Forensic support for the disclosure and investigation of a crime under Article 210.1 of the Criminal Code of the Russian Federation "Occupying the highest position in the criminal hierarchy"

Khamidullin Ruslan Sibagatullovich PhD in Law Head of the Department of Operational Investigative Activities of Internal Affairs Bodies, Ural Law Institute of the Ministry of Internal Affairs of Russia 620072, Russia, Sverdlovskaya oblast', g. Ekaterinburg, ul. Syromolotova, 7, kv. 11 sledgsugu@mail.ru Other publications by this author

Rechkov Il'ya Evgen'evich Deputy Head of the Department for the Investigation of Banditry and Crimes Committed by Organized Groups and Organized Criminal Communities, the Main Investigation Department of the Ministry of Internal Affairs of Russia in the Sverdlovsk Region 620014, Russia, Sverdlovskaya oblast', g. Ekaterinburg, pr. Lenina, 17 ierechkov@mail.ru

Exploring the positive experience of combating organized crime in other post-Soviet countries, the legislator in Russia adopted Federal Law No. 245-FZ of November 3, 2009, which supplemented Article 210 of the Criminal Code of the Russian Federation (hereinafter referred to as the Criminal Code of the Russian Federation) with Part 4, providing for responsibility for organizing a criminal community (criminal organization) by a person in a higher position in the criminal hierarchy ^[1]. In continuation of the set criminal law policy, Federal Law No. 46-FZ of April 1, 2019 entered into force, supplementing the Criminal Legislation with a new Article 210.1 of the Criminal Code of the Russian Federation, providing for responsibility for a person occupying the highest position in the criminal hierarchy ^[2].

The analysis of the results of expert surveys of operatives, investigators, prosecutors undergoing advanced training or professional retraining at the Ural Law Institute of the Ministry of Internal Affairs of the Russian Federation (hereinafter the Ministry of Internal Affairs of Russia), as well as at the Ural State Law University named after V.F. Yakovlev showed that currently law enforcement officers are faced with the need to clarify a variety of issues arising in the process of disclosure and investigation of a crime under Article 210.1 of the Criminal Code of the Russian Federation. In addition, there is a need to develop programs for criminalistic counteraction to persons occupying the highest position in the criminal hierarchy.

The fight against organized crime has been and is one of the priorities of all law enforcement agencies and the Ministry of Internal Affairs of Russia in particular, since the illegal activities of organized groups and organized criminal communities (organizations) pose a threat not only to public safety, but also negatively affects the economic state of the state. At the same time, the greatest danger is posed by the leaders of the criminal environment, who head organized groups and organized criminal communities (organizations), coordinate their activities, create conditions for the commission of crimes. Persons occupying the highest position in the criminal hierarchy not only influence the relationship of the criminal environment, but also interfere in the public relations of the law-abiding population, sometimes replacing the official authorities.

The fight against the leaders of the criminal-criminal environment is conditioned not only by the fight against the existing organized groups and organized criminal communities (organizations), but also by the goal to stop the emergence of new criminal formations, since persons occupying the highest position in the criminal hierarchy, among other things, are promoting criminal-thieving traditions and norms of behavior among the population, in particular including among young people.

By putting into effect a new norm of criminal legislation providing for responsibility for the occupation of a person of the highest position in the criminal hierarchy, the legislator calls on law enforcement agencies to intensify the fight against organized crime in general and in particular with the leaders of the criminal environment. The identification of such persons, the successful disclosure and investigation of their illegal activities, bringing them to criminal responsibility, will allow to disorganize the illegal activities of the criminal community, ensuring public safety and the eradication of criminal theft traditions and norms of behavior.

In addition, the relevance of clarifying a number of issues arising in the process of disclosure and investigation of crimes under Article 210.1 of the Criminal Code of the Russian Federation is also due to the large number of persons occupying the highest position in the criminal hierarchy. Thus, according to the Main Information Center of the Ministry of Internal Affairs of Russia (GIAC of the Ministry of Internal Affairs of Russia), only for the 1st half of 2021, there were 45 criminal cases against 45 persons occupying the highest position in the criminal hierarchy in the status of "thief in law", "posenets", "looking", and in total with Since the entry into force of the article in question of the Criminal Code of the Russian Federation, 22 criminal cases have been sent to the court.

The rather low rate of referral of criminal cases against persons occupying the highest position in the criminal hierarchy for consideration in court can be explained by the presence of problems, including legal ones. In legal terms, investigators and employees of operational units face such problems as the absence of any normative legal acts that enshrine the concept of a person occupying the highest position in the criminal hierarchy, the lack of explanations of who exactly to consider the subject of the crime, as well as the lack of forensic recommendations to ensure effective counteraction.

It is noteworthy that in Georgia, back in 2005, amendments were made providing for liability for membership in a thieves' community in the form of imprisonment for a term of 3 to 8 years, and for a person in the position of a thief in the law – imprisonment for a term of 5 to 10 years. (Article 223.1 "Membership in a thieves' community, thief in law"). At the same time, the Law "On Combating Organized Crime and Racketeering" clarifies the terms "thieves' world" and "thief in law".

