CC BY
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ECONOMIC SCIENCES (08.00.00)
Problems of interpretation and study of economic crime in Russia
DOI: http://dx.doi.org/10.14420/en.2015.2.10
Viktor Reutov, Doctor of Economics, Professor, Head of the Department of International Economics of Higher School of Economics and Business, V.I. Vernadsky Crimean Federal University (Vemadsky CFU), e-mail [email protected]
Igor Zinoviev, Doctor of Economics, Professor, Professor of the Department of International Economics of Higher School of Economics and Business, V.I. Vernadsky Crimean Federal University (Vemadsky CFU), e-mail [email protected]
Abstract. The article examines the existing approaches to the definition of
the structure and the concept of economic crime. Discrepancies in the interpretation of the structure and content of economic crime on the part of legislators and practitioners were revealed. Fundamental differences in domestic and foreign criminology schools in relation to the context of the study are justified. The existing scientific views in the Russian criminology on economic crimes were reviewed. A preliminary analysis of the specificity and the degree of reliability of information sources on economic crime in Russia was presented. It noted the reasons and the main directions of distortion in the statistical reporting of subjects of records of economic crimes. Problems of the use of statistical data for the analysis of economic crime in the Russian Federation were generalized. Classification features of grouping of economic crimes were proposed and the reasons for the lack of reliable statistics on them were justified.
Keywords: economic crime, the causes and specificity of economic crime,
records of economic crimes, economic crimes, practices, criminological analysis, terminological apparatus of criminology.
In our country and abroad, the very concept of economic crime (as well as its subjects, objects, and even structural components) are interpreted differently. Absence of operationalization (i.e. meeting the criteria of scientific of theoretical and empirical judgments) definition of economic crime should be considered a characteristic feature of studies of western criminologists. It is permissible to state that since E. Sutherland (who introduced into scientific discourse the concept of white-collar crime), «none of the subsequent European criminologists (including G. Kaiser and B. Svensson) was unable to create a definition that could give
more or less clear outline to a phenomenon studied by them»1.
Domestic criminological researches also do not differ in any established mainstream, and practically every author strives to offer his own interpretation of the term «economic crime», often equating it with his own version of the study of the wrongful acts that are within the scope of his scientific interests. It is not uncommon, and mixing or substitution of concepts by one another of «a crime of an economic orientation», «crimes in sphere of economy» and «economic crimes».
S.H. Nafiev and G.R. Hamidullina offer to consider economic crime as «a set of groups of crimes, based on harming the economic interests of the entire society and citizens protected by law as a result of committing theft, economic and selfish malfeasance»2. According to N.F. Kuznetsova's opinion, under economic crime it should be understood «a set of criminal encroachments that cause harm to economic interests of society and citizens protected by law as a result of committing theft, economic and selfish malfeasance»3. A.G. Korchagin offers to define economic crimes as «socially dangerous act that infringes on the economy as a set of production (economic) relations and causing material damage to it»4.
A.I. Alekseev says that «in criminological analysis crimes, the responsibility for which is provided by articles in chapters 21, 23, 28 and 30 of the Criminal Code of the Russian Federation, relate to the crimes in the sphere of economic activity. It is as crimes of economic orientation they are called in official statistical compilations»5. Attempts by groups of authors to formulate a universal definition of economic crime, as a rule, lead to a more expanded and generalized interpretations, (for example, as «the totality of crimes committed in the sphere of economy by individuals in the course of their professional activity and in connection with this activity encroaching on the property and other interests of consumers, partners, competitors, the state, as well as on the management order of economy in various branches of the economy»6). However, such definitions of economic crime are not sufficiently correct, as the object of criminal encroachments is stated vague in them.
In our opinion, the approach of O.V. Dmitriev, according to which «economic crime is a combination (system) of socially dangerous encroachment on the economic security of the state, society and the individual»7, should be considered the most comprehensive and justified. Based on this interpretation, at the time of the research it is acceptable to formalize the existence of at least three approaches to the definition of the phenomenon of economic crime: legislative, practical and doctrinal.
