METHOD OF INVESTIGATION OF APPLICATION, DISTRIBUTION OR LOADING BY PROPERTY
The competence of a lawyer in criminal proceedings is an understanding of the procedure for investigating criminal proceedings. A lawyer who understands how a detective acts, as he is guided in his secondary activity, can predict the subsequent steps of the investigation, and thus ensure the proper and timely protection of the client. We draw attention to the theoretical excursion on the methodology of investigation of Art. 191 of the Criminal Code of Ukraine (appropriation, embezzlement or possession of property by abuse of official position).
Among the typical methods of committing theft are:
– direct appropriation or embezzlement of theft of funds and property with the prior creation of surpluses;
– theft by forging documents and using computer equipment; – illegal payments (for unfulfilled works, bonuses, etc.);
– manufacturing and sales of unrecognized products;
– write off allegedly spoiled materials, etc.
In order to conceal unlawful actions, guilty persons may resort to measures that are preceded by theft or committed after its commission. Such measures may include incorrect information in the documents, changes in equipment, creation of conditions for the destruction or damage of raw materials and products, drawing up acts of writing off, fictitious bankruptcy, etc.
Typically, signs of this crime are detected as a result of inventories, audits and inspections of control and audit bodies, receipt of applications by officials or citizens conducted by the operative-investigative activity or by an investigator / detective.
In this regard, let’s look at typical situations that arise during an investigation into the appropriation or expropriation of someone else’s property that was entrusted to or under the direction of a person.
Typical investigative situations and recommended set of actions when they occur.
1. Information about the crime event stipulated in Art. 191 of the Criminal Code, obtained on the basis of inspections or audits.
This investigative situation is conditioned by the presence in Part 2 of Art. 12 of the Law “On the Basic Principles of the Implementation of the State Financial Control in Ukraine”, the duty of the employees of the state financial control body, in cases of detection of abuses and violations of legislation, to transfer to the law-enforcement bodies the materials of audits. The law also obliges these persons to immediately notify law enforcement agencies when seizure of documents due to their forgery or detected abuses.
Thus, after receiving the materials of inspections or audits, the employees of the pre-trial investigation agencies should submit information to the IDRD and conduct pre-trial investigation in the general order.
Another situation arises when an audit or review is required in an already open criminal proceeding. Legislation and jurisprudence deal ambiguity with the question of the possibility of appointment of audits and audits in criminal proceedings. This situation is conditioned by a modern approach to reducing the pressure on business and protecting the interests of business entities.
However, based on the content of Part 2 of Art. 93 of the CPC of Ukraine, the findings of inspections and audits are sources of evidence in criminal proceedings, which raises the question of their proper involvement in the process of proof.
One of the types of state financial control, in accordance with the Law “On the Basic Principles of the Implementation of the State Financial Control in Ukraine”, is the inspection carried out in the form of an audit and consists in documentary and factual verification of a particular complex or separate issues of financial and economic activity of the supervised institution, which should ensure detection of existing facts of violation of legislation, the establishment of guilty in their admission of officials and materially responsible persons. The results of the audit are set out in the act (Article 4 of this Law).
According to clause 3.1 of clause 3 of the Procedure of interaction between the bodies of the State Control and Revision Service and the prosecutor’s office, the Ministry of Internal Affairs and the Security Service of Ukraine1, employees of the bodies of the State Control and Audit Service, at the request of law enforcement agencies, may participate in inspections carried out by law enforcement agencies in the supervised institutions and on other objects of control – as specialists.
Employees of the bodies of the State Service are sent to participate in the inspections conducted by law enforcement agencies on the basis of a letter from the relevant State body of the State Service. When participating in the verification, the specialist uses his special knowledge and, within the limits of his competence, provides advice and answers to the issues raised, while fixing the facts of violation of the legislation on the use and preservation of financial resources, non-current and other assets, the correctness of defining the need for budget funds and taking obligations I will establish the reliability of accounting and financial reporting, determine the size of the pecuniary damage (losses) and officials (officials), as a result of actions or b zdiyalnosti which is a violation of law and material damage (loss).
