Measuring the latency of crimes committed with the help of information and communication technologies according to the matrix of A.A. Konev's punishability indices

Komarov Anton Anatolevich ORCID: 0000-0002-1330-4236 PhD in Law Associate Professor; Department of Criminal Law and National Security; Novosibirsk State University of Economics and Management 630099, Russia, Novosibirsk region, Novosibirsk, Kamenskaya str., 52/1, office 503 reise83@mail.ru Other publications by this author

Introduction.

The rapid increase in the number of registered crimes committed using information and telecommunication technologies (hereinafter referred to as ICT) could not but affect the latency of computer crime.

A number of dissertations of the last decade explicitly indicate high (Prostoserdov, 2016; Efremova, 2017; Shchurova, 2017; Frolov, 2018; Kamko, 2020; Rodivilin, 2021; Turunova, 2022; Ovsyukov, 2022; Konev, 2022; Turkulets, 2023) or hyperlatent (Shakhray, 2010; Safonov, 2015; Ruskevich, 2020; Evdokimov, 2021; Rodina, 2022) the nature of crimes related to the use of information and communication technologies.

Without objecting to the positions previously expressed in the scientific literature, we suggest taking a closer look at the problem in the sense that the multiplication of computer crime in recent years (in official statistics) makes it quite possible to reduce the ratio of known and unknown crimes among themselves.

However, it is worth noting the fact that the problem of computer crime studied by the above-mentioned authors is complex, involving various forms of criminal behavior with specific degrees of latency, which should immediately be noted. Terminological differences regarding the naming of the phenomenon (cybercrime, information, computer, technotronic) can be omitted, because from the point of view of the criminal statistical approach, we are almost always talking about the same types of crimes taken into account by criminal statistics. This circumstance indirectly affects the possibility of using generalizing statistical and mathematical methods. Thus, our conclusions will be of a particular nature regarding the existing groups of crimes, which are allocated in separate lines of statistical accounting, rather than controversial concepts.

For simplicity of reasoning, we will further denote the studied set of crimes as computer crime.

Materials and methods.

To solve the tasks set before us, we had to extract the initial data on the state of crimes committed using information and telecommunication technologies from criminal statistics by applying the documentary method. Such information is disclosed by the Ministry of Internal Affairs and the Prosecutor General's Office of the Russian Federation on their information resources on the global Internet. The latter does this more fully. We based our calculations on the number of registered crimes during the reporting period. We have drawn basic conclusions about the structure of computer crime based on the generalization of data for 2018-2023.

From our arsenal of tools and data set, we were able to deduce two significant hypotheses.:

a) there is a connection between latency and the structure of computer crime. Literally, this means that individual groups of computer crimes identified in criminal statistics have varying degrees of latency. Because by their very nature they correlate with several types of crime at once: criminal, mercenary, professional, organized, and even political. Criminal professionalism and criminal amateurism cannot have the same degree of latency. Even within a group of self-serving computer crimes, the criminal's modus operandi and the size of the stolen can have a very serious impact on natural latency. To reveal these patterns, it is necessary to use the method of analysis and calculation of relative generalizing statistical indicators of specific gravity.

b) measuring the nature of computer crime in dynamics will allow us to indirectly judge the registration discipline and the real capabilities of individual law enforcement entities. Comparing this indicator with the nature of crime, in general, allows for a more objective assessment of the actual volume of crimes committed using ICT against the background of general crime trends. The resulting result will reflect the amount of artificial and edge latency.

The nature of computer crime and latency.

