Countering Pre-investigation: Analysis of Systemic Issues and Recommendations

Syromiatnikov Kirill Aleksandrovich ORCID: 0009-0008-5216-8493 Graduate student; Faculty of Law; Kuban State Agrarian University named after I. T. Trubilin 350012, Russia, Krasnodar Krai, Krasnodar, Krasnye Partizan str., 1/3, building 7, sq. 14 ironfora@gmail.com Other publications by this author     Serbin Sergei Vladimirovich Graduate student; Faculty of Law; Kuban State Agrarian University 350044, Russia, Krasnodar Krai, Krasnodar, Kalinina str., 13 lknowangliyskiy@mail.ru Other publications by this author

Vlezko Dmitrii Aleksandrovich PhD in Law Associate Professor; Department of Criminology; Kuban State Agrarian University 350044, Russia, Krasnodar Territory, Krasnodar, Kalinina str., 13 projects16@yandex.ru Other publications by this author

This paper presents a comprehensive analysis of the theoretical foundations of countering the preliminary investigation. The authors systematize the existing definitions of this criminalistic concept and propose their own interpretation, focusing on the key identification features. A significant part of the study is devoted to the classification of various forms of counteraction to investigative actions. Special attention is paid to the development of comprehensive methodological and criminalistic tools necessary for law enforcement agencies to timely identify and effectively neutralize counteraction in the investigation of various categories of crimes.

Numerous studies have been published in the scientific literature on criminology on countering the preliminary investigation and its systematic analysis. These studies are presented in the form of monographs, dissertations, and other scientific papers by leading experts in the field of criminology.

Despite the theoretical and practical significance of the conducted research in the field of criminology, there remains a need for further in-depth study of this phenomenon. This applies to both individual forms and methods of counteraction, as well as their systemic criminalistic description. Based on the data obtained, it is necessary to develop a set of practical recommendations for identifying, neutralizing and preventing counteraction during the preliminary investigation.

The scientific novelty of the research is determined by a comprehensive approach to the study of counteraction to the preliminary investigation as a systemic phenomenon. For the first time, a new definition of this concept has been developed, which takes into account current trends in the development of criminalistic science and law enforcement practice.

A significant innovation is the proposed original classification of forms of counteraction to an investigation, based on a set of criteria that include the specifics of the subjects of the counteraction, the nature of the relationship between the subject and criminally significant information, as well as the nature of actions (inaction).

For the first time, the study revealed and substantiated the structural content of counteraction to a preliminary investigation, which includes subjects, goals and motivation, objects, time, place, environment, methods and techniques of counteraction. Based on the data obtained, a set of practical recommendations has been developed for identifying and overcoming counteraction, which has become an important element of criminalistic methods for investigating certain types of crimes.

A significant innovation is the identification of new directions in the methodological and criminalistic support of the activities of law enforcement agencies to counteract the preliminary investigation. The results obtained make it possible to significantly expand the theoretical understanding of countering the preliminary investigation and increase the effectiveness of the practical activities of law enforcement agencies in this area.

In the modern system of criminalistic science, the private doctrine of countering a preliminary investigation has become firmly established. Despite the diversity of views of various scientific schools, there is a consensus in defining this phenomenon as a diverse activity (including inaction) aimed at sabotaging the work of investigative authorities and evading criminal liability provided for by law.

The formation of this scientific field continues and is likely to remain incomplete in the foreseeable future. This is due to the constant development of forensic knowledge and the evolution of the object of research itself – criminal activity and the behavior of subjects caused by it after the commission of a crime, including their interrelationships with other persons. In addition to the well-known forms of counteraction, there are many specific techniques characteristic of certain categories of crimes that require scientific understanding and the development of effective methods for their detection and prevention during the investigation process.

To solve these problems, it is necessary to systematize all available forensic knowledge about countering the investigation, including practical tactical and methodological recommendations. It is necessary to define and analyze the system criteria on the basis of which a comprehensive understanding of the various forms, types and methods of countering the investigation will be formed.

