Legal basis of confidential cooperation in the National Anti-Corruption Bureau of Ukraine

In this regard, the practices of Great Britain should be considered, where to clarify certain provisions of the UK Regulation of Investigatory Powers Act of 20 00Regulation of Investigatory Powers Act. (2000). Retrieved from https://www.legislation.gov.uk/ukpga/2000/23/contents., which prescribes the possibility of using confidential information, a Code of Practice on the Use of Secret Sources of Intelligence InformationCovert Human Intelligence Sources code of practice. (2022). Retrieved from https://www.gov.uk/government/publications/coverthuman-intelligence-sources-code-of-practice-2022. was issued. The value of this Code lies in the detailed regulation of the procedure for granting permits for the involvement and use of confidants, the procedure for the activities of a confidant and an authorized employee (handler), performing tasks, monitoring the commission of a crime, investigative experiments, using results, etc.

According to Section 1 of this Code¹, any state body authorized to carry out confidential cooperation shall be obliged to follow the provisions of the Code. To avoid doubt, the code should be followed regardless of any opposing content of the internal instructions of the state body. This code also allows other interested parties to understand the procedures followed by these state bodies. This code is publicly available and should be easily accessible to employees of any relevant public authority who intend to use confidential cooperation. The examples included in this code are intended to help illustrate and interpret certain provisions and are provided for reference only. Theoretical examples cannot reproduce the level of detail that can be found in real cases. Consequently, public authorities should avoid using superficial similarities with examples to make their decisions and should not attempt to justify their decisions only by referring to examples and not to the law, including the provisions of this code. Examples should not be taken as confirmation that any particular government agency is carrying out the described activities; examples are given for illustrative purposes only.

This Code of practice can also be used as a model for more detailed regulation of confidential cooperation in Ukraine.

By analogy with covert investigative (detective) operations, which, apart from Chapter 21 of the CPCUCovert Human Intelligence Sources code of practice. (2022). Retrieved from https://www.gov.uk/government/publications/coverthuman-intelligence-sources-code-of-practice-2022. Criminal Procedural Code of Ukraine No. 4651-VI. (2012, April). Retrieved from https://zakon.rada.gov.ua/laws/show/4651-17#Text. instructions on the organization of covert investigative (detective) operations and the use of their results in criminal proceedings, approved by the Order of the Prosecutor General's Office of Ukraine, the Ministry of Internal Affairs of Ukraine, the Security Service of Ukraine,, are regulated by the Instruction on the organization of covert investigative (detective) operations and the use of their results in criminal proceedingsthe Administration of the State Border Service of Ukraine, the Ministry of Finance of Ukraine, the Ministry of Justice of Ukraine No. 114/1042/516/1199/936/1687/5. (2012, November). Retrieved from https://zakon.rada.gov.ua/laws/show/v0114900-12/page#Text. Law of Ukraine No. 1698-VII “On the National Anti-Corruption Bureau of Ukraine”. (2014, October). Retrieved from https://zakon.rada. gov.ua/laws/show/1698-18#Text., it is proposed to regulate confidential cooperation in detail in the same Instruction by setting it out in a new wording. This edition must be approved by the Office of the Prosecutor General of Ukraine, which carries out procedural management in all criminal proceedings and supervises the observance of laws during investigative operations in all investigative and detective cases, and which accumulates not only practical experience, but also judicial practice on this matter; all law enforcement agencies that carry out pre-trial investigation and investigative activities; the Ministry of Finance of Ukraine, which is entrusted with the proper financial support of the relevant activities of the specified bodies; the Ministry of Justice of Ukraine, which takes part in ensuring legal guarantees for confidential informants, including in institutions where punishments are served; the Supreme Court of Ukraine, which ensures stability and unity of judicial practice.

This approach allows regulating the institution of confidential cooperation in the most balanced and unified way, while presented in detail in a non-secret regulation that will be made public and accessible to everyone. The author of this study believes that, among other things, it will increase the effectiveness of the fight against crime by involving individuals from the criminal environment in confidential cooperation, since the legislation on confidential cooperation will become known to a wide range of people.