The analysis of the nature of crime, as a means of measuring latency, originates in the works of A. A. Konev ^{[1, pp.29-31]}. This method is based on the hypothesis that by studying criminal statistics, it is possible to identify inconsistencies between individual crime indicators and the structure of the Criminal Code, which seems to imply a distribution of crimes depending on the degree of their public danger. At the same time, it is believed that the general trend of the normal distribution of crime registration practices will correspond to a decrease in the degree of public danger from the beginning of the special part to its end. This assumption is correct. Because an inversely proportional relationship between the severity of the committed act and the degree of latency exists in reality ^{[2, p. 96]}. That is, high-profile crimes are registered to a greater extent than those that do not outrage the public consciousness so much. On the other hand, this hypothesis will be limited today, since the structure of the Criminal Code of the Russian Federation (1996 model) differs from that of the RSFSR Code of 1960.

The second difficulty, which imposes limitations on the reliability of the method we use, is that the completeness of criminal statistics on computer crime is ensured in a fairly short period of time. Summary data on crimes committed with the help of computer technology began to be systematized within the framework of departmental statistics of the Ministry of Internal Affairs of the Russian Federation since 2002 using the form 1-BT ^{[3, p.5]}. After the appearance of norms on liability for computer fraud in the structure of the current Criminal Code, changes were made to the form. Nowadays, in accordance with the changes in the structure of computer crime, the Instructions of the Prosecutor General's Office "On the introduction of lists of articles of the Criminal Code used in the formation of statistical reporting" have come into effect and are being applied. Since 2018, the totality of crimes committed in the field of ICT has been changed once again. These summary reports are in many parts disparate statistical arrays, which makes it necessary to work only with primary data. Therefore, the further development of the hypothesis rests on the fact that the problem of determining the degree of latency should be divided into several independent historical stages that corresponded to the existing registration practice. Recall that from 2011 to 2017, the volume of computer crimes increased from 11 thousand to 90.5 thousand facts. The previous six-year stage may be mediated by the instability of the existing practice of registration discipline.

The calculation of the coefficient of variation and the analysis of the six-year values of the standard deviation of crime rates in all regions of the Russian Federation indicates that criminal statistics have been established and formed fairly uniformly only since 2020. It is this small amount of source data, as a sample, that is most suitable for examining computer crime problems at the moment.

Due to such circumstances, we will only make judgments about the "last" of them, based on modern methods of summarizing and grouping crimes in the field of ICT. Table No. 1 "Summary data" provides information on the nature of crime in the previous six years.

Table 1. Summary data.

The first noticeable difference is the significant difference between the nature of computer crime and crime in general. In some years, this difference reached two times its value. On the one hand, this allows us to put forward the judgment that computer crime has an increased public danger compared to other types of criminal activity. On the other hand, this may indicate that law enforcement agencies are not fully in time to register all computer crimes committed. Priority in law enforcement is given to the most complex and high-profile cases that require an immediate response. In addition, a very limited contingent of investigators and interrogators is involved in the investigation of criminal cases, which affects not only quantitative indicators, but also the quality of production. This may be indirectly evidenced by the disclosure rate of these acts, which differs significantly from ordinary crime.

Fig. 1. Disclosure indicators.

The figure shows that the overall detection rates of computer crimes and all other types are at opposite ends of the percentage scale. Only in the categories of serious and especially serious crimes there is some convergence of the indicator (two curves in the center of the graph). This state of affairs is only due to the fact that the most experienced investigators handle the most complex cases. Being distracted by the fight against computer crime, the remaining employees are no longer able to ensure a high detection rate even for serious ordinary crimes.

The summary data presented in table 1 indicates that the nature of crime has been gradually changing for the worse over the past six years. From our point of view, this fact cannot be regarded as unambiguously negative. The concept of transformation of criminal policy, presented by S. M. Inshakov, pointed out the need to shift the vector of counteraction towards serious and especially serious crimes ^{[4, p.17]}. It is obvious that this process of "transformation", launched in 2010 by the Academy of the Prosecutor General's Office of the Russian Federation, is gaining momentum.

Given the nature of ICT crimes and their high proportion in the structure of modern crime, it should be assumed that they have a determining effect on the resulting indicator. Because every third crime (34.8%) in 2023 was related to the number committed using ICT technologies. Half of these crimes (51%) were classified as grave or especially grave. And among all serious and especially serious crimes (589 thousand) committed on the territory of the Russian Federation in 2023, the share of ICT crimes was 58%.

