Criminal procedural means of preliminary verification of reports on misuse of budgetary funds

Gritsaev Sergei Ivanovich PhD in Law Associate Professor, Department of Criminology, Kuban State Agrarian University named after I.T. Trubilin 350044, Russia, Krasnodar Territory, Krasnodar, Kalinina str., 13 grizaevserg@mail.ru Other publications by this author

Meretukov Gaisa Mosovich ORCID: 0000-0001-8243-0263 Doctor of Law Professor, Department of Criminalistics, I.T. Trubilin Kuban State Agrarian University 350044, Russia, Krasnodar Territory, Krasnodar, Kalinina str., 13 mosovich@bk.ru

At the stage of checking a crime report, the investigator must promptly resolve an important issue – by means provided by the Criminal Procedure Code of the Russian Federation, in a limited period of time, identify the presence or absence of signs of a crime in the act indicated in the message and, based on this, initiate a criminal case, or refuse to initiate it. The quality of the audit determines the effectiveness of law enforcement agencies in detecting and solving crimes. Such well-known scientists of processualists and criminologists as A. K. Gavrilov, B. Ya. Gavrilov, V.P. Lavrov, R. D. Rahunov, L. A. Sergeev, V. V. Stepanov, N. G. Shurukhnov, G. P. Khimicheva and others devoted their scientific works to the problems arising during the verification of reports of crimes. Entered into force in March 2013  Federal Law No. 23-FZ "On Amendments to Articles 62 and 303 of the Criminal Code of the Russian Federation and the Code of Criminal Procedure of the Russian Federation" has significantly expanded the list of tools that should be used when verifying a crime report. ^[1] However, there are still many unresolved problems that negatively affect the quality of the verification of a crime report. Thus, the Criminal Procedure Law does not establish a clear procedure for the use of means of procedural verification of a crime report. As a result, investigators are guided by organizational and tactical recommendations, professional experience, and generalized practice, which may be ineffective in the conditions of checking a specific message about a crime. Consequently, certain norms of the Criminal Procedure Code of the Russian Federation require clarification, and when developing recommendations for conducting a preliminary check, the specifics of the method, the mechanism of the crime, the signs of which are established, must be taken into account.

Criminal procedural and criminalistic means of preliminary verification of a report on the type of crime under investigation are provided for in Part 1 of Article 144 of the Code of Criminal Procedure of the Russian Federation – obtaining explanations and samples for comparative research; requesting documents and objects; appointment of forensic examinations; inspection of the scene, documents, objects, corpses; examination.^[1] The investigator may also require the production of documentary checks, audits, studies of documents, objects, corpses, involve specialists in these actions, give the body of inquiry a mandatory written order to carry out operational search measures (Part 1 of Article 144 of the Criminal Procedure Code of the Russian Federation).^[2]

Unfortunately, the criminal procedure legislation does not establish the procedure and conditions for obtaining an explanation of a person suspected of committing a crime, a victim and a witness. There is no unambiguous opinion on this issue in the scientific and specialized literature at the moment ^{[1, 2, 3]}. Scientific and practical recommendations regarding the use of tactical techniques when receiving an explanation at the stage of preliminary verification of a report on a committed crime have not been fully and sufficiently developed ^[4]. The analysis of investigative practice allowed us to establish that at the stage of preliminary verification of the crime report – 35% of the explanations received by the investigators were drawn up in free form, 65% were drawn up similarly to the interrogation protocol, but without taking into account the criminal procedural regulation of this investigative action. About 12% of the explanations received were excluded by the courts during the judicial investigation in the court of first instance from the list of admissible evidence (148 criminal cases considered in the courts of the Southern Federal District of the Russian Federation are summarized).

In the opinion of the authors, the following is required to eliminate this gap: 1) introduce the article "Procedure and conditions for obtaining an explanation" into the Criminal Procedure Code of the Russian Federation; 2) when receiving an explanation at the stage of preliminary verification of a report on a committed crime, follow the methodological recommendations developed by forensic science in compliance with the requirements of criminal procedure legislation.