In Georgia, thanks to this law, several hundred thieves in law have been brought to criminal responsibility, and property worth a huge amount has been seized from the state ^[3]. 

Analyzing the disposition of Article 210.1 of the Criminal Code of the Russian Federation, it can be concluded that the subject of the crime is special, that is, a physical, sane person who has reached the age of sixteen, occupying the highest position in the criminal hierarchy.

Thus, in Russian legislation, unlike Georgian legislation, there is no consolidation of any criteria for attributing one or another representative of the criminal environment to persons occupying the highest position in it, these concepts are part of the criminal world, which law enforcement agencies should fight.

In paragraph 24 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 10.06.2010 No. 12 "On the judicial practice of considering criminal cases on the organization of a criminal community (criminal organization) or participation in it (her)", an explanation is given about the subject of the crime specified in Part 4 of Article 210 of the Criminal Code of the Russian Federation, that is, the person occupying the highest position in the criminal hierarchy, in relation to the criminal community (criminal organization) ^[4]. That is, this explanation does not apply to the norm in question, in which it is necessary to prove the fact that a person occupies a higher position in the criminal hierarchy.

In the process of working with persons from the criminal environment, studying their concepts, relationships, law enforcement officers get an idea of the criminal hierarchy, including from written sources of this environment, the so-called "thieves' runs", as well as from other records containing the "thieves' way of life.

Based on the generalization of the information received, the "thieves" way of life is an established system of subordination and relationships between persons entering the criminal environment and sharing the rules and traditions of the "thieves" subculture. This "thieves'" way of life has a strict vertical of power - a criminal hierarchy that requires uncompromising implementation, and subordination to persons standing in a higher position in the criminal hierarchy in general and in a certain territory, namely the province, region, city, district, street, as well as in places of isolation, colonies, detachments, cells. Basically, the "thieves'" way of life extends to the relationships of persons held in penitentiary institutions, but having taken root in the minds of convicts, these rules, largely due to the negative influence of persons occupying the highest position in the criminal hierarchy, extend outside the walls of correctional institutions.

So there are different categories of representatives of the criminal and criminal environment, one of which is "black", these are those persons who accept and support the "thieves" traditions established by the highest persons in the criminal hierarchy, the so-called "thieves in law", these include "positioners" - "watchers", "vagrants", "thieves", "men".

Another category of convicts are "red", "official" or "knitted", those persons who support the rules and regime established by the administration of the colony, cooperate with representatives of the administration, perform part of the functions of colony employees, are caretakers, foremen of any production, economic facilities on the territory of the colony.

The next category of convicts are persons with a reduced social status, they include: "devils", "roosters", "gadye", "rats", these are those persons who betrayed unwritten thieves' laws and traditions, the general way of criminal life, committed an act that defames the "right" prisoner.

Analyzing the criminal hierarchy, the question arises what status a person should have in order to be the subject of a crime under Article 210.1 of the Criminal Code of the Russian Federation. So the highest position in the entire criminal hierarchy is occupied by a person with the status of a "thief in law", he is appointed by a "thieves' meeting", that is, a meeting of persons who already have the status of a "thief in law", by the decision of the majority of "thieves in law". The "thief in law" has unquestioning authority in the criminal environment in relation to persons of lower status. The "thief in law" acts as an arbitrator between various criminal formations, appoints "posits", "watchers" in certain territories, "holders of the common fund", and also organizes the collection of the "thieves' common fund" - the criminal cash register, by committing crimes in various spheres, promotes a criminal lifestyle. Also, the "thief in law" determines the persons responsible for replenishing the "community", organizes the commission of crimes, provides patronage to various criminal groups. Further along the criminal hierarchy there is a "layman" who, in the absence of a "thief in law", represents his interests and makes decisions on his behalf, is appointed by the decision of a "thieves' meeting" or by the decision of one "thief in law". The "lookout" is appointed a "thief in law" or a "poser", is responsible for a certain territory or sphere of influence, including a colony, a pre-trial detention center (SIZO), a cell, and is a person occupying the highest position in the criminal hierarchy in the territory of his responsibility. The "looker" performs the functions of a "thief in law" in a certain territory, except for solving the question of the fate of a person. This is how the "lookout" resolves controversial issues between criminal groups, provides them with patronage, ensures the formation of a "thieves' community", by committing crimes, provides support to persons serving sentences. The "looker" has unquestioning authority among persons from the criminal environment^[5]. Despite this, it is worth noting that some representatives of law enforcement agencies are of the opinion that the subject of the crime provided for in Article 210.1 of the Criminal Code of the Russian Federation is only a person with the status of "thief in law".

