Analysis by the Prosecutor of the Protocol of Inspection of the Scene of the Incident in Criminal Cases on Illegal Catch of Aquatic Biological Resources

Tsyganov Dmitrii Vyacheslavovich Postgraduate Student, Department of Criminal Professions and Forensic Science, St. Petersburg Law Institute (branch) of the University of the Prosecutor's Office of the Russian Federation 44 Liteyny Ave., Saint Petersburg, 191104, Russia tsyganoff.spb@yandex.ru

The prosecutor's examination of a criminal case filed with an indictment (indictment, indictment) is one of the most important components of his activity in pre-trial proceedings, which is confirmed in a number of regulatory legal acts of the Prosecutor General's Office of the Russian Federation. Thus, paragraph 1.14 of the Order of the Prosecutor General of the Russian Federation dated 09/17/2021 No. 544 "On the organization of prosecutorial supervision of the procedural activities of the preliminary investigation bodies" obliges prosecutors, while working with the materials of the criminal case, to check the compliance of the investigator's conclusions with the circumstances of the case established during the investigation, the sufficiency of the evidence collected, the correctness of the qualification of the deed, compliance with criminal procedural norms during the investigation and other procedural actions.

Perhaps it would not be a big exaggeration to say that the inspection of the scene of the incident is not only urgent, but also one of the most complex and time-consuming investigative actions. Therefore, it is not difficult to imagine the prospect of a criminal case, for example, about a murder, a traffic accident or theft in the case of a poorly conducted inspection of the scene and registration of its results. Consequently, the prosecutor, when studying the protocol of this investigative action, must have knowledge not only in the field of criminal procedure, criminology, but also other sciences, as well as maximum concentration, the use of the entire arsenal of methods of scientific knowledge. This is evidenced by both the results of the analysis of judicial and investigative practice, and the positions of scientists presented in the legal literature^[1].

The above fully applies to the inspection of the scene of the incident carried out during the verification of the report on the illegal extraction of aquatic biological resources.

It should be noted that during the production of this investigative action, numerous errors of both criminal procedural and criminalistic nature are made. In this regard, it should be noted that criminal procedural errors are associated with a violation of the norms of the criminal procedure law (Articles 164-170, 176-177, 180 of the Code of Criminal Procedure of the Russian Federation) and, as a result, have a general character ^[2], that is, they do not depend on the type (variety) of the crime about which the investigation is conducted verification in accordance with the procedure provided for in Article 144 of the Code of Criminal Procedure of the Russian Federation. The specificity of forensic investigative errors lies in the fact that, on the one hand, they also have a general character (for example, a superficial inspection of the scene of the incident), on the other hand, the content side of these errors is directly dependent on the type (variety) of the crime ^[3].

Taking into account the above, the protocol should be checked by the supervising prosecutor for not only compliance with its requirements of criminal procedure legislation, but also for other mistakes, including those of a forensic nature.

In order to streamline errors and subsequently minimize the time spent by the supervising prosecutor on studying the criminal case (verification material) received by him, there is now a need to systematize the mistakes made by the preliminary investigation bodies during the inspection of the scene of the incident in cases of illegal extraction of aquatic biological resources.

In this regard, based on the results obtained during the generalization of the current law enforcement practice, I believe it is possible to systematize the errors made by the criterion of the essence of errors into material (forensic) and procedural, as well as by the criterion of the object in which the error was made into single-object and complex.

The grouping of these errors into material (forensic) and procedural errors is due to the essence of the errors established by the prosecutor. These may be violations of the actual circumstances of the object of inspection, as well as violations of the logical sequence in describing the circumstances of the object of inspection, which, during subsequent study, does not allow for unambiguous interpretation of the stated circumstances. Thus, any errors that do not allow to establish legally significant circumstances in the case will be material (criminalistic).

It would be logical to recognize as procedural errors any violations of the criminal procedure legislation during the investigative action.

The systematization of errors into single-object and complex ones is due to the fact that the protocol of inspection of the scene of the incident when studying it as an independent object of analysis may not contain any material or procedural errors at all. Only a subsequent comparison of the contents of this protocol with other directly or indirectly related documents or investigative actions will allow us to draw a conclusion about the violations committed.

Thus, I propose to consider the established errors in the protocol of inspection of the scene as an independent object of analysis to be single-object. On the contrary, errors in the protocol of inspection of the scene, established when comparing the contents of the protocol with other case materials, will be complex.

Let's pay attention to the most frequently made errors of a forensic nature, reflected in the protocol of the inspection of the scene of the incident, carried out during the verification of a crime report, or during the investigation of illegal extraction (catch) of aquatic biological resources.

For example, these may be errors indicating poor-quality inspection, such as an unjustifiably brief description of the situation at the scene of the incident, or its superficial conduct, entailing the subsequent loss of potential evidence.

Thus, the protocol of the inspection of the scene of the incident carried out during the verification of a crime report, or during the investigation of illegal extraction (catch) of aquatic biological resources should contain the fullest possible description of the area under inspection, including not only the coordinates of the area (up to seconds, but taking into account the relative error of the device and accessibility the area for the GPS signal), but also the available items, vehicles, established catch, weather conditions and the state of the water surface of the object.

