Peculiarities of conducting investigative actions during the investigation of criminal activity of leaders of criminal groups

Introduction

Ukraine has declared human life, health, honor and dignity, inviolability and security as the highest social value. In this context, a great danger to the protection of human and civil rights and freedoms is posed by crime, the modernization of which affects the need to ensure proper methods, tools, and methods of criminal justice.

In current conditions, the process of development of everyday crime is characterized by its qualitative transformations, the expression of which is the emergence of new crimes, growing crime, audacity and cruelty of criminals, crime penetration into all structures of society and state, its organization and international cooperation.

To optimize investigative and judicial activities, special knowledge is used at different stages of criminal proceedings by implementing the achievements of scientific and technological progress and scientific and practical developments. Thus, to effectively use special knowledge, it is essential to develop theoretical principles for involving forensic experts (specialists) in criminal proceedings. In addition, relevant information may be obtained during the interrogation of knowledgeable persons. However, their procedural status reflects the specifics of such an interrogation, and, hence, the need to develop tactics for its conduct.

According to Art. 223 of the CPC of Ukraine (Criminal Procedure Code of Ukraine) (Law No. 4651-VI, 2012) investigative (search) actions are actions aimed at obtaining (collecting) evidence or verification of already collected evidence in a particular criminal proceeding. Analysis of other norms of the CPC of Ukraine states that, in addition to investigative and covert investigative actions, to perform the task of gathering evidence, the investigator has additional powers: a) to appoint audits and inspections in the manner prescribed by law (par. 4 part 2 of Article 40 of the CPC of Ukraine); demand from state authorities, local governments, enterprises, institutions, organizations, officials and individuals things, copies of documents, information, expert opinions, audit opinions, inspection reports (Part 2 of Article 93 of the CPC of Ukraine).

The analysis of these provisions shows that the conduct of investigative actions is a mandatory component of the procedural activities of the investigator and a direct way to solve problems of evidence.

But as crime has recently taken on a global, international character, leaders of criminal communities are increasingly inventive and mobile. This trend requires urgent decisive decisions and organizational and managerial measures. Therefore, special attention in the work is paid to the implementation of these measures. The paper also examines the historical development and current state of use of special knowledge of knowledgeable persons in court proceedings. The norms of the current criminal procedure legislation regulating their activity are analyzed. Based on the system-structural analysis of the provisions of the criminal procedure legislation, the peculiarities of conducting certain investigative actions during the investigation of criminal activity of leaders of criminal communities have been established. While positively assessing the legislative novelty on the introduction of such procedural actions as consultation and clarification of a specialist during the examination of evidence in court, emphasis was placed on the incompleteness of their legal regulations and disregard for differences in their content.

The purpose of the article is to study the peculiarities of conducting individual search actions during the investigation of criminal activities of leaders of criminal groups.

Theoretical Framework or Literature Review

Peculiarities of conducting separate investigative actions during the investigation of criminal activity of leaders of criminal communities were studied by the following scientists: Byshevets (2013), Demidova (2013), Zhuravel (2012), Zemlianyi (2019), Klimchuk and Furman (2017), Komarynska (2017), Komirchy (2017), Korobka (2020), Malyutin (2009), Matyushkova (2010), Minyailo (2015), Padalka (2020), Ploskonos (2020), Polishchuk (2017), and Shlapachenko (2013).

A researcher such as Byshevets (2013), in his work, researched ways to optimize the use of psychological influence in criminal proceedings. Tactics of interrogation of informed persons became the object of Demidov's (2013) research. The author considered the issue of defining the concept of a knowledgeable person, their types, role in court proceedings, and functions and examined the procedural status of a forensic expert and specialist. In addition, the author developed a system of tactical methods of interrogation of a forensic expert and specialist during the pre-trial investigation and trial of criminal proceedings, and based on the study, formulated proposals to improve criminal procedure legislation.

