Міжнародна та національна безпека: теоретичні і прикладні аспекти

Тактика проведення слідчого експерименту при розслідуванні кримінальних правопорушень, пов’язаних з опором представникам органам влади чи представникам громадськості, які виконують обов’язки з охорони громадського порядку: проблемні аспекти

At the next stage of the investigation of criminal offenses related to resistance to a representative of the authorities or the public, who performs duties for the protection of public order, a large number of investigative (search) actions, covert investigative (search) actions and other measures are carried out. Their conduct is mainly aimed not at the discovery of new evidentiary information, but at the verification of the data collected at the initial stage of the investigation. We believe that it is most appropriate to divide the initial and subsequent stages by the moment when a person is suspected. After that, law enforcement officers are already conducting interrogations of this person, presenting them for identification and other procedural actions necessary to prove the suspect’s guilt in committing an illegal act. In our opinion, the most difficult in terms of organization and conduct of all investigative (search) actions is the investigative experiment.

After all, in order to conduct it, it is necessary to gather a sufficient number of participants, distribute roles among them, determine the sequence of actions, etc.

The analysis of the materials of criminal proceedings made it possible to note that at the next stage of the investigation of criminal offenses related to resistance to a representative of the authorities or a representative of the public who performs duties for the protection of public order, the investigative experiment was carried out in 89 % of cases.

Regarding the concept of an investigative experiment, let’s turn to the definition given by the legislator. In particular, in Part 1 of Art. 240 of the Criminal Code of Ukraine defines that in order to verify and clarify information that is important for establishing the circumstances of a criminal offense, an investigator, a prosecutor has the right to conduct an investigative experiment by reproducing the actions, situation, circumstances of a certain event, conducting the necessary experiments or tests [5].

The generalization of the scientific developments of forensic scientists and procedural’s and the materials of criminal proceedings made it possible to conclude that authorized persons do not always conduct an investigative experiment when investigating criminal offenses related to resistance to a representative of the authorities or a representative of the public who performs duties for the protection of public order. On the basis of judicial and investigative practice, the following factors have been determined that make it difficult to conduct an investigative experiment in the studied category of criminal proceedings:

the duration of the procedural action - 75 %;
the need to involve a significant number of its participants - 64 %;
preparation, selection and use of certain tools and means for multiple tests in different conditions - 59 %;
a conflicting attitude towards its execution by the suspect - 62 %.

At the same time, it should be understood that different goals of an investigative experiment can be achieved during one investigative (search) action. After all, their limitation only by checking the already available evidence narrows the scope of application of the investigated procedural action. That is, during the investigation of hooliganism associated with resistance to a representative of the authorities or the public, who performs duties for the protection of public order, an investigative experiment is conducted to achieve various tasks. They cannot exist separately from each other, but are combined in various combinations, the mandatory component of which is obtaining new evidence. As we can see, one procedural action can be aimed at checking the evidence, as well as establishing the conditions that contributed to the commission of a criminal offense [2, p. 148].

In turn, O. Antonyuk defined the following list of measures that must be carried out at the preparatory stage of the investigative experiment during the investigation of criminal offenses against public order: study of the materials of criminal proceedings (78 %); preliminary interrogation of the person whose testimony will be checked (100 %); determination of the purpose of the investigative experiment and the facts to be ascertained (82 %); identification of participants in the investigative (search) action (89 %); preparation of technical means (41 %); preparation of vehicles (25 %); ensuring security during procedural action (31 %); carrying out operational and search activities with the aim of obtaining additional information about the situation and circumstances of the event (9 %); preparation of aids (49 %); drawing up a plan of investigative (search) action (59 %); preliminary inspection of the territory (premises) where the procedural action is expected to be carried out (6 %) [1, p. 143].