During the study of the Law of Ukraine “On NABU”⁴, separate norms regulating confidential cooperation were singled out, namely: Part 1 of Article 10, which authorizes confidential cooperation of detectives and senior detectives of detective units, employees of operational and technical units and internal control units that carry out pre-trial investigation and investigative operations, as well as undercover full-time employees; Item 7 of Part 1 of Article 16 and Item 12 of Part 1 of Article 17, which determine the basic principles and conditions of confidential cooperation, namely the voluntariness and confidentiality of such cooperation, the possibility of formalizing these relations by concluding an agreement, the possibility of paying the corresponding remuneration, and also determine the content of confidential cooperation, which lies in facilitating the performance of the tasks assigned to the National Bureau.

In the context of the subject under study, the legislator defined not only the right of authorized employees to confidentially cooperate with individuals, but also established the obligation of such cooperation with individuals who report corruption offences, while emphasizing that citizens enter into such relations exclusively voluntarily.

Furthermore, the Ukrainian legislators legislatively recognized the legality and permissibility of material incentives for confidants. This has an important legal, practical, and ethical significance, since confidential cooperation for a virtuous citizen is not only an honourable cause, but also moral, intellectual, and temporary efforts that should be encouraged, including financially, which is the norm in modern society.

Thus, confidential cooperation is one of the important activities of the National Bureau and one of the principal methods (tools) for both investigative operations and pre-trial investigation.

The main norms of the CPCU¹, which regulate the relations of confidential cooperation, are Articles 252, 256, 271, 272, and 275, which are located in Chapter 21 “Covert investigative (detective) operations”.

The placement of the norms governing the use of confidential cooperation in the chapter on covert investigative (detective) operations (CIDO) caused a lively discussion in the scientific community. Some researchers classify confidential cooperation as a separate type of CIDO (Korniienko, 2015), others (Serhieieva, 2016; Skulysh, 2012), whose position is more convincing, consider confidential cooperation as a certain tool and means of conducting CIDO, and not as a separate type of CIDO.

The most successful definition of the role of confidential cooperation in the criminal procedure appears to be the laconic definition formulated by L.V. Sydorenko (2020), who considers confidential cooperation as a means of achieving the objectives of criminal proceedings, defined in Article 2 of the CPCU.

In any case, the institution of confidential cooperation is close to the legal institution of covert investigative (detective) operations, while it has its differences.

The basis of practical and scientific discussions is the correlation of the principles of publicity of the criminal procedure and the confidentiality of the secret cooperation of citizens with the pre-trial investigation body, which affects the security guarantees of such individuals.

Separate general norms of Chapter 21 of the CPCU are intended to resolve this debate and ensure the safety of confidants. Specifically, Part 1 of Article 246 of the CPCU specifies that information about the fact and methods of conducting CIDO are not subject to disclosure, Part 1 of Article 252 of the CPCU - that information about individuals who conducted or were involved in the CIDO, and to which security measures were applied, can be noted to ensure the confidentiality of this information.

However, Part 1 of Article 254 and Article 290 of the CPCU prescribe the possibility of acquainting the defence party with information about the fact and methods of conducting CIDO, as well as about the individuals who conducted them. Therewith, obligating the defence party not to disclose this information is exclusively declarative and cannot really ensure the security of the confidant.

Part 2 of Article 256 of the CPCU² makes provision for the possibility of questioning as a witness an individual who conducted or was involved in CIDO (including a confidant), even if security measures are taken against them. Therewith, there is no detailed mechanism for summoning such an individual. The summons of the confidant for questioning as a witness should be carried out through the relevant operational unit or pre-trial investigation body that involved the confidant.

The trend of transparency of the criminal procedure, disregard of the interests of the confidant, and unequal application of the criminal procedural law to such legal relations can be traced in Parts 9 and 10 of Article 352 of the CPCU³, which regulate the questioning of a witness in court. In the specified norms, the questioning of the whistle-blower is imperatively conducted in a closed court session using measures that make it impossible to identify them, although in most cases the whistle-blower in criminal proceedings is known to everyone. As for the questioning of other witnesses (including confidants), their questioning in this mode is carried out in exceptional cases, considering the objections of the parties to the criminal proceedings. The author of the present study believes that such an approach is risky, since the security risks of confidants and other witnesses to whom security measures are applied, depend on the legal awareness of the particular composition of the court, and not on clear legal regulations. It is proposed to change the specified norm and introduce the questioning of witnesses (including confidants) to whom security measures have been applied by the relevant body, exclusively in a closed court session and using measures that make their identification impossible.

