Investigative prevention in criminal cases of crimes committed in the field of state defense order

Anuchina Ol'ga Vladimirovna PhD in Law Leading Researcher; Research Center; Academy of Management of the Ministry of Internal Affairs of Russia 125171, Russia, Moscow, Zoya and Alexander Kosmodemyanskikh str., 8 olganauka1989@yandex.ru Other publications by this author

Yakubova Sel'he Mahachevna PhD in Law Leading Researcher; Research Center; Academy of Management of the Ministry of Internal Affairs of Russia 125171, Russia, Moscow, Zoya and Alexander Kosmodemyanskikh str., 8 selhe@mail.ru

The military-industrial complex (hereinafter referred to as the "Defense Industry Complex") is of strategic importance to our country, as it ensures its defense capability and economic development. In order to increase production and modernize existing combat systems, huge amounts of money are being allocated for the development of industry, which are realized during procurement procedures. In accordance with Federal Law No. 275-FZ dated December 29, 2012 "On the State Defense Order", the specifics of the development of budget allocations for the state defense order (hereinafter referred to as the "state defense order", "GOZ"), which is often used for mercenary purposes, have been established.

The level of registered crime in this sector of the economy has increased by 65% over the past five years. According to official statistics, 1,111 crimes related to the military-industrial complex were registered in the 12 months of 2023 (1,062 in 2022, 1094 in 2021, 923 in 2020, 784 in 2019, and 673 in 2018). The number of crimes related to the appropriation or embezzlement of budget funds in the execution of the State Budget is increasing annually: 341 crimes were registered in 2023, 272 in 2022, and 216 in 2021 (Report on form 4–EGS "General information on the state of crime" for 2018-2023).

Criminal schemes in the implementation of the state defense order are veiled, as a rule, for legitimate purchase and are based on hidden violations in this area.

The Prosecutor's Office, Rosfinmonitoring, the Federal Antimonopoly Service of Russia, the Federal Treasury and other government agencies are implementing systematic measures to protect the military-industrial sector of the economy. However, due to the significant number of purchases being made, it is not always possible to identify violations in a timely manner during control, supervision and licensing measures. In turn, "unnoticed" violations create a favorable "ground" for the commission of crimes in the field of the state defense order.

73 of the Code of Criminal Procedure of the Russian Federation, the preliminary investigation authorities are working to identify circumstances that contribute to the commission of crimes in the field of state defense orders. This includes establishing the facts of non-compliance with administrative, antimonopoly, budgetary, and tax legislation at enterprises of the military-industrial complex, other organizations, and government authorities interacting with them during the formation, placement, and execution of the state defense order.

The main procedural means of preventing illegal activities in the field of state defense orders is to submit submissions on taking measures to eliminate circumstances that contribute to the commission of crimes or other violations in accordance with Part 2 of Article 158 of the Criminal Procedure Code of the Russian Federation (hereinafter referred to as the "Submission").

In order to improve the results of preventive work in pre-trial proceedings, the Investigative Department and the Department of Inquiry of the Ministry of Internal Affairs of Russia annually prepare reviews, recommendations, and instructions on making submissions on taking measures to eliminate the circumstances that contributed to the commission of crimes, and taking other preventive measures, including in the field of defense industry and the state defense order. The author's teams of educational organizations of the Ministry of Internal Affairs of Russia have prepared works on general issues of investigative prevention in the system of the Ministry of Internal Affairs of Russia, the specifics of prevention in the investigation of certain types of crimes: "Preventive work of an investigator of internal affairs bodies"^[1], "Topical issues of preventive activity of an investigator"^[2], "Review of the practice of preparing submissions by investigators in part 2 of Article 158 of the Code of Criminal Procedure of the Russian Federation with samples of standard representations for certain types of crimes"^[3] and others. The issues of identifying circumstances contributing to the commission of crimes in the field of the military-industrial complex were raised by specialists of the All-Russian Research Institute of the Ministry of Internal Affairs of Russia^[4]. At the same time, the circumstances that contribute to the commission of crimes in the field of the state defense order, and the ways to clarify them, in the opinion of the authors, need additional study and generalization. In the framework of this study, we will identify some of these circumstances characteristic of crimes in the field of public defense, provided for in Articles 159, 160, 165, 201 of the Criminal Code of the Russian Federation, as well as in special structures: Articles 159, 160, 165, 201 of the Criminal Code of the Russian Federation. 201.1, 201.2, 201.3, 285.4, 285.5, 285.6 THE Criminal Code OF THE Russian Federation.