In addition, the reflection in the protocol by the person conducting the inspection of incomplete, unclear, unclear, incorrect formulations may lead to a misconception about the scene of the incident as a whole, its individual sections found during the inspection of objects, documents, traces, as well as places of their discovery.

An inconsistent description of various sections (details) of the situation at the scene of the incident may entail similar consequences.

Conclusions, judgments and assumptions of the person who conducted the inspection regarding the place, time, method of commission of the crime, actions of the participant (participants) of the crime and other circumstances should not be allowed in the protocol of the inspection of the scene of the incident.  

Often, the person who inspected the scene of the incident initially mistakenly establishes legally significant circumstances with subsequent emphasis on these circumstances and details. At the same time, other items and details are either missed altogether, or they are not given enough attention.

When comparing the records in the protocol with photographs, plans, diagrams, and video attached to the protocol, inaccuracies are often found in describing the circumstances of the seizure of items during the inspection of the scene of the incident (places of detection of detected objects, traces, the situation of the scene of the incident), reflecting in the protocol the number, type, individual signs and features of the seized items.

Taking into account the considerable modern "assortment" of both homemade prohibited tools and fishing items, as well as those purchased in Chinese online stores, the individual properties and functionality of these items may differ significantly, which can significantly affect the qualification of the act.

It is necessary to pay special attention to the proper reflection of these circumstances to the prosecutor due to the fact that later there may be doubts that this or that object was seized during the inspection of the scene of the incident, which will cause a lot of trouble to the public prosecutor in the judicial investigation.

Individual errors in the seizure of items and documents during the inspection of the scene are associated with the absence of a description or an incorrect description of the packaging of items and documents seized from the scene; inspection of discovered items not at the scene of the inspection of the scene, except in cases provided for in Part 3 of Article 177 of the Criminal Procedure Code of the Russian Federation; the absence of individual signs and features of the seized items (defects, traces indicating the connection of the inspected object with the crime), etc.^[4].

In another subcategory, it is necessary to allocate the so-called "formal" errors made in the protocol of the inspection of the scene of the accident: incorrect indication of the place of production of the inspection of the scene of the accident, the absence of a mark (record) about the technical means used during the inspection of the scene of the accident, and others.

Such most frequently made mistakes of a formal nature are typical and are allowed by the preliminary investigation bodies, not only in criminal cases of illegal extraction (fishing) of aquatic biological resources, but also in other categories of crimes.

This may be the absence of signatures of all participants of the investigative action indicated in the protocol of the inspection of the scene of the incident; the absence of a mark confirming that the persons participating in the investigative action were warned in advance about the use of technical means during its production; the absence of an indication of the technical means used during the production of the investigative action, the conditions and procedure for their use, objects to which these means were applied, and the results obtained; the absence of a diagram of the scene; the inconsistency of the content of the protocol of the inspection of the scene with the results of the use of additional fixation means (photographs, plans, diagrams, video recordings)^[5].

In this regard, it should be noted the evidentiary value of photographs and video recordings, since by means of photofixation, a more accurate reflection of the situation of the criminal event as a whole, its various details, the traces found, which are not always available for logging, is achieved.

Proceeding from this, it is advisable for the prosecutor, when familiarizing himself with the photographs in the photo tables, to pay attention to the presence of contradictions both between the various photographs and between the protocol and the photographs. These contradictions may arise, among other things, if the person who conducted the inspection of the scene of the incident was limited to several formal photographs of the scene itself and the seized items, i.e. orientation, survey, nodal shooting and detailed shooting were not carried out^[6].

In addition, the prosecutor needs to pay attention to the accuracy of the reflection in the protocol of the inspection of the scene of the incident of the carrier on which photos and video files are recorded, since in accordance with paragraph 8 of Article 166 of the Criminal Procedure Code of the Russian Federation photographic negatives and photographs, films, slides, interrogation phonograms, video cassettes, drawings, plans, diagrams, casts and impressions of traces made during the production of an investigative action, as well as electronic media of information received or copied from other electronic media during the production of an investigative action.

In accordance with the previously proposed systematization of errors, among the formal complex errors of a procedural nature, it is necessary to highlight the errors made when specifying the date, place and time of the inspection of the scene of the incident. The essence of these errors lies in the indication in the protocol of the inspection of the scene of the incident and the protocol of another investigative action (inspection of objects, documents, corpse, examination, etc.) of the same date and time of their production with the same witnesses and the investigator (inquirer).

It should be noted that often the persons conducting the inspection of the scene of the incident do not make up the inspection protocol (or do not make up in full) at the scene of the incident, limiting themselves only to photo-video shooting and some records. The above leads to the fact that when drawing up or adding a protocol in another place (and often after an incident of quite a long time), an unreliable date, time and place of the inspection are reflected in the protocol, persons who actually took part in the inspection are reflected, or persons who do not have the right to take part in it (for example, the duty investigator, investigators and interrogators in the production of which there was no criminal case (verification material) at the date of drawing up the protocol, participation in the inspection of the scene of the incident by criminal investigation officers in the absence of an order to carry out investigative actions).

