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Police and Investigative Activity
Reference:

On the Question of the Specifics of the Investigative Actions with Minors in the Investigation of Crimes

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
 

 
Stepanenko Sergei Grigor'evich

PhD in History

Associate Professor, Department of Sociology, Law and Human Resources, Kuban State Technological University

350002, Russia, Krasnodar Territory, Krasnodar, Moskovskaya str., 2

stepik71@mail.ru
Zhukova Polina Stanislavovna

Student, Faculty of Law, Kuban State Agrarian University named after I.T. Trubilin

350004, Russia, Krasnodar Territory, Krasnodar, Kalinina str., 13

polina-zhukova-01@inbox.ru
Chiriev Il'ya Sergeevich

Student, Faculty of Law, Kuban State Agrarian University named after I.T. Trubilin

350004, Russia, Krasnodar Territory, Krasnodar, Kalinina str., 13

chirev.2001@mail.ru

DOI:

10.25136/2409-7810.2023.2.40104

EDN:

LDDDWC

Received:

28-03-2023


Published:

04-04-2023


Abstract: The object of the study is the criminal procedural relations that develop during the conduct of investigative actions against minors during the preliminary investigation. The subject of the study is the norms of the Constitution of the Russian Federation, the Code of Criminal Procedure of the Russian Federation, other laws regulating relations related to the production of investigative actions involving minors, as well as theoretical foundations and materials of investigative and judicial practice. The procedural features of the interrogation, confrontation, identification, verification of testimony on the spot and other investigative actions with the participation of minors are considered. At the same time, special attention is paid to the use of video recording of their conduct and the involvement of a psychologist or teacher to participate in the investigative action against a minor. The authors note that Federal Law No. 432-FZ of December 28, 2013 has significantly expanded the range of investigative actions involving minors, during which it is necessary to comply with special legal regulations that protect the rights and interests of these persons. The conducted research made it possible to identify some shortcomings in the regulation of investigative actions against minors. The authors propose ways to eliminate them: video filming as a means of fixation should be carried out during all investigative actions involving minors; situations of participation of a psychologist or (and) a teacher, and in some cases a psychiatrist in the production of investigative actions with this category of persons are determined.


Keywords:

investigative action, minor, teacher, psychologist, psychiatrist, criminal procedure legislation, mental disorder, pedagogical neglect, mental development, video filming

This article is automatically translated.

Minors, being a special social categorical group, have many peculiarities of development and behavior that should be taken into account in all spheres of public life, including with their participation in criminal proceedings. It is well known that due to the specifics of physical, mental, psychological and mental qualities, they cannot fully consciously dispose of their rights, as well as defend and defend their legitimate interests. It is this feature that is the reason for the increased attention of the state to the issue of protecting the rights of minors. In this regard, at the legislative level, guarantees are provided for the observance of the rights of this category of persons in criminal proceedings both in general and during investigative actions in particular [1].

Let's pay attention to the situations in which it is possible for a minor to participate in investigative actions. Thus, according to the current criminal procedure law, the investigator or inquirer is not limited in the choice of investigative actions in which the participation of a minor (subject to the fulfillment of special requirements of the law) will be considered legitimate. In other words, the criminal procedure legislation does not provide for a ban on the production of any specific investigative action involving a minor [2, p.125].

It should be noted that the legislator has provided for some features of conducting separate investigative actions with the participation of minors, which the investigator or inquirer must strictly observe, ensuring the conditions prescribed by law.

To begin with, we note the groups of minors that are distinguished in the criminal procedure legislation:

1. By age, minors are classified into the following categories: a) persons under the age of 7 years; b) persons aged 7 to 14 years; c) persons aged 14 to 16 years; d) persons aged 16 to 18 years; e) persons aged 16 to 18 years suffering from a mental disorder or lagging behind in mental development.