The protocol for receiving an explanation is drawn up with reference to Part 1 of Article 144 of the Code of Criminal Procedure of the Russian Federation. It should provide the following details: the place (locality) and the date of the explanation; the time of the beginning and end of the explanation; the name of the body, the special title and full name of the official; the place (premises) and the grounds for obtaining an explanation;  as whom the person was interviewed (suspected of committing a crime; victim or witness); date, month, year and place of birth of the person giving the explanation; his place of registration and actual residence; phone number and e-mail; citizenship, nationality and native language; education, marital status (family composition); place work, studies, position and official phone number; attitude to military duty and place of registration; criminal record (where, when and by what court, under what article); passport or other identity document with a photo; signature of participants in the procedural action (investigator, person who gave an explanation, other persons involved in obtaining an explanation (for example specialist, translator, etc.). If technical means were used when receiving an explanation, then a note is made about their use and their technical characteristics are indicated.

Before receiving an explanation, the Criminal procedure law prescribes the investigator to explain the rights and obligations to the person from whom the explanation is received (Part 1.1 of Article 144 of the Code of Criminal Procedure of the Russian Federation).^[2] In Part 1.1 of Article 144 of the Code of Criminal Procedure of the Russian Federation, it is stated that persons participating in procedural actions provided for in Part 1 of Article 144 of the Code of Criminal Procedure of the Russian Federation have the right not to testify against themselves and close relatives, the list of which is specified in paragraph 4 of Article 5 of the Code of Criminal Procedure of the Russian Federation.^[2] It is obvious that according to the above text, all persons who receive an explanation (victim, witness, suspected person) should be warned about this under the signature in the protocol. As it seems to the authors of the article, the person from whom they receive an explanation (victim, witness, suspected person) is not warned of criminal liability under Articles 307 and 308 of the Criminal Code of the Russian Federation, ^[3] because formally their procedural status is not defined and is not fixed. Then the investigator proceeds to receive an explanation. We believe that when receiving an explanation, he needs to use tactical techniques and recommendations that are developed and used to obtain testimony during interrogation at the preliminary investigation ^{[5, 6]}. After receiving an explanation, a note is made in the protocol: "In essence, I can explain the following" and sets out all the information received related to the subject (goals) of the explanation. In the final part of the protocol, the investigator makes a note of the statements received from the participating persons, or indicates their absence. Further, at the end of the text on each page of the protocol, an entry is made by the person who gave the explanation: "The protocol has been read by me", which is certified by his personal signature. At the end of the protocol, the person who gave the explanation indicates whether or not he has comments on the content of the protocol. After that, the protocol is signed by all persons involved in obtaining an explanation.

The Criminal Procedure Law also allows, at the stage of preliminary verification, the investigator's ability to demand documents and objects and seize them in accordance with the procedure established by the Code of Criminal Procedure (Part 1 of Article 144 of the Code of Criminal Procedure).^[2] At the same time, it should be noted that the Code of Criminal Procedure of the Russian Federation does not define the procedure, conditions and mechanism for requesting, presenting, as well as accepting objects and documents by the investigator and involving them in criminal proceedings. This allows a fairly broad interpretation of the content of this action. For example, the following conditions are specified under which the investigator must make a claim for items and documents: a) the person conducting the investigation knows exactly what items and documents he needs, where and with whom they are; b) there is no danger of non-fulfillment by persons who have items and documents of the requirement to transfer them to the investigator, and it is not so much about the elementary non-presentation of documents and objects, and about the possibility of their concealment or destruction ^{[7, p. 65, 8, p. 105]}. These recommendations should be accepted and taken into account in the investigation process. But that's not the problem. In investigative practice, the demand for documents and objects is implemented mainly in the form of a written request made in a free form with reference to Part 4 of Article 21 of the Criminal Procedure Code of the Russian Federation, which states that the requirements, instructions and requests of the investigator are mandatory for all institutions, enterprises, organizations, officials and citizens.^[2] S. B. Rossinsky rightly points out that those that by virtue of the law (Part 3 of Article 183 of the CPC^[2]) require mandatory seizure on the basis of a court decision should be excluded from the volume of the requested documents ^{[9, p. 84]}. These are documents containing state or other secrets protected by law (commercial; audit; individual information in the procurement of goods, works, services for state and municipal needs, etc.).  The list of such documents is very extensive. ^[4] Accordingly, when investigating the targeted expenditure of budgetary funds, the probability that the requested document contains a secret protected by law is very high. Accordingly, the refusal to provide the investigator with the requested document will be justified. In addition, investigative practice is often faced with the fact that the investigator's requirement is not fulfilled within the time specified by him, is partially fulfilled or is not fulfilled at all. Moreover, the Criminal Procedure law does not contain any procedural guarantees of mandatory fulfillment of the investigator's requirement, i.e. this instruction is declarative in nature ^{[10, p. 56]}. The need to create a mechanism of procedural coercion against persons who do not comply with the investigator's requirements is a long-standing problem ^{[11, p. 56, 12, p. 158-162]} and has not yet been resolved.          