A detailed examination of forensic techniques was conducted by Zhuravel (2012). An author such as Zemlianyi (2019), in his work, examined the tactical features of the interrogation of the suspect. The author notes that the tactical features of interrogation of persons suspected of committing a crime under Article 258-3 of the Criminal Code of Ukraine are determined by the specific organizational structure of terrorist associations, their motives, the purpose of criminal activity, and the participant's place in the hierarchical structure. The effectiveness of the interrogation of a suspect in the creation of a terrorist group or terrorist organization directly depends on the preparation of the investigator to conduct the investigative action, his professionalism, experience and critical analysis of information, compliance with general forensic recommendations and procedural law requirements for interrogation and the testimony of a member of a terrorist group should be assessed only in conjunction with other evidence obtained during the pre-trial investigation. Other scholars, such as Klimchuk and Furman (2017), also drew attention to the tactical features of the interrogation of suspects – members of organized crime groups.

The use of innovative technologies in police interrogation and topical issues of criminal procedure, forensics, and forensics were studied by Komarynska (2017). Thus, Komirchy (2017) examined organized crime through the prism of a systemic-functional approach.

Problematic aspects of interrogation in a conflict investigation situation were considered by Korobka (2020). Among the features of the interrogation in the event of a conflict investigative situation, the author attributes the presence of constant tactical risks, which forces the investigator to be more responsible in the tactics of interrogation. The wrong decision of the investigator can be fatal for the investigation. It is proposed to standardize tactical risks and investigative situations in order to facilitate the activities of the investigator during the interrogation in case of a conflict investigative situation. Particular attention is paid to the psychological state of the investigator as the main participant in such proceedings. It is remarked that a special danger for the investigator is his psychological unwillingness to interrogate, exhaustion, the uncertainty of behavior, insecurity. This situation, of course, will be noticed, it will be utilized by an experienced criminal to lead the investigation in the wrong direction. Doubts about the effectiveness of the interrogation, which arose in the investigator, his unwillingness to conduct the interrogation is an admission of his defeat. Therefore, according to the researcher, it is required to constantly monitor your condition, remember that the task of interrogation is to exert influence, not to succumb to it. In the event of a conflict investigation, it is best to conduct the interrogation with video recording. The application of the polygraph in practice requires appropriate amendments to the legislation to provide a clear status of the evidence obtained using the polygraph.

Malyutin (2009) conducted a thorough study of tactics in the investigation of crimes. Besides, Matyushkova (2010) explored the barriers to communication in the tactics of interrogation and drew attention to some features of their occurrence and methods of overcoming.

Moreover, Minyailo (2015) conducted a theoretical study on the definition of “organized crime” in Ukraine. In his work, the author drew attention to the limits of the application of the concept of "organized crime" in Ukraine. Additionally, Padalka (2020), in her monograph, examined in detail the theoretical and methodological principles of investigating organized crime in the field of taxation.

Applied aspects and tactical features of the interrogation of members of organized criminal groups and criminal organizations in his dissertation covered Ploskonos (2020). But Polishchuk (2017), in his research, drew attention to the peculiarities of the use of the polygraph in the investigation of crimes.

Peculiarities of interaction between criminal police units and pre-trial investigation bodies in the documentation of criminal offenses were highlighted by Sakovsky & Zhizhin (2019). The author noted that documentation as an independent element of evidence is not sufficient enough, and to bring the perpetrator to justice, the results of documentation should be "legalized" in criminal procedural law by conducting investigative actions. Therefore, to effectively ensure the administration of justice, it is necessary to apply in the complex of operational and investigative and criminal procedural, as well as other areas of law, which is implemented in the interaction of their subjects. Based on the analysis, the author's definition of the interaction of criminal police units with pre-trial investigation bodies during the documentation of criminal offenses is formulated.

The study of investigative (search) actions as a kind of procedural actions became the subject of Tereshchenko's research (2014). Ustinova and Ustinov (2014) considered the peculiarities of establishing psychological contact with adolescents by criminal police officers for children. The influence of misinformation as a psychological factor was determind by Shlapachenko (2013).

