Criminal-legal and operational-investigative measures to counteract "white-collar" crime

Melikhov Aleksandr Ivanovich ORCID: 0000-0001-8987-713X PhD in Law Associate Professor, Department of Constitutional and Administrative Law, Volgograd Academy of the Ministry of Internal Affairs of Russia 400012, Russia, Volgograd region, Volgograd, ul. Historical, 130, office 400012 m-13913@ya.ru Other publications by this author

The globalization process unfolding in the information age weakens traditional state institutions and requires a new look at national security not only as a category of foreign policy and military affairs, but also as an internal problem solved by means of operational investigative activities.

In the theory of criminal procedure, the role of the ORD is providing, while in the theory of national security, the transition of the fight against criminal threats into a criminal procedural form is one of many possible scenarios for the development of the ORD, which puts it in the first place in ensuring national security.

In Russia, over the past decades, there has been a process of forming a competitive model of organizing public and private services to ensure real guarantees of stability, security, fair and timely dispute resolution, fair competition to attract business entities to their jurisdiction in the context of globalization.

Currently, the profanation of such important civil society institutions as independent nationally (and not foreign, or internationally) oriented domestic mass media, local self-government bodies, the bar, arbitration courts, private expert and professional communities, public councils for the control of authorities, does not allow creating an effective system of checks and balances between the state and civil society, which gives the Russian jurisdiction such unattractive features for economic entities as accusatory bias and opportunism of domestic justice, state monopolism of services for effective security and justice, lack of free competition in the market of state orders, which are one of the main drivers of the domestic economy, etc. Therefore, such threats to national security as the preservation of a significant share of the shadow economy and conditions for corruption and criminalization of economic and financial relations are still relevant for Russian society, which is confirmed by the modern chronicle of criminal events.

The relevance of the study is due to the fact that for further economic growth it is necessary not so much to punish "white-collar" crime, as to prevent it by means of limiting the list of criminally punishable acts in the field of intellectual professional activity and the application of preventive measures provided for by Federal Law No. 182-FZ "On the basics of the system of crime prevention in the Russian Federation"

The expediency of this work is to prevent personnel starvation in the field of highly intellectual professions by decriminalizing a number of offenses that do not have a high public danger and wider application of crime prevention measures. 

The main purpose of this article is the scientific justification of ensuring national security by finding the optimal combination of punitive and preventive policies in the field of "white-collar" crime. The main objectives of the study are: to propose the decriminalization of a number of articles of the Criminal Code of the Russian Federation; scientific justification for the application of preventive measures to planned crimes; positioning of the bodies carrying out the HORDES as the main subjects of the prevention of offenses.

The study of the problem of planned crimes as an object of prevention became the object of study of such scientists of operational investigative science as Goryainov K.K., Ovchinsky V.S., Vagin O.A., Kozlov V.I., Shkabin G.S., Kudryavtsev A.V., etc.

The scientific novelty of the work consists in the fact that the main subject of the prevention of planned offenses in the field of highly intellectual professional activity should be the bodies carrying out operational investigative activities.

The practical significance lies in the decriminalization of a number of white-collar crime compositions, as well as the expansion of the use of preventive and preventive measures by the internal affairs bodies against persons engaged in professional activities with a high risk of criminal prosecution in order to ensure the economic security of Russia. The theoretical significance of the work consists in the statement of the need to change the punitive policy of the state to a preventive one in the field of "white-collar" offenses, as well as the introduction of the concept of "planned crime".

Basic scientific methods. The article uses a dialectical method of scientific cognition, which allows us to consider any phenomenon or process under study not in statics, but in dynamics. This made it possible to discover the interrelations and contradictions of the studied processes and phenomena, to make suggestions on ways to further develop the state policy of ensuring economic security. The use of the dialectical method also made it possible to identify important substantive elements of legal relations in the field of professional activity associated with the risk of criminal prosecution, as well as factors affecting the effectiveness of operational investigative activities of internal affairs bodies, to show the interdependence of the circle of subjects brought to criminal responsibility for "white collar" crimes, with the level of national security. The methods of game theory are also widely used in the article, which make it possible to consider the behavior of participants in security relations from the standpoint of economic expediency. In addition, the method of statistical analysis of normative legal acts, semantic analysis of the Criminal Code of the Russian Federation and the Administrative Code of the Russian Federation was used, indexing and subsequent processing of more than 3,000 scientific sources in the field of operational investigative activities was carried out.

