Place of preliminary investigation in criminal proceedings under Article 152 of the Code of Criminal Procedure of the Russian Federation

The essence of the concept

The location of the preliminary investigation is the establishment of a specific body that is entrusted with the investigation of a criminal case in a specific area of the territory. Depending on the distribution of police departments among districts of the city (or other locality), it is determined which agency will investigate a particular case.

According to the general rules, the investigation of the case is carried out at the place where the illegal action was carried out, which contains any signs of a crime. If criminal acts are ongoing, they will be considered on the territory of the area in which the last offense of this person from the list of actions united by common intent was committed.

The place of preliminary investigation of crimes of a continuing nature are subject to investigation in the area in which the inactions or actions of the guilty person were suppressed, which together constitute an objective aspect of the offense.

If an illegal act began in one place and ended in another, the criminal case will be carried out in the area where the illegal act ended. If there are several offenses, then, with the prosecutor’s sanction, the investigation can be carried out at the place where most of the crimes or the more serious of them were committed.

If the suspect was taken into custody in the area of one of the territories, all cases are subject to consolidation and transfer to the authority that carried out the detention.

The uncertainty of the concept of “scene of incident” as a reason for the substitution of investigative actions

The absence in the criminal procedural legislation of a clear concept of “scene of the incident” allows the preliminary investigation authorities, under the guise of inspecting the scene of the incident, to conduct inspections of premises, terrain, vehicles that have nothing to do with the scene of the incident; in addition, under the guise of inspecting the scene of the incident, investigators quite often conduct personal search and search, replacing investigative actions.

As a result of such “inspections,” the constitutional rights of citizens are violated, and legal uncertainty in this matter is interpreted by judicial practice in favor of the prosecution.

In the course of writing this article, more than a hundred criminal cases and materials from pre-investigation checks were studied on which the crime scene was inspected before criminal cases were initiated.

In criminal cases of bribery, investigators, before initiating a criminal case at the place of detention of the bribe-taker, conducted an inspection of the scene of the incident during which they confiscated funds from the detained person, actually conducting a personal search, thereby violating his right to freedom and personal integrity (Article 22 of the Constitution of the Russian Federation).

In criminal cases involving the sale of narcotic drugs, investigators, before initiating a criminal case at the place of arrest, under the guise of inspecting the scene of the incident, searched the detained persons and confiscated their mobile phones, money, and conducted searches of vehicles, thereby violating the right to privacy, personal and family secrets , the right to privacy of correspondence, telephone conversations, postal, telegraph and other messages (Article 23 of the Constitution).

In criminal cases of fraud in the field of shared construction, when the subject of the theft was non-cash funds, and the place where the crime ended was the place where funds were withdrawn from the victim’s bank account, investigators carried out, under the guise of inspecting the scene of the incident, inspections of company offices and construction sites that had nothing to do with do not have the scene of the incident. Quite often, under the guise of inspecting the crime scene, inspections were carried out at the offices of the developer's counterparties. A study of the crime scene inspection protocols shows that the “inspections of the crime scene” were carried out for good reason. At the time of the “inspection of the crime scene,” investigators had no reason to believe that in the inspected premises there were objects and documents relevant to the criminal case.

In all of these cases, including when objects and documents were confiscated, the detainees were not given copies of the crime scene inspection report; moreover, according to several materials from pre-investigation checks, if a car identification number was suspected of being falsified, during the crime scene inspection the car was seized, a copy of the report was made was not delivered to the owner.

The current criminal procedure law provides for six types of inspection: inspection of the scene of the incident , area, home, other premises, objects and documents, inspection of the corpse.

According to Article Art. 144 of the Code of Criminal Procedure of the Russian Federation, before initiating a criminal case, only an inspection of the scene of the incident, documents, objects, and corpses is allowed.

Based on the literal interpretation of Art. 144 and art. 176 of the Code of Criminal Procedure of the Russian Federation, inspection of the area, home, or other premises (if they are not the scene of the incident) before initiating a criminal case is not allowed.

An inspection of the scene of the incident is carried out in order to detect traces of the crime and clarify other circumstances relevant to the case.

Other grounds for conducting an inspection, for example, such as for conducting a search (the presence of sufficient data to believe that in any place or in the possession of any person there may be tools, equipment or other means of committing a crime, objects, documents and valuables that may have significance for a criminal case) is not specified in the law, which allows the investigator to arbitrarily inspect any places without justifying his decision in the resolution.

I believe that the concept of “scene of incident” is identical to the concept of “crime scene”; the difference is that at the time of the pre-investigation check it is not known whether the event in question is a crime or not.

Following this logic, we can refer to Article 152 of the Code of Criminal Procedure of the Russian Federation, from which it follows that the preliminary investigation is carried out at the place where the act containing signs of a crime was committed. If a crime was started in one place and ended in another, then the criminal case is investigated at the place where the crime ended.

Consequently, the crime scene is the place where the unlawful act was committed and (or) the place where socially dangerous consequences occurred.

Based on the foregoing, we can conclude that the place of the incident is the place of the alleged unlawful act (action or inaction) and (or) the place where the expected socially dangerous consequences occurred.

This issue has been repeatedly considered by the Constitutional Court of the Russian Federation, which believes that the issue of substitution of investigative actions does not fall within its competence.

In case No. 1258-О-О dated October 13, 2009, the applicant held the position of investigator of the Main Investigation Department. As part of the verification of the application for extortion of a bribe, carried out in accordance with Article 144 of the Code of Criminal Procedure of the Russian Federation, employees of the internal security department inspected the scene of the incident, during which items and documents that were in his clothes were confiscated from the applicant, which were subsequently added to the case as material evidence.

In case No. 3205-O dated November 28, 2019, the applicant argued that the uncertainty of Art. 176 of the Code of Criminal Procedure of the Russian Federation (grounds for conducting an inspection of the scene of an incident), allowed the investigator, as part of the inspection of a seized mobile phone, laptop, to remove and examine information from it without obtaining an appropriate court decision, thereby violating the right to secrecy of correspondence and privacy.

