Problems of searching for persons who have fled from investigation as a factor of internal threat to national security

Khamidullin Ruslan Sibagatullovich PhD in Law Senior Lecturer of the Criminalistics Department of the V.F. Yakovlev Ural State Law University 620072, Russia, Sverdlovsk region, Yekaterinburg, Syromolotov str., 7, sq. 11 sledgsugu@mail.ru Other publications by this author

Gaskarov Il'dus Fanavievich PhD in Law Associate Professor, Department of Criminology, V.F. Yakovlev Ural State Law University 623280, Russia, Sverdlovsk region, Revda, 48 Tsvetnikov str., sq. 15 madagaskar.15@mail.ru

In this work, in accordance with the orders of the Ministry of Internal Affairs of the Russian Federation, the Federal Law "On Operational Investigative Activities" dated 08/12/1995 No. 144-FZ (hereinafter the Federal Law On ORDO), the Federal Law "On Police" dated 02/07/2011 No. 3-FZ (hereinafter the Federal Law On Police), the "Code of Criminal Procedure of the Russian Federation" from 18.12.2001 No. 174-FZ (as amended on 11/27/2023) (hereinafter referred to as the Code of Criminal Procedure of the Russian Federation) the spelling of the word "search" is carried out as follows: when naming a person, writing through "A" (wanted) when designating an activity or subdivision, then through "O" operational search activity.

One of the problems arising in the activities of the preliminary investigation bodies related to the implementation and completion of criminal investigations is the absence of the suspect, the accused at the place of investigation and the impossibility of conducting investigative and procedural actions with his participation. In this case, on the basis of Article 210 of the CPC of the Russian Federation, the investigator announces a search for the fugitive and entrusts its implementation to the bodies of inquiry, and the preliminary investigation, in accordance with Article 208 of the CPC of the Russian Federation, is suspended.

This circumstance certainly has its negative consequences.

1. Since the criminal proceedings have not been completed, the purpose of the criminal proceedings remains unfulfilled, and the rights and legitimate interests of persons and organizations affected by the crime remain unprotected.

2. Persons who have absconded from the investigation, moving to an illegal position, quite often commit crimes and carry out other illegal actions. These consequences undermine the authority of law enforcement agencies, contributing to the formation of negative public opinion and a negative assessment of the activities of both investigative and operational search units. At the same time, the investigative activity of the investigator mainly concerns the conduct of investigative actions (inspection of the place of residence, search of the home of the fugitive, interrogations of relatives) and verification measures within the framework of the proceedings in the criminal case under investigation, or the implementation of reference and analytical work on the case suspended by the proceedings. For operational search units, the search for fugitive criminals is one of the tasks assigned by the state to the bodies carrying out operational search activities (see Article 2 of the Federal Law on Internal Affairs) ^[1]. In the system of internal affairs bodies, the search for fugitive criminals is one of the main activities of the criminal investigation service. It is also necessary to indicate that the search can be carried out not only in relation to suspects and accused, but also convicted persons. "Article 18.1 of the Criminal Executive Code of the Russian Federation (hereinafter referred to as the Criminal Code of the Russian Federation) provides for search activities in relation to five categories of convicted persons:

– to penalties in the form of compulsory labor;

– correctional work;

– restrictions on freedom;

– as well as probationers;

– convicted persons with deferred punishment who evade the control of the penal enforcement inspectorate (hereinafter referred to as the UII). The announcement of the wanted list of persons sentenced to non-custodial punishments in accordance with Article 18.1 of the Criminal Code of the Russian Federation takes place on the basis of the materials of the initial search activities, which are directly conducted by the Criminal Investigation Department. For example, in the practice of the UII, the search for persons on probation looks like this:

– the search department receives materials of initial search measures for a probationer who has escaped from the control of the Criminal investigation Department, whose location has not been established for 30 days;

– the search department starts a search case directly and, according to Article 18.1 of the Criminal Code of the Russian Federation, declares him wanted. At this time, the UII, in accordance with Part 4 of Article 190 of the Criminal Code of the Russian Federation, paragraph 5 of part 1 of Article 399 and Part 2 of Article 399 of the Code of Criminal Procedure, submits to the court a submission on the cancellation of a suspended sentence and the execution of a custodial sentence imposed by a court verdict. The court, in turn, rejects it, since it cannot cancel the suspended sentence without notifying the person, who cannot be notified, since he is wanted ^[1].

