interested in using the aforementioned means.
Due to the insufficient legal framework regulating the circulation of chemical safety products, consumers often cannot find answers to the following questions:
- what are chemical traps and what are their varieties?
- is their production legal in Russia?
- where can such traps be placed?
- does the use of such means violate human rights?
Let's try to answer these questions.
Perhaps the only legal document to date that regulates in detail issues related to chemical traps is the instruction on the procedure for using chemical traps to solve thefts of property owned by the state, municipal, private and public associations (organizations), approved by Order of the Ministry of Internal Affairs of the Russian Federation dated September 11, 1993 No. 423, which came into effect on October 15, 1993 (hereinafter referred to as the Instruction). At the same time, this Instruction is a guide for law enforcement officers rather than for potential consumers. Therefore, when interpreting its provisions, it is necessary to take into account that they are not directly applicable standards.
So, what is a chemical trap?
According to the Instructions, these are devices or equipment equipped (treated) with special chemical substances (coloring or odorous), camouflaged as various objects, with the help of which such substances are transferred to the body and clothing of a person.
Chemical traps are very diverse in their nature. They can be camouflaged as a wad of money, a book, a wallet, or packaging for something. There are two groups of traps: active and passive traps. In both cases, the special chemical substance used in the traps must be reliably isolated from the effects of the external environment. Active traps transfer chemical substances to the object when a mechanical or pyrotechnic sprayer is triggered. Only centrally supplied special products (pyrocartridges) may be used as pyrotechnic sprayers in traps. The outlet of such products must be equipped with a shield that does not allow direct discharge of the chemical substance into the face to avoid injury.
Unlike active traps, contact with the chemical substance in passive traps occurs as a result of damage to their shells or directly upon contact with special open substances (ointments).
The Instructions list places where inventory items are concentrated (warehouses, bases, stores, pharmacies and other premises), as well as places where funds are temporarily stored (savings banks, cash desks of enterprises, institutions and other organizations) as objects that can be blocked by chemical traps. In principle, any location of something that is valuable to a particular group of rights holders (for example, a house, garage or office) can be blocked by chemical traps.
According to the Instruction, the identification of storage facilities for goods and materials most susceptible to criminal attacks and the determination of the order of their blocking with chemical traps is carried out by district police inspectors based on an analysis of the circumstances of the theft of material assets and cash, taking into account the current operational situation. At the same time, as follows from the Instruction, the identification and blocking of the said facilities is rather a rule for law enforcement agencies (their direct responsibility) than an exception made for an annoying owner after «knocking down the doors» of various authorities. At the same time, naturally, the blocking of facilities is carried out with the consent of the owner or a person authorized by him.
Before blocking an object with chemical traps, the local police officer, in the presence of financially responsible persons, conducts an inspection of the object to determine the number, type, camouflage of the traps, and their installation locations. The number of traps and the order of their placement inside the object are determined in such a way as to create the maximum probability of the criminal coming into contact with them. Persons financially responsible for the condition of the blocked object are instructed on the procedure for handling the installed chemical traps.
Information about blocked objects is entered by the district police officer in the relevant section of the district police passport. When installing traps, a report is drawn up, to which a sample of the chemical substance used in the trap is attached in a sealed package. The condition of the installed chemical traps must be checked by the district police officer once a quarter. In case of doubt about the functionality of the traps, they are replaced.
Where can I buy chemical traps?
The technical departments of the Ministry of Internal Affairs, the Main Directorate of Internal Affairs, and the Department of Internal Affairs are engaged in the production of traps. The supply of the required quantity and assortment of traps is carried out by the material and technical supply agencies of the said agencies upon applications from district police inspectors. Thus, persons interested in installing traps can submit a corresponding request to the local police department. At the same time, there are also various commercial firms that practice the production and installation of chemical traps, since there is no sufficient regulatory framework that would allow this sector to be attributed to the exclusive jurisdiction of state bodies.
Thus, the Federal Law «On Licensing Certain Types of Activities» of August 8, 2001 No. 128-FZ lists only the production of pyrotechnic products as an activity associated with the manufacture of chemical traps, for which a license is required. The Decree of the President of the Russian Federation of February 22, 1992 No. 179 (as amended on December 30, 2000) approved a list of types of products (works, services) and production waste, the free sale of which is prohibited. Work on the manufacture of chemical traps and services for their installation are not included in this list. Their circulation is not prohibited by the Federal Law «On Operational Investigative Activities» of August 12, 1995 No. 144-FZ (as amended on June 30, 2003). Responsibility for the «home-made» production and distribution of chemical traps is not directly provided for by either the Code of Administrative Offenses of the Russian Federation or the Criminal Code of the Russian Federation. The Instruction on the procedure for using chemical traps also does not say that the tasks of law enforcement agencies include identifying objects blocked in violation of the rules established by the Instruction, and confiscating «counterfeit» traps.