In these cases, the Constitutional Court of the Russian Federation refused to accept complaints for consideration, indicating that the applicants were actually challenging not the norms themselves, but the validity and legality of their application in his criminal case.

In order to eliminate the substitution of investigative actions and uncertainty in Article 176 of the Code of Criminal Procedure of the Russian Federation, I propose to exclude from the Criminal Procedure Code of the Russian Federation the investigative action “inspection of the scene of the incident” (Articles 176-178 of the Code of Criminal Procedure of the Russian Federation) and replace it with a search.

Amend Art. 182 of the Code of Criminal Procedure of the Russian Federation, adding the following wording to part one: “the search is carried out in order to detect traces of a crime, clarify other circumstances relevant to the criminal case, the search (seizure) can be carried out before the initiation of a criminal case.” The rules for examining and exhuming a corpse apply to the search.

Legislative replacement of the investigative action of inspecting the scene of an incident with investigative actions such as search, personal search, seizure, firstly, will ensure strict observance of the constitutional rights of citizens involved in criminal proceedings, and secondly, will improve the quality of the initial investigative actions carried out at the scene of the incident, will allow the preliminary investigation authorities to more efficiently search and seize traces of a crime.

General provisions

According to the norms of the Code of Criminal Procedure, the place of conduct of a preliminary type investigation is the territory in which acts that have signs of a criminal offense were committed. Exceptions to this rule are only cases that are directly indicated in the relevant article of the Code.

If there is a need to carry out search or investigative actions in another territory, the investigator has the right not to carry them out personally, but to instruct other persons to carry them out. According to the norms of the Code of Criminal Procedure, these orders must be executed within ten days.

The action of criminal law in space

When resolving issues related to the operation of criminal law in space, it should be borne in mind that the place of commission of a crime, as a general rule, is recognized as the place where a socially dangerous action was committed, regardless of the place where the consequences occurred .

This means that the territory of Russia will be the place where a crime was committed if at least one of the system of volitional physical acts that form an action as a sign of the objective side of the crime is committed on the territory of Russia, determined in accordance with Parts 1 - 3 of Art. 11 of the Criminal Code.

In addition to this general rule, Russia will be the place where the crime was committed:

if the consequences occurred on the territory of Russia, but the socially dangerous action itself was committed in another place;
in a crime with two mandatory actions, if at least one of the actions constituting the crime was committed on the territory of Russia;
if, in the course of committing a continuing or ongoing crime, a person ends up on the territory of Russia and the act he commits is provided for by the current criminal legislation of Russia;
in complicity, if the perpetrator committed the act or the accomplices committed their actions on the territory of Russia.

If the territory of the Russian Federation is recognized as the place where the crime was committed, the basic principle of the operation of criminal law in space is subject to application - the territorial principle formulated in Part 1 of Art. 11 of the Criminal Code. In accordance with this principle, the criminal jurisdiction of the Russian Federation on its territory is unconditional, i.e. Any person, regardless of his citizenship, who has committed a crime provided for by Russian criminal law on the territory of Russia is subject to criminal liability under Russian criminal law.

The territory of the Russian Federation is established by its state border. Criminal jurisdiction is also exercised over persons who have committed crimes on the continental shelf and in the 200-mile exclusive economic zone.

Naval ships and military aircraft have extraterritoriality. Regardless of their location, crimes committed on these vessels are subject to Russian criminal law.

On civil ships and aircraft, the criminal law of the Russian Federation applies only if they are located on the territory of Russia, as well as in international airspace or international waters.

is established in criminal law . Members of the diplomatic staff (ambassadors, envoys, advisers, attachés, etc.) enjoy personal immunity and immunity from criminal jurisdiction.

In accordance with Part 4 of Art. 11 of the Criminal Code, the issue of criminal liability of diplomatic representatives of foreign states and other citizens who enjoy immunity if these persons commit a crime on the territory of Russia is resolved in accordance with the norms of international law.

According to the Vienna Convention on Diplomatic Relations of April 18, 1961 and the Vienna Convention on Consular Relations of April 24, 1963, as well as according to other international legal acts defining the status of international organizations and their employees, and bilateral international agreements, persons enjoying immunity in accordance with these documents, have absolute immunity from the criminal jurisdiction of Russia; They can be brought to criminal liability under Russian criminal law only if the express consent of the state of which these persons are citizens is given.

If a crime is committed outside Russia (Article 12 of the Criminal Code of the Russian Federation), a person can nevertheless be brought to criminal liability under Russian law on the basis of additional three principles of the operation of criminal law in space:

1) the principle of citizenship;

Conditions for applying the principle of citizenship:

citizenship of the person who committed the crime;
the fact that such persons committed a crime outside the territory of Russia against the interests protected by the criminal legislation of Russia, i.e. any crime provided for by the Criminal Code;
the absence of a foreign court decision regarding these persons regarding this crime, i.e. a final decision on either conviction or acquittal that has entered into legal force (the application of Russian criminal law is equally hampered by both the decision to convict these persons and the decision to acquit them).

The Criminal Code of the Russian Federation also covers crimes committed by Russian military personnel of military units stationed outside Russia.
2) real principle;

Conditions for applying the real principle:

the citizenship of the person who committed the crime (based on the real principle, only foreign citizens and stateless persons who do not permanently reside in Russia may be subject to criminal liability);
whether the act they committed was covered by Russian criminal law;
the fact that such persons committed a crime outside the territory of Russia against the interests of Russia, a citizen of Russia or a stateless person permanently residing in Russia, i.e. any crime provided for by the Criminal Code;
absence of the fact of conviction of such persons in a foreign state, i.e. the final decision on conviction that has entered into legal force (at the same time, the prosecution of these persons under Russian law in accordance with Part 1 of Article 50 of the Constitution of the Russian Federation is prevented not only by their conviction in a foreign state, but also by acquittal).

