Vasiliy Polivanjuk
Crime-research.org
Crimes' Criminalistics Characteristic
The state banking system, which is connected with accumulation, distribution and usage of governmental and private funds, is very attractive for criminals and organized criminal groups. Many various financial swindles are committed now in the given system, more often – in the process of different operations. The international payment systems are widely used.
High rate of criminalization of the banking system (in this sphere almost 3.1 thousand crimes are revealed during 2002) cause especial concern to the law enforcement agencies. According to Ukraine National Bank, almost every third Ukrainian bank is problematic for today. The banking system has turned into central link of technological chain of laundering funds, which were obtained in a criminal way. Three hundred and fifty-seven bank officials including 54 managers of banking establishments are made answerable for committing mercenary crimes directly in the banks.
Crimes, which are committed in the banking system or by using it, can be referred to the most dangerous financial offences because their negative influence is reflected not only on the activity of the bank itself but also on other subjects of the state economical and financial system as a whole.
Sums, which are drawn from banking accounts both of depositors and resources of the banks themselves by using computer systems, reach especially great sizes. Such crimes include those with corpus delict provided by Ukraine Criminal Code in Articles 190 “Fraud”, 200 “Illegal actions with transfer documents, plastic cards and other means of access to banking accounts, as well as equipment for their manufacture”, 361 “Illegal disturbance of work of electronic computers, systems and computer networks”, 362 “Stealing, appropriation, extortion of computer information or its possession by swindling or abusing official position”, 363 “Violation of rules of using automatic computer system”.
Now home criminalistics science has no data to define main elements of criminological characteristic of computer crimes committed in the banking system.
Researches show that 55% of interrogated persons have no idea about these categories, 39% - derived some knowledge in criminalistical characteristic of persons predisposed to committing computer crimes from unscientific sources, 66% - from mass media, 28% - from films and video (as a rule made abroad). It should be noted that responders were graduating students from Ukraine MIA (Ministry of internal affairs) institutes, who must have scientific information on what they will come across in their practical work. Such a situation cannot be considered positive. Therefore, it is necessary to resolve the problem of criminalistical characteristic of the given kind of criminal delinquents from the scientific and practical points of view.
The development of investigation methods is closely connected with generalization and analysis of materials of inquiry practice – the main source of working out methodical regulations and recommendations. Study of the practice of investigating some crimes in the making of criminalistics allowed establishing some general and important signs.
The first manual on criminalistics (I. Yakimov, Criminalistics. – M., 1929) elucidates some regulations, which characterize separate kinds of crimes and persons committing them, before taking up questions concerning the investigation technique. For example, the chapter about robbery and gangsterism investigation examines “modern kinds of these crimes”^; the chapter about fraud investigation – “ways of committing frauds” and so on. However, this information was not full and sufficiently systematized at that time.
The development of theoretical bases of investigation technique, extension of inquiry practice analysis, as well as up-to-date ways and means of investigating the whole complex of general crimes, allow the investigation to assume a system character. Further developments in this direction resulted in defining “criminalistical characteristic of crimes”, determining its contents (1, 29-30), and later on – made an important theoretical conception.
O. Kolesnichenko and V. Konovalov say that the independent theme of “Criminalistical characteristic of crimes” (2, 7), which is elucidated now in every manual on criminalistics, was introduced into the program “Criminalistics” (for Law Institutes and Universities) in 1984. It should be noted that the term “criminalistical characteristic of crimes” as to the subject of methods of investigating crimes appears in the theoretical, methodical and educational literature on criminalistics (3, 95).
G. Matusovskiy says that constant development of criminalistical characteristic of crimes is “explained by the necessity of improving methods of their detection on the base of getting to know the nature of the criminal action itself, its mechanism, ways, regularities of the inquiry process, peculiarities of reflected evidences” (4).