The research is based on the dialectical method of scientific cognition, which acts as a universal tool, as well as a set of cognitive methods: observation, analysis, generalization and description, including system analysis.

The systematic study of counteraction to preliminary investigation not only serves as an effective tool for scientific knowledge, but also forms the foundation for the practical application of acquired knowledge in solving forensic problems. These include:

· improvement of the theoretical base and development of practical tactical and methodological recommendations for investigative work;

· structured analysis of scientific data on counteraction, its forms and methods;

· Creation of clear and effective forensic tools to identify, overcome and prevent counteractions in the work of law enforcement agencies.

These research areas are inextricably linked within the framework of the criminalistic doctrine of counteraction to investigation. This relationship is due to the fact that crime prevention is a complex set of behavioral reactions of various subjects with different legal nature, goals and motivation. This explains the variety of scientific approaches to understanding the essence, forms and methods of counteraction, despite the long-term study of this phenomenon by criminologists.

Since the early 1990s, the term "countering the preliminary investigation" (as well as similar terms such as "countering the detection and investigation of crimes" and "countering criminal prosecution") has been actively used in criminology.

According to Zelensky, the appearance of this term marked the expansion of the field of forensic research, affecting all forms of negative impact on evidentiary information and sources, as well as any attempts to prevent the detection of crimes and the achievement of the goals of criminal proceedings^[1]. Instead of a narrow focus on hiding traces, this area began to be studied as a complex system that includes various ways to counteract justice. Countering an investigation is an object of forensic study that accompanies the process as a whole, and its features by crime groups. As in private teaching, the scientific concept occupies a central place, the basis of the systemic perception of phenomena preceding and accompanying the activities of subjects of crimes and related persons. In criminology, there are different approaches to understanding, let's focus on the main ones. V.N. Karagodin defined counteraction as deliberate actions (a system) aimed at preventing the establishment of the truth and achieving the goals of the investigation ^[2]. The scientist's reference to intent, purposefulness and consistency is justified, which gave an impetus to discussions and the development of teaching. However, the characterization will be incomplete without subjects and methods carried out both actively and inaction (evasion, refusal, etc.).

In the first half of the 90s of the last century, an alternative interpretation of the phenomenon under study was formed, which largely limited the content of countering preliminary investigative measures to the framework of the evidence concealment system. This definition was proposed by S.Y. Zhuravlev and A.F. Lubin, considering opposition to a preliminary investigation as a set of actions or omissions aimed at concealing criminal activity by excluding the possibility of using its traces in criminal proceedings as judicial evidence.

It should be noted that in subsequent years, many forensic researchers, when determining counteraction, focused on creating obstacles to the work of investigative authorities in collecting and using evidentiary and other criminalistically significant information, as well as on various aspects of influencing it (for example, A.F. Volynsky)^[3].

Undoubtedly, opposition to the preliminary investigation is often aimed at directly or indirectly preventing law enforcement agencies from obtaining information about the crime committed, the involvement of specific persons in it, as well as at complicating the evidentiary process in a criminal case. It really is. All methods of hiding traces of a crime are somehow connected with a direct impact on evidentiary and other criminalistically significant information and its sources.

In order to create obstacles in obtaining evidentiary and other information during the investigation of criminal cases, various influences can be used on the participants in the investigation (for example, threats to witnesses and victims in order to force them to change their testimony or refuse to testify and identify the culprit; attempts to bribe the investigator to falsify the materials of the criminal case, etc.). However, the system of counteraction under consideration It may also include the behavior of criminals or other persons who are not aimed at preventing the collection, research, or use of criminally relevant information^[4].

There are actions that can significantly complicate the preliminary investigation process, although they are not directly related to countering the collection of evidence. Such actions include:

· Avoiding interaction with law enforcement agencies in various ways;

· simulation of diseases or mental disorders;

· attempts to influence the adoption of procedural decisions (for example, choosing a preventive measure, unjustified refusal to initiate criminal proceedings);

· Abuse of procedural rights through the filing of numerous unsubstantiated petitions;

· Delaying the time to review the case materials

· and other similar actions described in the forensic literature.