However, despite a large number of scientific papers on the tactics of individual investigative actions, a comprehensive study of the specifics of individual investigative actions in the investigation of criminal activities of leaders of criminal communities is missing, which necessitates generalization of material and complete research.

Methodology

During the research, such methods were used as comparative-legal, formal-logical, empirical, cognitive, method of analogy, structural-functional method, and systematic method.

Thus, in order to understand the peculiarities of conducting certain investigative actions during the investigation of criminal activity of leaders of criminal communities, a comparative legal method was used. The application of this method was aimed at finding the recurrence of particular legal phenomena and their causal relationship with each other and with external phenomena, to identify commonalities in the compared objects, and on this basis to establish general laws of law and the true nature of the phenomenon. To do this, some tactics of individual investigative (search) actions were compared and the legislation at different stages of development was compared. The formal-logical method was used in the process of defining the concepts of "criminal community", "separate investigative action", "leader", etc. This method was used to provide definitions of the above concepts and draw attention to their problems and inconsistencies.

An empirical method has helped to clarify the problematic aspects of the practice of conducting individual investigative actions against leaders of criminal communities. Based on this method, the specifics of the investigation of crimes were clarified and an algorithm of actions was developed to improve the current state of the research issue.

The cognitive method was used to establish the peculiarities of the forms of criminal behavior of leaders of criminal communities, and to justify the importance of using criminological knowledge in planning and implementing measures to prevent crime.

Further, the method of analogy was used in formulating proposals for improving the forms and methods of interaction between the subjects of individual investigative (search) actions.

No less vital method used in this study was structural and functional. The structural approach helped to examine the object of study through the units and elements that are part of it and form a certain structure, and the functional approach helped to clarify the relationship between elements and the whole, and ways of their functioning. The possible states of the system were considered, the permissible combination of elements in it determines the set of functions as behaviors inherent in this system object while maintaining its structural integrity.

The system method allowed to explore individual investigative (search) actions in terms of their unified system and relationship. In the most general and broad sense of the word, the systematic study of objects and phenomena of the world around us is understood as a method in which they are considered as parts or elements of a particular holistic formation. These parts or elements, interacting with each other, determine the new, integral properties of the system, which are absent in its elements. However, this rule is used only to characterize systems that consist of homogeneous parts and have a well-defined structure. However, in practice, systems often include sets of disparate objects combined into one whole to achieve a specific goal. The main thing that has been done is to define a system of measures to investigate crimes against leaders of criminal communities.

Results and Discussion

A crucial role in the study of criminal offenses is played by the conduct of separate investigative actions, as procedural, organizational, and investigative actions conducted by the investigator are interconnected, interdependent, complementary and, ultimately, all aimed at achieving the objectives of criminal proceedings. Given that the definition of the essence of investigative actions and other forensic and criminal-procedural aspects of this issue is thoroughly studied in the forensic literature, we do not focus on generalizing the theoretical work of scientists on this issue.

Our generalization of the materials of criminal proceedings allows us to propose a conditional classification of investigative (search) actions that are carried out during the investigation of crimes in this category. In particular, in our opinion, such actions can be classified according to the criterion of the purpose of:

a) search investigative (search) actions aimed at obtaining new factual data on the committed criminal offense, which were not previously known to the investigation;

b) verification investigative actions, which are aimed at verifying and confirming the information obtained during other investigative actions and other procedural and operational-investigative measures (Tereshchenko, 2014).

Without denying this position, we believe that in the context of the category of crimes under investigation, search actions are at the heart of investigative activities, and, therefore, we focus on them as a matter of priority.

Thus, based on the proposed classification, in our opinion, the first group can include such investigative actions as interrogation and inspection, and the second group: presentation of a person for identification, presentation of things for identification, presentation corpse for identification, entry into the home or other property of a person, search, investigative experiment. At the same time, it should be remarked that such a division of investigative actions is quite conditional, as some of them can be attributed to both classification groups, in particular, which, on the one hand, aims to verify information available to the investigator, and on the other – provides detection of previously unknown to the investigator factual data.