During the application of Article 275 of the CPCU, which makes provision for the possibility of using information obtained as a result of confidential cooperation with other individuals during the CIDO, or the involvement of these individuals in the CIDO, the question of the operative's possibility of using confidential cooperation during investigative (detective) operations and other procedural actions arises, since it refers only to the CIDO and the investigator, although the CIDO can be entrusted to the operative unit.

For instance, information about the location of important evidence or a criminal can be obtained from a confidant verbally or in writing without conducting any CIDO as an investigator and operational worker. Admittedly, such information can and should be used during a pre-trial investigation. However, the admitted legal gap, or rather the unsuccessful legal wording, creates reasons for discussions about the legality of using information received from a confidant for gathering evidence and for purposes other than during the CIDO. This gap in the criminal procedural legislation should be filled by introducing relevant changes to the CPCU.

K.V. Antonov (2020) and other scientists also address this as a flaw in the current criminal procedural legislation.

Part 1 of Article 272 of the CPCU stipulates that “during the pre-trial investigation of grave or particularly grave crimes, information, things, and documents that are essential for the pre-trial investigation may be obtained by an individual who, pursuant to the law, performs a special task by taking part in an organized group or a criminal organization, or is a member of the specified group or organization, who cooperates with pre-trial investigation authorities on a confidential basis”.

Given that the performance of a special task involves the introduction of an individual into a criminal environment, the Article emphasizes the need for detailed instruction of this individual and a clear delineation of the limits of the task and permissible behaviour to prevent illegal, compromising, or criminal actions. The same actions should be performed in all types of confidential cooperation, not just when performing a special task.

Thus, these norms make provision for the possibility of using confidential cooperation in criminal proceedings for:

1) obtaining information for conducting CIDO;

2) involvement of a confidant in conducting CIDO;

3) performing a special task to uncover the criminal activities of an organized group or criminal organization.

Article 271 of the CPCU¹ regulates separate legal guarantees of confidants who take part in the control of the commission of a crime (namely not being held criminally liable for acts that formally contain signs of a crime and which are committed “under supervision”), as well as organizational aspects, such as determination of the limits of this CIDO and the assignment of the confidant, prohibitions (for provoking, inciting, committing encroachments on the lives of other individuals and actions that may lead to serious consequences). The specified CIDO is carried out with the permission of the prosecutor. Such involvement of the prosecutor in ensuring the legality and legal guarantees of the confidant is considered substantiated. As for the involvement of the prosecutor during the implementation of confidential cooperation, on the one hand, the prosecutor should not have access to the covert apparatus of operational units and pre-trial investigation bodies, and on the other hand, they should ensure the legality of investigative operations and criminal proceedings and the observance of constitutional rights and freedoms of individuals whose rights, freedoms, and interests may be violated. At first glance, these theses are contradictory, but in practice, such a symbiosis of law enforcement agencies and prosecutorial supervision can ensure not only compliance with the principles of legality and the rule of law when carrying out covert activities involving confidants, but also ensure the effectiveness of pre-trial investigations, specifically by providing legal guarantees mitigation or even exemption from responsibility of individuals involved in confidential cooperation.

Control over the commission of a crime and the performance of a special task is not only successfully used in Ukraine, but also abroad. The main difference is that foreign countries regulate this mechanism in detail, while Ukrainian legislation allocates only 2 articles for this. Given the high risks of violation of citizens' rights and freedoms, as well as the elevated level of danger to the confidant and authorized employees, these relations should be regulated more comprehensively.