3) universal principle.

Conditions for applying the universal principle:

the citizenship of the person who committed the crime (on the basis of the universal principle, only foreign citizens and stateless persons who do not permanently reside in Russia may be subject to criminal liability);
whether the act they committed was covered by Russian criminal law;
the fact that such persons have committed a crime outside the territory of Russia, which Russia can prosecute in accordance with international treaties to which it is a party, or another document of an international nature containing obligations recognized by the Russian Federation in the field of criminal law, applying national criminal legislation and regardless of whether , against the interests of which state such a crime is directed;
absence of the fact of conviction of such persons in a foreign state, i.e. the final decision on conviction that has entered into legal force (at the same time, the prosecution of these persons under Russian law in accordance with Part 1 of Article 50 of the Constitution of the Russian Federation is prevented not only by their conviction in a foreign state, but also by acquittal).

Extradition (extradition) of persons who have committed a crime is the transfer of a criminal to another state for trial or enforcement of a sentence, carried out in accordance with international treaties and national criminal and criminal procedural legislation. It is possible only in the case of a crime, and not any other offense. The conditions and procedure for issuance are regulated by national (domestic) legislation and international treaties. A citizen of the Russian Federation cannot be extradited to another state.

An exception to international treaties on extradition is the right of asylum. Russia does not allow the extradition to other states of persons persecuted for their political beliefs.

Crimes committed in different places

According to the Code of Criminal Procedure of the Russian Federation, the place of investigation of a preliminary type in relation to crimes of a continuing type, which were started in one territory and completed in another, is the area where the illegal act was completed.

If criminal acts were committed in several places, the superior investigator in charge of the case determines in which area the investigation will be conducted: in the place where the most serious illegal act was carried out or in the territory of the most criminal offenses.

The location of the preliminary investigation in a criminal case may also be the location of the suspect or accused person, in the area where most of the available witnesses live. This allows you to comply with procedural deadlines, as well as ensure the completeness of the investigation.

On the phenomenon of “continuing crimes” and the “time spiral”

There is not much time left to wait until the Supreme Court of the Russian Federation decides on the qualification of tax crimes as lasting or not lasting.[1]

The positions of lawyers involved in the dispute over such qualifications are based on the fact that this difference objectively exists.

Meanwhile, this statement, which no one argues with (the author does not know otherwise) [2], can be questioned.

Continuing crimes

The definition of a continuing crime is given in Resolution 23 of the Plenum of the Supreme Court of the USSR of March 4, 1929 (as amended by the Resolution of the Plenum of the Supreme Court of the USSR of March 14, 1963 No. 1): “This kind of crime, called continuing, is characterized by the continuous implementation of a certain criminal act. A continuing crime begins with some criminal act (for example, with unauthorized absence) or with an act of criminal inaction (with failure to report a crime). Consequently, a continuing crime can be defined as an act or omission accompanied by a subsequent long-term failure to fulfill the duties imposed on the offender by law under threat of criminal prosecution.”

This definition assumes that for each ongoing crime there must be a rule of law establishing a certain obligation, failure to fulfill which is punishable by criminal law.

An obligation that is not specified in terms is void. Otherwise, the offender can easily refer to the fact that the deadline for fulfilling the obligation has not yet arrived, which will mean that the offense itself did not occur.

It is easy to see that both examples given in the Plenum refute the very definition that they are intended to illustrate.

Unauthorized absence is leaving a military unit without legal grounds. Even if there are no witnesses to the commission of this crime, it is quite easy to determine the moment when the crime was committed - this is the day when the serviceman was not at mandatory formation (evening roll call) and his search on the territory of the military unit was not crowned with success. It is from this date that the period for bringing a person to criminal liability should begin to run, since from that time the victim (the state represented by the military unit) knew or should have known about the violation of his rights (to receive military service). The further behavior of the criminal, his goals, motives do not matter to the qualification of the crime as completed (completed, completed).

Failure to report a crime also has the property of being completed from the moment when a person learned about the fact of a crime (occurring or impending) and had a real opportunity to report it to the competent authorities. There are no legal grounds to consider it lasting, if only because no law has established specific deadlines for reporting a crime (otherwise in the example of the Resolution of the Plenum of the Supreme Court of the USSR it is not indicated).

It turns out that in order for a crime to last, it is necessary to “attach” actions to restore the violated right to it.

For example:

- if the theft is “paired” with subsequent long-term non-return of the stolen property,

— rape is “associated” with long-term failure to make amends for moral damage to the victim,

— the abduction of a person is “coupled” with long-term detention in captivity,

— the murder of a person is associated with his long-term non-resurrection, etc.

It is noteworthy that in all the examples given, we will not find legal norms that would impose the listed obligations on the perpetrator (to restore the violated rights of the victim) under the threat of criminal prosecution.[3]

The conclusion suggests itself: an unscrupulous state arbitrarily declares crimes to last until the moment the criminal is caught, thereby leveling the institution of limitation of bringing a person to criminal responsibility.

But the rule of law[4] does not have the right to do this, since the institution of prescription has a number of important legal functions:

Stabilizing function. The point is that prescription contributes to the stability of law and order and civil circulation, eliminates the uncertainty of social relations;
Protective. Prescription prevents abuse of rights;
Disciplining. It consists of encouraging subjects of legal relations to timely exercise their rights and fulfill their obligations;
Humanistic. Prescription serves as a means of realizing the principle of humanism.
Security. Justice requires evidence (both prosecution and defense), which is lost over time.[5]

It is noteworthy that in the criminal code itself (both the RSFSR and the Russian Federation) there is no definition of a “continuing crime”.

A natural question arises: why then did the Supreme Court of the USSR introduce this concept into legal circulation?

The timing of this Resolution may help with the answer.