Limiting the understanding of counteraction by investigation only to the negative impact on evidentiary information seems acceptable, but too narrow. This approach does not allow us to fully investigate and systematize all methods and techniques of counteraction, especially taking into account the specifics of different categories of criminal cases.

Noteworthy is the definition of counteraction proposed by some researchers, who consider it as “a set of intentional illegal and other actions of criminals and related persons aimed at hindering the activities of law enforcement agencies to identify, disclose and investigate crimes"^[5].

At the current stage of the development of criminology, countering a preliminary investigation can be defined as deliberate and predominantly illegal activities of the subjects of a crime, related persons or other interested persons, which hinder the work of law enforcement agencies to identify signs of a crime, initiate criminal proceedings and conduct a preliminary investigation.

It is important to note that some actions aimed at countering the investigation are not illegal or punishable, for example, using the right not to testify against oneself, a spouse or close relatives in accordance with Article 51 of the Constitution of the Russian Federation, giving false testimony to suspects or accused. However, the basis of opposition to the investigation is precisely unlawful behavior, including criminal acts (crimes against justice, official forgery), deliberate failure to fulfill procedural duties or abuse of procedural rights.

Moreover, it is important to say that the actions (inaction) that constitute opposition to the preliminary investigation are always intentional. The subject of such counteraction is aware that his actions (inaction) may negatively affect the achievement of the goals and objectives of the investigation, and either desires this or allows the possibility of such consequences.

In this regard, the claims of some researchers about the possibility of unintentional opposition to the investigation are controversial^[6]. It is more correct to talk about the existence, along with countering other factors that make it difficult to conduct an investigation. Such factors include the unintentional actions of the victim, which led to the destruction of traces of the crime; unreliable information provided to the investigating authorities due to a conscientious error; investigative errors; various events (for example, adverse weather conditions, accidents with official vehicles while traveling to the place of investigative actions).

An essential role in the systematic understanding of the criminalistic essence of countering an investigation is played by the identification and analysis of its individual forms, which are also called “methods". Researchers have repeatedly proposed various approaches to the differentiation of such forms. Many of the positions presented deserve serious scientific attention, although sometimes their analysis is complicated by the ambiguous definition of specific features and criteria for the systematization of forms of counteraction.

Without going into detail on all the views on this issue, we note the most significant systematizations that are already being applied or may be the basis for studying counteraction to the investigation of various types of crimes.

Thus, R. S. Belkin presents a classification of counteraction to an investigation, dividing it into internal and external^[7]. External opposition is defined as the activity of persons who are not related to the event under investigation and the person conducting the investigation, or who are related to the investigator by procedural, official and other power relations or other dependencies. Internal counteraction is carried out by persons involved in the investigation in any form, who possess information about the event and seek to conceal, change or destroy this information and (or) its carriers (suspects, accused, witnesses, victims, specialists, experts, random persons at the scene and others).

This systematization of forms of counteraction to an investigation has obvious scientific significance, primarily for identifying and describing the subjects of such actions (inaction), and can be actively used in the study and description of counteraction to the investigation of certain types of crimes.

The classification of forms of counteraction to the investigation proposed by I.V. Tishutina is of interest^[8]. The author identifies the following forms:

· Impact on verbal evidence and its sources;

· Impact on material evidence and its media;

· counteraction without affecting the evidence base.

This classification is based on a significant criminalistic criterion – the nature of the relationship between the subject of counteraction and criminalistically significant information, which it makes difficult for law enforcement agencies to access.

To systematize the forms of counteraction to the preliminary investigation, it is proposed to use the criterion of the nature of actions (inaction) purposefully carried out to impede the work of law enforcement agencies to identify signs of a crime, initiate criminal proceedings and conduct a preliminary investigation. On this basis, the following forms of counteraction can be distinguished::

· actions to conceal the traces of a crime;

· influencing the participants in the investigation to counteract its normal conduct;

· avoiding participation in the investigation;

· a special form of counteraction is the elimination of participants (potential participants) in the investigation.