2. Depending on the legal status, the following groups of minors are distinguished: a) victims; b) witnesses; c) accused; d) suspects. It is worth noting that minor victims and witnesses can have any age up to 18 years, and minor defendants and suspects are only the age from which criminal responsibility for the act they committed, provided for by a special part of the Criminal Code of the Russian Federation, begins.

For each of these groups of minors, in the case of their participation in the investigative action, the law defines mandatory prescriptions. The reform of the legal regulation of the participation of a minor in investigative actions took place in 2013 [3]. Previously, in Article 191 of the Criminal Procedure Code of the Russian Federation, the legislator considered the specifics of the participation of a minor only in interrogation. Currently, the legislator has identified four investigative actions, during which it is necessary to provide additional guarantees for the protection of the rights and legitimate interests of a minor: interrogation, confrontation, identification, verification of testimony on the spot (Part 1 of Article 191 of the Criminal Procedure Code of the Russian Federation). In addition, the novelty was that the legislator specified the duration of the interrogation and determined the duration of the mandatory break, depending on the age of the minor, and also indicated a possible alternative to the teacher as a mandatory participant in this investigative action – a psychologist.

In Part 5 of Article 191 of the Criminal Procedure Code of the Russian Federation, the legislator, as an additional guarantee of the protection of the rights of a minor, provided for the mandatory use of video recordings during investigative actions. Based on the results of studying the materials of judicial practice, we came to the conclusion that one of the grounds for appealing the verdict in the courts of appeal and cassation instance is non-compliance with the requirements of this part of Article 191 of the Code of Criminal Procedure of the Russian Federation. For example, the Judicial Board for Military Personnel of the Supreme Court of the Russian Federation considered an appeal, in which the applicant considered a violation of the requirements of Part 5 of Article 191 of the Criminal Procedure Code of the Russian Federation as one of the grounds for the cancellation of the sentence [4]. The Court, having considered this argument, noted that the testimony of the minor R., which is included in the evidence base of the indictment, is legitimate due to the fact that the case file contains a statement by the legal representative of the minor R. that she objects to the videotaping during the interrogation of his son. We consider it necessary to note that it is important for the subjects of the preliminary investigation to strictly comply with the requirements of the criminal procedure legislation regarding the need for video filming during investigative actions (interrogation, confrontation, presentation for identification and verification of testimony) with the participation of minors, since their non-compliance entails the insignificance of the evidence obtained during the preliminary investigation.

In our opinion, it is also necessary to pay attention to such a problem of the current criminal procedure legislation as the regulation of the specifics of conducting other investigative actions (except for interrogation, confrontation, presentation for identification and verification of testimony on the spot). It is expressed in the fact that the legislation regulates the participation of minors in these actions on a general basis. In our opinion, the position of the legislator is not correct.

Of course, the legislator's allocation of interrogation, confrontation, presentation for identification and verification of testimony on the spot has its own explanation. All these investigative actions are united by the fact that all of them, to one degree or another, involve verbal communication between the investigator and the minor in order to obtain evidence and other information. The special requirements of the legislator to conduct these investigative actions with the participation of minors are included in the criminal procedure legislation in order to guarantee the protection of their rights and legitimate interests, as well as in order to minimize harm to their mental health [5]. However, the question arises: does a minor really not need additional guarantees aimed at protecting his rights during the production of, for example, an investigative experiment or an examination? We believe that the legislator should definitely expand the guarantees of protection of the rights and interests of minors when they participate in investigative actions by amending Article 191 of the Criminal Procedure Code of the Russian Federation. This article, in our opinion, should indicate that all investigative actions involving a minor are subject to video recording.