For instance, in Great Britain, such investigative action is governed by the UK Regulation of Investigatory Powers Act of 2000Criminal Procedural Code of Ukraine No. 4651-VI. (2012, April). Retrieved from https://zakon.rada.gov.ua/laws/show/4651-17#Text. Regulation of Investigatory Powers Act. (2000). Retrieved from https://www.legislation.gov.uk/ukpga/2000/23/contents., the Code of Practice for the Covert Human Intelligence SourcesCovert Human Intelligence Sources code of practice. (2022). Retrieved from https://www.gov.uk/government/publications/coverthuman-intelligence-sources-code-of-practice-2022., the Regulation of Investigatory Powers (Covert Human Intelligence Sources: Relevant Sources) Order of 2013The Regulation of Investigatory Powers (Covert Human Intelligence Sources: Relevant Sources). (2013). Retrieved from https://www. legislation.gov.uk/uksi/2013/2788/contents/made., as well as the Covert Human Intelligence Sources (Criminal Conduct) of 2021Covert Human Intelligence Sources (Criminal Conduct). (2021). Retrieved from https://www.legislation.gov.uk/ukpga/2021/4/contents/ enacted.. These regulations thoroughly govern the actions of investigators and authorized persons, as well as confidants; cases when permission to commit a crime is an acceptable and comparable measure; who and how issues permission and controls the commission of a crime; issues of compensation for damage caused; legal guarantees of the confidant, etc. It is also proposed to regulate in detail the control over the commission of a crime and the performance of a special task in the new edition of the Law of Ukraine “On the Legal Bases of Combating Organized Crime”Law of Ukraine No. 3341-XII “On the Legal Foundations of Combating Organized Crime”. (1993, June). Retrieved from https://zakon. rada.gov.ua/laws/show/3341-12#Text..

It is also worth paying attention to Item 16-2 of Article 1, Article 60 and Article 130-1 of the CPCU¹, which define the concept of a whistle-blower and their rights, specifically the right to receive a reward.

The concepts of whistle-blower and confidant, although at first glance similar, are definitely not identical, since the whistle-blower is actually an applicant who reported the commission of a corruption crime and acquired the status automatically at the time of applying to the pre-trial investigation body. And this does not mean that a confidential cooperation relations have arisen between the whistle-blower and the investigator or detective, since certain conditions and free expression of the will of both parties are necessary for their occurrence. In this case, the investigator takes a passive position. Under certain conditions, the whistle-blower can still enter into a confidential cooperation relationship and become a confidant. For instance, if the investigator (detective) decides to involve them in conducting the CIDO or performing other tasks, and if the whistle-blower agrees to this. In this case, they assume the duties and responsibilities mentioned above, and can become a confidant.

Thus, a confidant in most cases is a person with whom the authorized employee (handler) has purposefully established a relevant relationship to perform the tasks assigned to them, and who mainly actively collects information and performs tasks set by the authorized employee (handler).

Touching on this topic, attention should be paid to the fact that the absence of the definition of the whistle-blower in the prosecutor's office as the addressee of a report on a corruption crime is a clear gap in the legislation. This gap can be a formal basis for refusing to grant the status of a whistle-blower, resolving the issue of paying them remuneration and ensuring other rights of the whistle-blower, since the whistle-blower can also apply with a corresponding application or message to the prosecutor who is authorized to start a pre-trial investigation.

Particular attention should be paid to Article 130-1 of the CPCU, which prescribes the procedure for paying a reward to a whistle-blower. Specifically, the reward to the whistle-blower is paid not only for reporting a corruption crime, but also for actively assisting in its disclosure, i.e., for assisting the pre-trial investigation body in the performance of the tasks of investigation and solving of crimes. Thus, the subject of confidential cooperation relations with the confidant and with the whistle-blower is still very comparable. The payment of remuneration is an additional motive for the whistle-blower to promote anti-corruption, and the state encourages whistle-blowers to engage in such behaviour.

The norms of the Law of Ukraine “On Ensuring the Safety of Individuals Involved in Criminal Proceedings”² ensure compliance by the state with guarantees of the safety of individuals who reported a criminal offence to a law enforcement agency or otherwise took part in or contributed to the detection, prevention, termination, or solving of criminal offences (factually confidants), whistle-blowers, victims, witnesses, and others (Article 2).

The security measures prescribed by this Law, which may also be applied to confidants, are stipulated in Section III of this Law.

Therewith, the main security measure for both the confidant and the authorized employee is discipline in matters of confidentiality and conspiracy of relations between them.

The implementation of security measures in the National Anti-Corruption Bureau of Ukraine is entrusted to the Department of Special Operations of the National Anti-Corruption Bureau of Ukraine. Certain measures, such as ensuring the confidentiality of information about an individual, are also taken by detectives and operatives authorized to carry out pre-trial investigation and investigative operations.