Traditionally, the area of responsibility of the operational-investigative units of the Criminal investigation Department of the Department of Internal Affairs was entropic crime ^[1], the prevention and prevention of which, according to our analysis of departmental orders of the Ministry of Internal Affairs of the Russian Federation ^[2], is handled by the local police commissioner on a territorial basis.

But there is also another crime – cognitive or white–collar ^[3] - generated not by superconscious and subconscious impulses, but by the sophisticated mind of a professional, these types of crimes are mostly dealt with in the system of the Ministry of Internal Affairs of the Russian Federation by all operational divisions of the Department of Internal Affairs. However, for the sphere of cognitive crime in the Department of Internal Affairs there is no district commissioner engaged in prevention, his role should be performed by other state bodies of supervision and control – the tax inspectorate, the antimonopoly service, etc., or the burden of responsibility for the prevention of offenses in this sector should fall on operational staff.

The properties and skills of this contingent of criminals not only pose a potential danger, but also benefit the multinational people of Russia – these are programmers, doctors, lawyers, engineers, economists, merchants and other representatives of intellectual professions.

The cognitive skills and knowledge acquired by these people are the result of a long period of study and the acquisition of practical experience, and therefore this resource of the nation is difficult to replenish. The more opportunities there are, the greater the responsibility of a person. Punitive measures in the field of cognitive offenses have already led to irreparable losses of the country's professional potential, including in the police. The widespread bringing to legal responsibility of doctors, teachers and minor officials for a bribe in the form of a box of chocolates, as well as the establishment of criminal liability even for minor offenses and entailing the subsequent loss of professional subjectivity, led to a personnel collapse in many areas of business.

The President of the Russian Federation repeatedly in his speeches ^[4] drew attention to the unjustified growth of criminal cases against entrepreneurs as an example of the negative impact of punitive measures on useful for the country, but risky economic and labor activities. In this regard, the leading scientists of the country do not stop discussing the effectiveness of criminal legal impact on business^[5].

In this regard, the institute of "conception", which has been nurtured for many years in the field of operational investigative science, becomes relevant ^[6,7,8]. The scientific movement to criminalize this very early stage of illegal activity originated in the criminal enforcement segment of the ORD. In our opinion, this was due to a large amount of information about the presence of the subject of the plan obtained in artificial conditions of behaviorism of correctional institutions by experienced personnel and means of observation. Moreover, prisoners can give out what is being planned not only verbally or not verbally - but also functionally – that is, repeating the algorithm of actions of persons who had previously planned something similar (escape, murder, etc.). In this situation, it is impossible to prove the plan as preparation, but it is necessary to warn the intended one. In this situation, a set of special penal enforcement measures available to the operational staff of the correctional institution was used, and first of all, an official warning about the inadmissibility of actions that create conditions for committing crimes and administrative offenses, or the inadmissibility of continuing antisocial behavior (Article 17.1 of the Criminal Code of the Russian Federation).

It is noteworthy that with the adoption of the Federal Law "On Prevention", this effective measure became available to all subjects of prevention, including officials of the Ministry of Internal Affairs of the Russian Federation authorized to carry out the ORDO ^[9].

Professionals engaged in risky economic activities, as well as prisoners in a correctional institution (however, as well as a segment of the population covered by digitalization) are placed in an artificial environment of daily algorithms documented in computer, accounting, tax, document management and other "blockchains", which causes the presence of a large amount of information about their intentions and allows you to identify pre–criminal algorithmics in their behavior.

However, law enforcement officers currently do not take the initiative in crime prevention, since there are no direct departmental indicators of crimes prevented. Since the design and preparation are not crimes yet, and as we have shown earlier ^[10], there are completely no indicators in the departmental performance indicators for the implementation of such a task as prevention, namely, the number of "failed" crimes – voluntary refusals, detected or (and) suppressed prepared and other unfinished crimes.

As a result of large–scale cuts in police personnel and heavy workload on "mandatory" lines of work, the prevention of planned offenses that have not taken the form of a crime is resolved on a "residual principle" or formally by refusing to initiate criminal proceedings. Accordingly, preventive measures against these offenses are carried out formally, the methodology and practice of preventing these crimes ^[11] are not developing.

