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2.2. Базовая (родовая) криминалистическая методика расследования должностных прест

Scientific and practical development of system of a criminalistic technique of investigation of crimes together with their criminally-legal classification influencing classification criminalistic, and with presence thus similar elements of some structures of crimes leads to creation patrimonial and (or) group techniques which constitute a base basis of investigation of a certain sort of crimes.
According to N.A.Danilovoj and S.P.Kushnirenko, an urgency of formation of patrimonial or base techniques of investigation of crimes it is caused by sharply changed structure of criminality, occurrence of new kinds of criminal displays, including having the raised social danger that puts forward in number of actual directions of criminalistic researches working out of new group techniques of investigation [294]. In the given key the material basis patrimonial and (or) group techniques is recognition of criminally-legal and criminalistic signs of a certain sort or group of the made crimes reflecting in uniform sledovoj to a picture identical or similar elements of the criminalistic characteristic of crimes which probably to find out, allocate and investigate at their investigation. Therefore the purpose of creation of the base techniques consolidating at investigation certain cumulative offences, formation of optimum possibilities on revealing of these crimes, their disclosing and investigation with application of similar ways of search, detection, collecting and check of necessary proofs or other interesting inspector of informative data is.
The basis of association of crimes in a uniform sort or group for creation on them the base criminalistic technique cannot be any or is artificial created signs which do not assume uniform ways of revealing, disclosings and investigations of crimes, is separated on the basic components characterising illegal act. For example, hardly there can be the basis of creation of full group techniques as about it writes N.N.Davidov, signs of fulfilment of the various crimes made by women, seasonal workers, or various undetected crimes of last years, crimes on transport, properties of the person sustained etc. [295] Thereupon M. of Century Subbotin, offering definition of a base technique of investigation of crimes as systems of the positions consolidated in a uniform subject of studying on the basis of criminally-legal and criminalistic criteria [296], hardly obosnovanno consolidates various kinds of plunders – thefts, robberies, swindle – for definition on them of the same base technique of investigation [297]. Undoubtedly, any general signs of behaviour of criminals or victims in the listed cases can be found out for their search, an establishment of the person, detection of traces flagrante delicto etc. But an integral group technique of investigation to mechanically incorporated signs of various crimes which are similar, let us assume, only on one element, really to develop it is not obviously possible.
The given question on criminalistic ordering of crimes and, thereby, about patrimonial or group classification for creation of corresponding techniques had the disputable moments. In due time I.F.Gerasim spoke about leading criminally-legal classification, thus not denying specific classifications by criminalistic signs [298].
A.N.Vasilev approved, that criminalistic classification of crimes has the basis the criminalistic characteristic of crimes [299]. A little more refined position at M.V.Stojanovskogo concluding, that criminalistic classification of crimes is a systematisation of crimes mediating criminally-legal classification on the basis of the mechanism of act and its reflexion outside (and also the stablest elements of the criminalistic characteristic of a crime), significant for creation of the generalised private criminalistic techniques [300].
In our opinion, for criminalistic classification of crimes and, thereby, associations of crimes in a uniform sort and group for the purpose of creation of base (patrimonial) criminalistic techniques it is necessary to lean against system of the Special part of criminal law, as material basis of ordering of crimes. At the same time the criminalistic classification directed on studying of laws of fulfilment of crimes and from here on law of their investigation starts with intracriminalistic criteria of their studying and an estimation, owing to features of a subject of criminalistics and applied requirements of law enforcement bodies. From here the bases of creation of private techniques of investigation at certain cumulative offences are following criminalistic criteria:
1) similar lines of the mechanism of committing a crime at a dominating role of a way of committing a crime, and also similar tools and committing a crime means;
2) similar signs of the general or special perpetrator – persons of the criminal specified in the criminal law;
3) similar signs of causing of physical, material or moral harm as a result of committing a crime at a prevailing role only one of the listed kinds of harm.
Actually, possibility of creation of scientifically sustained criminalistic characteristic of certain set (a sort, group) crimes as we see, is the basis for creation of a corresponding base technique.