Success in investigating any crimes mostly depends on an inspector's ability to understand not only its criminal-legal nature but also criminalistical one. The inspector can gain a correct understanding of criminalistical nature of the committed crime only under definite conditions. He should know typical criminalistical evidences of different crimes and be capable of revealing necessary criminalistical information in every concrete crime and comparing it with criminalistical characteristic of a corresponding crime.
Criminalistical characteristic of crime is based on studying material and ideal evidences – consequences, as a result of interaction between a criminal and other persons and material and other surrounding objects, which point at criminalistical evidences of a crime, criminal, various circumstances including those indirectly connected with the given crime, which can be important for detecting it. The process of forming elements, which make a structure of this characteristic, proceeding from the studied object, cannot help taking into consideration the general crime structure typical for its corresponding kind. At the same time, this structure cannot but coincide with criminal-legal, criminal-procedure and criminological directions of searching appropriate information on the crime.
By content and destination, criminal characteristic differs from other characteristics, for example, criminal-legal, criminological, trial-psychological ones, but they are interdependent and consider some likely elements, though in a different way.
Criminal-legal characteristic is formed on the base of analysis of crime evidences, which are important for revealing corpus delict, accuracy of its qualification, resolving other criminal-legal problems including those solved while passing a sentence (Article 324 of Ukraine CC).
Criminological characteristic includes systematized information, which is of importance to establishing reasons and conditions, which favor the commitment of crimes and use of ways to prevent them. Criminological characteristic of, for example, a theft of state and private property includes such main data as: a) condition of a fighting against thefts^; b) classification of thefts^; c) classification of criminals, characteristic of some types of thieves and their actions.
Trial-psychological characteristic reflects the most substantial psychological data on criminals and victims, typical groups of witnesses as to separate kinds of crimes and so on.
Different characteristics are used as a complex in the practical activity of crime investigation, every of which aims at making investigation more effective and establishing truth in a case.
Criminalistical characteristic of a crime unlike criminal-legal one is a component of a general understanding of a crime and bears auxiliary specific official character. Though there is no criminalistical description of an abstract crime, there is a general understanding of crime characteristic.
Juridical literature has many different definitions of criminalistical characteristic. They mainly reflect two standpoints. The first criminological characteristic makes a system of those and other crime signs. According to I. Artamonov it is a “scientifically developed system of the most substantial, typical criminalistical features, properties and signs of crimes of a definite category”, V. Gounyaev – “a system of fixed signs of a definite type (subtype) of a crime” (5), and other authors.
The second point of view consists in that criminalistical characteristic of a crime can be considered as “typical information model” (6, 38), “system of information on criminalistical evidences of a crime”, “information model of events” (7), “system of information on investigated crime, that is very important from the point of view of criminal-legal and procedural characteristic” (8, 180).
Comparing these standpoints one can agree with A.Doudnikov who notes that “system of criminalistical evidences of a crime is not a characteristic but reflection of event nature allowing to obtain criminalistical “picture” of a crime (9, 49). The second point of view, in our opinion, more exactly reflects the content of criminalistical characteristic of a crime.
Depending on the level and amount of information, which are contained in the criminalistical characteristic, it is divided into three types:
1) General characteristic, which are referred to all kinds of crimes^;
2) Kind (group) of crimes^;
3) Concrete crime (10, 6).
The first kind provides the development of principles of criminalistical characteristic of the whole complex of various crimes. Their formation follows the path of the study and comparative analysis of criminalistical characteristics of separate groups, kinds and varieties of crimes. According to V. Obraztsov , this characteristic “plays a leading part, serves as a theoretical base of the development and improvement of typical criminalistical characteristics of separate crime categories, determines the same approach to understanding the nature, structure, forms and ways of using data contained in them.
Typical criminalistical characteristics, according to most authors, forms a base for the development of methods of investigating separate types of crimes (for example thefts), as well as definite groups of crimes (e.g. economical crimes), or varieties of crimes (e.g. thefts, which are committed in the process of privatization of the state property). N. Yabloukov notes, “separate and group criminalistical characteristics because of their specific character must be typical, that is having an integral scientific generalized idea about appropriate kind and group of crimes” (11, 46).