Meanwhile, judging by the dynamics of the nature of ICT crimes, the peak of the maximum proportion of serious and especially serious crimes was passed in 2021 - 56%. The last three years have been characterized by relative stability. This may indirectly indicate the impossibility of further extensive registration of computer crime. The continuation of this practice in 2023 (+29.7% compared to the previous period) carries high costs, as it will inevitably lead to a decrease in disclosure. And this circumstance no longer fully corresponds to the interests of the law enforcement service itself. Further extensive registration will distort criminal statistics in general, distort our understanding of the so-called "core of crime." Consequently, we can expect the volume of computer crime recorded to stabilize at around 0.55-0.7 million crimes per year. The typical values of the nature of computer crime will remain 51-55%.

It is obvious that incredible efforts have been made to reorient the areas of law enforcement activities of the Ministry of Internal Affairs, since 98.8% of such crimes are detected and registered by employees of this department.

Calculation and analysis of the index of punishability, the coefficient of severity for crimes committed through ICT.

Based on the general idea of the method used, we must assume that the degree of latency of ICT crimes should be higher than the value of this degree for crime in general. Another thing is that it is more interesting for us to know exactly how much? Further calculations may be crucial in this regard, which may be based on the so-called "punishability index" of individual acts, characterized by the amount of sanctions applied for the crimes committed.

Unfortunately, such calculations in the Russian Federation are not put on a systematic basis, which leads us to the idea that it is necessary to clarify the method itself for the reader. In his calculations, A. A. Konev proceeds from the maximum and minimum amounts of sanctions provided for by the Criminal Code of the RSFSR for the committed act ^{[2, p.99]}. In contrast, J. D. Bluvstein suggests relying on the values obtained through the method of expert assessments conducted with the participation of specialists such as lawyers, investigators, prosecutors and judges ^{[5, p.59]}.

We have done this work, and we have presented the results in the form of table No. 2 "Index comparison", ranking them from the most socially dangerous to the less dangerous.

Table 2. Comparison of indexes.

As if leveling out the features of both methods, we made it possible to provide in separate columns the index of criminality calculated in both ways. In the first case, we took as a basis the minimum and maximum size of the sanction, directly indicated in a specific part of the article. In the same case, when only the upper limit of the sanction was indicated, we, in terms of calculating the average value, took the minimum possible term of imprisonment – 2 months. This operation was repeated according to the number of parts of the corresponding article, and only then the average for the entire crime was displayed.

In the second case, we did not rely on the expert method, like Bluvstein, because with open criminal statistics from the Judicial Department of the Supreme Court of the Russian Federation, such a need disappears. Let us remind the reader that in 1974 such information was a state secret. It is possible to trace the actual criminality of acts in the form 10.1 "Report on the number of persons brought to criminal responsibility and types of criminal punishment". For research purposes, we calculated the average value for all elements of the same crime, in terms of court sentences for 2023.

In total, our summary table presents the opinions of "pioneer" researchers as reference judgments indicating the existence of an initial dependence of registrability on the severity (resonance) of the act. For the most part, crime ranking shows the same pattern of distribution as it did half a century ago. In terms of serious crimes against the person, these changes are minimal. The state-sanctioned criminality of murder, rape and serious injury to health has increased due to specially qualified personnel previously unknown to the legislator. The formal index of criminality established in the sanction by the legislator has increased. But it is actually negated by the prevalence of these crimes, which is reflected in the difference between the indices calculated for formal sanctions and actual sentences.