Accordingly, the basis of association of crimes for creation of a patrimonial (group) technique of investigation are, on the one hand, the criminally-legal system of the Special part of criminal law, and, on the other hand, criminalistic criteria as the mechanism and a way of fulfilment of crimes, the person of the criminal, damnified by a crime. The listed criminally-legal and criminalistic components can be consolidated on various variations at similarity of reflexion of traces of crimes in material and ideal data carriers, sources of proofs.
From the stated follows, that substantive provisions of criminally-legal classification together with basic elements of the criminalistic characteristic of malfeasances considered by us are the material basis of creation of a base technique of investigation of the named crimes, scientists-criminalists specify in possibility and which necessity.
So, A.N.Dulov in the work devoted to bases of investigation of crimes, made by officials, specifies in the consolidating factor of the given crimes which are starting with activity of the general special subject [301]. A.N.stall considers the general and specific circumstances of malfeasances which are objectively necessary for working out of a uniform technique of their investigation [302]. A.M.Larin from practical investigatory positions defined similar features of investigation of affairs about the plunders made by officials [303]. V.Prudnikov lists the general specific circumstances which are coming under to an establishment at investigation of malfeasances against bodies state and the municipal authority on the basis of criminal procedure requirements [304]. Century And. Rokhlin connects necessity of creation of a group technique of investigation of malfeasances with complication of structure of a national economy, increase in quantity of the normative acts regulating office relations, variety of communications and relations in economic activities of the state [305].
Accordingly, the base technique of investigation of malfeasances starts with coincidence of personal properties of the subject of crimes – the official, the mechanism of a crime in the form of ways of preparation, fulfilment and concealment of the criminal trespass, the mechanism of formation and specificity of traces of a crime, causing by a crime of harm in the form of infringement of the rights and legitimate interests of citizens or the organisations, or interests of a society and the state, made in the various ways, but with obligatory illegal use of official powers.
Working out of a base technique of investigation of malfeasances follows not only from theoretical possibility, but also criminalistics of practical necessity of its formation demanded in sphere with a view of achievement of real methodical effect, vnedrencheskoj problems, existence of concrete working techniques of investigatory work [306]. Here again we agree from S.I.floral who says about neopravdannosti excessive crushing of private criminalistic techniques that narrows situational borders of investigated crimes [307]. The matter is that at investigation of the malfeasances made in system of the uniform official environment, they often not simply "adjoin" with each other, and one malfeasance often "provides" another – by financing (item 290 UK the Russian Federation), forging of documents (item 292 UK the Russian Federation), abusings official powers, which are not connected with special structures (item 285 UK the Russian Federation) etc. Accordingly, at investigation, for example, only one crime conducted by a private technique of one kind of malfeasance, the inspector can not overcome information uncertainty of an investigatory situation at certain signs or "signals" about fulfilment by the official of other crimes connected with its powers. And in this case components of a base technique of investigation of malfeasances are necessary for situational modelling and the further forecasting of investigatory activity [308]. New structures of crimes or added with separate qualifying signs on which there are no developed techniques (item 292-1, 286-1 UK the Russian Federation, etc.) Besides, can take place, that demands application of the general and base technique of investigation.
Proceeding from it, the base technique of investigation of malfeasances bears in itself following obligatory functions:
Specifies in traces or the general signs of possible fulfilment of malfeasances of various kinds for their detection and revealing;
Expands limits of studying of criminal behaviour of officials at investigation of several malfeasances;
Allows to study in the expanded foreshortening with collecting, check and evaluation of evidence, a concrete kind of investigated malfeasance;
Is a leading link at creation of group and specific techniques of malfeasances;
Allows to apply base techniques of investigation of separate malfeasances on which there is no technique of their investigation in a kind of absence of data of investigatory practice.
The dynamic party of a base technique of investigation of malfeasances forms also specific directions of investigatory tactics as as V.I.Komissarov writes, the technique of investigation of crimes the initial beginning has, among other, recommendations of investigatory tactics which are realised at detection, preliminary research and fastening of proofs in the course of preliminary investigation [309]. Therefore investigation of malfeasances assumes application of the specific scientifically developed and practically approved tactical receptions at carrying out of the investigatory actions possessing the selectivity and expediency [310], and also other operational and tactical combinations which are applied at investigation for the purpose of the decision of specific targets at set of investigatory actions, operatively-search, kontrolno-auditing, technical and other actions [311].