The list of departmental indicators should be supplemented with the number of warnings issued by operational officers in relation to merchants, failed small bribe takers, negligent workers, etc. that will allow them to continue socially useful activities for the benefit of the country, but in line with legitimate life, focusing on the reaction of law enforcement agencies in the form of various forms of preventive impact^[12] - preventive accounting, supervision, conversation, official warning, etc.

The second direction of reducing risks in professional activity is the decriminalization of a number of criminal structures. In the context of a reduction in the personnel of the Department of Internal Affairs, in order to bring the workload of operational officers, employees of the bodies of inquiry and preliminary investigation to the normatively established and transfer efforts to the investigation of more complex and dangerous crimes for society, it seems appropriate to decriminalize the compositions of minor (and inherently administrative) crimes of minor gravity providing as a punishment, as a rule, consonant with administrative penalties provided for in paragraphs "a" - "k" of Article 44 of the Criminal Code of the Russian Federation (fine, deprivation of the right to hold certain positions or engage in certain activities, compulsory labor, correctional labor, restriction of military service, restriction of freedom, forced labor, arrest) and did not entail serious adverse consequences in the form of causing harm to human health and life.

As a second option for decriminalizing part of criminal offenses, it is possible to single out part of minor crimes in a separate chapter of the new Administrative Code of the Russian Federation, and in case of repeated commission of these offenses, to bring to criminal responsibility by analogy with the current practice of bringing to criminal responsibility persons who violated traffic rules by a person previously subjected to administrative punishment (Articles 264.1., 116.1. Criminal Code of the Russian Federation).

Decriminalized, in our opinion, should be the elements of crimes included in the investigation of investigators and interrogators of the Department of Internal Affairs, provided that they are committed for the first time, provided for by the following articles of the Criminal Code of the Russian Federation:

1. Jurisdiction of the Internal Affairs inquiry: Part 1 of Article 123, Article 125, Part 1 of Article 128, Article 156, Article 170, Article 170.2., Part 1 of Article 171, part 1,3,5 of Article 171.1, Article 171.4, part 1, 2, Article 175, Article 177, part 1,2 of Article 180, Part 1 Article 200.3, Article 203, Article 204.2, Article 233, part 4 of Article 234, part 1 of Article 250, part 1 of Article 251, part 1 of Article 252, part 1 of Article 254, part 1 of Article 261, Article 262, Article 291.2, part 1 of Article 294, part 1 of Article 297, Article 304, Article 322.2, Article 322.3, Part 1 of Article 325, Part 1 of Article 330 of the Criminal Code of the Russian Federation.

2. Jurisdiction of the preliminary investigation of the Department of Internal Affairs: Article 176, Article 235, Part 1, Article 272, Part 1, Article 273, Article 304 of the Criminal Code of the Russian Federation.

It is also necessary to note the social benefits of decriminalizing these articles, since they mainly affect not the marginal, but the intelligent and socially active part of Russian society, which is decreasing every year – small entrepreneurs, doctors, teachers and other knowledge workers, which creates tension in society, since criminal prosecution leads, as a rule, to collapse the professional career of these persons.

Some of these articles were adopted by lobbyists of large financial groups to protect their construction, insurance and banking activities by criminal means, which grossly violates the principle of proportionality of punishment and social justice against the background of extortionate interest rates for loans, exorbitant mandatory insurance premiums and housing prices inaccessible to the majority of the population ^[13].

Summarizing, we note that in order to ensure social justice, the attractiveness of the Russian jurisdiction and ensure the competitiveness of our country, in the field of highly intellectual professional activity, it is necessary to change the punitive policy of the state in the field of "white-collar" crime to preventive ^[14,15], for which decriminalize a number of articles of the Criminal Code of the Russian Federation, applying criminal liability only for the recurrence of "white-collar" offenses, to spread the practice of applying preventive measures provided for by Federal Law No. 182-FZ "On the basics of the system of crime prevention in the Russian Federation" in the activities of law enforcement units carrying out the ORDO, to introduce departmental performance indicators of units  The Department of Internal Affairs carrying out hordes on the prevented offenses, identified and suppressed unfinished crimes.