1 Dmitriev O.V. The concept of economic crime in modern criminology // URL: http://www.blog.sern-tutis.ru/?p=368.
2 Nafiev S.H., Khamidullina G.R. Economic crimes. Judicial-accounting examination as a method of the prevention of economic criminality. - M., 2003. - P. 7.
3 Criminology / ed. N.F. Kuznetsova. - M., 2001. - P. 78.
4 Korchagin A.G. Economic crime. Ukrainian business information catalog // URL: http://udik.com.ua/ books/book-1669/chapter-62935/.
5 Alekseev A.I. URL: http://studopedia.net/9_87907_alekseev-ai.html.
6 Dmitriev O.V. The concept of economic crime in modern criminology // URL: http://www.blog.sern-tutis.ru/?p=368.
7 Ibid
The Criminal Code of the Russian Federation such concept as «economic crime» is not included at all. There is only the concept of crimes in the sphere of economy (Section VIII), and crimes in the sphere of economic activities (Chapter 22). In the Special part, it is allocated a special section - crimes in the economic sphere, combining «crimes against property, crimes in the sphere of economic activities, crimes against interests of service in commercial and other organizations»1.
In the Russian enforcement practice, the concept of «economic crime» is defined more broadly and not always coincides with the opinion of legislators. For example, the Resolution of the Ministry of Interior of Russia «On the procedure for determining economic orientation of revealed crimes» of January 28, 1997 № 1/1157 in the list of crimes of economic orientation, «among 67 articles of the Criminal Code of the Russian Federation three groups of such activities are allocated: undoubtedly economic, relatively economic and passing-economic»2. The first group includes crimes: in the sphere of economic activities, against interests of service in commercial and other organizations (with the exception of Art. 202 of the Criminal Code), against the government power, interests of public service and service in local self- government (except Art.288 and 293 of the Criminal Code of the Russian Federation), and crimes specified in Articles 146, 147 and 304 of the Criminal Code of the Russian Federation3.
Crimes against property, in the sphere of computer information, theft of weapons and drugs «are considered as having an economic orientation on the condition that they are committed in the course of the implementation of industrial and economic activity or by officials or persons performing managerial functions in enterprises, regardless of their form of ownership, or persons having access to the subject-matter of the infringement, as well as performing duties for the protection of property»4.
From point of view of practitioners, the range of crimes of an economic nature is broader. Summarized annual statistical reports of the Ministry of Interior «Data on the state of crime and results of investigation of crimes in Russia»5, refer environmental crimes (related to the illicit trafficking of biological resources in forest management), as well as separate offenses against management order (part. 2, Art. 237. 1 of the Criminal Code of the RF) to economic-related crimes identified by law enforcement authorities.
According to results of A.Y. Chuprova's research, «law enforcement authorities refer to economic crime not only criminal assault, reflected in the section «Crimes in the sphere of economy», but also other acts that could
1 Comments to the Special Part of the Criminal Code of the RF «Comments to Section 8 of the Criminal Code of the RF». The Criminal Code of the Russian Federation as of 04.10.2015 // URL: http://www. ugolkod.ru/kommentarii-k-glave-22-uk-rf.
2 AlexandrovI.V. Tax crimes: criminalistics challenges of investigation. - SPb, 2002. - P. 247.
3 Chuprova A.Yu. The concept of economic crime in the law and in practice: comparative legal aspect.// Bulletin of the Nizhny Novgorod Academy of the Ministry of Interior of Russia. Series: legal science and practice. - 2013 - № 21. - P. 163 // URL: http://www.namvd.ru/download/vestnik/2010/21.pdf.
4 Baranov V.M., Chuprova A.Yu. Transnational crime: essence and the main directions of countering.// Proceedings of the Academy of the Interior Ministry of Russia. -2007. - № 2 // URL: http://jurnal.amvd. ru/indviewst.php?SID=&stt=152.
5 The state of crime in Russia. Annual information collections of the Interior Ministry of the RF for the period 2009-2014 // URL: https://mvd.ru/folder/101762.
endanger the basic principles of execution of economic activities (misconduct), or selected areas of the Russian economy (certain types of ecological crimes)»1.