Time requirement

It is known that 1929 ended the period of the “first Soviet economic thaw” - NEP and preceded the period of the Great State Terror (collectivization, industrialization, militarization), which also required judicial justification for mass repressions.

In these historical conditions, it was beneficial for the terrorist state to criminalize all spheres of civil life as much as possible and to sow fear in society. This had completely rational goals: to create a free labor army of prisoners (the Gulag system) and to suppress the will of citizens to resist with massive and arbitrary arrests and loss of rights.

Naturally, these goals were also served by the removal of the maximum number of criminal offenses from amnesty by recognizing them as “continuing crimes.” It is no coincidence that the list of continuing crimes in this Resolution is open: this makes it possible to expand it arbitrarily.

Taken together, this gave the necessary effect: the population ceased to consider themselves in complete legal security, agreeing that “the authorities know best,” “the innocent are not imprisoned,” and the state was able to dispose of the population as its property.

What happened in the USSR after 1929?

On August 7, 1932, the Council of People's Commissars, together with the Central Executive Committee of the USSR, adopted a resolution tightening responsibility for the theft of socialist property. “Meeting the demands of workers and collective farmers,” it was signed by the Chairman of the Central Executive Committee - “All-Union Elder” Mikhail Kalinin and the Chairman of the Council of People’s Commissars, Comrade Molotov (aka Scriabin).

The property of collective farms and cooperatives (including crops in the fields), as well as transported goods, were equated to state property. His theft (even of ears of corn from the field) was punishable by the “highest measure of social protection” - execution with confiscation of all property. In the presence of mitigating circumstances, criminals could be sentenced to imprisonment for a term of at least 10 years with confiscation. Acts of amnesty were not applied to plunderers of socialist property.

At the same time, a “decisive struggle against anti-social kulak-capitalist elements who use violence and threats or advocate the use of violence and threats against collective farmers in order to force the latter to leave the collective farm” was announced. These acts were equated to state crimes. The Council of People's Commissars promised the instigators "measures of judicial repression" - imprisonment for a term of 5 to 10 years with imprisonment in a concentration camp.

Among the thieves, the decree was called “decree 7-8.” It was under this name that it became known to the Soviet audience thanks to the television film “The Meeting Place Cannot Be Changed,” based on the Weiner brothers’ novel “The Era of Mercy.” Captain Zheglov promised (“sewed”) 10 years in the camps to Ruchechnikov, who was caught stealing the fur coat of the English ambassador, for which the management of the Bolshoi Theater (that is, the state) would have to pay compensation.

It is interesting that in July 1936, the USSR Prosecutor General A. Ya. Vyshinsky prepared a memorandum with extremely interesting statistics: the USSR prosecutor's office checked 115 thousand sentences passed under the “decree “7-8””, and in more than 91 thousand cases the application of this decree was considered wrong and criminal. Based on these checks, Vyshinsky in 1936 proposed to rehabilitate 37 thousand people illegally executed (in total, 183 thousand people were convicted under this law in 1932-1939). Stalin acted in accordance with the logic of the authorities: they were ordered to forget about rehabilitation, all investigators and judges who committed “excesses” themselves went to execution basements. [6]

Why today?

This question justifiably arises when trying to understand what prompted the Supreme Court of the Russian Federation, 13 years later, to return to the issue of qualifying crimes under Art. 199 of the Criminal Code of the Russian Federation.

Arguments that there is a need to further stimulate tax revenues to the budget, that tax control has become less effective, do not work: despite international economic sanctions and the halt in the growth of the country’s economy, the Federal Tax Service reports a 30% annual increase in tax revenues.

Probable answer: The Supreme Court is preparing a “legal” springboard for changing the general government course from “economic thaw” to “economic terror.” This possibility is only confirmed by the fact that the Supreme Court of the Russian Federation, even in 2006, uses the definitions of the Supreme Court of the USSR of 1929.

But in this case, he should remember that in 1937 the roller coaster of repression reached the Soviet party nomenklatura (Partkhozaktiv), investigators and judges who carried out the Great State Terror against the population of their own country.

It is clear that in modern economic and legal conditions a complete repetition of Stalinism will not work, but the logic of the mechanism of repression and its negative effect will be similar.

The applied significance of the author's reasoning may seem unexpected.

Today, some Russians are asking themselves the question: “Is it worth continuing business in Russia?”, “Is it time to quit or is it too early?”, “Is the government just scary or are tax repressions here to stay?” There are not enough reliable sources of information to make a decision.

It seems that the future Resolution of the Supreme Court of the Russian Federation is a reliable guideline that will demonstrate the true intention of the state in the field of tax policy.

Not long to wait...

[1] We are talking about a new edition of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated December 28, 2006 No. 64 “On the practice of courts in applying criminal legislation on liability for tax crimes,” which should be adopted in the fall of 2022.

[2] For example, in the articles of I. Pastukhov and P. Yani, tax crimes are declared to be ongoing without any satisfactory legal explanation and even without disclosing the very concept of what a continuing crime is (see Pastukhov I. and Yani P. “Responsibility for tax crimes"// Russian justice No. 4 1999 and Yani P. Continuing crimes with material composition // Russian justice. 1999. No. 1).

[3] For Articles 198 and 199 of the Criminal Code of the Russian Federation, all acts of the obligated person for the calculation and payment of taxes are strictly regulated in time, and the injured person (state), represented by tax and other law enforcement agencies, has the full opportunity to identify the crime event described in the disposition of this article, during the storage period of tax-significant documents of the taxpayer (3 years). The legislation of the Russian Federation (Tax Code of the Russian Federation, etc.) does not establish any deadlines for correcting tax reporting and additional payment of previously unpaid taxes, and does not establish liability for violating such deadlines under the threat of criminal prosecution. That is, even from the point of view of the 23rd Resolution of the Plenum of the Supreme Court of the USSR of March 4, 1929, tax crimes are not ongoing.