The results of the participation of a specialist in the verification are made by the certificate, which is on a blank sheet and signed by a specialist, indicating the position and name of the body in which he works. The certificate is in duplicate, one of which, after signing by a specialist, is sent to the law enforcement body, the initiator of the verification. The second copy of the certificate remains in the appropriate body of the State Service.
A systematic analysis of the above norms gives grounds for the conclusion that the legislation delineates the status of employees of the State Service, who act as specialists in criminal proceedings and as statutory auditors. 11 of the Law “On the Basic Principles of the Implementation of the State Financial
control in Ukraine “. In addition, the procedural registration of the results of their activities differs, since the specialist makes a certificate, and the auditor is an act of verification.
In this regard, it is recommended to involve the employees of the controlling bodies as specialists in the inspection, which will facilitate faster detection of violations of financial discipline at the enterprise and the detection of facts of appropriation or embezzlement of someone else’s property.
The Law “On the National Anti-Corruption Bureau” contains a direct norm according to which the National Bank of Ukraine, the Antimonopoly Committee of Ukraine, the State Property Fund of Ukraine, the state financial control body, the National Agency for the Prevention of Corruption, as well as other state bodies that exercise state control over compliance with natural and legal persons legislation, in order to prevent and counteract a criminal offense, classified as an NABU, are obliged, at the request of NABU, to conduct in hedgehogs its competence audits, inspections and other measures of control over the natural and legal persons.
A similar norm is also contained in clause 5 of Part 5 of Art. 11 of the Law “On the Basic Principles of the Implementation of the State Financial Control in Ukraine”: the basis for the appointment of an out-of-date outbound audit is the receipt of an order to carry out audits in the supervised institutions from the prosecutor’s offices, revenue and assembly bodies, the National Police, the Security Service of Ukraine, and the NABU, which contains the facts testify to the violation by law-governed institutions of laws, verification of which compliance is attributed to the competence of state financial control bodies.
Part 8 of Art. 11 of this Law establishes that the body or person who initiates an unscheduled field audit submits to the court a written substantiation of the grounds for the audit and its date of commencement and termination, documents which in accordance with paragraphs 5 and 7 of this article testify to the emergence of grounds for conducting the audit, as well as on request of the court other information. In this regard, the investigator / detective must apply to the investigating judge for an unscheduled audit.
In accordance with clause 78.1.11. Art. 78 pcs. Documentary non-scheduled examination is carried out in the presence of a court decision (investigating judge) received about the appointment of an inspection made in accordance with the law.
However, when applying these norms, practitioners should take into account that the provisions of the CPC do not fall within the competence of the investigating judge to decide on the issue of permission to conduct an inspection, and Art. 132 The CPC does not provide such a measure for the provision of criminal proceedings and does not regulate the procedure for examining such petitions of an investigator, the extent of evidence in considering such a petition, the criteria by which an investigating judge must determine the sufficiency of grounds for granting a tax audit permit.
Thus, it is recommended, if necessary, to involve an employee of the state control bodies as a specialist in order to avoid further petitions from the defense party regarding the recognition of inadmissible evidence obtained.
2. Information about the crime event provided for in Art. 191 of the Criminal Code, received as a result of a person’s statement.
In the case of obtaining information on possible facts of appropriation or embezzlement of someone else’s property which was entrusted to a person or under his authority, the investigator / detective has the right to conduct a review of the place of the event in order to identify traces of the commission of a crime, usually documentary. As the survey is conducted, as a rule, in the premises of legal entities, then for its conduct in accordance with Art. 233 CPC requires the approval of the investigating judge. In this regard, an overview of the place of the event in this category of crimes can not be carried out prior to the introduction of information in the IDRD.