Particular attention should be paid to the tactical features of interrogation in criminal proceedings in this category, because, as researchers note, interrogation is the most common investigative action, and it provides the greatest amount of evidence to establish the truth (Malyutin, 2009).

It should be mentioned that in comparison with the investigation of other crimes, the interrogation during the investigation of criminal activities of leaders of criminal communities has a significant specificity.

In the process of direct interrogation, it is appropriate to use the following tactics: asking questions that allow you to clarify what information is known to the interrogated in this case; reminders in general terms about the event that took place, clarification of his emotional state, circumstances, conditions under which his testimony was formed; the revival of associative ties to restore the memory of the factors perceived by him, etc.; aimed at creating psychological discomfort for the interrogee during active opposition to the investigation to refrain from interrogating and misleading the interrogation, creating an idea of the hopelessness of such attempts, using the interrogee's doubts about the ability to adhere to evidence, etc.

In addition, it is appropriate to identify additional tactics for:

a) conflict-free situation of interrogation: creating a friendly atmosphere during interrogation, which helps to give complete and reliable testimony, renew associative ties and provide assistance in remembering the facts perceived by the interrogated, asking clarifying questions to prevent gaps and inaccuracies in testimony;

b) the conflict situation of the interrogation: the creation of a strict working environment during the interrogation, which would be unfavorable for the expression of hostility to the investigator, but on the contrary, would evoke respect for him; overcoming an unconstructive position, creating the impression of full awareness of the investigator about the circumstances of the case; conviction of the interrogated in the futility of the conflict, disputes, and concealment of facts known to him, etc.

At the same time, given the organized form of the investigated type of criminal activity, we consider it appropriate to single out other tactics that, according to investigators, are effective, in particular: debunking the halo of criminal life and discrediting elements of criminal subculture; demonstration of sufficient awareness of the investigator about the mechanism of the crime and the specific role of the interrogated in criminal activities; explanation of the possibility of mitigation of criminal liability in connection with cooperation with the investigation; creation of conflict situations and negative attitude of the interrogated to other members of the organized criminal group; unexpected demonstration of instruments of crime; reduction of the role of the interrogated in the activities of RAM and a proposal to conclude an agreement.

Special attention needs to be paid to the analysis of the tactical features of the interrogation of the suspect, in particular the leader of the criminal environment and persons close to him. First of all, it should be noted that such persons, as a rule, during interrogation try to form an idea of the real state of pre-trial investigation, the degree of proof of specific circumstances of criminal proceedings, and the role of each participant in committing a particular crime. factual data that allows the suspects to obtain information about witnesses and other circumstances of the investigation, for which there is a tactical need to maintain investigative secrecy.

One of the main circumstances to be established during the investigation is that the person belongs to the leaders of the criminal environment and has the appropriate status, in particular, "thief in law". The practice of interrogation of such persons shows that they choose two typical lines of conduct during the interrogation, which determines the use of specific tactics and the system of questions asked by the investigator.

The foremost typical line of conduct is the recognition of a person's status as a "thief in law." In this case, the investigator should obtain additional information by asking questions aimed at establishing: time, place, and circumstances under which the person received the status of "thief in law", data on persons who granted the person such status, and the nature of relations with them at the time of investigation; which of the leaders of the criminal environment provided recommendations on granting a person the status of "thief in law"; whether a person belongs to a particular thief clan; participation of the convict in granting the status of "thief in law" to other persons.

The second typical course of action is to deny a person the status of a "thief in law." In this case, the investigator should during the interrogation ask the suspect questions about: the content of tattoos and other informational and communicative attributes of the criminal subculture, found in the convict; the nature of relations with specific leaders of the criminal environment - "thieves in law"; reasons for staying at certain times in certain administrative-territorial units and individual places, etc. It should be emphasized that, as a rule, at the time of interrogation the investigator has sufficient operational information on the affiliation of a particular person to the highest level in the criminal hierarchy and the status of "thief in law". At the same time, obtaining such information during the interrogation solves two independent tasks:

a) providing verification and additional confirmation of the data available to operational units, and;

b) criminal procedural proof of the status of a person as a "thief in law".

