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METHODS OF INVESTIGATION OF APPROPRIATION, WASTE OR POSSESSION OF PROPERTY
Reading time: 19 min.
The competence of a lawyer in criminal proceedings is an understanding of the methodology of investigation of criminal proceedings. A lawyer who understands how a detective acts, what he is guided by in his activities, can predict the next steps of the investigation, and thus ensure proper and timely protection of the client. We draw your attention to the theoretical digression on the methodology of investigation of Art. 191 of the Criminal Code of Ukraine ( Appropriation, misappropriation of property or taking it by abuse of office ).
Among the typical ways of committing theft are:
- direct misappropriation or embezzlement of theft of funds and property with the previous creation of surpluses;
- theft by forgery of documents and with the use of computer equipment; - illegal payments (for unfinished work, bonuses, etc.);
- manufacture and sale of unaccounted products;
- write-off of allegedly spoiled materials, etc.
- manufacture and sale of unaccounted products;
- write-off of allegedly spoiled materials, etc.
In order to conceal illegal actions, the perpetrators may resort to measures that precede or are committed after the theft. Such measures may include making false information in the documents, making changes to the equipment, creating conditions for the destruction or damage of raw materials and products, drawing up acts of write-off, fictitious bankruptcy, etc.
Usually the signs of this corpus delicti are revealed as a result of inventories, audits and inspections of control and audit bodies, receipt of applications from officials or citizens, conducted operational and investigative activities or by an investigator / detective.
In this regard, consider the typical situations that arise during the investigation of misappropriation or misappropriation of another's property that was entrusted to a person or was in his possession.
Typical investigative situations and the recommended set of actions in their event.
1. Information about the event of a crime under Art. 191 of the Criminal Code, obtained as a result of inspections or audits.
This investigative situation is due to the presence in Part 2 of Art. 12 of the Law "On the basic principles of public financial control in Ukraine" the obligation of employees of the state financial control body in cases of abuse and violations of the law to transfer to law enforcement agencies audit materials. The Law also obliges these persons to immediately notify law enforcement agencies when seizing documents in connection with their forgery or detected abuses.
Thus, after receiving the materials of inspections or audits, the employees of the pre-trial investigation bodies should enter the information into the ERDR and conduct the pre-trial investigation in the general order.
Another situation arises when an audit or inspection needs to be conducted in an already open criminal proceeding. Legislation and case law ambiguously address the possibility of appointing inspections and audits in criminal proceedings. This situation is due to the modern approach to reducing pressure on business and protecting the interests of economic entities.
However, based on the content of Part 2 of Art. 93 of the CPC of Ukraine, the conclusions of inspections and audits are sources of evidence in criminal proceedings, in connection with which there is a question of their proper involvement in the evidentiary process.
One of the types of public financial control, according to the Law "On the basic principles of public financial control in Ukraine", is an inspection, which is carried out in the form of audit and consists of documentary and factual verification of a complex or individual issues of financial and economic activities of the controlled institution. must ensure the identification of existing facts of violation of the law, the establishment of officials and financially responsible persons guilty of their admission. The results of the audit are set out in the act (Article 4 of this Law).
According to sub-item 3.1 of item 3 of the Procedure for interaction between the bodies of the state control and audit service and the bodies of the prosecutor's office, internal affairs and the Security Service of Ukraine1, employees of the state control and audit service may participate in inspections other objects of control - as specialists.
Employees of the State Audit Service are sent to participate in inspections conducted by law enforcement agencies on the basis of a letter from the relevant body of the State Audit Service. During the inspection, the specialist uses his special knowledge and within the competence provides advice and answers to questions, while recording violations of legislation on the use and preservation of financial resources, non-current and other assets, the correctness of determining the need for budget funds and commitments. , condition and reliability of accounting and financial reporting, determines the amount of material damage (losses) and officials (officials), as a result of actions or omissions of which violations of the law and material damage (losses).
The results of the specialist's participation in the inspection are drawn up by a certificate, which is drawn up on a blank sheet and signed by the specialist indicating the position and name of the body in which he works. The certificate is made in two copies, one of which, after signing by a specialist, is sent to the law enforcement agency - the initiator of the inspection. The second copy of the certificate remains in the relevant body of the State Audit Office.
A systematic analysis of these norms gives grounds to conclude that the legislation distinguishes the status of employees of the State Audit Office who act as specialists in criminal proceedings and as auditors in accordance with Art. 11 of the Law "On the basic principles of public finance
control in Ukraine ". In addition, the procedural design of the results of their activities differs, as the specialist draws up a certificate, and the auditor - an act of inspection.