After entering the data in the YRD, the investigator / detective applies for a review to an investigating judge, observing the requirements stipulated in art. 234 CPC. In this case, the exact address of the building and the premises in which the search is allowed is to be indicated in the application, and also the identity of the owner and the identity of the actual possessor of the premises must be indicated.
Upon receipt of the decision of the investigating judge, the investigator has the right to review the place of the event with the involvement of specialists in the field of financial control. In accordance with Part 5 of Art. 237 CCP during the inspection allowed the removal of only the things and documents that are relevant for the criminal proceedings, and therefore the question arises as to which documents the investigator has the right to remove.
First of all, attention should be paid to the financial documentation and the availability of all necessary details and signs of tampering. In accordance with Part 2 of Art. 9 of the Law “On Accounting and Financial Reporting in Ukraine” all primary and consolidated accounting documents,
have the following requisites: the name of the document (form); date and place of assembly; the name of the enterprise on whose behalf the document is drawn up; content and volume of economic transaction, unit of measure of economic transaction; positions of persons responsible for conducting business operations and the correctness of its execution; personal signature or other data that allows identification of the person who participated in the conduct of the economic transaction. The absence of these requisites may indicate the existence of the facts of theft of property by officials or the facts of concealing the traces of another crime.
The following documents to be withdrawn during the review are the job descriptions of the director, the chief accountant, the heads of the structural units in order to establish the person responsible for the storage of material assets and, due to the official position, had the opportunity to dispose of them.
In addition, seizure, provided that they belong to the offense, are subject to:
– documents defining the economic structure and organizational and legal status of the enterprise, as well as the state of financial control: a) certificate of registration of the enterprise; b) the charter of the enterprise; c) a settlement agreement; d) the register of shareholders; e) minutes of the general meeting of shareholders; e) minutes of meetings of administrative authorities (board, management); g) minutes of meetings of audit commissions (acts and materials of inspections); (c) the annual report of the auditor; i) acts and other materials of inspections of tax, banking and other control bodies; k) orders and orders of officials, etc.
– documents certifying the conduct of a certain type of activity: a) licenses; b) patents;
– documents of accounting and reporting (here in the most full extent on the basis of continuous and continuous observation, strict documentation, systematization of accounts and balancing of accounting data, economic information is concentrated): a) primary accounting documents (invoices, invoices and other, which record individual economic operations); b) accounting accounts; c) the balance sheet;
– records of operational accounting and reporting. For example, “black bookkeeping” of the head of an enterprise or chief accountant, which characterizes the possible facts of writing off material assets, their squandering, etc.;
– documents of the automated workplace (ARM) of the accountant, economist, planner, analyst.
An important point during the review of the scene of the event of theft or appropriation of funds for contract work (repair of roads, objects of communication, etc.) is an overview of the place of work to determine their actual extent of execution.
After conducting an overview of the place of the event on the basis of the information received, the investigator conducts further investigative actions aimed at establishing the following elements of the subject of proof:
information about time, place;
information about the method of committing a crime, which will include a method of preparation, commission, direct execution and concealment of a crime (the essence of the way in this case is the illegal turning of someone else’s property in his favor or the benefit of third parties, while using his official position); as well as information about the tools (means);
information on the subject of a criminal offense (its quantitative and qualitative characteristics), which will be the property that was entrusted to the guilty or under his direction, that is, it was in the legitimate possession of the perpetrator who was empowered to dispose, manage, deliver or store such property. Such power may be stipulated by official duties, contractual relations or special instructions;
information about the subject of appropriation, embezzlement or seizure of someone else’s property by the abuse of an official by his official position;
The search, as a rule, is carried out at the place of work and residence of the suspects, in others
the premises that they own in their cars. Can be searched office rooms, workshops and warehouses, workplaces in production facilities, accounting offices. The searches are carried out at the persons responsible for the preparation and signing of documents, while the attachment to the property may be imposed, including deposits in banks. Asset seizure is imposed to secure damages and confiscation of property.
