On the Question of the Specifics of the Investigative Actions with Minors in the Investigation of Crimes

Gritsaev Sergei Ivanovich PhD in Law Associate Professor, Department of Criminology, Kuban State Agrarian University named after I.T. Trubilin 350044, Russia, Krasnodar Territory, Krasnodar, Kalinina str., 13 grizaevserg@mail.ru Other publications by this author     Stepanenko Sergei Grigor'evich PhD in History Associate Professor, Department of Sociology, Law and Human Resources, Kuban State Technological University 350002, Russia, Krasnodar Territory, Krasnodar, Moskovskaya str., 2 stepik71@mail.ru Zhukova Polina Stanislavovna Student, Faculty of Law, Kuban State Agrarian University named after I.T. Trubilin 350004, Russia, Krasnodar Territory, Krasnodar, Kalinina str., 13 polina-zhukova-01@inbox.ru

Chiriev Il'ya Sergeevich Student, Faculty of Law, Kuban State Agrarian University named after I.T. Trubilin 350004, Russia, Krasnodar Territory, Krasnodar, Kalinina str., 13 chirev.2001@mail.ru

Minors, being a special social categorical group, have many peculiarities of development and behavior that should be taken into account in all spheres of public life, including with their participation in criminal proceedings. It is well known that due to the specifics of physical, mental, psychological and mental qualities, they cannot fully consciously dispose of their rights, as well as defend and defend their legitimate interests. It is this feature that is the reason for the increased attention of the state to the issue of protecting the rights of minors. In this regard, at the legislative level, guarantees are provided for the observance of the rights of this category of persons in criminal proceedings both in general and during investigative actions in particular ^[1].

Let's pay attention to the situations in which it is possible for a minor to participate in investigative actions. Thus, according to the current criminal procedure law, the investigator or inquirer is not limited in the choice of investigative actions in which the participation of a minor (subject to the fulfillment of special requirements of the law) will be considered legitimate. In other words, the criminal procedure legislation does not provide for a ban on the production of any specific investigative action involving a minor ^{[2, p.125]}.

It should be noted that the legislator has provided for some features of conducting separate investigative actions with the participation of minors, which the investigator or inquirer must strictly observe, ensuring the conditions prescribed by law.

To begin with, we note the groups of minors that are distinguished in the criminal procedure legislation:

1. By age, minors are classified into the following categories: a) persons under the age of 7 years; b) persons aged 7 to 14 years; c) persons aged 14 to 16 years; d) persons aged 16 to 18 years; e) persons aged 16 to 18 years suffering from a mental disorder or lagging behind in mental development.

2. Depending on the legal status, the following groups of minors are distinguished: a) victims; b) witnesses; c) accused; d) suspects. It is worth noting that minor victims and witnesses can have any age up to 18 years, and minor defendants and suspects are only the age from which criminal responsibility for the act they committed, provided for by a special part of the Criminal Code of the Russian Federation, begins.

For each of these groups of minors, in the case of their participation in the investigative action, the law defines mandatory prescriptions. The reform of the legal regulation of the participation of a minor in investigative actions took place in 2013 ^[3]. Previously, in Article 191 of the Criminal Procedure Code of the Russian Federation, the legislator considered the specifics of the participation of a minor only in interrogation. Currently, the legislator has identified four investigative actions, during which it is necessary to provide additional guarantees for the protection of the rights and legitimate interests of a minor: interrogation, confrontation, identification, verification of testimony on the spot (Part 1 of Article 191 of the Criminal Procedure Code of the Russian Federation). In addition, the novelty was that the legislator specified the duration of the interrogation and determined the duration of the mandatory break, depending on the age of the minor, and also indicated a possible alternative to the teacher as a mandatory participant in this investigative action – a psychologist.

