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DOI: http://dx.doi.org/10.20534/EJLPS-16-4-80-83
Toktorov Egemberdi Samidinovich, LL. D., associate professor rector of the OshSU Law Institute
Oskenbai Gulmira, LL. D.
Kamalova Leila Narimanovna, LL. D.
Balasagyn Kyrgyz National University Zholdoshaliev Midin Turdumamatovich, judge of the Pervomaisky Court in Bishkek E-mail: [email protected]
On the operative and search support to investigation of particularly serious crimes involving minors in the CIS countries
Abstract: the article discusses issues associated with operative information application and OSA
possibilities when investigating the special category of crimes participated by persons under the age
of majority.
Keywords: counteraction, minors, inquiry body activities, operative information, operative and search activity.
It is difficult to argue that "... not only in Kyr-gyzstan, but also in the entire world, the situation is characterized by aggravation of organized crime, terrorism growth, the ISIL creation, sometimes merging of criminal groups with public authorities, and criminologists' prognosis is unfavorable. We speak about absolute and relative increase in crime; in such circumstances, we should seek adequate measures of counteraction" [1, P. 2280].
As emphasized by K. A. Isaeva and N. E. Abdu-karimova, "... intensification of terrorism both in Kyrgyzstan and other CIS countries was facilitated by the destruction of the administrative-command system with its total strict control over activities of social and political institutions in general and individual's behavior in particular. Of course, such a situation can cause disputes, but we cannot escape from the reality that is evidenced by the world experience of social development. Various sources indicate that societies characterized by an open democratic type of development are the most favorable environment for the terrorist activities" [2, P. 2194]. A. S. Bazarbaev is absolutely right when writing that "... today it is hard to tell where the criminal extremism ends and the political one starts. At least, it has become apparent that the organized crime has introduced and keeps introducing its representatives in the executive and legislative authorities in various regions of the country; frankly speaking, even major political parties have people with criminal past in their ranks" [2, P. 2195]. No doubt, special concern is caused by the fact that in such circumstances minors are involved in the commission of such crimes.
It should be noted that the organizational form of interaction between the investigating authorities and the IAB operative units is created for optimal interaction to combat criminal acts committed by proceeding participants in order to ensure the concentration of manpower and resource use efforts inherent in the investigation, as well as for full and objective investigation of the case circumstances and implementation of the punishment inevitability principle for persons guilty of committing crimes [3, P. 70].
We should also keep in mind that the inquiry bodies' activities are not to violate such fundamental rights as the individual's right to be free from any illegal encroachment of the state on his or her life and the individual's right to free disposal of his or her life [4, P. 341].
The operative unit employees' possibilities of preparing and carrying out the investigation are essential; at the same time, when getting the information they need to pay attention to the following points: content of the operative and search information indicating the group of minors, including senior ones, involved in the commission ofparticularly serious crimes; established socio-psychological atmosphere in the investigated criminal group of minors; "estimated real behavior of interested persons in general and particular individuals in the forthcoming investigative actions (interrogations, presentations for identification, verification and clarification of testimonies on site) during the investigation" [5, P. 12]; deliberately conceived methods of counteraction to the investigation in order to evade criminal responsibility [6, P. 13].
Being timely transmitted to the investigating authorities, the information of the above content facilitates their preparatory actions for carrying out the procedural activities.
During the operative information use, certain problems usually appear being related to its application for proving and ensuring the conspiracy of the source and means of its acquisition. Much more difficult activity is encryption of the very sources of this information, which, of course, requires the application of tactical techniques including elements of investigation, operative and search tactics. It should be emphasized that K. K. Goryainov, Yu. F. Kvasha, K. V. Surkov note that all previously mentioned elements "... are necessary for successful confrontation with criminals, especially with the category, which actively uses various forms of resisting the criminal justice authorities" [7, P. 32]. It concerns both the Russian Federation and Kyrgyzstan, where the legal practice has not yet legislatively fixed practically
functioning procedures of legalizing the data obtained from covert sources.
We share the view by V. G. Bobrov, V. V. Karaulnova who indicate that the state of affairs is primarily due to the solution of the "double problem of the most complete transformation of the actual data obtained outside the criminal process into the evidence and effective protection of the information sources" [8, P. 32].
This issue is indicated by K. A. Isaeva and N. E. Abdukarimova: "... today the OSA and investigation are carried out in different legal modes". This is evidenced by the fact that legal basis for the pre-trial case investigation is the criminal procedure law, while the OSA is carried out on the basis and in accordance with the law on the OSA. In this connection, information received on the OSA basis is not procedural, it can become a proceeding evidence only after its procedural fixing [9, P. 245]. As known, the legislator of Kazakhstan did otherwise providing covert investigative actions in accordance with the new CCP. These rules correspond to the official position of law enforcement officials in advanced foreign countries on this issue.
No doubt, in the conditions when the crimes remain unsolved for a number of reasons indicated by K. A. Isaeva, S. A. Seilkhanova, Zh. Sh. Shime-eva, G. Oskenbai, the ways of incorporation for the two types of government activities are reasonable [10, P. 129].