The conducted terminology analysis allows to conclude that in contemporary Russian criminology it is permitted to highlight three views on economic crime: narrow (based on the current provisions of the Criminal Code), wide (related to economic crimes, i.e. when committing their subject receives material benefits) and combined (using author grouping of crimes under articles of the Criminal Code).
In our view, it is the first approach that should include some attempts of domestic researchers of proposed revision of the legal framework for systematization of economic crimes and justification of sought evidence of their qualifications according to a new structure (and on the basis of existing legislative norms)2. They have been made in the 90s of the last century and in 20 003; and in the last years4.
L.L. Kruglikov formulated more clearly the viability of the second approach, stating that «in the science of criminal law and it has not been developed a consensus on the definition of economic crimes, as the boundaries of such concept in general is very difficult to clearly define (in a strictly criminal-lawful sense) because of its well-known conventionality»5. N.A. Lopashenko justifies the statement that "if to consider material gain as compulsory and essential feature of economic crime, almost any crime can be reduced to economic category, i.e. such, from which its subject receives direct or indirect material gain"6.
The third approach justifies the need to review the structuring of economic crime in the norms of the Criminal Code, taking into account the author's vision. Thus, for example, O.G. Solovyev and A. S. Gribov have noted, that «Misuse of budgetary funds (Art. 285.1) and misappropriation of funds of state off-budget funds (Art. 285.2) are the crimes included by the legislator in Chapter 30, as their main object is limited as the state power, the interests of public service and service in local self-government.
However, these actions have budgetary relations as additional object, and are very closely linked by a corresponding group of crimes in the sphere of economic activity. Economic relations affect the conduct described in Art.289 «Illegal participation in entrepreneurial activity», which also has the right to
1 Chuprova A.Yu. The concept of economic crime in the law and in practice: comparative legal aspect.// Bulletin of the Nizhny Novgorod Academy of the Ministry of Interior of Russia. Series: legal science and practice. - 201 - № 21. - P. 163 // URL: http://www.namvd.ru/download/vestnik/2010/21.pdf.
2 Lopashenko N. A. Crimes in the sphere of economic activities: concept, system, problems of qualification and punishment // URL: http://law.edu.ru/book/book.asp?bookID=61873.
3 Chuprova A.Yu. Economic crimes: concept and classification // URL:http://law.edu.ru/doc/document. asp?docID=1225788; Kruglikov L.L., Solovyov O.G., Gribov A.S. Economic crimes in the budgetary and fiscal areas: questions of legislative technique and differentiation of responsibility. - Yaroslavl. - P. 232.
4 Volzhanin V.A. Concept of economic crime // URL: http://center-yf.ru/data/Yuristu/Ekonomicheskie-prestupleniya.php.
5 Kruglikov L.L., Solovyov O.G., Gribov A.S. Economic crimes in the budgetary and fiscal areas: questions of legislative technique and differentiation of responsibility. - Yaroslavl, 2008. - P. 3.
6 Lopashenko N.A. Economic crime of international character: state and problems of fight // Modern problems of fight against transnational crime. Proceedings of the international scientific-practical conference (Sochi, October 9-12, 2000). - Krasnodar, 2000. - P. 134.
«apply» for a place in Chapter 22 of the Criminal Code»1.
We consider it should be noted that most of the articles of the Criminal Code of the Russian Federation (not just only those which on its interpretation of the crimes would be expedient to use in analyzing the structure and dynamics of economic crime, but also directly characterizing crimes in the sphere of economic activity) «are blanket in nature, i.e. for a proper understanding of their meaning, it is necessary to address other normative acts»2. In addition, illegal economic acts (punishable in civil, administrative and criminal order) often have subtle types of borders. While agreeing with the view expressed by G.A. Matusovsky, consider justified and demanded the development of a «branch legal characteristics of economic violations with a view to the correct differentiation and qualification»3. This approach will allow to agree upon differently oriented positions of legislators, law enforcers, and practitioners with respect to the qualified characteristics and structure of economic crimes.