In this regard, it is recommended to involve employees of controlling bodies in the inspection of the scene as specialists, which will help to more quickly establish the facts of violation of financial discipline in the enterprise and identify the misappropriation or misappropriation of property.
The Law on the National Anti-Corruption Bureau contains a direct provision 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 Prevention of Corruption, and other state bodies exercising state control over compliance with the law by individuals and legal entities, in order to prevent and counteract criminal offenses under the jurisdiction of NABU, are obliged at the request of NABU to conduct within its competence audits, inspections and other actions to monitor compliance with the law by individuals and legal entities.
A similar rule is also contained in paragraph 5 of Part 5 of Art. 11 of the Law "On Basic Principles of Public Financial Control in Ukraine": the basis for the appointment of unscheduled on-site audit is the receipt of instructions for audits in controlled institutions from the prosecutor's office, revenue authorities, National Police, SBU, NABU, which contains facts that indicate violations of laws under the control of institutions, verification of compliance with which is attributed to the competence of public financial control.
Part 8 of Art. 11 of this Law establishes that the body or person initiating the unscheduled on-site audit submits to the court a written justification of the grounds for the audit and the date of its beginning and end, documents that in accordance with parts 5 and 7 of this article indicate the grounds for the audit, as well as other information at the request of the court. In this regard, the investigator / detective is obliged to apply to the investigating judge for an unscheduled audit.
According to item 78.1.11. Art. 78 PC unscheduled documentary inspection is carried out in the presence of the received decision of the court (investigating judge) on the appointment of the inspection, issued 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 granting permission to conduct an inspection, and Art. 132 of the CPC does not provide for such a measure to ensure criminal proceedings and does not regulate the procedure for consideration of such petitions of the investigator, the amount of evidence in considering such a petition, the criteria by which the investigating judge must determine the sufficiency of permission to conduct a tax audit.
Thus, it is recommended, if necessary, to involve an employee of the state control bodies as a specialist in order to avoid further requests of the defense to declare the evidence inadmissible.
2. Information about the event of a crime under Art. 191 of the Criminal Code, received as a result of the statement of the person.
In case of receiving information about possible facts of misappropriation or misappropriation of someone else's property, which was entrusted to a person or was in his possession, the investigator / detective has the right to inspect the scene to identify traces of the crime, usually documentary. As the inspection is carried out, as a rule, in premises of legal entities, for its carrying out according to Art. 233 of the CPC requires the decision of the investigating judge. In this regard, it is not possible to inspect the scene in this category of crimes before entering information into the ERDR.
After entering the information into the ERDR, the investigator / detective shall apply for an examination to the investigating judge in compliance with the requirements provided for in Art. 234 of the CCP. In this case, the application must indicate the exact address of the building and premises in which the search is permitted, and must indicate both the identity of the owner and the identity of the actual owner of the premises.
After receiving the decision of the investigating judge, the investigator has the right to conduct an inspection of the scene with the involvement of specialists in the field of financial control. In accordance with Part 5 of Art. 237 of the CPC during the inspection is allowed to seize only things and documents that are relevant to criminal proceedings, and therefore the question arises, what documents are the right to seize the investigator.
First of all, you need to pay attention to the financial documentation and the presence in it of all the necessary details and the presence of signs of forgery. 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 mandatory details: the name of the document (form); date and place of compilation; the name of the enterprise on whose behalf the document was drawn up; the content and scope of the business transaction, the unit of measurement of the business transaction; positions of persons responsible for the implementation of the business transaction and the correctness of its design; personal signature or other data that allows to identify the person who participated in the transaction. The absence of these details may indicate the existence of theft of property by officials or the fact of concealment of traces of another crime.
The following documents that are subject to seizure during the inspection are job descriptions of the director, chief accountant, heads of departments in order to establish the person responsible for the storage of valuables and due to their official position had the opportunity to dispose of them.
In addition, the following are subject to seizure, provided that they belong to the event of the offense:
- documents that determine 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) founding agreement; d) register of shareholders; e) minutes of the general meeting of shareholders; f) minutes of meetings of administrative bodies (board, management); g) minutes of meetings of audit commissions (acts and materials of inspections); h) annual report of the auditor; i) acts and other materials of inspections of tax, banking and other control bodies; j) orders and directives of officials, etc.
- documents certifying the implementation of a certain type of activity: a) licenses; b) patents;
- accounting and reporting documents (here in the most complete way on the basis of continuous and continuous observation, strict documentation, systematization of accounts and balancing of accounting data concentrates economic information): a) primary accounting documents (accounts, invoices and others that record individual economic operations); b) accounting accounts; c) balance sheet;
- documents of operational accounting and reporting. For example, "black accounting" of the head of the enterprise or the chief accountant, which characterizes the possible facts of write-off of tangible assets, their waste, etc .;
- documents of the automated workplace (AWP) of the accountant, the economist, the planner, the analyst.