We believe that an important stage preceding the announcement of a fugitive on the wanted list is the activity of the investigator to find him. In the science of criminal procedure, there are two groups of investigative actions of employees of the preliminary investigation bodies:

1) investigative actions with a search focus (inspection, interrogation, search, seizure, seizure of postal and telegraphic items, their inspection and seizure, control and recording of negotiations, obtaining information about connections between subscribers and (or) subscriber devices, appointment and production of forensic examination, etc.);

2) other procedural actions;

3) other investigative actions not provided for by the criminal procedure law ^[2].

According to the data of the GIAC of the Ministry of Internal Affairs of Russia, in recent years, the Sverdlovsk region has been experiencing a constant decrease in the number of unsolved criminals. In addition, by the end of each year, the number of wanted persons hiding from the bodies of inquiry, investigation, and court remains consistently high in the Russian Federation (Table 1).

Table 1. Persons who had escaped from the bodies of inquiry, investigation, and court were wanted (people)

One of the ways to increase the effectiveness of the search for fugitives from the investigation is, of course, the timely announcement by the investigative authorities of the fugitive and the sending of materials to the bodies of inquiry for the implementation of operational search measures that allow at an early stage to establish the location of the fugitive from the investigation (suspect or accused). First of all, this applies to criminal cases in which the perpetrators of crimes were identified, detained on suspicion of committing a crime, or who were charged and a preventive measure was chosen that was not related to arrest. The proper attitude of investigators to the performance of their duties, the control carried out by the heads of the investigative unit, for the most part, in accordance with Part 2 of Article 210 of the Code of Criminal Procedure of the Russian Federation, contribute to the announcement of fugitive suspects or accused persons on the wanted list during the preliminary investigation, without waiting for the end of its terms.

It seems that a clearer formulation of the above norm will allow the heads of investigative bodies, as well as supervising prosecutors, to require investigators to respond in a timely manner to the revealed facts indicating the intention of the suspect, the accused to hide from the investigation. In this regard, it is proposed to amend Part 2 of Article 210 of the Code of Criminal Procedure of the Russian Federation with the following wording: "If there is evidence indicating that the suspect, the accused is hiding from the investigation, the investigator immediately puts this person on the wanted list, about which he draws up an appropriate resolution and sends materials for its conduct to the body carrying out promptly- investigative activities. A search may be announced during the preliminary investigation and simultaneously with its suspension, if the grounds for this arose at the end of the preliminary investigation period."

A factor contributing to the prevention of a change in their permanent location by a person under investigation is the implementation by operational staff of investigation support and operational control measures over the actions of the person involved or brought to criminal responsibility. Conducting search and protective measures, thereby preventing the possibility of this person to change his location and find a place to hide.

We believe that such actions may need criminal procedural "support", in connection with which one of its options may be the possibility of changing the preventive measure on the basis of confirmed data on the person's intention to abscond from the investigation.

We believe that it is the complex actions of employees of investigative and operational search units that will contribute to improving the effectiveness of both preventive and investigative activities.

Along with the considered aspect, in the activities of investigative units and operational search agencies, problems arise directly related to making a decision on declaring and conducting a search for a suspect and accused. Such issues of investigative activity are constantly in the field of view of scientists: V. Y. Belitsky ^[2], T. N. Alyoshina ^[3], N. N. Gaas ^[4], V. V. Gonchar ^[5], etc.

First of all, this concerns the difficulties in determining the status of a person hiding from a preliminary investigation and the election of a preventive measure.

Quite often, persons hiding from the preliminary investigation, especially in criminal cases related to the commission of economic crimes, have financial capabilities, various movable and immovable property, "connections" in various states that allow them to change their place of residence after committing a crime, even before the start of the law enforcement response, thereby avoiding involvement in criminal liability and the application of penalties.

When declaring a wanted person hiding from the investigation, it is necessary to choose a preventive measure provided for by the criminal procedure legislation of the Russian Federation. On the basis of Part 1 of Article 108 of the Criminal Procedure Code of the Russian Federation, a preventive measure in the form of detention may be applied to a suspect or accused of committing crimes for which the criminal law provides for punishment in the form of imprisonment for a period of more than three years, by a court decision.

In cases where the suspect or the accused is hiding from the body of preliminary investigation, the adoption of a judicial decision on the election of a preventive measure is carried out in the absence of the accused. In accordance with Part 5 of Article 108 of the Criminal Procedure Code of the Russian Federation, the adoption of judicial decisions related to the election of the strictest preventive measure - detention is allowed only if the accused is declared on an international and (or) interstate wanted list.

