SOME ISSUES OF LEGAL REGULATION OF ORGANIZING COUNTER-TERRORIST OPERATIONS.
Bondarenko A.E.,
professor of the FSB Academy of Russia,
candidate of legal sciences, associate professor
SOME ISSUES OF LEGAL REGULATION OF ORGANIZING COUNTER-TERRORIST OPERATIONS
The adoption of the Federal Law “On Combating Terrorism” in 1998, according to legislators, was supposed to resolve numerous problems associated with the organization of counter-terrorist operations (CTO). Created on the basis of individual developments, primarily the experience of conducting special operations to free hostages, the legislator believed that by introducing the definitions: “counter-terrorist operation”; “counter-terrorist operation zone”; “counter-terrorist operation management” and defining the competence of individual executive authorities to manage a counter-terrorist operation, he would be able to resolve the contradictions that existed in the organization of special operations by the end of the 1990s. It should be noted that by 1998, an analysis of unsuccessful CTOs, primarily in the city of Budyonnovsk, s. Pervomaysky, in Mineralnye Vody, showed that the main reason for the unsuccessful actions was the lack of interaction and coordination between law enforcement agencies, attempts by individual executive authorities to interfere in the course of the special operation even at the stage of assault actions, etc.
The introduction of the above-mentioned fundamental provisions was supposed to not only resolve management issues, but also resolve problems related to the social security of participants in the CTO. However, the practice of conducting CTO, especially in the North Caucasus region, has shown that the provisions of the Federal Law «On Combating Terrorism» not only do not resolve many of the above-mentioned problems, but also further aggravate the political and operational situation in the North Caucasus. Thousands of citizens' appeals to the Prosecutor's Office and international human rights organizations regarding the violation of their rights, statements by military personnel to the courts in connection with non-payment of so-called «combat» are, first of all, shortcomings of individual provisions of the said law.
Thus, this applies to the very definition of CTO, which is interpreted as a set of special measures aimed at identifying and suppressing terrorist activity, protecting facilities and minimizing consequences. Based on this interpretation, the question of the beginning of CTO immediately arises. If we consider special measures to identify and suppress terrorist activity as a type of operational-search measures and types of special reconnaissance of military formations, then in many cases they are carried out long before the terrorist act itself. Based on this, the basis for organizing and conducting a counter-terrorist operation may be primary materials, including confidential ones, which in some cases subsequently turn out to be unconfirmed.
In addition, the mechanism for initiating a counter-terrorism operation should clearly define the role of the prosecutor's office, which should determine the legitimacy of conducting certain special and regime measures, including the right to use weapons. At present, due to the absence of the prosecutor's office in organizing counter-terrorism operations, it plays the role of an outside observer and begins to carry out its actions only when obvious violations by law enforcement agencies are identified in response to citizens' appeals and complaints. The activities of the prosecutor's office are of particular importance when organizing a large-scale counter-terrorism operation with the use of heavy weapons and aircraft, during which civilians may suffer. At the same time, the law should define the procedure for sanctioning the use of a particular type of weapon depending on the public danger of terrorists, the need to conduct further investigative actions, etc. It should be emphasized that the primary sanctioning of the use of weapons should be removed from the head of the operational headquarters and commanders of special and military units and assigned to the prosecutor's office, especially when it comes to the preventive use of lethal force.
Another important legal problem in organizing a counterterrorism operation is the issue of the so-called zone of its implementation. When preparing the Federal Law “On Combating Terrorism,” the legislator, based on the practice of conducting special operations to free hostages on air transport, in correctional labor camps, and on road transport, assumed that the counterterrorism operation zone could include the territory adjacent to the airport, the facility seized by terrorists, or, in extreme cases, the district of the region in which it is necessary to conduct operational-search activities. However, as practice shows, a vast territory, including more than fifty administrative-territorial entities, can be declared a counterterrorism operation zone. Thus, in particular, by Decree No. 61 of the President of the Russian Federation dated January 23, 2001, the territory of 51 districts of the North Caucasus region was declared a counterterrorism operation zone. At the same time, no circumstances related to specific terrorist manifestations in these territories were indicated. Due to the fact that when declaring a CTO zone, rather strict legal restrictions are introduced related to the CTO regime, additional powers are given to law enforcement agencies, individual rights of citizens are infringed, including constitutional rights, it is advisable to additionally develop a mechanism that allows for a clear definition of the CTO zone with an indication of the regime measures for each territory of its zone. The solution to this issue will allow avoiding an extremely negative opinion of individual international organizations regarding the conduct of counter-terrorism measures.
In this case, when defining the CTO zone, not only issues related to the protection of the population should be taken into account, but also issues of social protection of military personnel and persons assisting in the fight against terrorism. At present, the mechanism for the presence and participation of persons in the CTO is so confusing that it leads to numerous legal conflicts, primarily with the determination of payments to military personnel. This is especially evident in the actions of operational investigative units, when their employees, as part of the search for certain persons, leave the CTO zone for territories not declared CTO zones. Based on this, it is advisable not to link social protection measures for military personnel and persons assisting in the conduct of special events with the CTO zone, especially given the multi-stage nature of individual operations. In our opinion, the basis for determining the appropriate additional social benefits for CTO participants should be a separate order on the personnel of CTO participants. At the same time, non-military personnel can also be included in this closed order with the corresponding secrecy requirements upon the submission of entities conducting operational investigative activities. At present, the mechanism of social protection of persons providing assistance in conducting counter-terrorist operations, especially on a confidential basis, is practically absent.
Another legal problem related to the legal support of the CTO is the problem of involving employees of various departments in the implementation of special activities. The term “special activities” itself, given in Article 3 of the Federal Law “On Combating Terrorism”, is rather vague and implies a set of activities carried out by various entities in accordance with the Federal Law “On Operational-Investigative Activities”, as well as activities prescribed by the charters of the Armed Forces, Internal Troops of the Ministry of Internal Affairs, etc. At the same time, in practice, the terms “special operations” and “operational-combat activities” have long been established, which are enshrined in a number of regulatory documents of departments, in particular, in the Ministry of Defense of Russia and the FSB of Russia. It should be emphasized that, in essence, special activities as actions of an operational-investigative or military nature in peacetime in relation to the civilian population must be regulated in accordance with the Constitution, the Criminal Procedure Code, and the Code of Administrative Offenses of Russia. This mechanism is also absent from the Federal Law “On Combating Terrorism”, since Chapter 3 of this law does not define the procedure for sanctioning special activities. Based on this legal gap, in the CTO zone in the North Caucasus region there is practically legal chaos in the conduct of special events, when acute operational and investigative activities are carried out practically without a court decision and sanctions from the Prosecutor's Office. As indicated above, this mechanism should be developed in relation to counter-terrorism measures not at the level of intradepartmental and interdepartmental acts, but at the level of federal legislation.