It is absolutely impossible to disagree with the researchers who believe that ensuring the safety of individuals involved in the execution of tasks of investigative operations during covert and confidential cooperation is a primary task for the entire system of law enforcement agencies. However, the approach to improving the institution of ensuring the security of individuals involved in the performance of tasks of the investigative operations during covert and confidential cooperation, by changing and amending the CPCU Criminal Procedural Code of Ukraine No. 4651-VI. (2012, April). Retrieved from https://zakon.rada.gov.ua/laws/show/4651-17#Text. Law of Ukraine No. 3782-XII “On Ensuring the Safety of Individuals Involved in Criminal Proceedings”. (1993, December). Retrieved from https://zakon.rada.gov.ua/laws/show/3782-12#Text. Criminal Procedural Code of Ukraine No. 4651-VI. (2012, April). Retrieved from https://zakon.rada.gov.ua/laws/show/4651-17#Text. (Horbachov, 2017) is quite controversial, due to the different subject matter of legal regulation. Nevertheless, the Law of Ukraine “On Ensuring the Safety of Individuals Involved in Criminal Proceedings” should still be a special lawLaw of Ukraine No. 3782-XII “On Ensuring the Safety of Persons Participating in Criminal Proceedings”. (1993, December). Retrieved from https://zakon.rada.gov.ua/laws/show/3782-12#Text. Law of Ukraine No. 1700-VII “On Prevention of Corruption”. (2014, October). Retrieved from https://zakon.rada.gov.ua/laws/show/170018#Text.. Discussions about whether confidants are among the entities to which this law applies should be terminated by introducing appropriate changes to Article 2 of this Law.

Since, as stated above, a confidant may have the status of a whistle-blower in certain cases and conditions, it is advisable to investigate the protection and security guarantees provided to the whistle-blower by the Law of Ukraine “On Prevention of Corruption”⁵.

Item 20 of Part 1 of Article 1 of the Law of Ukraine “On the Prevention of Corruption” defines a broader concept of a whistle-blower, which does not require, to determine the status of a whistle-blower, to report corruption to a particular addressee, but requires that such information be known to the whistle-blower in connection with their labour, professional, economic, public, scientific activity, completion of service or training or involvement in procedures prescribed by law, which are mandatory for starting such activity, completion of service or training.

The concept of a whistle-blower defined by this law differs from that defined in the CPCU1. The principal differences are that the whistle-blower under the CPCU is an individual who reported a corruption crime and a pre-trial investigation body.

If the confidant proactively turned to an operational worker, investigator (detective) with a report on possible facts of corruption crimes, stated the circumstances known to them (in oral or written form), which became known to them under certain conditions, then they can acquire the status of a whistle-blower and relevant rights and guarantees of their safety stipulated by the Law of Ukraine “On Prevention of Corruption”.

Section VIII of this law stipulates that whistle-blowers and their relatives shall be protected by the state. In addition to the measures prescribed by the Law of Ukraine “On Ensuring the Safety of Individuals Involved in Criminal Proceedings”, legal guarantees may be applied to them, namely in the form of the right to free legal aid and representation in court, including for protecting labour rights; as well as the right to receive remuneration.

An essential legal guarantee for protecting the rights of whistle-blowers is to limit their legal liability for disclosing confidential information in reports and statements about known facts of corruption.

This guarantee is of great practical importance, since the whistle-blower faces a difficult choice when deciding on cooperation with a law enforcement agency: on the one hand, they do not agree with the violations that they witnessed, and on the other hand, their moral principles, and sometimes legal restrictions, do not allow them to violate their obligations concerning non-disclosure of certain information. The law removes this burden from the whistle-blower by recognizing their choice to report corruption and promote law enforcement as the only legitimate behaviour.