It should also be recognized as a problem that the legislator does not clearly regulate in which cases the investigator or inquirer should involve a psychologist in the investigative action, and in which cases – a teacher. They are presented with an alternative, the choice of which is carried out by the person conducting the preliminary investigation (inquiry). Federal legislation currently does not contain any formal guidelines that an investigator (inquirer) should be guided by when making this choice. Hence the question arises: to what extent are the psychologist and the teacher interchangeable specialists and is it correct that the legislator prescribes the mandatory participation of only one of them? This discussion in the scientific community has been conducted since the adoption of the current Code of Criminal Procedure of the Russian Federation in 2001 and continues to this day [6, p. 91; 7, p. 116-117], when, in Part 3 of Article 425 of the Code of Criminal Procedure, the legislator fixed the mandatory participation of a psychologist or teacher during the interrogation of a minor suspect or accused under the age of 16 or who has reached the age of 16, but has a mental disorder or is mentally retarded. As for the interrogation of a minor as a witness or victim, the alternative in choosing a psychologist or a teacher was introduced in 2013, before that only a teacher was involved.

From the point of view of A.N. Bychkov, a teacher and a psychologist are different specialists whose participation in investigative actions is mediated by different goals. Thus, it is noted that when conducting investigative actions, it is advisable to involve a teacher, not a psychologist [8, p. 7]. His participation is aimed at compensating for age-related insufficiency in mental and psychological development. The participation of a psychologist is connected with the study of the personality of a minor, the definition of the simulation of certain deviations.

S.V. Surmeneva also believes that the participation of a psychologist in an investigative action is aimed at providing psychological assistance to a minor who participates in an investigative action [9, p. 11].

Let us clarify the goals of attracting these specialists in conducting investigative actions against minors. A teacher and a psychologist, acting as specialists in the field of age psychology (child, adolescent), assist the investigator (inquirer):

1) in establishing optimal conditions for communication and interaction with a minor participant in the criminal process (determining the characteristics of the mental development of a minor and taking them into account when determining the tactics of the investigative action; establishing psychological (communicative) contact between the investigator and the minor, etc.);

2) helps in the course of the investigative action, participating in the regulation of the tactics of its conduct, taking into account the age and personal characteristics of the minor (lack of formation of the conceptual sphere of the minor; less perception and long-term memory, etc.);

3) using their knowledge, they ensure that an investigative action is carried out without unnecessary negative impact and trauma to the psyche of a minor [10, p. 19-20].

It is noteworthy that in these cases we are talking about the use of both pedagogical (for example, not to focus the consciousness of a minor on facts that may have a negative impact on his upbringing) and psychological techniques (questions about the event that occurred, which have a negative impact on the psyche of a minor, must be alternated with neutral questions, as well as questions that cause him positive emotions [11, p. 166]).

Based on a systematic analysis of the norms of the current Code of Criminal Procedure of the Russian Federation, it should be concluded that the legislator distinguishes between the activities of a psychologist and a teacher. Confirmation of this conclusion is also a direct indication in Part 4 of Article 191 of the Criminal Procedure Code of the Russian Federation that during the interrogation of a minor witness or victim in the investigation of a criminal case of a crime against sexual integrity, the participation of a psychologist is mandatory, but the teacher's participation is not fixed. Thus, we see that there is a gap in the legislation concerning the legal regulation of cases in which a teacher should be invited, and in which a psychologist, as well as cases when both must participate.