The general direction of tactics of carrying out of the preliminary investigation, one or group of investigatory actions consideration of the perpetrator – the official as representative of this or that state authority or local government, the establishment using in criminal purposes the official powers is. The model of an official condition of the person, its legal status and arising in this connection relations with legal and physical persons, other objects of legal regulation which are in an orbit of preliminary investigation is investigated. Concerning functional directions of illegal activity and use thus the office powers, led to approach of harmful consequences, the inspector builds logic tactics of criminal prosecution. In the given direction of investigatory work when as a basis the remedial circumstances which are coming under to proving (the item serve 73 UPK the Russian Federations), the base elements established at investigation of malfeasances, considered in uniform system of correlation communications, are components of the criminalistic characteristic of malfeasance.
At the same time it is necessary to give the characteristic of some general provisions of carrying out of a consequence and tactics of separate investigatory actions by which it is necessary to be guided at investigation of criminal cases on all malfeasances:
– It is necessary to consider features of the official environment in which investigatory actions are spent. It includes: 1) knowledge of all rules of law by which powers of officials where federal acts and the legislation of the subject of the Russian Federation concern are regulated; 2) knowledge of features of work of authority or establishment proceeding from interdepartmental normative acts, and also internal orders and orders of its head; 3) knowledge of features of work of collective of the organisation proceeding from its internal life, the reports noted thus of successes and lacks;
– It is necessary to investigate the certain period of activity of the official, and not just a case of the revealed crime in the course of spent investigatory actions. As a rule, investigation of criminal case concerning the official is connected with its last crime which often is a natural result of all earlier it made. It demands expansion of a range of the purposes and problems of spent investigatory actions, display of interest to all width of powers of the official in a current of all time or what that of a stage of its work in the given authority or establishment;
– The establishment at the official who has committed a crime, concentrations of uncharacteristic powers for its work which under orders and other instructive positions belong to other officials, including heads of separate divisions is necessary. Unjustified or independent concentration of the rights and duties allows to commit uncontrolledly crimes, it is illegal to receive material and other personal benefits;
– At carrying out of investigatory actions on malfeasances, the inspector should verify process of their carrying out and its results with powers of the official, its rights and duties, establishing infringement by the guilty person of concrete rules of law by their default, abusing or excess. Differently, the inspector in the consciousness should create the certain scheme of powers of the official, verifying the given scheme with its concrete actions therefore it is necessary to state constantly a legal estimation to official powers and connected with them to results of official activity of the guilty person established in the course of spent investigatory actions;
– At carrying out of investigatory actions on malfeasances it is necessary to prove a crime damage as in the form of the caused concrete material, physical or moral harm, and a damage in the form of infringement of the rights and freedom of the person and the citizen, interests of state, commercial and other organisations;
– On malfeasances the inspector should build investigatory actions taking into account disclosing of true motives of an offence which it is frequent as we specified, have purely material character. That is behind the crimes obviously aggrieving to the rights, freedom and interests physical and legal bodies, the corruption facts, use of the powers in mercenary and other personal interests are in most cases covered;
– At carrying out of investigatory actions and the decision on application of tactical receptions and combinations the inspector is obliged to mean following moments: 1) carrying out of investigatory actions with officials practically is always carried out in the presence of the defender or even several lawyers that can, both to facilitate, and to complicate planned carrying out of investigatory action; 2) as a rule, participation of the official in investigatory action assumes use of the latent means by it as dictophones, videocameras, etc.; 3) it is necessary to be ready to that carrying out of investigatory actions is carried out in conditions when the official is at large. Even in case of its taking into custody, it can be at any moment released court on quite lawful basises; 4) the official much more often, than usual criminals, can refuse evidence owing to available at it on it of laws of procedure;
– At carrying out of investigatory actions on malfeasances the inspector should search for possibilities to find their documentary acknowledgement soversheny. It is necessary, on the one hand, owing to that character of malfeasances is assumed by presence of necessary documents of activity of officials and a problem consists in their appropriate search and withdrawal, on the other hand, the validity of a crime is quite often possible only owing to presence of documents in which illegal activity of the guilty person [312] is reflected;
– Carrying out of investigatory actions with other persons (the witnesses who have sustained, convicted and suspects), not dependent directly from the official who has committed a crime, assumes absence at them the direct or mediated subjection from it. Such dependence can take place at such factors as authority of the public agent, fear of punishment, submission on service, joint fulfilment of wrongful acts in the form of minor offences, administrative violations or crimes, etc. the Inspector with a view of effective carrying out of investigatory actions should take measures for elimination of factors of possible dependence, by carrying out of others investigatory and legal proceedings, application of appropriate tactical receptions, maintenance of lawful means of protection and protection of the person;
– At carrying out of investigatory actions the inspector is obliged to consider degree of counteraction to the investigation, connected with official powers of persons involved in the criminal liability. It includes corporate protection of the official from its colleagues, other communications, directed on hindrance to a finding of true circumstances of a crime, an establishment of its full picture. Especially it is shown at criminal prosecution of the official of law enforcement body, owing to presence of power, technical, operative and other imperious powers, presence at them informal relations in law-enforcement and the judiciary;
– Manufacture of investigatory actions at investigation of malfeasances has the features of application of rules of investigatory ethics which, certainly, cannot contradict the general moral standards. Character of such actions concerning officials differs owing to their personal qualities and that official environment in which the crime [313] is committed.
