Proving in cases of fraud committed in the way "Your relative got into trouble"

Revenko Natal'ya Ivanovna PhD in Law Associate Professor; Department of Criminal Procedure and Criminalistics; Omsk State University named after F.M. Dostoevsky 644099, Russia, Omsk region, Omsk, Krasina str., 2, sq. 40 revenko.ni@mail.ru Other publications by this author

Preventive work to prevent remote fraud, including in relation to the elderly, has certainly led to certain positive results. In particular, elderly people do not answer cell phone calls from unfamiliar numbers, do not use online banking. However, scammers, knowing these features of the behavior of older people, began to commit crimes taking into account this information. In particular, at present, older people are increasingly becoming victims of fraudsters who commit crimes in the way "Your relative is in trouble." By implementing this method, criminals call elderly people on a landline phone, convince them to transfer money to a courier, and not transfer it through an online bank.

Obviously, this method of fraud can only be implemented by a group of people with a distribution of roles. Thus, the organizers and perpetrators of the crime communicate with the victims remotely, posing as employees of various, including law enforcement agencies, and, as a result, they themselves cannot take cash from the victims. To implement a criminal plan, a courier is certainly involved in the criminal group, whose task is to take cash from the deceived victims and transfer it to the bank account indicated to him.

In this regard, when investigating this method of fraud, the investigator is faced with the task of collecting the necessary set of evidence indicating the commission of a crime by a group of persons in complicity, which is complicated by the fact that it is currently not possible to identify all participants in the crime. The use of IP technologies by scammers when making calls, and communication between group members through the closed Telegram messenger leads to the fact that only a fraudulent courier is brought to criminal responsibility in cases of this category. The identity of the organizers and other members of the criminal group has not been established. N. V. Shepel notes that "the investigation of fraudulent crimes committed using cellular communications and the Internet requires officials who carry it out an in-depth analysis of schemes and methods of committing such crimes and, at the same time, an individual approach to each identified fact of fraud of this kind, as well as the use of special knowledge in the field of information technology-telecommunication technologies" ^{[1, p. 87]}.

The issues of proof in fraud cases were studied by A. K. Shcherbachenko ^[2], V. V. Solovyov ^[3], A.V. Agutin, E. Z. Troshkin ^[4], D. I. Urakov ^[5], however, the authors did not consider the question of proving the form of complicity in fraud cases committed in the way "Your relative got in trouble."

In accordance with Article 32 of the Criminal Code of the Russian Federation, the intentional joint participation of two or more persons in the commission of an intentional crime is recognized as complicity in a crime. The fact of fraud by a group of persons is confirmed by a certain set of evidence. First of all, these are the testimonies of the victims, who during the interrogation tell in detail about how they became victims of fraud. In many cases, victims inform the investigator that two people called. One of them introduced himself as an investigator or prosecutor. The second caller to the victim is allegedly a close relative. In this situation, knowing the criminalistic characteristics of the identity of the scammers ^{[6, p. 232]}, it would be possible to put forward a version that the same person communicated with the victim. However, in practice, there are situations when the conversation was conducted by a man as a representative of law enforcement agencies and a woman who spoke on behalf of an allegedly close relative who was involved in a traffic accident and in need of financial assistance. For example, the victim in the criminal case explained that "I heard a woman's voice on the phone, the woman was crying and calling her mom, saying that it was her daughter who had an accident. After that, a man began to talk to her" [Verdict of the Kirovsky District Court of Tomsk dated 12/29/2023 in case no. 1-104/2023 // Judicial and regulatory acts of the Russian Federation. – URL: https://sudact.ru/regular/doc/c08euDEapBN0/].

Also, the presence of two or more persons in the criminal group is evidenced by the fact that fraudsters ask the victim to transfer money to the courier, calling his name and agreeing on the time. The name of the fraudulent courier is obviously fictitious, but the person to whom the victims transfer the money appears to be this name. The evidence of the commission of a crime by two or more persons is also the testimony of witnesses.

The evidence also includes the testimony of a detained fraudster courier, who is being interrogated as a suspect. As practice shows, in most cases couriers give confessions, tell in detail about how they were involved in a criminal group and about its criminal activities. According to the materials of criminal cases, in their testimony, couriers talk about the mechanism of their involvement in a criminal group, for which the Telegram messenger is most often used. Through this resource, communication takes place with the curator, who accompanies the courier when committing several crimes. The curator informs the addresses of the victims; gives the name to whom it is necessary to introduce himself; the amount to be transferred to the fraudulent courier, and also informs the amount of stolen funds, which must be transferred to other members of the criminal group.

Important material traces for proving the joint actions of scammers are traces preserved in the cell phone of the fraudster courier ^{[7, p. 65]}, which allow you to obtain data on contacts with the curators of the criminal group, about the fraudster calling a taxi to travel to the victim's place of residence and back, as a rule, to a shopping center, a bank branch, where there is an ATM for transferring stolen money to other members of the criminal group. The group of traces under consideration includes data from a bank card issued to one of the accomplices of the crime, where the courier transfers the stolen funds, and data on a bank transfer operation of a certain amount of money, which corresponds to the amount stolen from the victims minus an average of 5-10%, which are deducted to pay for the criminal actions of the courier.