[4] According to Article 1 of the Constitution of the Russian Federation, the Russian Federation is a legal state.

[5] See, for example, Toropkin S.A. Prescription in Russian law (Problems of theory and practice): Dis. ...cand. legal Sci.

[6] https://bessmertnybarak.ru/article/zakon_o_tryokh_koloskakh/?fbclid=IwAR3GYmLsN6VuRJR0Yl1FfMEF9sJntbFtiqvmarsuESKPtti91MrlXt4hFH8

Foreign crimes

According to the norms of Art. 152 of the Code of Criminal Procedure of the Russian Federation, the place of preliminary investigation in relation to criminal offenses that were committed outside Russian territory, the case is subject to consideration in accordance with the provisions of the twelfth article of the Criminal Code or 459th article of the Code of Criminal Procedure.

These norms determine that foreign crimes are investigated at the location (residence) of the victim, the largest number of witnesses, or the location of the accused on Russian territory (if he lives in another country).

Determining the location of the crime

Now I would like to analyze the features of the application of the rules of jurisdiction, especially territorial jurisdiction, in conjunction with the norms of substantive law.

The norms of criminal procedural law are necessary for the implementation of the norms of substantive law; in this regard, it is necessary to establish what in the science of criminal law is understood as the place where the crime was committed and the place where the crime ended, by which jurisdiction is determined.

The preliminary investigation is carried out at the place where the act containing signs of a crime was committed (Part 1 of Article 152 of the Code of Criminal Procedure of the Russian Federation).

Thus, the place where a crime was committed within the meaning of the Criminal Code of the Russian Federation is understood as the place where the act was committed, that is, a socially dangerous attack, regardless of the occurrence of socially dangerous consequences.

It is also established that if a crime was started in one place and ended in another place, then the criminal case is investigated at the place where the crime ended (Part 2 of Article 152 of the Code of Criminal Procedure of the Russian Federation).

This rule was provided by the legislator for continuing and ongoing crimes, that is, those where the act can be “stretched” in space and time.

In criminal law, there are two concepts of the end of a crime, which in this case should not be confused:

1. The legal end of the crime, that is, the moment when a person’s actions contain all the signs of a crime provided for by the Criminal Code of the Russian Federation (Part 1 of Article 29 of the Criminal Code of the Russian Federation).

2. The actual end of the crime, that is, the moment of immediate cessation of the assault, when the person did everything possible to achieve the criminal result.

It is worth keeping in mind that in Part 2 of Art. 152 of the Code of Criminal Procedure of the Russian Federation we are talking about the moment of the actual completion of a crime begun and actually completed in different places. That is, jurisdiction will be determined by the place where the encroachment ceased in connection with the achievement of a criminal result or suppression, regardless of the place where the consequences occurred.

So I would like to clarify this rule using the example of theft of non-cash funds.

So earlier, before the appearance of clarifications in the Resolution of the Plenum of the Supreme Court of November 30, 2017 No. 48 “On judicial practice in cases of fraud, misappropriation and embezzlement,” the question of determining jurisdiction in the theft of non-cash money caused certain difficulties in practice.

Theft within the meaning of approx. 1 to st. 158 of the Criminal Code of the Russian Federation is the unlawful gratuitous seizure and (or) circulation of someone else’s property in favor of the perpetrator or other persons, committed for mercenary purposes, causing damage to the owner or other holder of this property.

The act in this case is completed at the moment when the property came into the illegal possession of the perpetrator or other persons and they received a real opportunity to use or dispose of it at their own discretion. In this case, the place where the act was committed should be determined by the place of the unlawful seizure.

At the same time, the situation may not seem so obvious if the subject of the theft is non-cash funds.

This is how the practice previously developed when some law enforcers believed that jurisdiction for such crimes should be determined by the location of the bank account of the offender (suspect/accused), which was often located in a very remote area. In connection with this, in some cases the rule of Part 4 of Art. 152 of the Code of Criminal Procedure of the Russian Federation on changing jurisdiction, and in others the case remained in a remote place, which deprived the victim and the organization that suffered the damage from the opportunity to fully participate in the process. Moreover, this practice obviously created wide scope for abuse.

At the same time, if we evaluate the situation consistently, it becomes clear that the place of the commission of the act in this case should be considered the place of withdrawal of non-cash funds, that is, the location of the branch of the bank or other organization in which the owner of the funds opened a bank account or kept records of electronic funds without opening an account, which was explained in the Resolution of the Plenum of the Supreme Court dated November 30, 2017 No. 48 “On judicial practice in cases of fraud, misappropriation and embezzlement.”

Thus, the Supreme Court notes that the crime should be considered completed from the moment of withdrawal of funds from the bank account of their owner or electronic funds, as a result of which damage was caused to the owner of these funds.

Conclusion

Thus, we can conclude that knowledge of the rules for determining jurisdiction is of great importance for all participants in the process, therefore it is very important to study the provisions of the criminal procedural law, as well as the norms of substantive law.

Now I would like to analyze the features of the application of the rules of jurisdiction, especially territorial jurisdiction, in conjunction with the norms of substantive law.

The preliminary investigation is carried out at the place where the act containing signs of a crime was committed (Part 1 of Article 152 of the Code of Criminal Procedure of the Russian Federation).

This rule was provided by the legislator for continuing and ongoing crimes, that is, those where the act can be “stretched” in space and time.

In criminal law, there are two concepts of the end of a crime, which in this case should not be confused:

2. The actual end of the crime, that is, the moment of immediate cessation of the assault, when the person did everything possible to achieve the criminal result.

So I would like to clarify this rule using the example of theft of non-cash funds.

At the same time, the situation may not seem so obvious if the subject of the theft is non-cash funds.