In addition, it is noteworthy that the legislator singles out minors suffering from a mental disorder or retarded in mental development. The concept of "mental disorder" is voluminous and has, in addition to medicine (psychiatry), outlets in the most diverse planes of its application – law, sociology, psychology, pedagogy and others [12]. Thus, the analysis of Part 1 of Article 21 of the Criminal Code of the Russian Federation allows us to conclude that the legislator identifies the following types of mental disorders: 1) chronic mental disorders; 2) temporary mental disorders; 3) dementia; 4) other painful mental states. The list of mental disorders is contained in ICD 10-the International Classification of Diseases of the 10th revision, as a class: mental disorders and behavioral disorders (F00-F99), including the following blocks: organic, including symptomatic, mental disorders; mental disorders and behavioral disorders associated with the use of psychoactive substances; schizophrenia, schizotypal and delusional disorders; mood disorders (affective disorders); neurotic, stress-related, and somatoform disorders; behavioral syndromes associated with physiological disorders and physical factors; personality and behavior disorders in adulthood; mental retardation; psychological development disorders; emotional disorders, behavior disorders, usually beginning in childhood and adolescence; unspecified mental disorders [13]. This classification was introduced into the practice of domestic psychiatry in 1999 [14]. The analysis of the mental disorders contained in it allows us to conclude that most of them are "... all types of psychiatric pathology encountered in life – chronic, acute, temporary, etc." [15]. Age psychology (child psychology, youth psychology) – studies the patterns of development of the psyche of a normal healthy person [16, p. 11]. Mental retardation is mental retardation unrelated to mental illness, the result of pedagogical neglect, i.e. not implementing the necessary amount of actions for the education and upbringing of a minor [17, pp. 131, 138-139]. The object of research during the forensic psychological examination in relation to minors is a minor who does not suffer from a mental disorder [18]. Consequently, a psychiatrist is a specialist in the field of mental disorders and it is his presence that is necessary when conducting an investigative action with the participation of minors suffering from a mental disorder, and if the lag in mental development is due to pedagogical neglect, then it is a psychologist or a teacher.

Summing up the above, we note that we have identified the incompleteness and inconsistency of the legal regulation of the production of investigative actions against minors in the investigation of crimes. Firstly, we believe that the legislator should specify in Article 191 of the Criminal Procedure Code of the Russian Federation that during any investigative action involving a minor, video filming is mandatory. Secondly, when conducting a preliminary investigation, it is important to strictly observe the specifics of conducting investigative actions with the participation of minors, since any deviation from the procedure of their production is a serious violation and leads to negative consequences that hinder the establishment of the truth in a criminal case. Thirdly, we have discovered a significant problem, which is expressed in the absence of a clear legal regulation of cases in which the participation of a psychologist, a teacher or both specialists is necessary, since the legislator indirectly notes the difference in their competence. In addition, we believe that in investigative actions involving minors suffering from a mental disorder, the presence of a psychiatrist is mandatory. In our opinion, the right direction in solving this problem would be to consolidate the mandatory participation of a teacher or psychologist in the production of an investigative action against a minor, regardless of the type of crime, indicating that it is also possible to simultaneously participate in the investigative action of both specialists.