Attention is drawn to the impossibility of ensuring the convergence of indices for theft. Previously, the existing criminal legislation provided for separate offences related to theft of public (State) and personal property. In modern law, all forms of property are protected equally, that is, they have an equal degree of public danger. But today there is also a certain global trend of reducing the public danger of mercenary crime, which is reflected in the index of punishability. The index did not rise to the values of theft of public property, on the contrary, it fell below the level of theft of personal property. All this corresponds to the general hypothesis, according to which the quality of registration discipline will deteriorate as the index of criminality decreases. 158 of the Criminal Code of the Russian Federation) in the structure of modern crime from 38% in 2018 to 30% in 2023 indicates this.

At the same time, it is worth immediately making a reservation about the method of theft that interests us, by stealing non-cash funds from bank accounts or electronic funds. This qualifying feature was placed by the legislator in part 3 of Article 158 of the Criminal Code of the Russian Federation, which, presumably, forms a particularly qualified staff, whose public danger is higher than the average (2.96 years). The proportion of such thefts is about 20% of the total volume of registered crimes under Article 158 of the Criminal Code of the Russian Federation.

Perhaps the situation is even worse with minor crimes, which include hooliganism in our table. During the Soviet period, clear disrespect for public order and its gross violation was a fairly common phenomenon in the structure of crime. However, in its modern understanding, especially after the changes made to the criminal law in 2003, the public danger of hooliganism has changed significantly. What formed the main part of hooliganism under Article 206 of the Criminal Code of the RSFSR is no longer a crime under current legislation. Armed hooliganism or its other qualified forms now form the main component of this crime, the sanction for which allows it to be classified as crimes of moderate severity. According to the hypothesis, it would be worthwhile to expect an improvement in the registration of this act in criminal statistics. However, the number of hooliganism is steadily decreasing from year to year: 2018 – 2091 cases, 2023 – 1617. It is possible to explain this state of affairs due to two circumstances. The first requires its comparison with the most dangerous forms of "Soviet hooliganism." However, there is little direct data on this subject in the literature. The index of punishability for malicious hooliganism of Y. D. Bluvshtein – 5.0 can serve as a guideline. This quantitative value makes it closer to more serious attacks. If you look at the reference literature of those years, for example, the collection "Crime and Offenses in the USSR" (1989), it turns out that the proportion of malicious and especially malicious hooliganism in its overall structure in the eighties was about 72-84%. That is, to the number of "qualified hooliganism" available in modern statistics, it would be worth adding twenty percent less serious ones.

The second circumstance relates to artificial latency, which is formed as a result of the qualification of hooliganism under other articles of the Criminal Code. Judgments about such a statistical redistribution took place immediately after 2003 and are still available in the criminological literature ^{[6, p.4; 7, p. 3]}. Thus, hooliganism no longer meets the criterion of the least socially dangerous phenomenon in our ranking.

Therefore, in order to update the presented method, it is necessary to examine, in accordance with the structure of computer crime, those crimes and their specific compositions available in criminal statistics that have the most similar indices of criminality and rank them further by category. To do this, we have compiled a reference table No. 3. "Indices of criminality of computer crimes."

Table 3. "Indices of criminality of individual computer crimes".

As a result of the comparison, it becomes obvious that law enforcement practice, in terms of imposing real punishment, often "lags" behind the formal sanction, which determines the quantitative side of public danger. According to I. I. Karpets, this may indicate that the law enforcement officer independently "mitigates" an excessively harsh sanction, trying it on each time to a specific life situation ^{[8, p.92]}. This leads to the conclusion that, within the framework of our method, it is desirable to focus on real law enforcement practice as an objective measuring tool, rather than sanctions determined by the legislator. However, there are three methodological objections to this. 1. If we focus solely on the practice of sentencing, then, again, it is not entirely clear how to take into account the actual humanization of punishment? Many punishments today are imposed on a criminal on probation, and most of them are not related to imprisonment at all. 2. Comparing similar indicators of the difference for crimes of the Soviet period with Russian ones, we will not see such strong deviations in the formal and actual values of the criminality index and the crime severity coefficient in the past, which indicates a lower stability of the observed registration process today. Is the method applicable to the calculus of unstable systems in which the range of variation of the feature is exceptionally large? 3. The absence of persons convicted of certain crimes for a number of years makes it impossible to apply the method from a mathematical point of view, because the resulting criminality will be zero. At the same time, it is obvious that the public danger itself cannot be zero.