Therewith, a substantial disadvantage of protecting the rights of a whistle-blower in comparison with the protection of the rights of a confidant is Criminal Procedural Code of Ukraine No. 4651-VI. (2012, April). Retrieved from https://zakon.rada.gov.ua/laws/show/4651-17#Text. Ibidem, 2012. Law of Ukraine No. 3341-XII “On the Legal Foundations of Combating Organized Crime”. (1993, June). Retrieved from https://zakon. rada.gov.ua/laws/show/3341-12#Text. that the principle of confidentiality in relations with the confidant is absolute, and in the case of a whistle-blower, information about the whistle-blower can be disclosed in cases prescribed by law. Specifically, the pre-trial investigation body must inform the National Agency for the Prevention of Corruption about the identity of the whistle-blower. This is completely inappropriate in confidential cooperation relations. The specified norm must be excluded.

The norms of the Criminal Code of Ukraine¹ (the CCU) are applied to confidential cooperation relations as prohibition norms and as norms guaranteeing the rights of confidants, namely:

- Article 172 guarantees compliance with the whistle-blower's labour rights;

- Article 328 prohibits disclosure of the fact and content of confidential cooperation, information about which constitutes a state secret, and ensures the principle of confidentiality;

- Article 380 ensures the obligation of the relevant authority to take appropriate security measures against the confidant under the threat of criminal liability;

- Article 381 guarantees compliance with security measures, ensures the principle of confidentiality;

- Article 387 prohibits a confidant from disclosing data from pre-trial investigation and investigative operations under the threat of criminal liability and ensures the principle of confidentiality.

An essential legal guarantee of the protection of the rights of confidants involved in the performance of a special task pursuant to Article 272 of the CPCU² is the provisions of Article 43 of the CCU1, which prescribe that an individual who performs a special task shall not be criminally liable for the forced commission of criminal offences, except for grave and especially serious crimes specified in Part 2 of this Article, for the commission of which this individual cannot be sentenced to life imprisonment, as well as to imprisonment for a term longer than half of the maximum term prescribed by the sanction of the Article of the special part of the CCU.

The specified legal guarantee of the protection of individuals who cooperate with the investigation on a confidential basis is also stipulated in Part 2 of Article 14 of the Law of Ukraine “On the Legal Bases of Combating Organized Crime”³, which prescribes partial or full exemption from criminal liability and punishment of members of organized criminal groups, which contribute to exposing such groups and crimes committed by them, bringing the guilty to justice, and compensating for the damage caused.

These provisions of the law are also orienting for law enforcement officers, as they direct them to use confidential cooperation to solve grave and especially grave crimes, as well as to counteract organized crime. This corresponds to the principle of expediency and consistency of confidential cooperation.

The procedure for mitigating liability for such crimes is defined by Chapter 35 of the Criminal Procedure Code of Ukraine (Criminal Proceedings Based on Agreements).

The specified norms of criminal and criminal procedural legislation are important from a practical standpoint because sometimes citizens, due to certain circumstances, make mistakes, establish contacts with dishonest citizens, and later become members of criminal groups and organizations. It is such individuals who need a way out of this inconvenient situation, when having committed an offence, being connected with criminals by common criminal experience, they cannot escape this trap and need the help of law enforcement officers. Such persons are the most valuable for law enforcement officers, who can offer a legal way out of a dire situation and a legal way of resocialization with the least legal consequences.

The practice of attracting confidants from the criminal environment is known to be widely used in the United States of America. M.L. Rich (2010) argues that individuals without a criminal past can still be informants, but the most effective is to involve confidants from among individuals who are not perceived as hostile by the criminal environment.

Notably, the practice of introducing “undercover agents” and conducting “special police operations” is widely used not only on the American continent, but also in Europe. Specifically, in his studies, E.W. Kruisbergen (2013) examines the practices of law enforcement agencies in the Netherlands in conducting “police special operations” to uncover the criminal activities of organized criminal groups by introducing (infiltrating) such groups of individuals who perform a special task. Therewith, the author emphasizes that this most effective, but risky method is used by law enforcement agencies in the Netherlands as an exceptional method when it is impossible to document and bring to justice the participants and leaders of organized criminal groups in other ways (Kruisbergen, 2017).

It should be noted separately that the conduct of covert investigative (detective) operations and the use of their results in criminal proceedings is regulated by the Instruction on the organization of the conduct of covert investigative (detective) operations and the use of their results in criminal proceedings¹.