In Part 5 of Article 191 of the Criminal Procedure Code of the Russian Federation, the legislator, as an additional guarantee of the protection of the rights of a minor, provided for the mandatory use of video recordings during investigative actions. Based on the results of studying the materials of judicial practice, we came to the conclusion that one of the grounds for appealing the verdict in the courts of appeal and cassation instance is non-compliance with the requirements of this part of Article 191 of the Code of Criminal Procedure of the Russian Federation. For example, the Judicial Board for Military Personnel of the Supreme Court of the Russian Federation considered an appeal, in which the applicant considered a violation of the requirements of Part 5 of Article 191 of the Criminal Procedure Code of the Russian Federation as one of the grounds for the cancellation of the sentence ^[4]. The Court, having considered this argument, noted that the testimony of the minor R., which is included in the evidence base of the indictment, is legitimate due to the fact that the case file contains a statement by the legal representative of the minor R. that she objects to the videotaping during the interrogation of his son. We consider it necessary to note that it is important for the subjects of the preliminary investigation to strictly comply with the requirements of the criminal procedure legislation regarding the need for video filming during investigative actions (interrogation, confrontation, presentation for identification and verification of testimony) with the participation of minors, since their non-compliance entails the insignificance of the evidence obtained during the preliminary investigation.

In our opinion, it is also necessary to pay attention to such a problem of the current criminal procedure legislation as the regulation of the specifics of conducting other investigative actions (except for interrogation, confrontation, presentation for identification and verification of testimony on the spot). It is expressed in the fact that the legislation regulates the participation of minors in these actions on a general basis. In our opinion, the position of the legislator is not correct.

Of course, the legislator's allocation of interrogation, confrontation, presentation for identification and verification of testimony on the spot has its own explanation. All these investigative actions are united by the fact that all of them, to one degree or another, involve verbal communication between the investigator and the minor in order to obtain evidence and other information. The special requirements of the legislator to conduct these investigative actions with the participation of minors are included in the criminal procedure legislation in order to guarantee the protection of their rights and legitimate interests, as well as in order to minimize harm to their mental health ^[5]. However, the question arises: does a minor really not need additional guarantees aimed at protecting his rights during the production of, for example, an investigative experiment or an examination? We believe that the legislator should definitely expand the guarantees of protection of the rights and interests of minors when they participate in investigative actions by amending Article 191 of the Criminal Procedure Code of the Russian Federation. This article, in our opinion, should indicate that all investigative actions involving a minor are subject to video recording.

It should also be recognized as a problem that the legislator does not clearly regulate in which cases the investigator or inquirer should involve a psychologist in the investigative action, and in which cases – a teacher. They are presented with an alternative, the choice of which is carried out by the person conducting the preliminary investigation (inquiry). Federal legislation currently does not contain any formal guidelines that an investigator (inquirer) should be guided by when making this choice. Hence the question arises: to what extent are the psychologist and the teacher interchangeable specialists and is it correct that the legislator prescribes the mandatory participation of only one of them? This discussion in the scientific community has been conducted since the adoption of the current Code of Criminal Procedure of the Russian Federation in 2001 and continues to this day ^{[6, p. 91; 7, p. 116-117]}, when, in Part 3 of Article 425 of the Code of Criminal Procedure, the legislator fixed the mandatory participation of a psychologist or teacher during the interrogation of a minor suspect or accused under the age of 16 or who has reached the age of 16, but has a mental disorder or is mentally retarded. As for the interrogation of a minor as a witness or victim, the alternative in choosing a psychologist or a teacher was introduced in 2013, before that only a teacher was involved.

From the point of view of A.N. Bychkov, a teacher and a psychologist are different specialists whose participation in investigative actions is mediated by different goals. Thus, it is noted that when conducting investigative actions, it is advisable to involve a teacher, not a psychologist ^{[8, p. 7]}. His participation is aimed at compensating for age-related insufficiency in mental and psychological development. The participation of a psychologist is connected with the study of the personality of a minor, the definition of the simulation of certain deviations.

S.V. Surmeneva also believes that the participation of a psychologist in an investigative action is aimed at providing psychological assistance to a minor who participates in an investigative action ^{[9, p. 11]}.

Let us clarify the goals of attracting these specialists in conducting investigative actions against minors. A teacher and a psychologist, acting as specialists in the field of age psychology (child, adolescent), assist the investigator (inquirer):

1) in establishing optimal conditions for communication and interaction with a minor participant in the criminal process (determining the characteristics of the mental development of a minor and taking them into account when determining the tactics of the investigative action; establishing psychological (communicative) contact between the investigator and the minor, etc.);

2) helps in the course of the investigative action, participating in the regulation of the tactics of its conduct, taking into account the age and personal characteristics of the minor (lack of formation of the conceptual sphere of the minor; less perception and long-term memory, etc.);

3) using their knowledge, they ensure that an investigative action is carried out without unnecessary negative impact and trauma to the psyche of a minor ^{[10, p. 19-20]}.