Apparently, V. V. Luneev wrote about this mass of conventions as a critical remark, without revealing any details ^{[9, p.102]}. Konev himself uses the result obtained only as a supporting part of the methodology, which is revealed in further calculations of the indices of public danger of certain types of crimes and the construction of matrices for the deviation of the results from the baseline value (murders).

The index of criminality, in this case, forms only an objective measure of the "necessity" of identifying and registering specific acts, depending on the degree and nature of their public danger. The actual value of the "desire" to identify and register is formed by calculating the intensity index of public danger, which is the product of the number of detected crimes and the index of criminality. However, it is not possible to directly compare the indicators of "need to identify" and "desire to identify", since they are expressed in different units of measurement. Therefore, Konev compares their internal relationships with each other in a single matrix, leading to a basis based on calculated values for the murder. Thus, the difference in the values of this internal structure acquires abstract numerical forms in the form of a single indicator.

Table 4. Matrix of comparative characteristics results.

The presented result can be interpreted as follows. If the difference indicator has been positive for a number of years, then registration discipline improves. Crime becomes less latent. When negative values are observed, the situation develops in the opposite way. In the table below, we can see that in recent years, this indicator has had positive values in terms of registering mercenary computer crimes and drug crimes. Based on the presented dynamics, it can be assumed that the ratio of known and unknown crimes in criminal statistics is changing. The two-fold increase in the difference in drug crimes and three-fold in fraud confirms the reorientation of the law enforcement activities of the Ministry of Internal Affairs of the Russian Federation, which we wrote about earlier. A parallel comparison of the number of registered crimes in the field of drug trafficking and the number of similar crimes committed through information and communication technologies shows that their share in the structure of drug crime is growing, despite a slight decrease in the total volume (with the exception of 2023). According to the hypothesis, the proportion of serious crimes in the structure of drug crime is increasing (+11% in 2023, +2.6% in 2022) and the detection rates of such crimes are improving (+12.3% in 2023, +1.8% in 2022). All this confirms the objectivity of the increased interest in the identification and disclosure of this category of offenses. Consequently, their latency is somewhat reduced. However, difficulties remain in terms of counteraction, as we see a redistribution of the structure in favor of the use of Internet technologies by criminals. In the last three years, the detection rate of Internet drug crimes has increased (from 38.3% to 54.5%), while for the entire set of crimes related to drug trafficking, it increased by only 4% over the same period. At the same time, it should be recognized that the public danger of online drug crimes is lower, since criminal activity here is more related to the shipment and "retail" sale of prohibited substances. This directly leads to the danger of manipulation of primary statistical data, since performance indicators can now be achieved through less serious crimes to the detriment of the detection and disclosure of more serious ones related to organized criminal activity.

In terms of mercenary computer crimes, there is a rather curious situation associated with the redistribution of the statistical population from theft in favor of fraud.

This corresponds to the general trend of reducing the proportion of theft in the crime structure while increasing the proportion of fraud in it. Such data over the course of a quarter of a century may indicate that this is not a consequence of some internal laws of the existing accounting and registration discipline, but a real change in the qualitative indicators of crime. It is impossible to explain such a redistribution by simply changing the qualification rules, since the volume of recorded acts would then remain unchanged. It grows due to fraud, not theft. It turns out that I. Ya. Foynitsky was right when he argued that with the development and service of economic relations, the prevalence of fraud increases ^{[10, p.22]}.