Items 3.9.1., 3.12, 4.10 of this Instruction factor in the principle of confidentiality of covert cooperation and, in order not to disclose the confidant, provide that the use of information obtained as a result of confidential cooperation is carried out under the condition of guaranteeing the safety of the individual who provides such information; materials that can disclose confidential individuals receiving information are not provided together with the protocol on the results of covert investigative (detective) operations; in case of implementation of security measures against employees of operative units who conducted covert investigative (detective) operations or were involved in their implementation, information about these individuals is noted in the protocol with ensuring confidentiality according to the procedure specified by law.

As noted above, this Instruction, based on the example of the Code of Practice for the Covert Human Intelligence Sources², can be a basic sub-legislative regulation, in which, apart from the CIDO, separate issues of organizing the implementation of confidential cooperation and the use of its results both in operational and investigative operations, and in criminal proceedings.

Apart from the specified regulations, the procedure for confidential cooperation is governed by the relevant internal regulations of the National Anti-Corruption Bureau of Ukraine, which, due to their limited access, are not covered in this paper. The specified regulations define the terminology, regulate the procedure and documentation of the involvement of individuals in confidential cooperation, determine the authorized individuals to carry out confidential cooperation, types of confidential cooperation and confidants, the procedure for carrying out confidential cooperation and the use of the results of confidential cooperation, etc. Comparing the departmental regulations of various law enforcement agencies that regulate confidential cooperation, it is established that in general they apply identical techniques and approaches to regulating these legal relations, while the main differences are in the classification of types of confidants, forms, and methods of agent activity, registration of confidential cooperation and its results, which are conditioned upon the specifics of these bodies.

During the comprehensive study and systematization of regulations that govern confidential cooperation in the field of such scientific subjects as criminal procedure, investigative activity, organization of the work of law enforcement, judicial bodies and prosecutor's offices, not only gaps were found, but also areas that have relevant legal regulation and provoke further scientific research, specifically clarifying the role of the prosecutor in the implementation of confidential cooperation; comparison of the legal status of a whistle-blower and a confidant; research into the motives of confidential cooperation and the legal grounds and permissible limits of the use of “compromising” materials; interaction of law enforcement agencies, the prosecutor's office and the court in criminal proceedings based on agreements between the prosecutor and the suspect who is involved in confidential cooperation, including to perform a special task of uncovering the criminal activity of an organized group or criminal organization.

Conclusions

Thus, the article covered several theoretical approachThe present study clarified the current state of regulatory support for confidential cooperation and established its insufficient regulation. The regulations governing these relations were systematized, and these acts were classified by legal force. It was established that the main regulation that governs confidential cooperation is the Law of Ukraine “On Investigative Operations”, which is outdated and does not correspond to the real relations that have developed in society between authorized employees of law enforcement agencies and confidants, the challenges and threats that law enforcement officers face and society. The study identified gaps and discrepancies in the legislation, established the competition of norms governing the institute of whistle-blowers and the institution of confidential cooperation.

It is proposed to resolve these discrepancies and fill the gaps by adopting the Law of Ukraine “On Investigative Operations” and the Law of Ukraine “On Legal Bases of Combating Organized Crime” in new editions, as well as by introducing relevant changes to the Criminal Procedural Code of Ukraine. During the preparation of the specified draft laws, it is proposed to consider the practices of the legal regulation of confidential cooperation of Great Britain and to regulate confidential cooperation in more detail in the joint Instructions on the organization of covert investigative (detective) operations, investigative measures and confidential cooperation and the use of their results in criminal proceedings and investigative operations. The need for the same regulation of security issues and guarantees of protection of confidants both at the stage of operative and investigative activity and at the stage of criminal proceedings was emphasized. Despite the insufficient statutory regulation of confidential cooperation, this type of activity of the National Bureau has a suitable legal basis, as the gaps in the legislation are filled by analogy of right and analogy of law, as well as by relevant departmental regulations. Therewith, it was discovered that even the current legislation allows effectively applying confidential cooperation to counter crime, as well as to ensure proper legal, social, and physical protection of confidants. However, it is possible under the conditions of admission to confidential cooperation of operatives, investigators, and prosecutors who have the appropriate theoretical and practical training and relevant experience, as well as under the conditions of proper organizational and financial support for this type of activity.

References

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