It is noteworthy that in these cases we are talking about the use of both pedagogical (for example, not to focus the consciousness of a minor on facts that may have a negative impact on his upbringing) and psychological techniques (questions about the event that occurred, which have a negative impact on the psyche of a minor, must be alternated with neutral questions, as well as questions that cause him positive emotions ^{[11, p. 166]}).

Based on a systematic analysis of the norms of the current Code of Criminal Procedure of the Russian Federation, it should be concluded that the legislator distinguishes between the activities of a psychologist and a teacher. Confirmation of this conclusion is also a direct indication in Part 4 of Article 191 of the Criminal Procedure Code of the Russian Federation that during the interrogation of a minor witness or victim in the investigation of a criminal case of a crime against sexual integrity, the participation of a psychologist is mandatory, but the teacher's participation is not fixed. Thus, we see that there is a gap in the legislation concerning the legal regulation of cases in which a teacher should be invited, and in which a psychologist, as well as cases when both must participate.

In addition, it is noteworthy that the legislator singles out minors suffering from a mental disorder or retarded in mental development. The concept of "mental disorder" is voluminous and has, in addition to medicine (psychiatry), outlets in the most diverse planes of its application – law, sociology, psychology, pedagogy and others ^[12]. Thus, the analysis of Part 1 of Article 21 of the Criminal Code of the Russian Federation allows us to conclude that the legislator identifies the following types of mental disorders: 1) chronic mental disorders; 2) temporary mental disorders; 3) dementia; 4) other painful mental states. The list of mental disorders is contained in ICD 10-the International Classification of Diseases of the 10th revision, as a class: mental disorders and behavioral disorders (F00-F99), including the following blocks: organic, including symptomatic, mental disorders; mental disorders and behavioral disorders associated with the use of psychoactive substances; schizophrenia, schizotypal and delusional disorders; mood disorders (affective disorders); neurotic, stress-related, and somatoform disorders; behavioral syndromes associated with physiological disorders and physical factors; personality and behavior disorders in adulthood; mental retardation; psychological development disorders; emotional disorders, behavior disorders, usually beginning in childhood and adolescence; unspecified mental disorders ^[13]. This classification was introduced into the practice of domestic psychiatry in 1999 ^[14]. The analysis of the mental disorders contained in it allows us to conclude that most of them are "... all types of psychiatric pathology encountered in life – chronic, acute, temporary, etc." ^[15]. Age psychology (child psychology, youth psychology) – studies the patterns of development of the psyche of a normal healthy person ^{[16, p. 11]}. Mental retardation is mental retardation unrelated to mental illness, the result of pedagogical neglect, i.e. not implementing the necessary amount of actions for the education and upbringing of a minor ^{[17, pp. 131, 138-139]}. The object of research during the forensic psychological examination in relation to minors is a minor who does not suffer from a mental disorder ^[18]. Consequently, a psychiatrist is a specialist in the field of mental disorders and it is his presence that is necessary when conducting an investigative action with the participation of minors suffering from a mental disorder, and if the lag in mental development is due to pedagogical neglect, then it is a psychologist or a teacher.

Summing up the above, we note that we have identified the incompleteness and inconsistency of the legal regulation of the production of investigative actions against minors in the investigation of crimes. Firstly, we believe that the legislator should specify in Article 191 of the Criminal Procedure Code of the Russian Federation that during any investigative action involving a minor, video filming is mandatory. Secondly, when conducting a preliminary investigation, it is important to strictly observe the specifics of conducting investigative actions with the participation of minors, since any deviation from the procedure of their production is a serious violation and leads to negative consequences that hinder the establishment of the truth in a criminal case. Thirdly, we have discovered a significant problem, which is expressed in the absence of a clear legal regulation of cases in which the participation of a psychologist, a teacher or both specialists is necessary, since the legislator indirectly notes the difference in their competence. In addition, we believe that in investigative actions involving minors suffering from a mental disorder, the presence of a psychiatrist is mandatory. In our opinion, the right direction in solving this problem would be to consolidate the mandatory participation of a teacher or psychologist in the production of an investigative action against a minor, regardless of the type of crime, indicating that it is also possible to simultaneously participate in the investigative action of both specialists.