Until now, the economic crime in general, its separate groups and types, continue to be subject of divergent research of the system of legal sciences, including criminalistics, criminology, theory of operational and investigative activities, criminal law and criminal procedure. Thus, criminalistics carries out only fragmentary communications with various branches of economic science, information technology, statistics, and therefore narrows the existing opportunities for the development and improvement of methods of prevention, detection and investigation of economic crime.
The information base of national statistics on economic crime (including the degree of detail, their volume, depth and consistency) is admissible to position as valid enough, but it «is almost never used when changing criminal legislation, identifying and addressing the social causes of crime. The reason for this is that the initial registration of crimes, their characteristics, the legal facts arising in the course of the investigation is going on inside the law enforcement agencies that simultaneously are evaluated by indicators formed on the basis of the collected statistics by them4.
The logical priority of accounting of the departmental work on the collection of objective criminological information led to the fact that «statistics on crime status is distorted and no longer acts as a basis for formation of the criminal policy of the state, and only is used for performance evaluation of agencies involved in the fight against crime. The lack of state demand for reliable data on the status of crime and their qualitative analysis led to a crisis of criminology in Russia - it is practically not studied by lawyers, thereby losing perspective on crime as a complex social phenomenon, which is not directly exposed to the
1 Kruglikov L.L., Solovyov O.G., GribovA.S. Economic crimes in the budgetary and fiscal areas: questions of legislative technique and differentiation of responsibility. - Yuaroslavl. - P. 5.
2 Comments to the Special Part of the Criminal Code of the RF «Comments to Section 8 of the Criminal Code of the RF». The Criminal Code of the Russian Federation as of 04.10.2015 // URL: http://www. ugolkod.ru/kommentarii-k-glave-22-uk-rf.
3 Matusovsky G.A. Economic crime: criminalistic analysis. - Kharkov, 1999. - P. 9.
4 Presentation of the research report «Criminal Statistics: mechanisms of formation, causes of distortions, ways of reforming». Institute for Problems of Law Enforcement of the European University in St. Petersburg // URL: http://enforce.spb.ru/products/books/6499-2015-mar-18-12-24-21.
impact of laws»1.
According to studies of M.S. Shklyaruk, «even the law enforcement agencies themselves use no more than 5-10% of the collected information and analysts from outside do not get access to it»2. Wherein, the «problem of the unreliability of official legal statistics have different mechanisms of occurrence: latency of crime, selection of law enforcement officers and falsification in the registered data»3.
In the work of the team of the SRI (Scientific Research Institute) of the Academy of the Office of the Prosecutor General of the Russian Federation under the leadership of S.M. Inshakov, «the total number of crimes is estimated at about 26 million, of which slightly more than 2 million are registered»4. According to the opinion of experts-criminologists, it is revealed 15-20% of crimes committed in the economic sphere, therefore, «the real state of affairs in this area is at least 5-6 times worse than the recorded by crime statistics»5. According to estimates of A.K. Bekryashev «latency of fraud is estimated to be 65, official theft - 925, bribery - 2935, extortion - 17500 (that is, if take registered crimes per unit, the latency of certain types of crimes will be given numbers)»6.
Of the nearly 25 million of appeals to the law enforcement agencies, only a little less than 12 million become official reports of crimes, of which only 2.2 million become criminal cases. Permissible to conclude, that «the refusal to initiate criminal proceedings that is the official decision of the state body that there has been no crime»7 becomes the most typical trajectory of the report on crime. «From the moment of registration of a message before the initiation of criminal proceedings 92% of all appeals are eliminated»8.
We consider it is necessary to note that such an approach has become the «norm» when considering not only intra-national, but international sources of information on committed and/or potential violations in the economic sphere. During the exchange of information between law enforcement agencies, the National Central Bureau of Interpol at the Russian Interior Ministry regularly receives notifications of a possible involvement of Russians in money laundering through personal and corporate bank accounts through the purchase of real estate and shares. However, «in most cases, the investigative bodies do not carry out any operational or procedural verification of such information. As a
1 Criminal statistics: mechanisms of formation, causes of distortion, ways of reforming. Research Report / M. Shklyaruk, D. Skugarevsky, A. Dmitrieva, I. Scyfsky, I. Begtin. - M., 2015. - P. 5.