It is important during the inspection of the scene of the event on the fact of waste or misappropriation of funds for contract work (repair of roads, communications, etc.) is the inspection of the site in order to establish their actual scope.
After inspecting the scene on the basis of the information received, the investigator conducts further investigative actions aimed at establishing the following elements of the subject of evidence:
information about time, place;
information on the method of committing the crime, which will include the method of preparation, commission, direct commission and concealment of the crime (the essence of the method in this case is illegal conversion of another's property in their favor or for the benefit of third parties using their official position); as well as information about tools (means);
information on the subject of criminal encroachment (its quantitative and qualitative characteristics), which will be the property that was entrusted to the perpetrator or was in his possession, ie it was in the lawful possession of the perpetrator, who was empowered to dispose, manage, deliver or store such property. Such authority may be conditioned by official duties, contractual relations or special assignment;
information about the subject of appropriation, embezzlement or seizure of another's property by abuse of office by an official;
the type and amount of damage caused by a criminal offense; qualifying criteria for the amount of damage caused by the crime.
Proper interrogation of suspects and witnesses is important to establish these circumstances . First of all, it is necessary to interrogate the persons who conducted the inspection or audit, in order to have a general understanding of the scheme of theft and persons who may be involved.
Employees of the institution, enterprise or organization where the suspect works are also interrogated as witnesses; employees of contracting companies, close acquaintances, relatives and friends of the suspect and other persons who know the circumstances relevant to the criminal proceedings.
During the interrogation of employees of the enterprise (institution) where the suspect works, the following issues are clarified:
- what is the procedure for carrying out the relevant activities and what are the functions of the witness and other persons during its conduct;
- circumstances of specific operations;
- what facts of violations are known to the witness and what are their circumstances;
- how he became aware of these violations;
- in which documents they are reflected;
- who else knows about the violation;
- which, according to the witness, contributed to the abuse;
- what measures should be taken to prevent them in the future;
- as a witness can describe the identity of the suspect.
The search is usually carried out at the place of work and residence of the suspects, in others
- what facts of violations are known to the witness and what are their circumstances;
- how he became aware of these violations;
- in which documents they are reflected;
- who else knows about the violation;
- which, according to the witness, contributed to the abuse;
- what measures should be taken to prevent them in the future;
- as a witness can describe the identity of the suspect.
The search is usually carried out at the place of work and residence of the suspects, in others
premises owned by them, their cars. Offices, premises of shops and warehouses, workplaces in production premises, bookkeeping premises can be searched. Searches are carried out on persons responsible for the preparation and signing of documents, and property may be seized, including deposits in banks. Seizure of property is imposed to secure damages and confiscation of property.
The seizure of computer equipment and electronic media has a significant difficulty during the search . First, these actions are recommended to be performed in the form of "search-inspection", during which it is necessary to record in detail not only the fact of seizure of a particular object, but also to describe in detail, photograph its location in conjunction with other objects found at the site. . Secondly, measures should be taken to preserve the identified sources of evidence. Although it is recommended to involve a specialist to carry out these actions, the investigator himself must have a minimum of knowledge to understand the operation of the computer and the storage of electronic information.
Taking into account the peculiarities of such an object of seizure as computer equipment, it is recommended that the following procedure be followed at the place of search: and temporary seizure; 2) to record the location of the computer, its equipment and not to carry out any manipulations with them, if their result is unknown in advance; 3) in case of presence of explosive, corrosive and toxic substances (materials) in the premises, take measures to remove them from the premises; 4) if the computer is turned on - take measures so that no one turns off the power supply and record which program works; 5) with the help of a specialist to turn off the computer and disconnect peripherals from it, pre-fixing the order of their connection;
A specialist can provide significant assistance to an investigator during searches. Such assistance is manifested in: a) the use of search engines; b) performing tasks that require special knowledge and skills (construction technician, locksmith, diver); c) providing advice on compliance with safety rules; d) providing recommendations for checking the places of possible storage of wanted items; e) providing advice on the removal of found objects and the procedure for handling them (in the selection of drugs, explosives and other objects, their fixation, packaging and transportation).
Investigators should pay special attention to the legality of the facts of alienation of state-owned property. The legislation establishes a clear list of documents that must be submitted to obtain consent for the alienation of such facilities, and therefore their absence indicates abuse by officials during the implementation of such facilities.