References
1. Nikolyuk V.V., Vinogradova V.A., Antonov V.A. Regulation in the Code of Criminal Procedure of the Russian Federation of the procedure for the production of investigative actions with the participation of a minor and a minor victim // Bulletin of the East Siberian Institute of the Ministry of Internal Affairs of Russia. 2017. No. 3 (82). pp. 39–52.
2. Kuemzhieva S.A. Methods of investigating crimes against the family and minors: monograph / edited by Doctor of Law, Professor, Honored Lawyer of the Russian Federation V.D. Zelensky. M., 2018.
3. On amendments to certain legislative acts of the Russian Federation in order to improve the rights of victims in criminal proceedings: Federal Law No. 432-FZ of December 28, 2013 [Electronic resource]. Access mode: https://www.consultant.ru/document/cons_doc_LAW_156569/
4. Appeal ruling of the Judicial Collegium for Military Personnel of the Supreme Court of the Russian Federation dated February 19, 2019 No. 206-APU19-1 [Electronic resource]. Access mode: https://legalacts.ru/sud/apelliatsionnoe-opredelenie-sudebnoi-kollegii-po-delam-voennosluzhashchikh-verkhovnogo-suda-rossiiskoi-federatsii-ot-19022019-n-206-apu19-1/
5. Ruchina A.A., Eremeeva A.N. Tactical features of the production of certain investigative and other procedural actions with the participation of minors // Report on research from 10/27/2021 (Ministry of Internal Affairs of the Russian Federation)
6. Gritsaev S.I. Organizational functions of the investigator: forensic aspect: monograph. Krasnodar: KubGAU, 2016.
7. Kurmaeva N.A. The use of special psychological knowledge in criminal proceedings in cases involving minors: dis. … Ph.D. Sciences. Saransk, 2010.
8. Bychkov A. N. Participation of a teacher in criminal proceedings: dis. ... cand. legal Sciences. Izhevsk, 2007.
9. Surmeneva S.V. Participation of a psychologist in the stage of preliminary investigation: Ph.D. dis. ... cand. legal Sciences. Chelyabinsk, 2009.
10. Streltsova V.E. Tactical and psychological foundations of interrogation of juvenile suspects, accused: author. dis. ... cand. legal Sciences. Saratov, 2007.
11. Enikeev M.I., Obraztsov V.A., Eminov V.E. Investigative actions: psychology, tactics, technology: textbook. allowance. M., 2007.
12. Sitkovsky D.V. Crime of persons with mental disorders (based on the materials of the Republic of Dagestan): author. dis. ... cand. legal Sciences. Makhachkala, 2006.
13. ICD 10-International Classification of Diseases of the 10th revision // https://mkb-10.com/index.php?pid=4001
14. On the transition of the health authorities and institutions of the Russian Federation to the international statistical classification of diseases and problems related to health, X revision (together with the "Plan of the main measures for the transition of the health authorities and institutions of the Russian Federation to the ICD-X for 1997-1998", "The program of the training center for the implementation of the international statistical classification of diseases and health-related problems, X revision"): Order of the Ministry of Health of the Russian Federation of 05.27.1997 No. 170 (ed. of 01.12.1998) [Electronic resource]. Access mode: https://www.consultant.ru/document/cons_doc_LAW_115103/
15. Boyko I.B. Mental disorder: medical and legal aspect // Russian Medical and Biological Bulletin named after Academician I.P. Pavlova. 2012. V. 20. No. 3. S. 122-127.
16. Stolyarenko L.D. Fundamentals of psychology: textbook. allowance. M., 2010.
17. Gritsaev S.I., Vlezko D.A., Shevel D.V. The use of psychological knowledge in the investigation of crimes: textbook. allowance. Krasnodar: KubGAU, 2013.
18. Federal budgetary institution Russian Federal Center for Forensic Science under the Ministry of Justice of the Russian Federation [Electronic resource]. Access mode: http://www.sudexpert.ru/possib/psych.php

Peer Review

Peer reviewers' evaluations remain confidential and are not disclosed to the public. Only external reviews, authorized for publication by the article's author(s), are made public. Typically, these final reviews are conducted after the manuscript's revision. Adhering to our double-blind review policy, the reviewer's identity is kept confidential.
The list of publisher reviewers can be found here.