The next procedural action is the appointment of a forensic examination at the stage of preliminary verification of the report of the crime committed. At first glance, this procedural action is not complicated and only requires the investigator to draw up a resolution on the appointment of a forensic examination. However, at the time of preliminary verification of a crime statement, there is often a shortage of sufficient criminally significant information and objects subject to expert research ^{[13, 14, pp. 21-22]}. According to 95% of the received applications, as a rule, an inspection of the scene of the incident is carried out immediately, an integral element of which is the inspection and seizure of objects and documents found at the same time. Therefore, if traces of a crime, objects and documents are found and seized at the scene of the incident, the investigator has the opportunity to make a procedural decision on issuing a resolution on the appointment of a forensic examination and provide the seized objects to the expert for research.

Thus, due to the fact that the criminal procedure legislation does not regulate in detail the procedure and conditions for obtaining samples for comparative research, requesting documents and objects and their seizure, conducting documentary checks, at the stage of preliminary verification of a crime report, these procedural actions should, if possible, be carried out during the inspection of the scene of the incident (discovered objects or examine the documents, withdraw them and attach them to the protocol of the investigative action).

In cases of misuse of funds (budgetary and extra-budgetary) at the stage of initiation of a criminal case (the stage of preliminary verification of a crime report), as a rule, first of all, the office office of the head, the chief accountant, as well as the premises of the accounting department, computer and other equipment located in them, are examined and examined accounting and financial and administrative and economic documents, their removal from the scene of the incident is carried out. Samples are obtained for comparative research (experimental samples of signatures of officials, experimental samples made on printing equipment, etc.), documents and items related to the case are requested (financial documents; acts of inventory, audit, audit; orders, orders, job descriptions, etc.). In this case, it is necessary to appoint and to carry out a documentary check, audit and forensic examinations (accounting, economic, financial, credit, tax, valuation and other, depending on the specifics of the current investigative situation). It is important to involve relevant specialists in these actions ^{[15, 16, p. 326]}. Also a significant source of information is the materials of operational investigative activities. In this regard, the investigator, within the framework of Part 1 of Article 144 of the Code of Criminal Procedure of the Russian Federation^[2], must give the body of inquiry a mandatory written order to carry out operational investigative measures, in particular such as obtaining computer information; removing information from technical communication channels; listening to telephone conversations, etc. Each procedural action should be aimed at obtaining initial information confirming or refuting the specified facts about the misuse of budgetary funds and funds of state extra-budgetary funds.

To determine the subject of a preliminary check of this category of crimes, the investigator needs to have knowledge about the methods of preparation, commission and concealment of crimes of this group, the mechanism of trace formation and the mechanism of the crime, as well as information about the persons who committed them, i.e. to know the criminalistic characteristics of this group of crimes. According to the method of commission, this act is an intellectual crime, its traces remain in financial documents and objects (computer hard disk, various databases, other digital media, etc.). Persons committing the group of crimes under study can only be responsible officials who are charged on a permanent or temporary basis to lead state, commercial organizations or a municipality, while performing organizational and managerial functions. Thus, the subjects of the crime can be: the head of the administration of any level;  deputy head of the administration; Minister of Finance or head of the financial department of a constituent entity of the federation; general director or director, chief accountant, commercial director of a state or municipal organization of the recipient of budgetary funds implementing various socially significant functions; chief physician of a state medical institution; head of an educational institution; head of the education department; head of a state environmental organization and other persons.

At the stage of preliminary verification of the message about the investigated category of crimes, the investigator needs to create his heuristic model and, based on it, determine the goals of obtaining the necessary initial criminalistically significant information ^{[17, 18, pp. 38-43]}. To do this, he must first understand the criminal-legal characteristics, and determine the signs that fall under the crimes of Articles 285.1 and 285.2 of the Criminal Code of the Russian Federation.^[3] Without a doubt, the analysis of the composition of these crimes will allow the investigator to determine the most informative for him, in the situation that has arisen, elements of criminalistic characteristics (method of preparation, commission and concealment, mechanism trace formation and the identity of the guilty person) of the category of crimes under consideration and to realize this knowledge: to form a model of the mechanism of the crime, to determine the subject of preliminary verification, possible traces of the crime and their location, as well as to build versions ^{[19, 20]}.