Thus, in accordance with paragraph 7 of the Procedure for alienation of state property1, to obtain consent for the alienation of property, the business entity submits together with the application for alienation of property: feasibility study of the alienation of property and use of funds (with mandatory definition the impact of property alienation on the integrity of the property complex); information on fixed assets (assets) that are offered for disposal, according to accounting data on the valuation date; the act of inventory of fixed assets (assets), which are offered for alienation, the act of technical condition of the property, drawn up on the date of assessment and approved by the head of the business entity; conclusion on the value of the property and report on the valuation of the property.
An example of this category of cases.
On November 2, 2016, NABU detectives launched an investigation in criminal proceedings No. 521016000000000411 on the fact of misappropriation of funds of the Odessa city budget during the sale of buildings of OJSC HC Krayan. According to the investigation, in the first half of 2016, the mayor of Odessa agreed with the persons who actually control CJSC "UAB Naster", LLC "VALTON GROUP LP" and LLC "Development Elite" to seize the local budget of Odessa under the guise of buying a utility ownership of non-residential premises of the former Krayan plant at a knowingly inflated cost.
The investigation established that the officials of the Odessa City Council informed the deputies of the council knowingly false information about the urgency of the issue of purchasing the premises, due to the alleged need to submit documents in time to participate in the national program "Transparent Office" to co-finance the purchase of premises. Probably, this was done in order to create obstacles for deputies and officials to properly study the feasibility and economic justification for the purchase of this building.
In addition, deputies assured that the price of the premises is objective, verified by authorized officials of the relevant executive bodies of the council and the standing committee, which were responsible for preparing the draft decision, and the cost of its purchase is economically justified, although in fact any calculations which would confirm the expediency of allocating funds in the amount of UAH 185 million. from the local budget, were not carried out. In addition, the Odessa mayor informed the deputies of unreliable information about the co-financing of expenditures from the state budget for the purchase and arrangement of the building of the former Krayan plant under the Transparent Office program.
Thus, the involved persons ensured the adoption of the decision of the deputy corps of the Odessa City Council to consent to the acquisition of communal property of the territorial community building of JSC "HC Krayan" at a knowingly inflated price - 185 million UAH, which was determined in advance by an appraiser involved in the crime. entering false and unreliable information in the assessment report .
When identifying the facts of waste of property, it is necessary to establish the scope of authority of the official, and that the waste was committed with the help of these powers.
NABU detectives in criminal proceedings No. 52016000000000357 correctly qualified the actions of the head of SE "Lutsk CCP No. 2" under Part 5 of Art. 191 of the Criminal Code in the following circumstances. PJSC "Agrarian Fund" (100% of the shares belong to the state) in November 2013 transferred the grain for safekeeping to SE "Lutsk CCP No. 2". The head of the SOE, without obtaining the permission of the owner of the grain, decided to ship it to commercial entities without payment from them. Thus, during April-June 2014, more than 26 thousand tons of grain belonging to PJSC “Agrarian Fund” were exported from the elevator of SE “Lutsk CCP No. 2”, which caused material losses to the enterprise in the amount of over UAH 58.81 million .
In criminal proceedings of this category a number of examinations is appointed . In particular, the most popular include:
1) technical examination of documents (allows to establish the method of production of the document and the used equipment, prescription of its production, presence of modification, restoration of the text of the document, etc.);
2) construction and technical (allows to establish the discrepancy of the actually performed volumes of works to the volumes specified in the acts of performed works, as well as overstatement of the cost of works);
3) handwriting (decides on the execution of signatures or handwritten notes by a certain person. It should be appointed even in a situation when the person acknowledges the fact of his handwriting or signature) (in the future he may refuse such a statement);
4) forensic economic - is intended for solving problems related to the study of accounting documents and reporting, in particular for:
- establishing the correctness and completeness of the methods and techniques used by the audit of the study of accounting data in the performance of its tasks;
- determining the documentary validity of operations for the receipt, storage and spending of tangible assets and money, the presence of their shortage or surplus, the period, place of their formation and size;
- establishing the correctness of accounting and reporting in the institution (enterprise), its compliance with the requirements of applicable regulations;
- clarification of the range of persons who are obliged to ensure compliance with the requirements of regulations on accounting and control;
- identification of shortcomings in the organization of accounting and control that contributed to the violations, accounting measures that must be taken to eliminate these shortcomings, etc. ( Corruption schemes: their criminal-legal qualification and pre-trial investigation / Edited by MI Khavronyuk.– K .: Moskalenko OM, 2019. - 464 p. , Pp . 33-39)
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