Investigative prevention to establish negative circumstances contributing to the commission of a crime involves an analysis of the work of government agencies, public associations, administrative, economic and managerial activities, cultural and educational work ^{[1, P. 22]}. However, high latency, the closeness of the state defense order and the complexity of criminal schemes are a serious obstacle to the detection of crimes, including the circumstances contributing to their commission. Moreover, the majority of crimes in the field of procurement of goods, works, and services for state and municipal needs, as noted by V.O. Lapin, are corrupt in nature and are associated with criminal acts by government officials and heads of state institutions whose powers include organizing auctions and monitoring the fulfillment of the terms of government contracts. They are aimed both at independently building criminal schemes for cashing out budget funds using controlled organizations, and at forcing entrepreneurs to transfer "kickback" (illegal remuneration) for ensuring acceptance of completed works, services rendered, goods delivered, as well as further lobbying their interests and patronage when concluding government contracts" ^{[5, p. 45]}.

At the same time, crimes in the field of state defense procurement are not always preceded or facilitated by circumstances with a corruption component. For example, the crime of violating the terms of a state contract for a state defense order or the terms of a contract concluded for the purpose of fulfilling a state defense order (art. 201.2 of the Criminal Code of the Russian Federation) is sometimes facilitated by unintentional actions (inaction) employees of the company who caused the disruption of supplies (technical/technological errors). In order to understand the specifics of the legal regulation of the sphere of the state defense order, the preparation of assignments, the procedure for determining prices, conducting competitive procedures, and executing a government contract, in-depth knowledge is required from an official conducting criminal proceedings.

In general, the analysis of the submissions made by the investigators and the responses received showed that the circumstances contributing to the commission of crimes at enterprises involved in the implementation of the State Defense Order are the inefficiency and corruption of the top management of enterprises, endowed with absolute control rights, lack of due attention from both the internal control services and the supervisory authorities for the ongoing procurement, formation and execution of the State budget. It is also important to note the key role of departmental control officials in preventing the use of the established public procurement system for personal enrichment ^{[6, p. 64]}.

In criminal cases of crimes committed in the field of the state defense order, submissions are made to both the customers and the executors of the state defense order. As a result of generalizing such ideas, it became possible to describe typical circumstances contributing to the commission of crimes in the field of state defense orders, depending on the stage of implementation of the State Defense Order:

1. At the stage of forming the state defense order, circumstances related to non-compliance with the requirements for the assignment procedure are identified, which lead to the formation of excess funds during execution:

- erroneous entry of unreliable data on the cost of the product into the calculation materials (as a rule, overestimated);

- non-compliance with the rules for determining the contract price;

- failure to take measures to bring to justice for failure to submit or late submission of documents justifying the price of products under the State Defense Order of the head contractor or a person for whom, in accordance with the legislation of the Russian Federation in the field of the state defense order, acceptance of the state defense order is mandatory;

- improper control over the preparation of the state defense order by the relevant departments of the customer, etc.

2. At the stage of placing the state defense order and conducting purchases, circumstances related to non-compliance with the requirements for procurement procedures may be identified, which allowed an unscrupulous organization to participate in the procurement and obtain the right to execute the contract.:

- formation of a commission for procurement with violations, for example, the inclusion of persons without special knowledge in the tender commission (Article 39 of Federal Law No. 44 dated 05.04.2013 "On the Contract system for procurement of goods, works, and services for State and Municipal Needs");

- admission to procurement of a participant who does not meet the requirements, for example, who, within two years prior to submitting an application for participation in the procurement, was brought to administrative responsibility under art. 19.28 of the Administrative Code of the Russian Federation, recognized as a foreign agent or included in the register of unscrupulous suppliers (contractors, performers), etc. (art. 31 of Federal Law No. 44 dated 05.04.2013);

- formal verification of procurement participants (for example, for the availability of production facilities, a possible conflict of interest between officials on the part of the customer and the contractor). The participation of "technical" organizations that do not have the necessary production base in the implementation of the State Defense Order is one of the main violations of laws in this area ^{[7, p. 251]};

- performing actions that contribute to limiting competition (purchasing from a single supplier when it is possible to conduct competitive purchases, enlarging lots without any expediency, excluding advance payments, etc.).