Based on paragraph 121 of the Instructions on the organization of information support through Interpol approved by Order of the Ministry of Internal Affairs of the Russian Federation No. 786, Ministry of Justice of the Russian Federation No. 310, FSB of the Russian Federation No. 470, FSO of the Russian Federation No. 454, Federal Drug Control Service of the Russian Federation No. 333, FCS of the Russian Federation No. 971 dated 06.10.2006), the accused, hiding from the preliminary investigation, is declared internationally wanted by the resolution of the body carrying out operational investigative activities, which is issued on the basis of a decision on the search for the accused or a decision on the suspension of a preliminary investigation (inquiry) containing a search order.

According to paragraph 114 of the specified Instruction, an international search for persons is announced only if, as a result of investigative actions and operational search measures:

1. Data on the departure of the wanted person outside the Russian Federation has been obtained;
2. The family, friendly and other ties of the wanted person outside the Russian Federation have been reliably established;
3.  Reliable information has been received about the intention of the wanted person to leave the Russian Federation for business or other purposes.

In addition, if there is confirmed information about the departure of the wanted person from the Russian Federation, the international wanted list is announced immediately, simultaneously with the announcement of the federal wanted list (paragraph 115 of the specified Instruction).

The investigator, having received a copy of the decision to declare a person on the international wanted list, applies to the court in accordance with part 5 of Article 108 of the Criminal Procedure Code of the Russian Federation in order to obtain a court decision on the election of a preventive measure in the form of detention in respect of a person hiding from the investigation, taken in the absence of the accused.

However, when declaring persons hiding from the investigation on an international or interstate wanted list, in the practical activities of the investigative bodies there are situations in which the court refuses to satisfy the petitions for the election of a preventive measure in the form of detention to persons to whom this preventive measure is chosen in absentia. At the same time, the court refers to the lack of a procedure for charging a person against whom criminal prosecution is being carried out, considering that this person is not familiar with the decision to bring as an accused and cannot know about criminal prosecution against himself. Meanwhile, a person receives the status of an accused from the moment the decision is made to bring him as an accused, and not from the moment the charge is brought, which, in accordance with Article 172 of the Code of Criminal Procedure of the Russian Federation, can be postponed until the actual appearance of the accused or his drive.

Moreover, in one of the cases under consideration, the decision on the application of a preventive measure in the form of detention in relation to a person hiding from the investigation (a decision on bringing in as an accused of committing a crime under Part 4 of Article 159 of the Criminal Code of the Russian Federation, which was issued in absentia and not announced) the prosecution party, the court was presented with correspondence with the accused, in which it was about bringing a person as an accused, the court refused to choose a preventive measure in the form of detention. The higher regional court considering the prosecutor's appeal in this case left it without satisfaction, as a result of which the NCB of Interpol decided to refuse to declare the accused on the international wanted list.

The issue of the search for foreign citizens who have committed crimes on the territory of the Russian Federation requires special mention. The number of crimes committed by foreign citizens on the territory of our state is increasing. It should be noted that most of these crimes are committed by citizens of the member countries of the Commonwealth of Independent States (hereinafter CIS), whose location is established through the interstate search and which is a complex of operational search, search, information and analytical and other activities of the Ministries of Internal Affairs carried out in accordance with international agreements and national legislation. Detection for the purpose of subsequent arrest or provision of information on all categories of wanted persons located outside the State initiator of the search, but within the territory of the CIS member states is carried out on the basis of the "Instructions on the unified procedure for the interstate search of persons. (Approved at the meeting of the Council of Ministers of Internal Affairs of the CIS dated 09/06/2007).

It is worth noting that some feature of the effective search for persons in cases of illicit trafficking in narcotic drugs and psychotropic substances, employees of search units should have as much information as possible about the person being searched, his connections (usually from among drug addicts), inclinations, mental characteristics, behavior, methods of concealment, etc. ^[7].

At the same time, when these persons are put on the wanted list, the problem of choosing a preventive measure in the form of detention also arises in the activities of the investigative bodies. Despite the fact that some of the wanted persons are accused of committing serious and especially serious crimes, a preventive measure has been chosen against them that is not related to detention. Obviously, this does not contribute to the establishment of their location, detention and prosecution, and moreover, creates the possibility of their committing other crimes.

Units authorized to carry out operational investigative activities in the process of establishing the location of the wanted person and his detention can receive criminally significant information for a criminal case, which is used in the process of proving the guilt of fugitives, by declassifying and using the results of operational investigative activities in criminal proceedings ^[8].

These aspects are not so widespread, the current situation certainly does not fully contribute to the implementation of the purpose of criminal proceedings and the solution of tasks within the framework of the State's policy in the field of combating crime.