Criminalistical characteristic of a separate crime can be considered as a unique phenomenon of reality. It is an imaginary model of the given concrete object examined in the inquiry process, which reflects that or other complex of specific signs, which make it different not only from other events but also other individual ones. Literature has many points of view apropos of this. I. Panteleev thinks, “There is a criminalistical characteristic of a kind and group of crimes, as well as separate concrete crime but not a crime as a whole”(12, 26). N. Yabloukov points out that “criminalistical characteristic must be a criminalistical description of a crime and it is possible to say not only about individual, specific and group criminalistical characteristic, but also about criminalistical characteristic of a crime as a whole” (13, 115), “criminalistical characteristic of a separate crime obtained in the process of its investigation is always individual but at the same time it is more often close to some type of its” (12, 46).
Other scientists, O. Kolesnichenko and V. Konovalov in particular, do not consider it optimal to refer “criminalistical characteristic” to a concrete, single crime and think that “one of the necessary conditions of theoretical accuracy and practical usefulness of appropriate recommendations is to refer “criminalistical characteristic” only to the kind (group) of crimes” (2, 13).
Mentioned above standpoints on notions and kinds of criminalistical characteristic, as well as this study, make it possible to agree with the definition made by V. Licichenko because it reflects the most substantial signs of criminalistical characteristic of crimes. It is “a system of data on criminalistical signs of crimes of the given kind that reflects regular connections between them, as well as creates and checks investigatory versions to solve main problems of investigation” (1, 30).
Every characteristic is a description of substantial sides, properties and regularities of the reality that is reflected in it as a whole or some components, fragments, which make it different from other objects of the surrounding world.
Peculiarities of criminalistical characteristic of crimes are determined, first, by the particularity of reality that is reflected in it and its signs^; secondly, specific character of aims of such reflection.
Elements of criminalistical characteristic of crimes reveal their main features. Practical activities, results of scientific researches of criminalistical character of crimes show that independence of a kind of a crime their criminalistical signs in the characteristic of a kind and separate crime more often are contained in data on a way, mechanism and situation of the crime commitment, typological and other particularities of their subjects. At the same time for separate kinds, groups of crimes with regard for criminalistical needs these signs could be contained in data on the crime object, personal features of a victim, peculiarities of the organized criminal group, motives of a crime, character of criminal result.
The structure of criminalistical characteristic of crimes is difficult, not the same for separate kinds and groups of crimes. Depending on a kind of a crime, form of guiltiness, its separate particularities, the same structural elements in characteristics of different crimes can be different in importance, origin (depending on the character of sources of origin) and others. For example, in some cases they can be principle, in others – secondary, primary, derived and so on. Thus, data on a way of committing intentional crimes in their characteristic are certainly principle and the most important, whereas in the characteristic of unintentional crimes – secondary or not important. At the same time data on criminal's personality depending on that, whether they are obtained by studying direct or indirect information can be primary and derived.
Complex of interdependent criminalistical particularities of crimes that form their criminalistical characteristic is a fixed system. Proceeding from it, the whole complex of signs that form criminalistical characteristic of a crime is a multitude, which components are organically and differently interconnected. It is possible to single out forms of such connections between elements of criminalistical characteristic, which are peculiar at the same time to connections of elements of appropriate criminal activities. As to the needs of criminalistics the most interesting are I singling out and studying of such kinds of connections of characteristic elements that bear a character of established regularities, are based on data on generalization of inquiry practice, study of statistical aggregate of criminal cases and characterize the level of cruelty of such connection. The study of inquiry practice shows that elements of criminalistical characteristic, which are unknown at the given moment, correspond to those known at the beginning of investigation. This correspondence depending on investigatory situations can be not cruel but possible. For example, a revealing of evidences of theft made by an established way with introducing changes into appropriate documents can in some cases directly point at unknown subject of the given crime. At the same time, early fixed way and conditions of the crime commitment can only point at that or other subject of a crime with definite possibility.