Conclusion

Conditions for transferring the case

According to the article in question, the location of the preliminary investigation may be changed due to lack of jurisdiction. In this case, the inquirer or investigator, who has established that the case does not correspond to his territory, must carry out urgent investigative actions, and then transfer the materials to his supervisor (the inquirer transfers it to the prosecutor) for further referral to another body with jurisdiction.

The head of the investigation may issue a reasoned resolution to transfer the case for a preliminary investigation to a higher investigative body by mandatory notification to the prosecutor in writing.

Comment on the article

The place and beginning of the preliminary investigation in the article under consideration is determined according to the rules of jurisdiction of the territorial type. This term is used in connection with the direct indication of the fifth part of the specified article of the Code.

According to general rules, a criminal offense is investigated in the area where the criminal act ended, even if the negative consequences occurred elsewhere. The area where the illegal act ends is determined based on the distribution of areas among police departments.

For example, the victim was shot in area A. Having reached area B, he died from loss of blood. Thus, the investigation will be conducted by the investigator assigned to Territory A.

The effect of criminal law over time

The criminality and punishability of an act are determined by the criminal law in force at the time the crime was committed. A criminal law that has entered into force in accordance with the established procedure is valid, unless its validity period has expired or it has not been repealed or amended by another law.
The procedure for the entry into force of the law is determined by the Federal Law of July 14, 1994 “On the procedure for the publication and entry into force of federal constitutional laws, federal laws, acts of the chambers of the Federal Assembly.”

In accordance with it, federal laws:

are subject to official publication within 7 days after the day of their signing by the President of the Russian Federation in the “Parliamentary Gazette”, “Rossiyskaya Gazeta” or “Collection of Legislation of the Russian Federation”;
come into force 10 days after the day of their official publication, unless the laws themselves or acts of the chambers establish a different procedure for their entry into force.

The criminal law ceases to apply as a result of:

its cancellation;
replacement by another law;
expiration of the period specified in the law itself;
changes in the conditions and circumstances that led to the adoption of this law;
declared unconstitutional by the Constitutional Court of the Russian Federation.

Features of the operation of criminal law over time:

if a new law entails increased liability, then the old, repealed law is applied to all legal relations that arose before its publication;
a criminal law that eliminates the criminality of an act, mitigates punishment or otherwise improves the position of the person who committed the crime, has retroactive effect, i.e. applies to persons who committed the relevant act before the entry into force of such a law, including persons serving a sentence or who have served a sentence but have a criminal record;
a criminal law establishing the criminality of an act, increasing punishment or otherwise worsening a person’s position does not have retroactive effect.

The Criminal Code of the Russian Federation states: “The time of commission of a crime is the time of commission of a socially dangerous action (inaction), regardless of the time of the onset of consequences” (Part 2 of Article 9 of the Criminal Code). The legal basis for such a decision is that the subjective attitude of the perpetrator to his actions is connected with the law that existed at the time the action (inaction) was committed.

Recognizing the time of commission of a crime as the time of commission of actions excludes the prosecution of a person who committed actions during a period when they were not recognized as criminal, if the consequences occurred after the entry into force of a new law that criminalized this act. Accordingly, the qualification of the actions of the perpetrator under the new law, which provides for a more severe punishment, is excluded if the actions were committed before the adoption of the new law.

Example

Thus, if a wound for the purpose of murder out of jealousy was inflicted in December 1996, and death occurred in January 1997, then the time of commission of the crime should be considered December 1996 and the actions of the perpetrator should be qualified under Art. 103 of the Criminal Code of the RSFSR (punishment: imprisonment from 3 to 10 years), and not under Part 1 of Art. 105 of the Criminal Code of the Russian Federation (punishment: imprisonment from 6 to 15 years).

The provision that the time of commission of a crime is the time of commission of an action is universal. Not all elements of a crime include the occurrence of consequences as a mandatory feature. A similar feature is absent in formal offenses, the objective side of which consists only in the commission of actions or inaction (for example, Article 125 of the Criminal Code - leaving in danger), in truncated offenses, the moment of the end of the crime in which is moved to an earlier stage than the onset of consequences (for example, Article 162 of the Criminal Code - robbery). Meanwhile, no crime is possible without the commission of certain actions or without the fact of inaction.

Distribution of investigation areas

Places for conducting a preliminary investigation in criminal proceedings are distributed by the relevant regulatory departmental acts, the issuance of which takes into account the regional administrative-territorial division of the area.

At the initial stages of the investigation, the definition of territorial jurisdiction is established in approximate form. The case begins to be investigated in the territory where the case was opened, or where the head of the investigative body (prosecutor) sent it.

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29.09.2015

Crime scene

The article discusses the approaches used in resolving issues of determining the location of crimes.
This applies both to the implementation of the territorial principle of the criminal law and to the choice of place for conducting the preliminary investigation of a criminal case. Recently, on the pages of the magazine there has been a discussion about determining the location of fraud using telephones, as well as electronic forms of payments. The problem identified by the authors in relation to these crimes is not new for practitioners; it is actively discussed in the scientific literature. This is due to the fact that the issues raised concern not only criminal fraud, but also other criminal acts - unlawful attacks committed in the field of computer information, terrorist crimes, as well as those related to the illicit trafficking of narcotic drugs and psychotropic substances, environmental crimes, etc. .d. Many of these crimes have such properties as globality and transboundary nature, therefore they can be committed on the territory of not only different subjects of the Russian Federation, but also several countries.

The correct determination of the place where the crime was committed depends on the solution of not only legal issues - the implementation of the territorial principle of the criminal law, but also procedural ones - determining the place of the preliminary investigation, as well as the consideration of the criminal case by the court.

In the first case, priority should be given to national interests, therefore, if at least part of the actions are performed or socially dangerous consequences occur on the territory of the Russian Federation, the criminal act falls under the jurisdiction of the Russian Federation. As N. Pikurov rightly notes, the decisive idea should be the maximum protection of public and state interests, the legitimate interests of citizens of the Russian Federation, stateless persons permanently residing in the Russian Federation, legal entities registered in the Russian Federation or carrying out legal activities on its territory.