The information collected should be used by the investigator not only after its legalization, but also as a reference point for him in order to prepare and effectively carry out particular investigative actions. And here we should note that the crimes are becoming more organized and problems will arise in the case of legal assistance by law enforcement agencies from foreign countries. Not coin-cidentally, the focus is made on the fact that "... complexity of carrying out such investigative actions for the requested party will be due to the fact that introduction of the new institution in these states (e. g., Kazakhstan, Kyrgyzstan, Ukraine) is accompanied by a whole layer of unresolved problems, which will undoubtedly affect the request execution by other countries. No one denies that cooperation between the law enforcement agen-
cies of the CIS countries is carried out effectively enough" [11, P. 2118].
As stated by V. P. Khomkolov and M. I. Miro-nychev: "... investigator's knowledge of the microclimate in the group, norms of behavior, value orientations of the personality, facts of reality in which the interrogated person showed positive qualities, skillful use of this data and character traits help to overcome the alienated position of the interrogated persons making psychological contact to them" [12, P. 10-12].
In order to ensure effective investigative actions, the collected operative information should contain maximally accurate and complete data on the details of prior criminal events. Moreover, the information collected should not necessarily be directly related to the investigated criminal case. It is advisable to use the information about non-criminal facts having occurred during the criminal act commission, such as the content of conversations between individual members of the minors' criminal group.
Often, the issue of using a polygraph for these purposes is raised both for adults and minors involved in the crime.
To legalize the survey results, it is proposed to adopt the law on polygraph. At the same time, it is difficult to disagree with K. A. Isaeva that "... we must not forget that there are legal aspects, which are very difficult to include in the general law, because they are of purely local nature and able to change depending on the situation of polygraph using. Today, when discussing the future of the law on polygraph, the main emphasis is made on the legal determination of conditions, under which it is possible to use the polygraph without violating the citizens' rights. At the same time, there is a much more complex legal question — what to do with the polygraph examination results if they are of accusing kind? What are legal criteria and boundaries for their possible application?" [13, P. 21].
We agree with the above authors that the information obtained through covert surveillance is also important, "in this context, it is necessary to reflect even seemingly insignificant information on the persons who may be considered as a link in reports". Using this type of information allows creating an impression of law-enforcement bodies' total awareness
among criminals; it can also serve as a link in the "associative memory of the facts" [12, P. 10, 15].
It is advantageous to directly involve the operative services in carrying out certain investigative actions. For instance, in addition to ensuring the investigatory action participants' safety and technical assistance to the investigator, it is possible to use the operatives' help for immediate verification of information obtained during the investigation. The operative's opportunities in this matter are much wider than investigator's ones since the latter is sometimes limited in the use of particular methods, tools and techniques due to his procedural position.
It is necessary to take into account that "... even greater problems arise during investigation of crimes committed by representatives ofAsian or Caucasian criminal groups from other countries and nationalities. In this case, people seldom cooperate with the law enforcement authorities due to customs and traditions in addition to their representatives from adjacent territories" [14, P. 141].
Another important aspect of the OSA organization in the preliminary investigation is secrecy, which is especially significant for the criminal acts committed by a group of persons.
During the operative support for investigation of this case category, it is advisable to effectively use confidential opportunities of the investigation OSA, as previously emphasized, in order to collect and use the information for predicting the behavior of the criminal proceeding participants in the investigation, on the signs of violent crime committing by the minors in the group, its particular participants and their roles performed in the period of preparation and the act of violence against victims, on crime instruments and other evidence proving their criminal activity, etc.
The level of information quality received from the undercover personnel is directly dependent on the confidants' opportunities and abilities.
Besides, there are cases when the members of criminal groups deliberately try to get in touch with the operative staff in order to «fail» the disinformators. Therefore, one of the most effective tactics is to convince individual members of the minors' criminal groups to surrender.
Despite the difficulties in the selection and use of confidants to ensure the evidentiary process during
the preliminary investigation, today it is one of the most efficient and successful methods and means used in the initial stage of investigation. The operative information obtained in compliance with the secrecy rules can be immediately used in the evidentiary process by carrying out certain investigative actions allowing this information to gain the power of procedural evidence.
Following the typology of acquisitive and violent criminals, the operatives work with confidants able to establish psychological contact and get information strengthening the evidential base for persons involved in criminal acts and their criminal links remaining free.
By carrying out the operative work with the minors involved in the commission of particularly dangerous violent crimes, we can fix, as indicated by G. A. Dymov, "... an objective picture of the crime committed by them with other accomplices; their functional role (in the form of situational complicity, prior agreement of actions, in the organized criminal group or organized criminal community); presence of hierarchical structure in the criminal group and individuals acting as organizers and executors of criminal acts; availability and use of technical means and weapons to eliminate the victims and resist the law enforcement agencies; actual roles and functions of people acting in these groups; facts of conflict situations and ways of their actual intra-group resolution" [16, p. 30].
It is reasonable that "... Effectiveness of combating the organized crime is largely determined by quantitative parameters of crime detection. However, high levels of crime latency in this category today can just indicate that the legal practice needs to be improved. A prominent role in resolving the arising problems is played by reformation of the criminal procedure legislation. Therefore, not by chance, radical renewal of the criminal procedure legislation was and is carried out in the entire postSoviet space" [16, P. 660].
Of course, regarding the provisions of new CCPs in some CIS countries and the CCP bill in Kyrgyzstan, the operative and search activity will undergo significant changes requiring in-depth scientific research.