The totality of the above traces makes it possible to prove the existence of an agreement on the distribution of roles in order to carry out the crime. Fraudsters in charge of the crime clearly indicate the actions to be performed by persons calling victims by phone, and the actions to be performed by a fraudulent courier. The latter is given detailed instructions, including the names of the victims; the name that the courier himself should be named; the amount of money to be stolen; the amount of monetary compensation to the courier, which he can take for himself after the commission of the crime; bank details, where the stolen money must be transferred immediately after the commission of the crime.

It should be emphasized that the roles in the criminal group are not only distributed, but also quite detailed instructions are given with specific step-by-step actions that the fraudster courier must perform; recommendations are given on the behavior of the courier at the time of communication with the victims.

Thus, the totality of the listed evidence, when properly collected and recorded, makes it possible to obtain a sufficient evidence base and qualify crimes as committed by a group of persons by prior agreement.

A. A. Bessonov notes, "success in countering cybercrime is based on the timely identification of specific crimes, the establishment of all the circumstances and the perpetrators ..." ^{[8, p. 111]}. The use of the Telegram messenger by criminals, as a rule, does not allow law enforcement agencies to identify all members of the criminal group ^{[9, p. 36]}. This issue, which is partly in the plane of moral categories, must find its constructive solution, since, appealing to the categories of "personal freedom", "confidentiality", etc., it is impossible to directly or indirectly prevent the triumph of the law, the possibility of searching and detaining the organizers and members of organized criminal groups, whose victims regularly become throughout the country hundreds of thousands of citizens. Moreover, a large percentage of victims are elderly people, whose protection the state should pay special attention to.

Currently, the inability to identify the organizers and perpetrators of crimes committed remotely during the investigation leads to difficulties in determining and proving by the investigator the form of complicity in the crime. An analysis of the practice of investigating such crimes shows that in most cases the investigator and the court come to the conclusion that the crimes were committed by a group of persons by prior agreement. However, there is every reason to believe that these crimes can be classified as committed by an organized group.

The correctness of the qualification, as N. K. Semerneva rightly notes, "means first of all the triumph of the principles enshrined in the criminal law: legality, equality of citizens before the law, personal individual responsibility, justice" ^{[10, p. 16]}. The qualification of a crime is closely related to the type and amount of punishment.

Currently, an analysis of judicial practice indicates that when assigning criminal penalties to fraudulent couriers, their role in the criminal group is insufficiently taken into account, and the latter is not defined as "organized". As a result, the court's assessment of the severity of the courier's criminal act is not fully justified, which leads to their conviction for relatively short terms of imprisonment.

In fact, when committing a crime, a fraudster courier plays a key role in it - he directly takes money and personally contacts the victims, perfectly understanding their age and the corresponding state of health. In this regard, this member of the group receives, in our opinion, a punishment disproportionate to the severity of the crime committed. Provided that the organizers and other members of the criminal group, as a rule, are not detained, this leads to the fact that all efforts to prevent this type of crime do not have a positive effect ^{[11, p. 21]}. This negates the efforts of the entire law enforcement system to prevent and prevent this type of remote fraud. Moreover, the disproportionate punishment of the severity of the crime entails a high percentage of recidivism of persons convicted of committing fraud in this way.

It should be taken into account that the severity of the crime committed by fraudulent couriers is determined by the significant amounts of money that they steal from elderly, often infirm and lonely people, for whom the consequences of emotional shock obviously negatively affect their health. The court practically does not take this aspect into account when determining the type and amount of punishment for couriers. At the same time, the characteristics of fraudulent couriers are very contradictory, which are taken into account by the court when mitigating punishment. In particular, the court takes into account the positive characteristics of the place of residence, etc., which clearly contradicts their real behavior, when a fraudulent courier can consciously and systematically steal large amounts of money (it is possible that the last savings) from infirm elderly people within one day.

The results of the study allow us to conclude that the complex of material and ideal traces remaining after the commission of fraud in the way "Your relative got into trouble", with proper collection, verification and fixation, will allow the investigator to ensure proof that the crime was committed by a group of persons by prior agreement.

Special attention is required to assess the criminal activity of one of the accomplices – a fraudulent courier, who, as a rule, is given a minor punishment, despite the fact that he plays a decisive role in the commission and immediate completion of the crime, namely the theft of cash from the victims. These criminal acts committed in a group of persons by prior agreement should receive an appropriate legal assessment when the court appoints the type and amount of punishment.

Solving a set of issues related to collecting evidence about the actions of a criminal group, including when it is possible to obtain information from the Telegram messenger and other closed Internet resources, will make it possible to more accurately qualify fraud committed either by a group of persons by prior agreement or by an organized criminal group. This is extremely important, firstly, from the point of view of bringing to criminal responsibility all members of the criminal group and, secondly, for a more accurate qualification and determination of the severity of the crimes committed. As a result, it will be possible to more accurately determine the type and amount of punishment for crimes committed by fraudsters, increase the effectiveness of the fight and the preventive effect of the law enforcement system.