Owing to stated, the analysis of investigation of the crimes made by officials, allows to form a base technique of investigation of malfeasances in the following maintenance of constituting parts:
1) specificity of the circumstances which are coming under to proving at investigation of malfeasances [314];
2) the patrimonial criminalistic characteristic of malfeasances;
3) possibility of the corruption factor at fulfilment of malfeasances [315];
4) features of revealing of malfeasances by operatively-search, remedial, supervising and other legal methods;
5) features of carrying out of initial investigatory actions in interaction with operatively-search, supervising and other bodies;
6) features of definition of investigatory situations, promotions of versions and planning of investigation of malfeasances;
7) features of interaction of the inspector with operatively-search, law-enforcement, supervising, public and other bodies in the course of investigation of crimes [316];
8) features of application of criminalistic tactics at carrying out investigatory and legal proceedings;
9) features of revealing of counteraction to preliminary investigation and actions for counteraction neutralisation, its overcoming and suppression;
10) features of the prevention and investigatory preventive maintenance of malfeasances.
Passing to practical base methodical recommendations about investigation of malfeasances, it is necessary to specify, that the basis of their creation are material requirements of criminal law, remedial problems of proving, and also practical experience of investigation with scientific processing of all data in aiming optimisation of conducting preliminary investigation [317]. Proceeding from the stated positions, we will define base methodical recommendations of investigation of malfeasances:
I stage – verifying:
– Consideration of sources of the information under the arrived message on malfeasance (a material, scene survey, the statement, an appearance with guilty, results of operatively-search activity);
– Additional verifying actions (a capture of explanations from participating persons, reclamation of additional data from operatively-search bodies, appointment of preliminary researches, audits or inspections, departure to a scene, consultations of experts);
– Reclamation of acts, positions, instructions, orders and other documents characterising studied legal status of authority or establishment, a legal status of the official with an establishment of its functional characteristic;
– An establishment of character and the size of the caused harm, including to the rights, interests and freedom of citizens, the rights and interests of a society, the state or legal bodies;
– Comparison of the criminalistic characteristic of the given kind of malfeasance to actual facts of checked event;
– Finding-out, whether is the official the special subject according to item 447 and 448 UPK the Russian Federation in which relation the special order of excitation of criminal case is applied, carrying out with it of investigatory actions or a presentation to it of charge, – is established by withdrawal or calling for acceptance of orders on appointment to the post in corresponding authorities (as a rule, higher), specified in item 447 UPK the Russian Federation, and also by reclamation of corresponding documents in electoral commissions and in other official bodies about presence of the status of the special subject or the deputy in committing a crime or after it;
– An estimation of an admissibility of the received data at their application at excitation of criminal case and use subsequently at proving of circumstances of criminal case;
– Acceptance of the remedial decision on criminal case excitation.