A slightly different approach, it seems, should be used when determining the location of a crime committed on the territory of different subjects of our country or other administrative-territorial units (for example, districts in a city).

According to the general rule provided for in Part 1 of Art. 152 of the Code of Criminal Procedure of the Russian Federation, a preliminary investigation must be carried out where the act containing signs of a crime was committed. From this we can conclude that the solution to this issue depends on the design of the crime - whether it is formal, material or truncated. That is, in some cases, a crime is considered completed when a socially dangerous act is committed (formal elements), in others - when consequences occur (material elements) or the moment of the end of the crime is postponed to the beginning of the commission of actions (truncated elements).

On the one hand, in accordance with the requirements of Part 2 of Art. 152 of the Code of Criminal Procedure, if a crime was started in one place and ended in another place, the criminal case must be investigated at the place where the crime ended.

Thus, the legislator, fixing the rules of territorial jurisdiction of criminal cases, established a formal criterion - the place where the crime ended. For the investigation, in particular, of most types of theft, the use of this approach is most optimal, since the seizure of property often coincides in place and time with the onset of consequences in the form of damage. Here there are both persons who have committed a criminal act and victims, with whom the necessary investigative actions are carried out.

For some categories of crimes, following the rule provided for in Part 2 of Art. 152 of the Code of Criminal Procedure is a kind of forced law. For example, as practice shows, it is often possible to collect and consolidate evidence of the occurrence of socially dangerous consequences in the form of environmental pollution (Articles 247, 250, 251 of the Criminal Code, etc.) only if the source of the negative impact (i.e. the place where violation of environmental regulations is carried out) is in close proximity to the place where the consequences occurred. Otherwise, it is difficult to establish and prove the existence of a causal relationship, and often it is simply impossible to do this.

However, in some criminal cases, especially with regard to thefts committed using telephones, as well as electronic forms of payments, terrorist crimes, etc., the use of the law enshrined in Part 2 of Art. 152 of the Code of Criminal Procedure, the approach to determining the place of conduct of a preliminary investigation in a criminal case may cause certain problems. In connection with this law, completely, in our opinion, fairly, in order to ensure completeness, objectivity and compliance with the procedural deadlines of the preliminary investigation, it is possible to take into account the characteristics of specific criminal cases and, if necessary, in the event of a crime being committed in different places, the presence of the accused or the majority of witnesses in a certain place, when determining the place of investigation, proceed from the principle of expediency. Therefore, it is entirely permissible to investigate crimes with a material component in the subject of the Federation (or district, municipality, etc.) where the actions were directly committed, regardless of the fact that the consequences occurred in another place. The same applies to situations where the objective side of the crime consists of several alternative actions committed in different places. For example, in criminal cases related to the illegal trafficking of narcotic and psychotropic substances (if the illegal acquisition, storage and transportation of narcotic drugs is being investigated within the framework of one criminal case). In this case, when determining the location of the investigation, one should also take into account where most of the investigative actions will be carried out, and where it will be enough to send a separate order.

If it is not possible to establish the place where the crime was committed, then the preliminary investigation should be carried out at the place where the crime was directly discovered or at the place where the consequences of the criminal act occurred. This rule is acceptable, for example, when investigating crimes under Art. 186 of the Criminal Code, when employees of credit and banking institutions identify counterfeit bank notes that were received not through their direct surrender by individuals or legal entities, but in sealed collection bags or when dubious banknotes were sent to the main cash settlement centers of the territorial institutions of the Bank of Russia for examination.

Thus, when determining the place of conduct of the preliminary investigation, it is necessary to be guided by the provisions of Art. 152 of the Code of Criminal Procedure, taking into account the specifics of crimes of a cross-border nature, as well as the goals and objectives that are set for criminal proceedings.

Tags: Crime scene Lawyer: Yulia Aleksandrovna Timoshenko

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On-site investigation methods

The location of the preliminary investigation may be changed due to the need to conduct investigative actions outside the area where the case is being conducted. This is done in one of two ways:

travel to another territory;
sending an order by an investigator or interrogating officer to a given area.

The choice of method is made by the person conducting the case. The main condition for sending an order is the preservation of one’s procedural exclusive powers. The assignment of procedural actions is an exception to the principle of immediacy. In this regard, its limits are limited.

The reasons for the mandatory personal performance of various actions by the investigator himself are the following conditions:

The need to carry out a large volume of procedures and activities.
It is necessary to evaluate the available evidence in its entirety and decide on the direction of investigation.

Stages of crime scene inspection

The investigative examination of the crime scene can be divided into three stages:

preparatory;
worker;
final.

Completeness, objectivity, methodicality and other general tactical provisions are realized only if the investigator’s work is clearly organized, if the inspection tasks are solved by him in a strictly defined sequence. The meaning of dividing the inspection of the crime scene into stages is, therefore, to systematize the actions of the investigator, ensuring the quality of the inspection.

Before beginning a direct study of the situation and objects at the scene of the incident, the investigator must create the necessary conditions for the inspection, determine its subject and the range of participants, and ensure work at the scene of the incident. All these actions of the investigator are an integral part of the inspection as a procedural act, and it is unthinkable without them. The system of such actions in its entirety forms the preparatory stage of the inspection .

The content of the working stage is direct examination of the objects of inspection. If the actions of the investigator at the preparatory stage are primarily organizational in nature, then here they acquire a research character.

Finally, at the final stage , the investigator actually sums up the work done and formalizes its results. The inspection as such is completed, but a number of methodological and organizational issues still need to be resolved, to ensure the possibility of using the inspection results during further investigation, which determines the content of the final stage.