In any case, if any bureaucratic difficulties arise at the stage of initiating a case related to the “unauthorized” installation of traps and their “uncoordinated” use, it is necessary to remember that a criminal case or a case of an administrative offense is initiated based on the fact of committing an illegal act or misdemeanor, and not based on the fact of the trap being triggered.
However, non-compliance of traps with the quality criteria declared by the manufacturer or agreed upon with the customer in advance may entail consequences for their manufacturer (distributor) in the form of liability, including for failure to fulfill obligations and violation of consumer rights. Liability of the said persons may also arise in the following cases:
- if the trap was triggered at the wrong time and the person in the spray zone was not an intruder;
- if the trap caused harm to health.
The problem of harm to the rights and interests of an individual is of no small importance in the use of chemical traps. If we do not take into account cases when a poor-quality chemical trap causes harm to a person's physical condition, but consider violations of other personal non-property rights, then the answer to this question lies in the mode of action of the dye contained in chemical traps. In most cases, the principle of action is simple: when it gets on the skin of an intruder, the substance does not wash off for several days. Therefore, if a damaged (triggered) trap is found at the scene of the theft and it is obvious that a dye has been released, then suspicion of the theft can easily fall on any employee who did not show up for work after the incident. There are known cases in practice when law enforcement officers visited «to ask a few questions» about a recent theft in an organization to people who did not show up for work allegedly because of illness, and found them with traces of chemical traps on their faces or hands.
Sometimes a chemical substance is given such properties that it does not leave bright spots, but becomes visible only when light hits it in a certain way. The offender may not know this and, accordingly, not take precautions when appearing in public. Such traps are the most effective. At the same time, their use may entail a violation of the personal non-property rights of citizens, in particular honor, dignity and reputation. After all, if an employee whose clothes or skin are stained with a chemical substance is “exposed” among colleagues, his good name will suffer at least within the framework of this organization, even if he is subsequently found innocent. Under certain conditions, the use of such traps can be regarded as a means of obtaining information about an individual without his knowledge and consent, which is a violation of the provisions of the Constitution of the Russian Federation, the Law “On Information, Informatization, Protection of Information” dated February 20, 1995 No. 24-FZ and a number of other regulations.
Thus, in accordance with Article 86 of the Labor Code of the Russian Federation, “all personal data (personal information) of an employee should be obtained from him/her. If the employee’s personal data can only be obtained from a third party, the employee must be notified of this in advance and his/her written consent must be obtained. The employer must inform the employee of the purposes, intended sources and methods of obtaining personal data, as well as the nature of the personal data to be obtained and the consequences of the employee’s refusal to give written consent to receive them.” This approach is also consistent with procedural legislation, in particular with the provisions on the legality of obtaining evidence.
Therefore, the use of covert action traps should be approached with particular caution. Pre-developed arguments can partly help to maintain the secrecy of the investigation, for example, an explanation to the work collective about accidental damage (damage to the shell) of a chemical trap, conducting training exercises or some kind of experiment not related to the increased incidence of theft in the warehouse.
At the same time, informing employees of warehouses, production bases and other places where goods and materials are concentrated that the facility where they work is equipped with chemical traps can serve as a guarantee of the safety of «state» property. Information can be provided not only by directly announcing this at a «meeting», but also, for example, by including a corresponding clause in the standard form of an employment agreement (contract):
«The employee is informed that the employer, in order to prevent theft and other attacks on his property, intends to use various technical and chemical security means, including equipping places where inventory is concentrated with chemical traps. The employee does not object to the employer using the said means.»
In conclusion, it should be noted that chemical means of preventing and detecting offenses are important not only in matters of the safety of an individual or a group of subjects (organization). They play an important role in the business security system as a whole, since they can be used to prevent and promptly suppress attacks on commercially valuable information resources. After all, leakage (theft, destruction) of information accumulated within one enterprise (about the methods and technologies used, partnerships, clients, competitors, etc.) often risks having a negative impact on the interests of business entities in an entire industry. Therefore, the management and security services of organizations should pay attention not only to the protection of property, but also consider the possibility of using chemical means to protect objects storing confidential information (safes, archives, locations of corporate servers, etc.).
About the author: V. V. Pogulyaev, Deputy General Director, Head of the Contract Department. Copyright Law Agency. E-mail dogovor@juragent.ru