Most authors, who were engaged in working out a question on criminalistical characteristic of a crime, think that its elements are signs, which establish:
1) Way of committing a crime^;
2) Mechanism of a crime^;
3) Situation of the crime commitment^;
4) Criminal's personality^;
5) Victim's personality^;
6) Object of a crime^;
7) Motive and purpose of a crime^;
8) Regularities of crimes (14).
Crimes in the sphere of computer information have become known recently. Home practice of investigating such crimes is not wide because information systems were introduced in such fields as bookkeeping, economical payment, banking business and so on in recent years because of the development of program-technical means and increase of “computer knowledge”. A social danger of criminal action in this sphere becomes increasingly evident and home lawmaker has started obtaining foreign criminalistical knowledge in “computer crimes”.
Lack of inspectors’ knowledge in up-to-date information technologies considerably favors keeping high level of latency of unlawful actions in the sphere of information relationships and their impunity. Detailed development of criminalistical characteristic of these crimes can allow revealing, detecting and investigating crimes of this kind.
Literature:
1. Soviet criminalistics: methods of investigating crimes of separate kinds/ Edited by Lisichenko V.K. – K., 1988. – 405p.
2. Kolesnichenko A.N., Konovalova V. E. Criminalistical characteristic of crimes: Manual. – Kh.: Kharkov Institute of Law, 1985. – 93p.
3. Tanasevich V.G. Obraztsov V.A. About criminalistical characteristic of crimes // Problems of fighting against crimes. – M., 1976. – Issue 25. – P.94-105.
4. Matousovskiy G.A. Problems of improving methods of crime investigation // Actual problems of forming legal state: Short theses of reports at scientific conference. October 24-26, 1990. – Kh., 1990 – P.280-282.
5. Goiunyaev V.A. Content and importance of criminalistical characteristic of crimes // Criminalistical characteristic of crimes: Collection of scientific works / All-Union Institute of studying reasons and developing measures of crime prevention. – M., 1984. – P.58-61.
6. Criminalistics / Edited by Obraztov V.A. – M.^; Lawyer, 1995. – 592p.
7. Louzguin I.M. L.M. Some aspects of criminalistical characteristic and data on concealing crimes // Criminalistical characteristic of crimes: Collection of works / All-Union Institute of studying reasons and developing measures of crime prevention. M., 1984. – P.25-30.
8. Andreev I.S. Gramovich G.I. Criminalistics: Manual. – Minsk, 1997. – 334p.
9. Doudnicov A.L. Criminalistical system of thefts committed by abusing official position, and use of its data in investigating crimes: Dissertation of Candidate of Juridical Sciences: 12.00.09. – Kh., 1989. –205p.
10. Matousovskiy G.A. Methods of investigating thefts: Manual. – K.: UMK VO, 1988. 88p.
11. Criminalistics: Manual. / Edited by Yabloukov N.P. – M.: BEK, 1996. – 708p.
12. Criminalistics. / Edited by Panteleev I.F., Selivanov N.P. – Juridical literature, 1993. – 592p.
13. Vasilyev A.N. Yabloukov N.P. Subject, system and theoretical principles of criminalistics. – M.: MSU, 1984. – 143p.
14. Ciminalistics. Manual / Edited by Yabloukov N.P. – M.: BEK, 1995. – P.45-56, as well as: Tanasevich V.G., Obraztsov V.A. About criminalistical characteristic of crimes // Problems of fighting against crimes. Issue 25. – M.: Jurid. Lit., 1976. – P.94-105^; Matousovskiy G.A. Methods of investigating thefts. – K.^; UMK VO, 1988. – 88p.^; Criminalistics. / Edited by Obraztsov V.A. – M., 1995. – P.39-50^; Soviet criminalistics: methods of investigating crimes of separate kinds / Edited by Licichenko V.K. – K., 1988. P.34-41 and others.
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