Preparatory stage of crime scene inspection

It begins from the moment the investigator makes a decision to conduct an inspection. Having made such a decision, the investigator must:

ensure security of the scene of the incident until your arrival, i.e. ensure the safety and integrity of the situation and traces of the crime;
take measures to prevent or mitigate the harmful consequences of a crime (for example, order increased measures to eliminate a fire);
ensure at the time of your arrival the presence near the scene of the incident of persons who can provide the necessary information: eyewitnesses of the crime, if they are known, and other witnesses, for example, who discovered traces of the crime;
determine in advance which specialists should be involved in the inspection and ensure their arrival;
make proposals on the composition of the operational group going to the inspection site;
check the readiness of technical inspection equipment.

From the moment of his arrival at the scene of the incident, the second period of the preparatory phase begins. Direct inspection is preceded by:

taking measures to provide necessary medical care to victims if it was not provided;
removal of all unauthorized persons from the scene of the incident;
attracting witnesses to participate in the inspection and final determination of the circle of other participants in the inspection, instructing inspection participants about their rights and responsibilities;
collecting, through a survey (informal, non-recorded conversation, in which it is useful to involve invited specialists), preliminary information that should be taken into account during the inspection, establishing what changes, by whom and for what purpose were made at the scene of the incident;
carrying out other urgent actions dictated by circumstances, and taking measures aimed at improving inspection conditions (providing artificial lighting, etc.).

Both at this and at subsequent stages, the necessary search activities are carried out, carried out in parallel with the inspection, for example, the pursuit of a criminal, the use of a search dog.

Working stage of crime scene inspection

It consists of

general examination;
detailed inspection.

A general inspection begins with a review of the scene of the incident in order to:

orientation;
determining the boundaries of the space to be inspected;
resolving the issue of the starting point and method of inspection, i.e. determining its sequence;
choosing a position for orientation and overview photography.

Then the investigator, together with other participants in the inspection, finds out what objects are at the scene of the incident, examines the entire range of issues related to its situation, determines the relative location and relationship of the elements of this situation, studies their appearance, condition and with the maximum necessary and possible in the given conditions records in detail everything discovered using photographs, drawing up diagrams, plans and drawings and the necessary notes for the future inspection report.

At the end of the general investigator moves on to a detailed examination , during which:

objects are examined carefully and in detail (for these purposes they can be moved from their place, turned over, etc.);
all available measures are taken to search and detect traces of the crime and the criminal at the scene of the incident and at individual objects;
objects with traces on them are selected, traces are removed from those objects that cannot be seized, and if this is impossible, copies are made from them;
negative signs of the condition of objects are recorded;
general inspection data is checked;
Nodal and detailed photographs are taken.

When reviewing the scene of an incident, the investigator chooses the method of inspection, i.e., determines its order, the principle that determines the sequence of studying the objects of inspection. In forensics, three main methods of examining a crime scene are used: concentric, eccentric and frontal (used both in pure and combined form):

concentric method - the inspection is carried out from the periphery to the center of the crime scene, which usually means the most important object (a corpse, a broken safe, etc.) or a conventional point;
the eccentric method (the “unfolding spiral” method) consists in the fact that the inspection is carried out from the center of the scene of the incident to its periphery;
The frontal method is a linear inspection of areas from one of the boundaries, taken as the initial one, to the other.

In addition to the listed methods, in the legal literature they sometimes talk about inspection methods, usually calling subjective and objective methods.

When examining the scene of an incident using the subjective method, the investigator seems to follow the path of movement of the criminal, the subject of the crime. Changes in the environment in which the crime was committed that are not directly related to the actions of the criminal or related to the actions of other persons participating in the event remain outside his field of vision, although both of them may be of significant importance for establishing the truth in the case. In fact, this method means selective inspection of individual elements of the scene.

With the objective method, everything is examined as a whole, regardless of (albeit taking into account) the routes of movement of the criminal. This is a complete inspection of all elements of the crime scene. It is in relation to such an inspection that we can talk about the named methods as an expression of the sequence of inspection of objects at the scene of the incident.

In domestic criminology, preference is given to the objective method.

The initial examination is carried out by the investigator for the first time, i.e. the scene of the incident has not yet been examined by either the preliminary investigation authorities or the inquiry authorities (although the situation may have already undergone certain changes). Various types of inspections by the administration and representatives of departmental inspections do not change the nature of the initial inspection, since it is understood as an investigative inspection. The scene of the incident is examined in its entirety, in all details.

When re-inspecting, the object may not be all, but only individual elements of the scene of the incident.

Everything said above about methods also applies to repeated inspection. The only peculiarity is that in the case of repeated inspection of individual objects, we may not be talking about the method of inspection in the usual sense, but about compiling a list of objects to be inspected and their serial numbering.

An additional inspection should be distinguished from a repeated , in which the investigator deals with objects that have not previously been inspected, i.e., in relation to them, this inspection will be initial. At the same time, the need to review the entire scene of the incident arises in cases where, during the initial inspection, most of the objects that determine the overall picture of the scene of the incident were not examined by the investigator.

During an additional inspection, depending on the number and condition of objects, all of the above methods can be used, as well as compiling a list, as with a repeated inspection.

The final stage of the crime scene inspection

Having completed the examination of objects at the scene of the incident, the investigator proceeds to the final stage of the inspection:

draws up an inspection report and the necessary plans, diagrams and drawings; .
if necessary, fingerprints the corpse and sends it to the morgue (when autopsying a corpse at the place of discovery, the investigator, at the end of the final stage of the examination, takes part in a forensic medical examination of the corpse);
packages objects seized from the scene of the incident (it is important to know that delivery of research objects for examination is the responsibility of the authorities at whose request it is carried out);
takes measures to preserve those objects of evidentiary value that are impossible or impractical to seize;
takes action on statements received from inspection participants and other persons related to the inspection of the scene of the incident.

The investigator must evaluate all the work done from the point of view of its completeness and success. And at the same time, he must remember that the inspection data, supported by other evidence, are insufficient to resolve the case on the merits.