No less acute is the problem faced by both investigative bodies and operational search services when putting on the wanted list persons accused of committing crimes of small and medium gravity. As we indicated above, detention as a preventive measure against a suspect or accused who has escaped from the investigation may be chosen when he commits a crime for which the criminal law provides for punishment in the form of imprisonment for a period of more than three years. When wanted persons accused of committing crimes of small and medium gravity are found, even within the Russian Federation, but at a considerable distance from the region in which the criminal case is being investigated, the question arises of detaining and bringing the person to an official of the investigative body. In such cases, the body that discovered the wanted person in accordance with paragraph 4, part 2 of Article 14 of the Federal Law "On Police" has the right to detain wanted persons before transferring them to the relevant authorities, institutions or officials of these bodies and institutions. However, the staging of these persons is impossible due to the lack of a preventive measure in the form of detention, and the departure of the staff of the operational search unit to remote regions to deliver the detainee to the initiators of the search in some cases is not resolved in a timely manner, in connection with which the detained person is released and in a criminal case after the resumption of the investigation, it again becomes necessary to make a decision on suspension of the preliminary investigation.

An analysis of the data on the election of a preventive measure in the form of detention in relation to fugitive criminals indicates that this preventive measure is mainly applied by judicial authorities in relation to criminals who have absconded from court and to a much lesser extent in relation to criminals who have absconded from the investigation. This state of affairs, of course, does not allow us to draw a conclusion about the corporate approach of the judicial authorities to resolving the issue of choosing a preventive measure, which in each case is resolved taking into account a number of established circumstances provided for by criminal procedure legislation. In addition, the implementation of criminal policy by the relevant law enforcement agencies requires a comprehensive solution to this problem.

However, in addition to potential errors and privacy violations, there are other problems associated with using facial recognition software. For example, such systems can be deceived by masks or other methods of changing appearance. This can allow criminals to hide their identity and avoid recognition. Using facial recognition software can create misconceptions about security. People may rely on such systems and not take the necessary precautions, such as using strong passwords or protecting their personal data.

It is also worth considering the possibility of abuse of such systems by law enforcement agencies or other organizations. For example, facial recognition systems can be used for mass surveillance and control of citizens, which can lead to violations of their rights and freedoms.

Using facial recognition software has its advantages, but it also comes with a number of challenges and risks. It is necessary to balance the potential benefits and possible negative consequences when implementing such systems. It is important to develop strict rules and laws governing the use of such software, as well as to ensure transparency and protection of citizens' rights ^[9].

The second problem, which negatively affects the effectiveness of the search for persons hiding from the bodies of inquiry and investigation, is the simplified procedure for acquiring citizenship of foreign states. Some countries, such as the Republic of Armenia or the Republic of Azerbaijan, allow you to obtain citizenship simply by submitting an application and providing a passport confirming the existence of another citizenship, including citizenship of the Russian Federation. At the same time, such a person remains a citizen of Russia from a legal point of view. However, the process of renouncing Russian citizenship is a complex and lengthy procedure that requires significant time and financial costs, and attackers are not interested in it.

As a result, there are a certain number of wanted persons who do not hide and live at their permanent registration addresses, being citizens of the countries where they are located. The extradition of such persons is excluded due to the presence of poly-citizenship, that is, citizenship other than Russian. As a result, the internal affairs bodies of the Russian Federation refuse to extradite accused Russian citizens by such countries as Azerbaijan, Armenia, Germany, Georgia, Israel, Spain, Canada, the USA, Ukraine, France. Law enforcement agencies of the CIS countries also face similar problems ^[10]

From the point of view of modern criminal prosecution, the PRC focuses its international cooperation on four types of mechanisms in the Asia-Pacific region (APR) in the field of combating corruption. In particular, China applies the United Nations Convention against Corruption, the Beijing Anti-Corruption Declaration and other multilateral treaties, as well as concluded bilateral agreements with the Asia-Pacific States. There are four main types of international cooperation:

1) Mechanisms of cooperation with the United Nations on the basis of the United Nations Convention against Corruption and other multilateral treaties;

2) Mechanisms of cooperation with other foreign organizations, such as the International Criminal Police Organization, focused on solving practical problems;

3) Interregional interstate cooperation, for example, APEC Internet cooperation in the implementation of anti-corruption legislation;

4) Bilateral interstate cooperation, including cooperation agreements between the two countries. China is active at all these levels and is striving to improve them in order to effectively combat corruption.