2 M.S.Shklyaruk Trajectory of criminal proceedings in the official statistics: by the example of the generalized data of law enforcement agencies/ ed. K.D. Titaev, E.L. Paneyakh. - M., 2014. - P. 9.
3 Presentation of the research report «Criminal Statistics: mechanisms of formation, causes of distortions, ways of reforming». Institute for Problems of Law Enforcement of the European University in St. Petersburg // URL: http://enforce.spb.ru/products/books/6499-2015-mar-18-12-24-21 - C. 48.
4 Theoretical basis of the study and analysis of latent crime: monograph / ed.: S.M. Inshakov.— M., 2012 - P. 839.
5 Criminology, history and goals. Didactical plan // URL: http://libsib.ru/kriminologiya/kriminologiya-istoriya-i-zadachi/vse-stranitsi
6 Bekryashev A.K. The shadow economy and economic crime. Electronic textbook// URL: http:// newasp.omskreg.ru/bekryash/ch7p1.htm#top.
7 Shklyaruk M.S. Trajectory of criminal proceedings in the official statistics: by the example of the generalized data of law enforcement agencies/ ed. K.D. Titaev, E.L. Paneyakh. - M., 2014. - P. 15.
8 Criminal statistics: mechanisms of formation, causes of distortion, ways of reforming. Research Report / M.Shklyaruk, D. Skugarevsky, A. Dmitrieva, I. Scyfsky, I. Begtin. - M., 2015. - P. 15.
result, sources of income involved in cross-border banking transactions, as well as individuals involved in it are not identified, the perpetrators are not brought to criminal responsibility, seizure of assets abroad that are detected, their confiscation and repatriation are not provided»1.
The logical result of such an information approach became the situation in which «the state is based on such distorted information so that not only has no idea about the real state of crime, but also evaluating the work of law enforcement agencies, sees only artificially generated picture»2.
It occurs and «simple» falsification, as «incentives for the formation of good indicators is stronger of risks of fraud detection»3. «In January - December 2014 it was registered 107,314 economy-related crimes, whose share in the total number of registered crimes was 5%»4. In the same document, the share of economy-related crimes is equal to «4.92% of the total number of registered»5. It is not uncommon and the «spread» in the numerical assessment on economic crimes of specific focus. For example, according to the Prosecutor General's Office in 2014, it was found 32 060 corruption-related crime6, of which 31 327 were preliminary disclosed7.The Interior Ministry results (for the same year) statistical data on 29 9788 and 29 0729 corruption-related crimes, respectively. At the same time the Interior Ministry, showing the «final» data on the country, leaves outside the scope of the consideration corruption-related crimes on transport contained in the same document and made up for 2199 and 2127 on registered and preliminary investigated crimes10.
The summation of these indicators with corruption-related crimes reflected in records on territorial subdivisions of the Interior departments, shows totals equal to data from the Office of the Prosecutor General of the country, but still different from them. It would be permissible to assume that such differences are due to different methods of departmental accounting, and indicators of database of the Federal State Statistics Service of the crimes committed in the economic sphere11, during this period are fragmentary and do not allow to conduct any reasonable and systematic structural analysis of economic crime.
The presented analysis of the specificity and degree of reliability of sources of information on economic crime in our country, allows to state that to rely only on them and do not use additional sources of information is not possible, because of their insufficient information content. Controversial nature of the
1 A.N.Sukharenko Transnational aspects of organized economic crime. // Law and Security. - 2013. -№ 1-2 (44). - P. 77.
2 Criminal statistics: mechanisms of formation, causes of distortion, ways of reforming. Research Report / M. Shklyaruk, D. Skugarevsky, A. Dmitrieva, I. Scyfsky, I. Begtin. - M., 2015. - P. 7.