With regard to the organizational and preparatory measures for the investigative experiment in the investigation of criminal offenses related to resistance to a representative of the authorities or the public, who performs duties for the protection of public order, the interviewed law enforcement officers identified the following:

processing of criminal proceedings materials (29 %);
preliminary interrogation of the person whose testimony will be checked (100 %);
determination of the participants of the investigative (search) action (68 %);
preparation of technical means (35 %);
preparation of vehicles (29 %);
preparation of auxiliary means (36 %);
ensuring the safety of persons during the procedural action (31 %);
carrying out operational and search activities with the aim of obtaining additional information about the situation and circumstances of the event (9 %);
drawing up a plan of investigative (search) action (65 %);
a preliminary inspection of the territory (premises) where it is planned to conduct an investigative experiment (8 %).

All the measures listed above have their own meaning, which determines the importance of their implementation. Failure to implement any of them will have a negative impact on the implementation of the specified procedural action and its final results.

In addition, certain tactical conditions must be observed for the most accurate and effective conduct of an investigative experiment in the studied category of criminal proceedings. For example, K. Chaplinsky singles out the following among them: conducting an investigative experiment in conditions as close as possible to those in which the event, fact or phenomenon took place; use during the experiment of the same devices, mechanisms, devices and materials

that were used during the criminal event; repeated (multiple) conducting of experiments; step-by-step (staged) conducting of experiments and repetition of test actions in changing conditions; carrying out the necessary experimental and research actions (tests), as similar as possible to those that took place in reality; limited number of participants in the investigative action; involvement of a witness, victim, suspect or accused person in conducting an experiment; conducting an investigative experiment with each suspect separately; ensuring the safety of the participants of the investigative experiment [6, p. 438-439].

As M. Yefimov rightly points out, the suspect’s full recognition of his active participation in mass riots or the role of their organizer certainly plays a huge role even when the investigation has at its disposal a sufficient body of evidence before questioning the suspect. It is this recognition of the suspect that connects the entire collection of evidence collected in the case into a single and inseparable whole. At the same time, it is important not only to confirm those facts that are already known in the case, but also those that the investigation did not know anything about (for example, about the place of hiding of the weapons used during the riots, about other participants in the riots, etc.), which indicates that criminal knowledge of the suspect, and which (facts) can be verified with the help of other evidence [3, p. 54]. In view of the above, we also consider the investigative experiment with the suspect, who fully contributes to the investigation, to be the most optimal for criminal proceedings.

For his part, I. Kirpach considers the use of technical means of fixation (for example, a video camera) to be a mandatory tactical condition for conducting an investigative experiment. The author notes that their use during the event significantly increases its informational value. Thus, when conducting an investigative experiment, the law entitles the investigator, the prosecutor or a specialist involved on their behalf to conduct measurements, take photographs, make sound or video recordings, draw up plans and schemes, make graphic images, prints and casts, which are attached to the report. The scientist appropriately emphasizes the fact that the recording is intended not only to describe and certify the results of the investigative experiment, but also the procedural order of its conduct, therefore, the guarantee of compliance with the rights of the participants in the process, and, as a result, the fact of the admissibility of the evidence obtained as a result of its conduct [4, p. 233].

Among the conditions of the investigative experiment in the investigation of criminal offenses related to resistance to a representative of the authorities or the public, who performs duties for the protection of public order, the following are the most important:

conducting an investigative experiment in an environment as close as possible to those in which the event took place;
establishing and maintaining psychological contact with the suspect, as well as observing his behavior;
repeated repetition of homogeneous experiments under variable conditions;
optimal limitation of the number of participants in the investigative experiment.

Noting the above, we note that the conduct of an investigative experiment during the investigation of criminal offenses related to resistance to a representative of the authorities or a representative of the public who performs duties for the protection of public order allows to check the evidentiary information at the end of the pre-trial investigation. The most important conditions of the investigative experiment are determined: 1) conducting the investigative experiment in an environment as close as possible to those in which the event took place; 2) establishing and maintaining psychological contact with the suspect, as well as observing his behavior; 3) repeated repetition of homogeneous experiments under variable conditions; 4) optimal limitation of the number of participants in the investigative experiment. It is emphasized that the most important measures of the preparatory stage are the preliminary interrogation of the person with whom the investigative experiment will be conducted, and the determination of the technical means of fixation.