Significant complexity during the search is the removal of computer equipment and electronic media. First, these actions are recommended to be carried out in the form of a “search-review”, during which it is necessary to detail not only the fact of seizure of a particular object, but also describe in detail, photograph its location in conjunction with other objects found on the site of search . Secondly, measures should be taken to preserve the sources of evidence found. Although it is advisable to involve the appropriate specialist in carrying out these actions, the investigator himself must have a minimum of knowledge to understand the work of the computer and save the electronic information.
Taking into account the features of such an object of seizure, as computer technology, the following procedure is recommended at the site of the search: 1) to exclude from the computer the persons who work behind him or are near him, and not to take help from them in his review. and temporary seizure; 2) fix the location of the computer and its equipment and not carry out any manipulations with them, if their result is not known in advance; 3) in the presence of explosive, caustic and toxic substances (materials) in the premises to take measures for their removal from the premises; 4) if the computer is turned on – take steps to ensure that nobody switches off the power supply and fix which program is working; 5) With the help of a specialist, turn off the computer and disconnect from it peripherals, having previously recorded the order of their connection; 6) individually pack each device and connecting cables for safe transportation.
When conducting searches, a specialist can provide considerable assistance to the investigator. Such assistance is manifested in: a) the use of search engines; b) execution of orders requiring special knowledge and skills (technician-builder, locksmith, diver); c) advising on compliance with safety rules; d) providing recommendations on checking the places of possible storage of the objects being sought; e) providing advice on the extraction of found objects and their treatment (in the selection of medicines, explosives and other objects, their fixation, packaging and transportation).
The investigator should pay special attention to the legality of the facts of alienation of property, which is in state ownership. Legislation establishes a clear list of documents that must be submitted for obtaining an agreement on the alienation of such objects, and therefore their absence indicates the abuse of the officials in the implementation of such objects.
Thus, in accordance with Clause 7 of the Alienation of State Property Objects1, an entity submits an agreement for the alienation of property with the request for the alienation of property: a feasibility study on the expediency of the alienation of property and the use of funds (with a mandatory definition influence of the alienation of property on the integrity of the property complex); information about the objects of fixed assets (means) offered for alienation, according to the accounting data on the valuation date; an act of inventory of fixed assets (means) offered for alienation, an act of technical condition of property, drawn up on the valuation date and approved by the head of an entity; a conclusion on the value of the property and a report on the valuation of property.
An example of this category of cases.
Detectives NABU November 2, 2016 launched an investigation in the criminal proceedings No521016000000000411 on the fact of taking possession of funds from the Odessa city budget during the sale of buildings HC “Krajan” OJSC. According to the investigation, in the first half of 2016, the Odesa mayor agreed with the persons who actually control UAB Naster UAB, VALTON GROUP LP LLC and Developmental LLC LLC for the acquisition of funds from the local budget of Odessa in the form of purchase in the communal the property of non-residential premises of the former Krajana plant at a knowingly overestimated cost.
The investigation established that the officials of the Odessa City Council informed the deputies of the Board of knowingly false information about the urgency of considering the issue of purchase of the premises due to the alleged need for filing documents within certain time limits for participation in the national program “Transparent Office” regarding co-financing of the purchase of premises. Probably this was done to create obstacles for deputies and responsible persons to properly study the feasibility and economic justification of the purchase of this particular building.
– elucidation of the circle of persons who are obliged to ensure compliance with the requirements of regulatory and legal acts on accounting and control;
– definition of shortcomings in the organization of accounting and control, which contributed to committing violations, accounting procedures, which should be implemented to eliminate these shortcomings, etc. (Corrupt Schemes: Their Criminal Legal Qualifications and Pre-Trial Investigations / Ed. MI Khavronyuk.-K .: Moskalenko O. M., 2019. – 464 p., Pp. 33-39)
Posted by Andrew Prikhodko