3 Ibid - P. 63.
4 The state of crime in Russia (January-December 2014). Collection of the Department of Legal Statistics of the Main organizational-analytical department of the Prosecutor General of the Russian Federation (based on the forms of federal statistical observation №4-EGS (SSS). - M., 2014. - P. 7.
5 Ibid - P. 23.
6 Ibid - P. 34.
7 Ibid - P. 36.
8 The state of crime in Russia (January-December 2014). FGI "The Main information-analytical center" of the Interior Ministry of the Russian Federation. - M., 2014. - P. 27.
9 Ibid - P. 28.
10 Ibid - P. 33.
11 Information database of the Federal Service of State Statistics of Russia // URL:: http://cbsd.gks.ru/
existing interpretation of economic crime, which is based on legislative norms
and/or practice of law enforcers, should be considered an additional challenge.
References:
1. Baranov V.M., Chuprov A.Yu. Transnational crime: essence and the main directions of countering. Proceedings of the Academy of the Interior Ministry of Russia. - 2007. - № 2 // URL: http://jurnal.amvd.ru/indviewst. php?SID=&stt=152.
2. Bekryashev A.K. The shadow economy and economic crime. Electronic textbook // URL: http://newasp.omskreg.ru/bekryash/ch7p1.htmStop
3. Volzhanin V.A. The concept of economic crime // URL: http://center-yf.ru/ data/Yuristu/Ekonomicheskie-prestupleniya.php.
4. Dmitriev O. V. The concept of economic crime in modern criminology. Blog -Sevitutis.ru // URL: http://www.blog.servitutis.ru/?p=368.
5. Information database of the Federal Service of State Statistics of Russia // URL: //http://cbsd.gks.ru/
6. Comments to the Special Part of the Criminal Code of the RF Comments to Section 8 of the Criminal Code of the RF. The Criminal Code of the Russian Federation as of 04.10.2015 // URL: http://www.ugolkod.ru/kommentarii-k-glave-22-uk-rf
7. Korchagin A.G. Economic crime. Ukrainian business information catalog // URL: http://udik.com.ua/books/book-1669/chapter-62935/
8. Criminal statistics: mechanisms of formation, causes of distortion, ways of reforming. Research Report / M.Shklyaruk, D. Skugarevsky, A. Dmitrieva, I. Scyfsky, I. Begtin. - M., 2015
9. Lopashenko N.A. Crimes in the economic sphere: concept, system, problems of qualification and punishment // URL: http://law.edu.ru/book/ book.asp?bookID=61873
10. Matusovsky G.A. Economic crime: criminalistic analysis. - Kharkov, 1999.
11. Presentation of the research report "Criminal Statistics: mechanisms of formation, causes of distortions, ways of reforming". Institute for Problems of Law Enforcement of the European University in St. Petersburg. // URL: http://enforce.spb.ru/products/books/6499-2015-mar-18-12-24-21
12. The state of crime in Russia. Annual information collections of the Interior Ministry of the RF for the period 2009-2014. // URL: https://mvd.ru/ folder/101762
13. The state of crime in Russia (January-December 2014). Collection of the Department of Legal Statistics of the Main organizational-analytical department of the Prosecutor General of the Russian Federation (based on the forms of federal statistical observation № 4-EGS (SSS). - M., 2014.
14. The state of crime in Russia (January-December 2014). FGI «The Main information-analytical center» of the Interior Ministry of the Russian Federation. - M., 2014.
15. Sukharenko A.N. Transnational aspects of organized economic crime // Law and Security. - 2013. - № 1-2 (44).
16. Theoretical basis of the study and analysis of latent crime: monograph / ed.: S.M. Inshakov.— M., 2012 .
17. Chuprova A.Yu. The concept of economic crime in the law and in practice:
comparative legal aspect. Bulletin of the Nizhny Novgorod Academy of the Ministry of Interior of Russia. Series: legal science and practice. - 2013. - № 2 // URL: http://www.namvd.ru/download/vestnik/2010/21.pdf1 18. Shklyaruk M.S. Trajectory of criminal proceedings in the official statistics: by the example of the generalized data of law enforcement agencies/ ed. K.D. Titaev, E.L. Paneyakh. - M., 2014.