Regardless of the characteristics of the situation in which the interrogation is conducted, one of the primary organizational and tactical tasks of the investigator is to establish psychological contact with the interrogated. It should be remarked that, on the tactical side, to establish psychological contact, the investigator must conduct an initial assessment of the person, which, according to scientists, can be divided into two types:

a) visual assessment, i.e. assessment based on the perception of external signs appearance, clothing, facial expressions, gestures, gait, voice, speech features); this assessment is carried out, as a rule, during direct communication or before its beginning;

b) biographical assessment based on data obtained as a result of studying the biography; during this process, all the characteristics known about the object are studied, which can serve as a source of information about the evaluated.

Moreover, it is not just tactics, but a system of tactical and psychological techniques, psychological methods of communication, mutual influence (predicted, random) of natural and acquired mental qualities of the investigator and other participants in the investigation. From these positions, it can be stated that the establishment of psychological contact is the initial stage of influence, which should unfold at the will of the investigator in the process of investigative action and investigation, in general, to establish the truth and solve criminal problems. In addition, given the specifics of such crimes, it is necessary to pay attention to the need for investigators to study the materials of operational and investigative cases in the presence of it, because, as scientists say, often the investigator has incomplete information about the circumstances. The main task in this situation is to determine the methods and ways of obtaining evidentiary information. In this case, the investigator must skillfully use the opportunities and data obtained as a result of operational and investigative activities (Malyutin, 2009).

Taking these measures, in our opinion, the investigator should form an internal belief in the correctness of the chosen tactics, providing answers to the following questions: what individual psychological characteristics of a person and how individual characteristics of mental processes can affect his behavior during investigations (search) actions; whether the person is exposed to psychological influence and what manifestations in the person's behavior that have legal significance may occur as a result of its use; whether a person is able, taking into account the level of his mental development, individual psychological characteristics and emotional state, to understand that he is subjected to psychological influence and what behavioral reactions he may cause such awareness; whether it can harm a person to apply to him methods of psychological influence and appropriate tactics; what methods of psychological influence and tactics based on them should be effectively applied to a person to solve a specific task (overcoming opposition to the investigation process, obtaining complete and objective information about the circumstances of the case, helping to recreate the forgotten, etc.); what behavioral reactions a person can cause the application of tactics based on methods of psychological influence (Byshevets, 2013).

Equally important is the correct choice of methods of psychological influence. According to researchers, since communication and relationships are impossible without tactics in theoretical and practical recommendations should take into account the presence of such influence and work on developing effective techniques and systems of tactical and psychological nature. Based on the analysis of scientific sources, scientists classify tactics of psychological influence in four groups:

• concealment of the investigator's intentions regarding the purpose of influence;

• creating in the participants of the pre-trial investigation the idea of almost complete awareness of the investigator about the circumstances of the crime and the availability of evidence exposing the offender;

• forming in a particular participant in the pre-trial investigation the idea that other participants provided truthful testimony. Given the above, it is appropriate to agree with Malyutin (2009), who notes that the interest of the interrogated (suspect or accused) is relatively better achieved when there are several suspects in the case. In such cases, experienced investigators usually draw the respondent's attention to the fact that it is not in his interest to remain silent or give false testimony, as this makes it difficult to determine his true role in the crime, which may be much less than he is accused of. That is why, in such cases, persons whose role in committing a crime is less significant are first interrogated.

Analyzing the methods of psychological influence on the leaders of the criminal environment, it is necessary to pay attention to the following:

• demonstration of full or sufficient awareness of the investigator about the crime and the activities of an organized criminal group, including demonstration of material and other evidence, as evidence prepared for interrogation is designed to play the role of tactical strikes aimed at destroying false allegations;

• partial communication of information on the progress of the investigation, as well as misinformation of the suspect. According to researchers, in the narrow (professional) sense, misinformation is considered as a way (variety) of psychological influence on human consciousness, the means of which is information, ie information-psychological influence by changing the information coming to the object influence, to form in him a misconception about certain events, facts, phenomena and, therefore, encourages him to make decisions beneficial to the subject of influence (Shlapachenko, 2013).