This regulatory framework gives China the opportunity to effectively search for criminals who have escaped from the investigation and extradite them ^{[11; 12; 13; 14]}.

For example, in December 2021, the internal affairs bodies of the Russian Federation faced a gross violation of international law. The Republic of Armenia refused to extradite a citizen of the Russian Federation, P., who was on the interstate wanted list and was accused of committing a particularly serious crime. At the same time, P. did not have citizenship of other countries, including the country of refusal. This case is the result of political events that are taking place on the world stage and have an impact on all areas of international relations, including criminal proceedings ^[15].

We believe that this example of legal nihilism will be an isolated one. Nevertheless, this fact indicates the need for further improvement of the legal regulation of cooperation between countries in the implementation of international (interstate) search.

It should be noted that if there are several suspects (accused) in a criminal case, if only one of them evaded the investigation, then his criminal case is allocated to a separate proceeding. At the same time, the terms of the preliminary investigation in this highlighted criminal case are calculated taking into account the terms of the main case from which it was isolated. As for other suspects (accused), the preliminary investigation against them is conducted in accordance with the general rules ^[16].

In the situation under consideration, where a person, being outside the place of investigation as a result of detention within the framework of the Federal Law "On Police", finds himself outside the delivery area to the investigator, there is a need for a clear definition of the legal grounds for this process. For example, taking into account that the period of detention of such persons is 48 hours, which is permissible under normal conditions for their delivery, in winter conditions, when weather conditions change and it is impossible to use air or rail transport in the southern direction of the Russian Federation, there is a possibility that this period will expire before the person is delivered to the investigator, which is confirmed by observations in real practice. In such situations, without a reliable possibility of actual delivery, there are no grounds for the bodies of inquiry to use physical means or other methods of restricting the freedom of a detained person, otherwise their actions may be qualified as abuse of official authority, which will be subjected to an immediate legal assessment by the investigators of the Investigative Committee or the prosecutor. The question arises: how to act in this situation? In practice, there are two ways to solve this problem. 1) When establishing the location of the wanted person, the investigator is put forward on a business trip with the body of inquiry and makes a decision on the resumption of the investigation, and the head of the investigative body - on the creation or change of the composition of the investigative group. Upon arrival at the location of the wanted person, the investigator, if there are grounds, draws up a protocol of detention and introduces the detainee to the decisions issued. If it is impossible to apply to the court for the election of a preventive measure before the expiration of 8 hours provided for by law, the investigator at the place of investigation applies to the court with a petition to initiate a petition for the election of a preventive measure, motivating the possibility of extending the period of detention by 72 hours. 2) The second method (rarely used) is that the investigator can send an order to the investigative unit at the place of actual detection of the wanted person for detention in accordance with the CPC of the Russian Federation ^[17].

Due to the adoption of the Federal Law "On Operational Investigative Activities" in recent years, many aspects of operational work have been systematized, which in general should be evaluated positively. However, it should be noted that in some cases there was excessive regulation and bureaucratization in the form of accompanying the process of operational investigative activities with a large number of documents, sometimes of a formal nature (for example, when conducting operational activities to record the actions of drug traffickers, each action of police officers is accompanied by the compilation of 10 to 20 documents). However, in the case of a wanted list, this was avoided. For example, previously existing regulatory legal acts regulating investigative activities prescribed a certain number of mandatory actions when preparing documents for a wanted list. Currently, these duties are assigned to officials, including checking records to identify wanted persons, issuing search orders to bodies of inquiry and performing other procedural actions ^[18].

The problem of finding criminals who have escaped from the investigation is relevant at the stage of the preliminary investigation. Solving this problem requires the development of algorithms for the actions of law enforcement agencies, as well as the study, definition and legislative regulation of such concepts as the activities of an investigator to search for fugitive defendants, investigative activities before and after the suspension of the preliminary investigation, as well as practical recommendations for improving this activity. This study will provide methodological support and assistance to investigators and employees of the bodies of inquiry in developing an algorithm of actions to prevent evasion and put suspects on the wanted list at different stages of the investigation of crimes.

The problems discussed in this article and the proposed solutions are a recommendation for persons whose official duties include searching for persons who have disappeared from the bodies of inquiry, investigation and court. Depending on the current operational or investigative situation, the algorithms of actions of law enforcement officers may change and be optimized. Specifically, in difficult situations related to the wanted list of a person hiding from the investigation, it is necessary to take into account his characteristics, socio-economic condition, the severity of the charge and the possibility of choosing a preventive measure against him in the form of incarceration.