Due to these circumstances, we tend to associate ourselves with M. A. Yefremova, who in her doctoral dissertation (2017) for the first time hypothesized a decrease in the degree of latency of computer crimes due to their multiple increase ^{[11, p.99]}. Another thing is that the objectivity of criminal statistics at the time of writing did not allow us to draw unambiguous conclusions, including due to the effect of a low base. Today, this assumption can be convincingly confirmed by empirical evidence.

The "classic" crimes in the field of computer information are recorded, perhaps, with the same efficiency as before. Judging by the calculations, the degree of latency of individual political crimes has not changed either. This affects the functioning of individual subjects of accounting and detection of these crimes: the Bureau of Special Technical Measures of the Ministry of Internal Affairs and the relevant departments of the FSB. According to our calculations, Article 272 of the Criminal Code of the Russian Federation is in last place in the zone of negative values. Last year's 2.7-fold increase in the number of registered crimes (to 36,788 cases in 2023) made it possible to bring the degree of their latency closer to the acts provided for in Articles 273, 280 of the Criminal Code. Therefore, such crimes are rightly classified by many criminologists as hyperlatent ^{[12, p.141; 13, p.88; 14, p.71]}. It can also be assumed that there is no strengthening of the real fight against the latent part of crime. Regarding the detection and recording of acts in criminal statistics, "old patterns" and practices are being used. This is confirmed by our calculations and a direct comparison of statistics grouped by subjects of the accounting discipline. For a number of specific crimes, such as Article 274.1 of the Criminal Code, negative growth rates were observed in 2023 (-78.4%); Article159.³ of the Criminal Code (-66.2%). According to ^Article 159.6 of the Criminal Code, only 417 crimes were registered last year (409 were detected by Interior Ministry officers in the same reporting period), which is 24.9% more than in 2022. But it is obvious that the effect of a "low base" is affecting here, which makes it possible to declare an increased detection rate. These facts indicate a redistribution of the main burden "in favor" of the territorial bodies of the Ministry of Internal Affairs of the Russian Federation, rather than specialized operational search units. Whether this is a valid practice is not fully understood. But, of course, it should be taken into account when organizing law enforcement activities in terms of countering computer crime.

Conclusion.

1. The legislative practice of classifying acts as grave and especially grave crimes, as well as the reorientation of law enforcement agencies to combat them, should be consistent with ongoing criminological monitoring of the actual degree of public danger, the index of criminality, which is currently not observed.

I would like to note that there are no special difficulties in the implementation of this technique. With the available set of statistical data, methods of their storage and processing (GAS "Legal Statistics") this case can be automated.

2. In the statistical analysis of generalized crime indicators, one should never forget that the entire volume of registered crime is not a random sample. Criminal statistics on computer crime have been well-established and have been formed fairly uniformly only since 2020. Unfortunately, starting in 2023, the content of the official website for the disclosure of information about the state of crime in the Russian Federation (crimestat.ru ) leaves much to be desired. In the current circumstances, even more detailed disclosure of information by law enforcement agencies can improve the situation by involving more volunteer specialists from the scientific community.

3. A comparison of the internal relations of the index of criminality and the internal relations of the index of public danger, according to A.A. Konev, makes it possible to understand current trends in the registration discipline, regardless of changes (fluctuations) in the crime rate. Therefore, despite some mathematical conventions and criticisms, it should be applied in practice.

4. The information we have received indicates that trends in the registration of computer crime are changing towards improving the detection of only mercenary and drug crimes. At the same time, the degree of latency of crimes committed using information and communication crimes has not fundamentally changed. This confirms the hypotheses we put forward earlier.

5. The dependence of latency on structure is manifested in two ways. On the one hand, the hypothesis about the distribution of the intensity of registration from the nature of crime is confirmed. However, the public danger of computer crimes is similar in many ways, as is the degree of their latency. On the other hand, the degree of latency varies only for certain groups of crimes committed through ICT, which reflects the difference in the degrees of latency of individual types of crime combined by one line of statistical accounting: "crimes committed using information and telecommunication technologies or in the field of computer information."