The use of special knowledge in the investigation of the secret theft of other people's property with home invasion

Dulepina Ol'ga Viktorovna Graduate student; Faculty of Law; I.T. Trubilin Kuban State Agrarian University Kalinina str., 13, Krasnodar Territory, 350000, Russia budzzzhe6@mail.ru Other publications by this author     Vlez'ko Dmitrii Aleksandrovich PhD in Law Associate Professor; Faculty of Law; I.T. Trubilin Kuban State Agrarian University 350044, Russia, Krasnodar region, Kalinin St., 13 projects16@yandex.ru Other publications by this author

Demenkov Vladimir Aleksandrovich Graduate student; Faculty of Law; I.T. Trubilin Kuban State Agrarian University Kalinin St., Krasnodar, Russia, 350004, Russia, vladimir.demenkov88@gmail.com Other publications by this author

The monitoring of judicial statistics of the Russian Federation conducted by the authors of this study for 2019-2023 has shown that among all types of crimes against property, covert theft of other people's property, i.e. theft regulated by art. 158 of the Criminal Code of the Russian Federation, is consistently leading. Thus, 154 thousand court sentences were handed down for this composition in 2023, which significantly differs from the indicators of similar crimes: petty theft (art. 158.1 of the Criminal Code of the Russian Federation) – 10 thousand sentences, robbery – 16 thousand, robbery – 4 thousand.. In addition, the total number of convictions for the same period is 555 thousand, of which theft accounts for an impressive share – more than 35% of the total ^[1].

These factors justify the relevance of the chosen topic and subject of the study, moreover, the scientific literature also notes that theft is the most common crime in the world ^[2]. The analysis of judicial statistics makes it possible to verify that in the Russian Federation, theft dominates over other types of criminal acts, and, in particular, those committed with illegal entry into a home are the most frequently committed in a criminal environment (paragraph a of Part 3 of Article 158 of the Criminal Code of the Russian Federation) – for their commission, according to data for 2023 53.5 thousand convictions were handed down.

A number of fundamental works are devoted to the general provisions of the use of special knowledge in the investigation of crimes, the authors of which are such Russian scientists as O. V. Chelysheva, E. V. Elagina, A. F. Sokolov and M. V. Remizov, the scientific works of T. M. Korzhumbayeva, K. I. Sotnikova, A. E. Harutyunyan are devoted to the development and specifics of the use of special knowledge in the investigation of theft., O. A. Shelega and other scientific figures, which emphasizes the high degree of development of this topic and its wide coverage in scientific and research circles. Nevertheless, there remains a lack of development of narrow-profile methods for applying special knowledge in the investigation of secret theft with such a qualifying feature as illegal entry into a home.

The methodological basis of this study was made up of a number of general scientific research methods: analysis, observation, induction, deduction, methods of abstraction and generalization, the statistical method, and special methods such as formal legal and document research.

It is impossible to ignore the high influence of external factors on the success of the investigation of secret theft: in modern conditions, technology and digitalization are penetrating into all spheres of society, including crime. Thus, the methods of committing crimes are becoming more and more sophisticated, and special devices are being introduced into this area and used to simplify both direct criminal activity and the concealment of its traces ^[3]. It is obvious that successful investigation of secret theft of other people's property requires the use of special knowledge. In our opinion, it is through the use of expertise that it is possible to introduce scientific and technical achievements into criminal proceedings, which is necessary to modernize the crime investigation process. In addition, the fight against qualified criminals who commit theft on a professional basis involves the expansion of the scientific and technical means used ^[4]. The argumentation of the above position on the priority of using special knowledge in the investigation of secret theft with illegal entry into the home is the purpose of the ongoing scientific research.

Special knowledge in criminology refers to the application of a system of knowledge in various fields of human activity, obtained, as a rule, within the framework of higher professional education in a particular specialty, which are not legal and are used by the parties to criminal proceedings and the court in order to establish the circumstances to be proved in a particular case ^[5]. The main forms of using special knowledge are the involvement of a specialist (to participate in investigative actions, to provide explanations, consultations), as well as the appointment and conduct of forensic examinations.