From another point of view, persons with the status of "layman" and "looker" also have the characteristics of a person occupying the highest position in the criminal hierarchy, since they have similar functions and "powers" in the criminal environment, only their sphere of influence is limited to a certain territory. In defense of this position, it can be noted that the "layman" and the "looker", performing their functions in the process of engaging in criminal activity, also coordinate the activities of criminal formations, create conditions for committing crimes, influence the relationship of the criminal-criminal environment, and interfere in the public relations of the law-abiding population, propagandize criminal traditions and norms behaviors.

Criminalistic support for the disclosure and investigation of crimes related to the occupation of a person of the highest position in the criminal hierarchy consists in the features of obtaining operationally significant information that a person really has the appropriate status in the criminal world, as well as the features of detection, fixation and procedural registration of both ideal traces (testimony) and material (material evidence) in order to bringing such persons to the responsibility established by law.

In specialized operational search units, such as departments for combating organized crime (OBOP) The Ministry of Internal Affairs of Russia conducts relevant accounting cases, in which information about persons occupying the highest position in the criminal hierarchy is concentrated and their "development" is carried out, that is, the collection of information about their criminal activities for detention and criminal prosecution. If there is sufficient data indicating that a person occupies the highest position in the criminal hierarchy, the results of investigative activities are transferred to investigative units for making procedural decisions, such as, for example, the initiation of a criminal case under Article 210.1 of the Criminal Code of the Russian Federation. It is worth noting that persons who are criminal authorities are often accomplices and organizers of many other crimes (extortion, robbery, robbery, murder, fraud, bribery) ^[6]. Thus, in the course of tactical-forensic and technical-forensic support of investigative and operational-investigative activities, the evidence base is collected on the totality of criminal episodes of a person occupying the highest position in the criminal hierarchy and charges are brought against him.

Thus, criminalistic support for the disclosure and investigation of a crime under Article 210.1 of the Criminal Code of the Russian Federation "Occupying the highest position in the criminal hierarchy" is a set of measures aimed at providing subjects of criminal prosecution with knowledge of the most effective and rational forensic tools, techniques and methods in order to establish circumstances relevant for a full and comprehensive investigation of the crime ^[7].

Currently, law enforcement agencies engaged in countering organized crime, including those occupying the highest position in the criminal hierarchy, face problems in establishing the location of such a person. In connection with the conduct of the relevant criminal responsibility of the Ministry of Internal Affairs Russia records the mass departure of criminal authorities outside the territory of the Russian Federation, while modern information and telecommunications capabilities allow organizing and controlling criminal activities in a remote format while on the territory of states where there is no corresponding criminal responsibility.

In addition, the relevant operational search units record events related to the fact that some criminal authorities voluntarily renounce the relevant status in the criminal sphere in order to avoid criminal liability and attempt to legalize their activities.

Based on the above, persons with the status of "layman" and "looker" also pose a danger to public safety and, therefore, are also subject to criminal liability under Article 210.1 of the Criminal Code of the Russian Federation. Bringing to justice only persons with the status of "thief in law" will not achieve the goal of suppressing the activities of organized criminal groups, since the greatest spread of "thieves'" traditions occurs in small and remote territories. At the same time, it should be noted that persons with the status of "thief in law" pose a great public danger and are capable of causing greater harm to public relations.

Unambiguously solve the problem of determining who is still subject to criminal liability under Article 210.1 of the Criminal Code of the Russian Federation, in our opinion, the legislative consolidation of the concept of a person occupying the highest position in the criminal hierarchy in the note to the article under consideration will allow. In addition, in view of the different social danger of persons occupying the highest position in the criminal hierarchy, we consider it possible to divide the disposition of the article into two parts, providing for different responsibilities for persons with the status of "thief in law" and for persons with the status of "poser", "looker". For example, the disposition of the first part of Article 210.1 of the Criminal Code of the Russian Federation can be stated in the following wording: "occupation of the highest position in the criminal hierarchy, associated with the functions of a "thief in law". The disposition of the second part of the article under consideration should be stated as follows: "occupation of the highest position in the criminal hierarchy, coupled with the functions of a "poser (looker)".

At the same time, the note to this article may contain transcripts of the status of a "thief in law" and a "layman (looker)" as follows: "a person occupying the highest position in the criminal hierarchy associated with the functions of a "thief in law" with this article and Part 4 of Article 210 of this Code means a person heading a criminal hierarchy, and having organizational and administrative, regulatory and disciplinary functions in the criminal environment on the territory of the Russian Federation, a subject of the Russian Federation.

A person occupying the highest position in the criminal hierarchy, coupled with the functions of a "layman (lookout)" with this Article and part 4 of Article 210 of this Code, means a person who heads the criminal hierarchy and has organizational, administrative, regulatory and disciplinary functions in the criminal environment on the territory of the municipality."

The consolidation of these criminal statuses and differentiated responsibility for occupying the highest position in the criminal hierarchy at different levels in the law will allow us to develop effective and rational forensic tools, techniques and methods of combating organized crime. The changes will make it possible to correctly interpret the norm and remove the uncertainty of attributing a person to a special subject of a crime.