In addition, the investigator's knowledge of the mechanism of the investigated group of crimes will allow him to fully determine the circumstances to be established and proved at the stage of preliminary verification of the crime report. At this stage of the stage of pre-trial proceedings, the investigator is obliged to establish the event of the crime, in particular: to determine according to which regulations budgetary funds were received; the exact time (date, month and year) of receipt of budgetary funds; the specific amount and for what purpose it was received; the timing of development; in what period of time the funds were not spent according to the purpose and what is the damage; what normative legal acts were formed to write off funds from the account where the budget funds were located and for what purposes, not provided for by the conditions of their appointment, they were spent. It is important here who made the decision on the misuse of funds and signed the relevant documents. It is also necessary to establish the legal status of a legal entity, who is the founder, obtain the constituent documents (charter, regulations, etc.), when and where it is registered, TIN, personal account numbers in a bank or credit institutions, sources of financing, who was the head and chief accountant for the period of the financial year. In addition, other circumstances may be established, such as: who is the guarantor of the allocation of budgetary funds, what real motives and goals were pursued by the heads of the organization at the time of receipt of budgetary funds, the presence of the organized nature of the crime committed and the presence of prior collusion, etc. It should be noted that the mechanism of misuse of budgetary funds is multidimensional and list the entire the scope of the circumstances to be established is quite problematic, they must be determined by the investigator carrying out a specific investigation. 

Thus, based on the analysis of scientific and specialized literature, judicial and investigative practice, the authors believe that the means specified in Part 1 of Article 144 of the Code of Criminal Procedure of the Russian Federation ^[2] for preliminary verification of a report on the misuse of budgetary funds are sufficient for its implementation. However, the absence of provisions in the Code of Criminal Procedure of the Russian Federation that regulate in detail the procedure and conditions for their application, create difficulties in their practical use during the preliminary inspection. The scientific and practical recommendations proposed by the authors on the organization and conduct of obtaining explanations, requesting documents, etc. minimize the procedural and tactical miscalculations of investigators, but will not solve the problem. To completely eliminate it, it is necessary to introduce a new chapter in the Criminal Procedure Code of the Russian Federation: "Chapter 19.1. Production of preliminary verification of a crime report." In this chapter, the following articles should be provided: "Article 145.1. Procedure for obtaining an explanation", "Article 145.2. Protocol for obtaining an explanation", "Article 145.3. Obtaining samples for comparative research during verification of a crime report", "Article 145.4. The procedure for the reclamation of documents and objects", "Article 145.5. The procedure for the appointment of a documentary audit", "Article 145.6. The procedure for the appointment of an audit". The authors of this article are aware that the inclusion of such a large number of norms in the Criminal Procedure Code of the Russian Federation requires painstaking scientific research by specialists in the field of criminal procedure law.

1. On Amendments to Articles 62 and 303 of the Criminal Code of the Russian Federation and the Criminal Procedure Code of the Russian Federation: Federal Law No. 23-FZ of 04.03.2013 (ed. of 28.12.2013) [Electronic resource]. Access mode: https://www.consultant.ru/document/cons_doc_LAW_142908/

2. The Criminal Procedure Code of the Russian Federation No. 174-FZ of 18.12.2001 (as amended on 04.08.2023) (with amendments and additions, intro. effective from 08/11/2023) [Electronic resource]. Access mode: https://www.consultant.ru/document/cons_doc_LAW_34481/a3d0f7ee6816ad8ac5a3a3975cf93b26a443c4f8/

3. The Criminal Code of the Russian Federation of 13.06.1996 No. 63-FZ (ed. of 04.08.2023) [Electronic resource]. Access mode: https://www.consultant.ru/document/cons_doc_LAW_10699/c011ede44f5f7d2a4fc5c202f70bcd87c8bf36aa/

4. The list of regulations relating information to the category of restricted access: reference information [Electronic resource]. Access mode: https://www.consultant.ru/document/cons_doc_LAW_93980/

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