Given the prevalence of such an error, it is advisable for the prosecutor to compare these data with similar ones in the protocols of other investigative actions.

In addition, the prosecutor needs to pay attention to the indication in the protocol of the inspection of the scene of the accident of technical means and their characteristics, which were used in this case limited, or not actually used at all (for example, a metal detector). The errors of specifying the wrong characteristics of technical means, which may later be challenged by the defense party, are very curious.

In addition, the prosecutor, when studying the case materials, must make sure that an inspection of the scene of the incident is carried out as part of an inspection in accordance with Articles 144-145 of the Code of Criminal Procedure of the Russian Federation, after the appropriate registration of a crime report. Thus, according to the legal position of the Constitutional Court of the Russian Federation, set out in the Ruling of 24.11.2016 N 2553-O, an inspection of the scene of the incident, during which the seizure of detected traces of a crime, objects and documents relevant to the criminal case is allowed, cannot be carried out in the absence of a report on a crime provided for by the criminal procedure law and adopted in accordance with him^[7].

Since during the preliminary investigation, the circumstances of the case often require investigative actions in fishing (hunting) huts, sheds, chums, tents, huts and other structures for temporary residence, the prosecutor needs to pay attention to the legality of conducting an inspection in the absence of the consent of the persons living in it, only in accordance with paragraph 4 of Part 2 of Article 29 of the Criminal Procedure Code of the Russian Federation, i.e. by a court decision, or in accordance with Part 5 of Article 165 of the Code of Criminal Procedure of the Russian Federation.

The above circumstance is due to the concept of housing, fixed in paragraph 10 of Article 5 of the Code of Criminal Procedure of the Russian Federation, which means virtually any room or structure that is not part of the housing stock, but is used for temporary residence.

Among other formal single-object errors of a procedural nature, it is necessary to distinguish the errors made in relation to the participants of the inspection of the scene of the incident.

Thus, the prosecutor, when analyzing the protocol of the inspection of the scene of the incident, if the victim, witness, specialist, expert or translator participate in such an inspection, should pay attention to whether they have explained their rights, duties and responsibilities in accordance with Part 5 of Article 164 of the Criminal Procedure Code of the Russian Federation.

At the same time, if the inspection of the scene of the incident was carried out with the participation of persons who are not suspects, then the investigator (inquirer) is not obliged to ensure the right of these persons to the assistance of a lawyer.

The above-mentioned legal position of the Constitutional Court of the Russian Federation is explained in Rulings No. 1258-O-O of 13.10.2009 and No. 1451-O of 18.07.2017, according to which the requirement for immediate provision of the right to the assistance of a lawyer (defender) cannot be extended to cases of investigative actions that are not related to the testimony of a person, are prepared and conducted without prior notification of a person about their conduct due to the threat of destruction (loss) of evidence ^[8], since the fact of the inspection itself does not yet indicate the beginning of criminal prosecution of a particular person^[9].

Analyzing the participation of witnesses in this investigative action, the prosecutor also needs to make sure that the requirements of Articles 60, 170 of the Criminal Procedure Code of the Russian Federation are met.

The importance of a specialist's participation in the inspection of the scene of the incident in the analyzed category of cases cannot be overestimated, since during the inspection of the scene in the absence of a specialist of the appropriate profile, as a rule, not all potential material evidence is found, or many objects are seized that do not carry criminally significant information. The production of an inspection of the scene without the involvement of a specialist of the appropriate profile, along with the quite natural difficulties that an investigator (inquirer) may experience during a detailed inspection of various devices, devices, mechanisms, equipment, including dismantled, often entails an illiterate description of the technical characteristics of these objects in terms of completeness (name, serial number, purpose, serviceability or malfunction, being in working and ready for operation or disconnected at the time of inspection) and the use of special terminology^[10].

Thus, it is advisable to pay attention to whether a specialist of the appropriate profile was involved in the seizure of items during the inspection of the scene of the incident.

In addition, with the participation of a specialist in the investigative action under consideration, his competence must be confirmed.

As a conclusion, the prosecutor analyzing the protocol of the inspection of the scene of the incident, it is necessary to take into account its significance, since the recognition of the protocol as inadmissible evidence may entail the recognition as inadmissible of other evidence directly related to the production of this investigative action (for example, the conclusions of an expert who conducted a study of objects seized during the inspection of the scene).

Thus, the negligent conduct of such an investigative action as an inspection of the scene of an accident in criminal cases of illegal extraction of aquatic biological resources can significantly complicate the investigation and support of the state prosecution, since a second inspection of the scene in order to restore the data recognized as inadmissible evidence is usually impossible.

Since the protocol of inspection of the scene of the incident is characterized by a certain complexity caused by the specifics of the object of criminal encroachment, various errors may be made during its production, not only of a criminal procedural, but also of a forensic nature, the presence of which must be taken into account by the prosecutor both when analyzing the protocol itself and when comparing its contents with other case materials.