Particular attention should be paid to overcoming during interrogations of leaders of the criminal environment such a form of opposition to the investigation as giving false and / or incomplete testimony. In this context, it is necessary to pay attention to the distinction between knowingly false testimony and testimony that is untrue as a result of the error. The reasons for knowingly false testimony, according to psychologists, maybe: personal interest, influence from others, the nature of relationships with participants in the process, the mental state experienced in connection with the interrogation; circular guarantee, etc. The reasons for the testimony that are untrue as a result of error are peculiarities of perception and memory, limited vocabulary or incorrect notation of terms, the influence of external factors (media, other witnesses, rumors), etc. (Ustinova, & Ustinov, 2014). It should be remarked that the mechanism of formation of knowingly false testimony includes the following stages:

• decision-making on giving knowingly false testimony;

• planning the content of the future deliberate false testimony (it is at this stage that the formation of an imaginary model of false testimony, building a model of their message during interrogation), and;

• there are knowingly false testimonies during interrogation.

The practice of analysis of interrogations allows to single out the signs that indicate that the leader of the criminal environment gave false testimony:

• the presence of significant contradictions, which are established as a result of the analysis of the results of the interrogation, and their comparison with other materials of criminal proceedings (93%);

• uncertainty, vagueness or, conversely, excessive detail of the information reported, the detailed similarity of such information with the testimony of others (31%);

• unwillingness to answer the investigator's questions, constant misunderstanding of the questions asked, requests to repeat them, which may indicate a thoughtful answer (67%), and;

• the difficulty of answering simple but sudden questions about the facts about which the respondent is well aware (13%).

In our opinion, the following methods of detecting and overcoming the knowingly false testimony of the suspect can be used directly during the interrogation:

• observation of the emotional state of the interrogated and his verbal behavior, which may indicate the giving of false testimony: unforced change of intonation; study of voice timbre; observing pauses when answering questions that should not cause difficulties; too quick answers to questions that should make the interviewee think; demonstrative emphasis on specific information during interrogation, etc.;

• the use of existing conflicts in the criminal group to persuade the group member to give truthful and incriminating testimony. Practice shows that during interrogations it is useful to use the conflicts that exist between the leader of the criminal environment and his environment, as well as within the environment of the leader. The basis of such conflicts are:

a) dissatisfaction with the distribution of material resources;

b) discrimination by the leader;

c) conflict related to excessive closeness to the leader of specific individuals, and;

d) suspicions of links with law enforcement agencies.

In addition, during the interrogation of suspects in this category of criminal proceedings, it is advisable to use compromising materials:

a) to inform the person about the reduction of his authority in the structure of the criminal environment;

b) informing the person about the presence in the investigation of data that may tarnish the authority of the leader among the convicts, and;

c) reports on the availability of recorded data on the violation of the requirements of the penitentiary subculture by the leader of the criminal environment, etc.

Conclusions

As a result of the study, a study of the features of individual investigative actions during the investigation of criminal activities of leaders of criminal communities and the following conclusions were made:

1. The peculiarities of conducting certain investigative actions during the investigation of criminal activity of leaders of criminal communities are analyzed and, it is noted, that not every procedural activity of an investigator is aimed at gathering evidence. At the same time, procedural activities aimed at gathering evidence are carried out in two forms: conducting investigative (search) actions and conducting other procedural actions.

2. It is remarked that the leaders of criminal communities during interrogations choose one of two typical behaviors during interrogation, which determines the use of specific tactics and system of questions asked by the investigator: recognition of her status as a "thief in law" and denial a person with the status of "thief in law".

3. It is necessary to monitor the emotional state of the interrogated and his verbal behavior, which may indicate false testimony, and deeply analyze information about the presence of conflicts in the criminal group to persuade the group member to give true and incriminating testimony.

Regarding further scientific research, it is required to pay attention to the tactics of conducting certain investigative (search) actions on organized crimes.