II stage – initial:
– Carrying out of urgent actions (carrying out of operative experiment, scene survey, withdrawal of subjects or documents, detention of the criminal, etc.);
– A summer residence of the instructions directed on immediate suppression of a crime;
– Interrogations of the basic participants of criminal case (the suspect who has sustained, eyewitnesses of a crime);
– Appointment of all possible examinations on the physical persons withdrawn to material objects and corpses;
– Studying of operatively-search given and other data of not remedial character;
– A summer residence of commissions to operatively-search bodies in the oral or written form for revealing of the necessary information on a crime, made his faces etc.;
– Comparison of circumstances of an investigated crime to the criminalistic and criminally-legal characteristic of the given kind of a crime;
– Proceeding from the information received at an initial stage, working out of versions and planning of remedial and operative actions for each of versions.
III stage – crime disclosings. It is characterised by check of each of versions by carrying out of investigatory actions and actions of operatively-search character, comes to an end with indicting or the criminal case termination.
IV stage – the basic investigation. It is characterised by specificity of an establishment of circumstances on criminal cases, characteristic only for malfeasances and dictating necessity of carrying out of a certain number of investigatory actions which can be carried and to III stage.
Accordingly, on III and IV stages of investigation of malfeasances by the basic general problem is the establishment of following circumstances of a crime with the approximate list of carried out investigatory actions and actions of operatively-search character:
– Time, a place, a way, the mechanism and other actual facts of fulfilment of actions (inactivity) of the official in which there are crime signs, are established by carrying out of interrogations of all participants of criminal trial, check of indications on a place, investigatory experiment, an identification, survey and examination, and also check of results of operatively-search activity (during carrying out of necessary investigatory actions) [318];
– The way of preparation of the official to a crime is established by carrying out of interrogation of all participants of criminal trial, check of indications on a place, investigatory experiment, and also check of results of operatively-search activity (during carrying out of necessary investigatory actions);
– Whether actions (inactivity) odnorazovo were made or regularly – is established by carrying out of interrogation of participants of criminal trial, audits and examinations, check of results of operatively-search activity (during carrying out of necessary investigatory actions);
– Whether actions individually or in partnership with other officials or the persons who are not possessing official powers were made, – is established by carrying out of interrogations of participants of criminal trial, audits and examinations, check of results of operatively-search activity (during carrying out of necessary investigatory actions);
– Establishment working conditions (or the organisations) in which the crime is committed, are established by reclamation [319] or dredging of the corresponding documents regulating work of considered establishment, interrogations of heads of establishment and direct heads of the official, convicted (suspected) of committing a crime;
– Time and an acceptance place for a post of the person, convicted (suspected) of malfeasance, for the purpose of an establishment of all track record of the official, are established by carrying out of dredging of the private affair, and also orders (extracts from orders) about acceptance, transfers and dismissal from a post;
– Formation, qualification of the official, convicted (suspected) of committing a crime, and conformity of its post are established by carrying out of dredging of the private affair with copies of corresponding documents on the termination of educational institutions. Inquiries in case of need go to corresponding educational institutions with the requirement to give the information on its termination. In the presence of the inconsistent facts investigatory actions (interrogations, dredging, etc.) in the educational institution are spent;
– The official rights and duties of the person, convicted (suspected) of committing a crime, are established by carrying out of dredging of corresponding positions about establishment and the organisation where the specified powers are stated, duty regulations, their survey, familiarising with materials of criminal case, interrogations of heads of the official of a various rank. In case of a statement of powers of the official in the normative acts officially published in the press (federal acts and laws of subjects of Federation, decrees, positions, etc.), they join materials of criminal case with instructions of a source of the publication and are assured by the inspector [320];
– Functions of the official according to the note 1 to item 285 UK the Russian Federation are established by carrying out of dredging of corresponding positions about establishment and the organisation where the specified powers are stated, duty regulations, orders (contracts) on employment, their survey, familiarising with materials of criminal case, studying of federal and regional laws and other legal acts regulating activity of the specified person, the organisations and establishments where the official works;
– The rights, duties, powers of the official and actual actions carried out by it at performance of daily work are established by carrying out of dredging and survey of the normative acts regulating performance by the official of labour duties (the labour contract, the duty regulations, position on the internal schedule of establishment, etc.), interrogation of its heads subordinated and other colleagues;