A REVIEW of an article on the topic "On the issue of the specifics of investigative actions against minors in the investigation of crimes." The subject of the study. The article proposed for review is devoted to the issue "...on the specifics of investigative actions against minors in the investigation of crimes." The author has chosen a special subject of research: the proposed issues are investigated from the point of view of criminal, criminal procedure law, while the author notes that "Minors, being a special social categorical group, have many features of development and behavior that should be taken into account in all spheres of public life, including with their participation in criminal proceedings". NPAs relevant to the purpose of the study are being studied. A large volume of Russian scientific literature on the stated issues is also studied and summarized, analysis and discussion with these opposing authors are present. At the same time, the author notes: "... the legislator specified the duration of the interrogation and determined the duration of the mandatory break, depending on the age of the minor, and also indicated a possible alternative to the teacher, as a mandatory participant in this investigative action, a psychologist." Research methodology. The purpose of the study is determined by the title and content of the work: "... the legislator provided for some features of conducting individual investigative actions involving minors, which the investigator or inquirer must strictly comply with, ensuring the conditions prescribed by law", "In Part 5 of Article 191 of the Code of Criminal Procedure of the Russian Federation, the legislator, as an additional guarantee for the protection of the rights of a minor, provided for the mandatory use of video recordings in the production of investigative actions". They can be designated as the consideration and resolution of certain problematic aspects related to the above-mentioned issues and the use of certain experience. Based on the set goals and objectives, the author has chosen a certain methodological basis for the study. The author uses a set of private scientific, special legal methods of cognition. In particular, the methods of analysis and synthesis made it possible to generalize approaches to the proposed topic and influenced the author's conclusions. The most important role was played by special legal methods. In particular, the author used formal legal and comparative legal methods, which made it possible to analyze and interpret the norms of acts of Russian legislation and compare various articles of the NPA. In particular, the following conclusions are drawn: "... one of the grounds for appealing the verdict in the courts of appeal and cassation is non-compliance with the requirements of this part of Article 191 of the Code of Criminal Procedure of the Russian Federation", etc. Thus, the methodology chosen by the author is fully adequate to the purpose of the article, allows you to study many aspects of the topic. The relevance of the stated issues is beyond doubt. This topic is important in Russia, from a legal point of view, the work proposed by the author can be considered relevant, namely, he notes "... according to the current criminal procedure law, the investigator or inquirer is not limited in choosing investigative actions in which the participation of a minor (subject to the fulfillment of special requirements of the law) will be considered legitimate." And in fact, an analysis of the opponents' work should follow here, and it follows and the author shows the ability to master the material. Thus, scientific research in the proposed field is only to be welcomed. Scientific novelty. The scientific novelty of the proposed article is beyond doubt. It is expressed in the specific scientific conclusions of the author. Among them, for example, is the following: "... the legislator should definitely expand guarantees for the protection of the rights and interests of minors when they participate in investigative actions by amending Article 191 of the Code of Criminal Procedure of the Russian Federation. This article, in our opinion, should indicate that all investigative actions involving a minor are subject to video recording." As can be seen, these and other "theoretical" conclusions can be used in further research. Thus, the materials of the article as presented may be of interest to the scientific community. Style, structure, content. The subject of the article corresponds to the specialization of the journal "Police and Investigative activities", as it is devoted to the issue "... on the specifics of investigative actions against minors in the investigation of crimes." The article contains an analysis of the opponents' scientific works, so the author notes that a question close to this topic has already been raised and the author uses their materials, discusses with opponents. The content of the article corresponds to the title, since the author considered the stated problems and achieved the goal of his research. The quality of the presentation of the study and its results should be recognized as improved. The subject, objectives, methodology, research results, and scientific novelty directly follow from the text of the article. The design of the work meets the requirements for this kind of work. No significant violations of these requirements were found, except for the misspelling "Pays attention" (draws attention). The bibliography is quite complete, contains publications, NPAs, to which the author refers. This allows the author to correctly identify problems and put them up for discussion. The quality of the literature presented and used should be highly appreciated. The presence of scientific literature showed the validity of the author's conclusions and influenced the author's conclusions. The works of these authors correspond to the research topic, have a sign of sufficiency, and contribute to the disclosure of many aspects of the topic. Appeal to opponents. The author conducted a serious analysis of the current state of the problem under study. The author describes the opponents' different points of view on the problem, argues for a more correct position in his opinion, based on the work of opponents, and offers solutions to problems. Conclusions, the interest of the readership. The conclusions are logical, specific "... we have identified the incompleteness and inconsistency of the legal regulation of investigative actions against minors in the investigation of crimes" (with the enumeration, including "... in investigative actions involving minors suffering from a mental disorder, the presence of a psychiatrist is mandatory"), etc. The article in this form may be of interest to the readership in terms of the systematic positions of the author in relation to the issues stated in the article. Based on the above, summing up all the positive and negative sides of the article, I recommend publishing it.