3. At the stage of execution of government contracts (contracts), attention should be paid to the actions (inaction) of the customer and the performers, the commission of which in one way or another ensures the concealment of criminal acts:

- improper control by the customer over the provision by the lead contractor, as well as by the executors (subject to the inclusion in the state contract and contract of provisions on the right of control) of supplies of products under the state defense order in accordance with the state contract, contract. For example, during the preliminary investigation, it was established that the responsible employees of the customer's company under the concluded contract did not perform preliminary, current and subsequent controls, did not maintain regular reports on the balance of funds on a separate current account, on the use of funds, which made it possible to spend budget funds on needs unrelated to the work being carried out. by contract;

- failure to take measures to impose penalties and terminate the contract;

- increasing the deadlines for fulfilling obligations in violation of the contract;

- violations in the payment of advance payments: transfer of advance payments in an excessive amount without substantiating such a decision, overestimation of the advance payment under the contract in violation of the restrictions established by law, payment of an advance for the next stage if the previous one is not fulfilled. One of the main reasons contributing to the commission of crimes in the field of the military-industrial complex, experts also indicate the uncontrolled payment of advances by contractors and improper control over the execution of contracts ^{[4, pp. 93-94]};

- insufficient anti-corruption work in the organizations of the customer, the head contractor, creating conditions for formal control over the execution of the state contract within the framework of the implementation of the State budget;

- improper control by the management of the contractor organization over the expenditure of funds by subcontractors;

- improper performance by officials of their duties during the acceptance of goods, work performed and services rendered, including insufficient competence of such employees, lack of proper verification of compliance with the necessary standards and regulations, authenticity of quality certificates provided by the contractor, licenses for goods, including acceptance of products based on copies of these documents;

- violations in the record-keeping of the organization involved in the execution of the state contract. 201.1 of the Criminal Code of the Russian Federation, V.O. Zakharova, I.M. Ganiev also rightly refer to the absence in the company of the head contractor of documents on the performance by the contractor of works, services, etc.^{[8, p. 102]};

- non-involvement of experts and expert organizations in the examination of the delivered goods, work performed or services rendered, if the purchase was carried out from a single supplier in cases established by law.

These circumstances do not provide an exhaustive list, since the preparation and implementation of the state defense order are regulated by numerous regulatory legal acts, local documents of enterprises, depend on the subject of procurement and the specific terms of the contract.

Some of these circumstances indicate signs of administrative offenses committed during the implementation of a state defense order (for example, art. 7.29, 7.29.1, 7.29.2, 14.6.1, 14.55, 14.55.1, 14.55.2 Administrative Code of the Russian Federation).

The identification of the above circumstances requires officials in charge of the criminal case to apply (use) special knowledge about the method and rules for determining the supplier, the price of the contract for the state defense order and other issues, including through the involvement of specialists. The need to plan interrogations of persons with special knowledge in the relevant field of activity was also mentioned by other authors ^{[2, P. 19]}, however, we believe that we should not limit ourselves to the specified investigative action. Investigating investigative prevention, Yu.F. Kamenetsky emphasizes that it is advisable for an investigator to discuss with specialists options for protecting objects of encroachment, to eliminate flaws in the system of protection against a specific type of crime, and to receive advice on the state and characteristics of crime technology ^{[9, p. 39, 507]}.

In this regard, attention should be paid to the possibility of obtaining expert opinions provided for in Parts 3 and 4 of Article 80 of the Criminal Procedure Code of the Russian Federation. For example, O.O. Dokuchaev and A.V. Churkin, it is noted that in a criminal case of a crime in the field of a state defense order, a specialist can solve a reference and regulatory task, namely, the provisions governing pricing issues are indicated ^{[10, P. 145]}.

A study of regulatory legal acts in the field of state defense orders has shown not only the possibility, but also the need to involve specialized specialists who perform control and supervisory functions in the field of state defense orders. According to the category of criminal cases under consideration, cooperation with employees of the Federal Antimonopoly Service of Russia seems to be the most promising. In accordance with Federal Law No. 275-FZ dated December 29, 2012 "On the State Defense Order", the Antimonopoly Service is entrusted with additional powers to control the State Defense Order, which cover all stages of planning, placement and execution of contracts for the state defense order. Therefore, in order to receive advisory and reference assistance, investigators (interrogators) need to use various forms of interaction. For example, the FAS of Russia (its territorial bodies) can request information about detected violations during the conduct of competitive procedures and the conclusion of government contracts by the customer. It is recommended to use this material as an aid in the implementation of preventive powers. In addition, according to the Regulation on the Procedure for Interaction between the Ministry of Internal Affairs of the Russian Federation and the Federal Antimonopoly Service, approved by Order of the Ministry of Internal Affairs of Russia and the FAS of Russia dated 12/30/2004 No. 878/215, employees of the FAS of Russia may be involved in a criminal case in procedural actions, including the establishment of circumstances that contributed to the commission of a crime.