– The circle of the official rights and duties and their parity with actual actions of the official in which there are signs of concrete malfeasance, is established by reclamation or dredging and survey (studying) of the documents containing norms, regulating powers of the official (since federal acts and finishing duty regulations), manufactures of interrogations of participants of criminal trial, reception of indications and the conclusions of the expert [321];
– Communication of actions (inactivity) of the official, containing signs of a crime with use of the official position by it contrary to interests of service, is established by carrying out of interrogations and confrontations of participants of criminal trial, survey of the normative acts regulating the status of the official;
– Character and the size of the caused physical, property or moral harm actions (inactivity) of the official containing signs of a crime, – is established by carrying out of audits, examinations (medicolegal, psychiatric, psychological, judicial-accounting, financial, etc.), interrogation of victims, witnesses, experts, representatives of the enterprises, establishments and the organisations;
– The causal relationship between actions (inactivity) of the official at use of its powers and the come harmful consequences is established by carrying out of interrogations of victims, witnesses, reception of the conclusions of experts, representatives of the enterprises, establishments and the organisations, and also by carrying out of examinations with an estimation of actions of the official which is given in the decision about attraction as convicted and in the bill of particulars;
– The intention, the fault form are established by carrying out of interrogations of participants of criminal trial (the witnesses who have sustained, suspected or convicted), and if necessary – by carrying out of judicial-psychological examination;
– Data on the person of the official, convicted (suspected) of committing a crime, are established by carrying out of dredging of personal papers (private affairs in personnel services), reclamations of characteristics, data on a previous conviction, a condition on the account in psychiatric, narcological and others medical institutions; interrogations of relatives, colleagues, and also heads and subordinates of the guilty person;
– Data about financial and financial condition of the official, and in case of need – and its close relatives, are established by a direction of inquiries in tax organs, financial institutions, in service of financial monitoring of the given region and in other bodies, and also by carrying out of interrogations of participants of criminal trial;
– Communication with other crimes (plunders of another's property, crimes of economic character, against safety of the state, etc.) is established by a direction of inquiries in corresponding operative and investigatory establishments of region, registration-information centres law enforcement bodies of Russia and the given region, a summer residence of commissions in the bodies which are carrying out operatively-search activity;
– The circumstances aggravating either extenuating fault or eliminating punishment, are established by carrying out of interrogations of participants of criminal trial, the analysis of results of all spent investigatory actions and other materials of criminal case;
– The circumstances promoting fulfilment of malfeasances, are established by carrying out of interrogations of participants of criminal trial, surveys of the withdrawn documents, audits and examinations, and also check of results of operatively-search activity by carrying out of investigatory actions;
– The circumstances excluding criminality of act (the justifiable defence, detention of the person who have committed a crime, emergency, the physical or mental compulsion, the proved risk, order or order execution), are established by carrying out of interrogations of participants of criminal trial, the analysis of results of all spent investigatory actions and other materials of criminal case.
V stage – finishing:
– The announcement to litigants of the decision on the termination of manufacture of investigatory actions and the beginning of acquaintance with criminal case materials;
– Acquaintance with criminal case materials;
– Performance of petitions and statements by results of acquaintance with criminal case materials;
– A summer residence of commissions or decision-making on maintenance of safety of participants of the criminal trial at a stage of end of investigation of criminal case and a proceeding stage;
– Tracing of passage of criminal case to the public prosecutor and in court on terms and stated remarks.
Thus, necessity of existence and the further working out of a base technique of investigation of malfeasances is dictated, on the one hand, by set of identical material and criminalistic signs of fulfilment of all malfeasances, and with another – possibility of application of similar methods and means of revealing, disclosing and investigation of criminal cases on crimes of a considered sort. In turn, it allows to develop bases of a technique of investigation of other group and specific techniques, to expand borders of investigation of separate malfeasances, to use effective tactical receptions and tactical operations and combinations in the course of criminal prosecution on investigated criminal cases. As a whole objective expansion of number of structures of the malfeasances, dictated by the state concept of struggle against corruption, specifies in perspectivity of the further scientific researches on perfection of a technique of investigation of all set of malfeasances in view of their general sistemnosti, property motivation and similar legal, criminal and personal properties of officials.
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A source: Halikov Asljam Nailevich. THEORY And PRACTICE of REVEALING And INVESTIGATION of MALFEASANCES (CRIMINALISTIC ASPECT). 2005

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