Thus, the most significant types of examinations in the investigation of thefts are currently recognized as tracological and fingerprint examinations ^[6]. Due to the fact that theft is a secret theft of someone else's property, regardless of its type, the investigation, as a rule, does not have reliable data on the identity of the subject of the crime ^[7]. It is these types of examinations that are designed to identify a person based on the available traces, establish its connection with the committed act and determine the method of committing a crime. It is impossible to enter a home without direct contact of the subject of the crime with the objects of the surrounding environment (the crime scene), which necessarily entails the formation of traces.

In our opinion, the possibilities of tracological examination in the investigation are extremely high, since its ultimate goal is both to uncover the mechanism of committing an illegal act as a whole and its independent stages by solving a number of tasks: identification – establishing the identity of an object of the material world to its image (trace); diagnostic – determining the mechanism of trace formation, conditions and dynamics of the process. their occurrence; as well as classification problems ^[8].

Identification by materially fixed representations is usually carried out by a forensic expert who can analyze the reflected features of an object and, on this basis, conclude that there is or is not an identity ^[9], which once again underlines the importance of using special knowledge in the investigation process.

Most of the material traces at the scene are subject to expert examination: traces of skin areas with papillary patterns (traces of fingers and toes) and those without (traces of an auricle, lips, forehead, etc.), traces of clothing and shoes, nails and teeth, burglary tools and tools used as such, traces of vehicles, nodes, hinges, seals and locks, destroyed markings, traces of paint. Even if a criminal uses gloves to avoid leaving fingerprints at the crime scene, the gloves themselves may be subject to forensic examination, as they still retain skin particles from the person who used them. So, almost any objects of the material world can act as an object of tracological examination, which eliminates the leveling of its significance in the investigation of crimes characterized by the absence of a suspect at the crime scene.

158 of the Criminal Code of the Russian Federation is that the object of theft can be represented by almost any object of the material world, that is, both movable and immovable property, the right to this property, intellectual rights, the results of work (services), digital data, as well as intangible assets ^[10]. Thus, depending on the specifics of the subject of the crime, the method of committing the act varies: it is obvious that the theft of electronic money and real estate (the right to it) cannot be committed using the same method.

The method of committing a crime, as one of the elements of its event, is among the circumstances to be established in a criminal case. He is also in direct connection with the personality of the subject of the commission of a criminal act, since in some cases, the level of professionalism of the criminal can be judged by the method of penetration. Thus, the tracological examination in this context will be aimed at examining traces of burglary tools ^[11].

It is noted that about 70% of home break-ins occur with the help of physical force or with the use of burglary tools (moreover, in half of this number, hacking occurs without the use of specialized tools and devices), in the remaining 30% of cases, the criminal has free access to the home ^[12].

In addition, the method of committing a crime depends on the location of the act. In the aspect of the research topic we are considering, housing is only a generalizing category and can also mean any type of residential premises (house, apartment or room – according to art. 16 of the Housing Code of the Russian Federation), on which the method of penetration of the subject of the crime, the mechanism of trace formation and, accordingly, the method of investigation will depend.

The issue of recognizing premises as housing poses a certain problem in this context: Resolution No. 48 of the Plenum of the Supreme Court of the Russian Federation dated November 30, 2017 contains a list of objects not related to housing. So, a trailer and a motorhome are included in this list. However, in the verdicts of the courts of general jurisdiction, contrary to the said Resolution, there are cases of recognition of such places as housing. Thus, by the verdict of the Anapa City Court dated 04.10.2018 in case No. 1-270/2018, persons who secretly entered a mobile trailer through the opening of a window they had broken were convicted of secret theft of other people's property committed with illegal entry into a dwelling. In the text of the verdict in question, this trailer is repeatedly referred to as a residential building and a specialized mobile mobile home, bypassing the explanation of the above-mentioned Plenum.

Similarly, in the verdict of the Lazarevsky District Court of Sochi dated 08/09/2023 in case No. 1-281, theft from a construction trailer, also referred to in the verdict as "a car trailer equipped for a motorhome," is recognized as having been committed with entry into a dwelling.

In our opinion, the recognition of a particular room as a dwelling is extremely important for the development of a highly specialized methodology for investigating secret theft. The correct selection and mobilization of appropriate scientific and technical forces and resources is practically difficult in the case of an erroneous determination of the purpose of the premises. The fact that a room is classified as a housing stock affects not only the direction of the investigation, the choice of its methodology, the choice and distribution of forces and means, but also the subsequent qualification of the committed criminal act, since it is penetration into a dwelling that is the most qualified sign of the composition of art. 158 of the Criminal Code of the Russian Federation than theft with entry into a room or other storage based on the content of the article. Thus, we consider it urgent to develop a uniform judicial practice that adheres to the rulings and clarifications of higher courts, because it is the final result of the entire criminal prosecution process, and therefore reflects the results of all actions of government agencies in the investigation process.