Rosfinmonitoring may have data on circumstances contributing to the commission of crimes in the field of public health. He is working to identify violations of the legislation of the Russian Federation, as well as the causes and conditions that contribute to them, in the framework of control and supervision in accordance with Federal Law No. 275-FZ of December 29, 2012, Federal Law No. 115-FZ of 08/07/2001 "On Countering the Legalization (Laundering) of Proceeds from Crime, and financing of Terrorism" and the Instructions for Organizing Information Interaction in the Field of Countering the Legalization (Laundering) of Funds or Other Property Obtained by Criminal Means, approved by Order of the Prosecutor General's Office of the Russian Federation, the Federal Financial Monitoring Service, the Ministry of Internal Affairs of the Russian Federation, the Federal Security Service, the Federal Customs Service and the Investigative Committee of the Russian Federation dated 08/21/2018 No. 511/244/541/433/1313/80. Employees of Rosfinmonitoring (its territorial bodies) are competent to provide explanations on the connection of operations/transactions with criminally punishable acts, since during financial investigations they analyze information on the financial activities of legal entities and individuals, financial transactions, transactions, contracts, contracts, bank accounts, details of financial instruments and related information. A.Y. Cherdantsev writes about the importance of attracting these specialists, including for solving problems related to the prevention of offenses by the executors of the State Defense Order. The author notes that Rosfinmonitoring materials may contain information about risks that have a significant impact on the implementation of the State Defense Order, which in turn may serve as a basis for taking measures to eliminate circumstances that contribute to the commission of a crime or other violations of the law ^{[11, pp. 105-106]}.

Taking into account the provisions of the Order of the Ministry of Internal Affairs of Russia dated 08/24/2023 No. 619 "On certain organizational issues of the activities of the internal Affairs bodies of the Russian Federation for the prevention of offenses", the introduction of generalized information letters (submissions) is an important means of investigative prevention in the field of state defense orders. They are compiled on the basis of an analysis and generalization of the circumstances that contributed to the commission of certain types of crimes in several criminal cases or committed in a particular industry (in an enterprise, in an organization). At the same time, given the geographical location of defense industry enterprises and performers of government contracts, it is very difficult to generalize such circumstances in the absence of a unified information base accumulating data from all regions of the country.

Depending on the materials available in the criminal case, it is advisable to indicate the requirements and (or) recommendations in the submissions on measures to eliminate circumstances contributing to the commission of crimes in the field of the state defense order: on the development of additional control mechanisms for the formation of the state defense order, its advance payment and execution; on strengthening control over the provision by enterprises of primary documentation justifying the targeted use of budgetary funds during the execution of government contracts; on conducting an explanatory conversation with employees of the organization and strengthening control over their activities; on improving the quality of selection of candidates for employment; on conducting an internal audit on the facts of improper performance of official duties by employees of the organization revealed during the investigation of a criminal case; on considering the installation of additional video surveillance cameras; on developing measures to improve the control of acceptance of goods, works, and services, including with the involvement of specialists and photofixation; the need to introduce additional requirements for checking counterparties, etc.

In order to increase the effectiveness of preventive activities and prevent disruptions in the execution of state defense orders under other contracts, as well as the application of administrative measures provided for by law to persons who do not comply with the legitimate demands of investigators (inquirers), regular monitoring of submissions and responses to them is necessary. Monitoring the execution of submissions, as a rule, goes beyond the time frame of the investigation and is a very time-consuming process. As previously noted by one of the authors of this article, these tasks are not typical of the functional responsibilities of units investigating criminal cases, and are unjustifiably superfluous ^{[12, p. 326]}. Currently, the solution to this problem is found in subsection 4.1.2 of the Order of the Ministry of Internal Affairs of Russia dated 08/24/2023 No. 619, which provides for the release of investigators (interrogators) from control over the implementation of the measures specified in the submissions, but requires the development of a mechanism for the implementation of this procedure in each territorial body of internal affairs. In the case of submitting a submission on the category of criminal cases under consideration, we believe it is advisable to involve employees of the Departments of economic security and anti-corruption in monitoring its execution.

Thus, investigative prevention during the investigation of a criminal case on a crime committed in the field of the state defense order should be aimed at verifying compliance with the established requirements for the formation and placement of the state defense order, procurement, use of allocated budget funds at the stage of execution of the State Defense Order, as well as the procedure for acceptance of goods, services and works. An integral part of preventive work is the identification of those responsible for violations, including officials of the customer. The complexity of the mechanism of formation and implementation of the State Defense Order requires employees to have special professional knowledge in identifying circumstances that contribute to the commission of crimes and other violations, and determines the need to involve specialists from the antimonopoly Service, Rosfinmonitoring, and other bodies to assist in establishing such circumstances in procedural and non-procedural forms.