This systematization of forms of counteraction to the preliminary investigation proposed by us can serve as a basis for describing the criminalistic features of counteraction to the investigation of various types of crimes.

A separate area of systemic counteraction research may be its criminalistic classification. The grounds for classification may be: the immediate goals of such actions (inaction); the subjects of counteraction; the time of implementation; the level of organization; duration; typicality and other criteria. The development of understanding of the criminalistic nature of counteraction opens up new opportunities for classification studies of this phenomenon, improvement of existing classification systems and their individual types and subspecies.

Some of the considered elements themselves represent systems that can be the object of forensic research. Thus, the mechanism of countering an investigation can be considered as a set of actions for its preparation, implementation and concealment, similar to the method of committing a crime.

The study of countering the investigation of specific types of crimes requires the creation of a system of standard data on its participants, methods, techniques and other components, as well as on stable links between them. These data form the basis for the criminalistic characterization of such acts. On their basis, recommendations are being developed on the identification, counteraction and prevention of such counteraction, which is an important part of the methodological and criminalistic support of the preliminary investigation.

Such a system of methodological recommendations includes ^[9]:

· an integrated approach to solving the tasks of identifying and countering counteraction during the investigation;

· Development of standard action programmes for investigative authorities;

· involvement in the work, in addition to the investigator (inquirer), staff of operational services, specialists in the protection of participants in the investigation and experts;

· Ensuring a link between counteraction recommendations and other methodological guidelines for the detection, investigation and prevention of specific types of crimes.

Since the identification and overcoming of counteraction is one of the key forensic tasks of the investigation, the system of these recommendations can be considered as part of private forensic techniques. Their practical application should take into account typical investigative situations containing criminalistically significant data (both evidentiary and orienting, including information from operational investigative activities) about past, current or planned opposition to the investigation.

As a result, the system of methodological and criminalistic support for detecting and countering counteraction to an investigation, in addition to standard data on it, contains^[9]:

· a set of typical investigative situations complicated by opposition to the investigation, and programs (algorithms) for their solution by the investigator (inquirer);

· a set of standard versions about the past, current or planned opposition to the preliminary investigation, as well as the specifics of planning their verification;

· instructions on how to organize the investigator's cooperation with the bodies of inquiry and the use of special knowledge in overcoming or preventing such counteraction;

· Instructions on ensuring the safety and state protection of participants in the preliminary investigation;

· Recommendations on conducting individual investigative actions in conditions of counteraction to the investigation.

Based on the results of the conducted research, the following conclusions can be drawn aimed at developing a criminalistic understanding of countering preliminary investigation, its structure, forms, types and methods, as well as at forming a system of criminalistic recommendations for its detection, overcoming and prevention:

- In modern criminology, counteraction to a preliminary investigation is defined as the deliberate and predominantly illegal activities of the subjects of a crime, related persons or other interested parties that hinder the work of law enforcement agencies to identify signs of crimes, initiate criminal proceedings and conduct a preliminary investigation. Such a broad definition allows for comprehensive systemic studies of this phenomenon.

The systematization of forms of counteraction can be carried out according to various criteria:

1) the specifics of the entities implementing it

2) the nature of the connection between the counteraction subject and criminalistically significant information

3) the nature of the actions (inaction) constituting such a counteraction

The development of understanding of the criminalistic nature of counteraction creates new opportunities for classification research, refinement of existing classification systems and their practical application in criminalistic science.

Opposition to a preliminary investigation has its own structure and is characterized by certain patterns. The following key elements are highlighted in its structure:

· subjects of counteraction

· Goals and motivation

· facilities

· Time, place, and setting

· methods and techniques

An important place in the structure of criminalistic methods for investigating certain types of crimes is occupied by a system of recommendations for identifying and overcoming opposition to a preliminary investigation, the main components of which were identified during the study.

The practical significance of the study lies in the possibility of applying the results obtained in the activities of law enforcement agencies to increase the effectiveness of the preliminary investigation. Further research in this area may be aimed at improving methods for identifying and countering specific forms of counteraction to investigations.