It should be noted that in each of the earlier verdicts, it was the expert opinions that served as key evidence in the case. So, in the first case, through fingerprint and biological examinations of blood traces seized from the scene, the identity of the person who committed the intrusion for the purpose of theft was identified. In the second case, the results of the tracological examination confirmed that the shoe tracks at the scene belonged to the suspect's shoes.

Scientific recommendations on the investigation of burglaries pay special attention to the application of special knowledge. Thus, V. N. Dolinin's research developed investigation programs depending on typical investigative situations, as well as on the investigative versions being tested ^[13]. The author includes the purpose of forensic examinations in the list of each of the programs, with the exception of one – the program of investigative actions when checking the version in conditions of temporary remoteness from the moment of the commission of the illegal act. We do not share this position due to the fact that even when a suspect is identified and detained, it remains necessary to establish his involvement in the commission of a crime, which is often impossible without the use of special knowledge and, in particular, the capabilities of forensic examinations. The exclusion of special knowledge from the investigation plan may be critical to its outcome.

So, in our opinion, first of all, the problem of using special knowledge in the investigation of cases of secret theft of other people's property with home invasion lies in the prevailing negative practice, namely, the failure of investigators to carry out the necessary procedural actions, which also include the appointment of forensic examinations. The advantages of using specialized knowledge that we mentioned earlier emphasize the practical importance of their rational use: with the help of forensic examinations, it becomes possible not only to study and verify existing evidence, but also to obtain new evidence contained in the expert opinion.

Moreover, in modern conditions, a number of new ways of entering a home using the latest technologies are emerging. Thus, criminals use self–aggression, a tool whose working parts independently take on the necessary shape when turning it in the keyhole ^[14]. An invention such as a 3D printer is completely capable of accurately copying a key model or making a master key according to the parameters set for it. The use of burglar robots was borrowed from the emergency lock picking technique, whose task is to safely pick locks in critical situations, as well as to speed up the process of entering the home of unscrupulous users. Spatial scanning of locks using optical sensors is able to read their individual parameters in order to create an exact copy of the scanned object. Thermodynamic methods of opening do not require the use of technical achievements at all, since their essence lies in the effect of high and low temperatures on the lock in order to expand (narrow) the metal – so it can be opened without damage (traces of hacking) and even saving time. Artificial intelligence is able to create algorithms that analyze the structure of locks and the most rational ways to break them.

Currently, special knowledge is beyond the control of reliable identification and investigation of such circumstances: none of the types and types of expertise is able to establish the use of the latest technologies listed earlier in hacking. In our opinion, the lag in this area is one of the negative manifestations of the lack of an adequate level of technologization of criminalistic activities and entails the success of the criminal community in the scientific and technical field.

So, taking into account the current situation, it seems rational and justified to contact private specialists in working with locks, namely emergency and "legal" burglars. The services of the first of them are used when it is necessary to open door locks in complex emergency situations, the knowledge and skills of these specialists make it possible to perform an autopsy using specialized equipment in the least energy-intensive manner and at the optimal time, taking into account the individual external situation of the autopsy (in emergency situations). It is customary to resort to the services of professional "legal" burglars in everyday situations (loss of a key, password code, etc.), these specialists carry out field visits with the safe breaking of door locks. In this case, "safe" hacking means the ability to open a lock without leaving visual damage on it and without losing its former functions. These specialists have a wide range of tools and a high level of knowledge in their field. It seems that involving them in the investigation of burglaries, or using and introducing into forensic technology the knowledge they have acquired in the course of their professional activities, will significantly transform and actualize the possibilities of special knowledge in the investigation of secret theft.

Thus, we can see how widely the latest achievements of science and technology are used in criminal activities. In our opinion, the establishment of objective truth in the investigation of clandestine theft with illegal entry into a home is possible if the investigator has proper and sufficient access to special knowledge, which includes the study of the above-mentioned areas of human activity. Thus, the prospects for investigating secret theft directly depend on the level of development of forensic examinations and other forms of using special knowledge.