Criminological and Criminalistic Problems of Overcoming the Counteraction to Criminal Prosecution

Abstract

The authors analyze the history of the emergence and development of the corresponding criminological research and special criminalistic theory of overcoming the counteraction to criminal prosecution (preliminary investigation) to research its present condition, examine its potential for improving the effectiveness of fighting crime while strictly observing the rights and lawful interests of citizens. The authors use systemic, interdisciplinary and situational approaches, the methods of comparative jurisprudence and a number of sociology methods to update the current (to speak conventionally, accusatory) paradigm of the theory. The essence of this update (the new concept) is to ensure the adversarial nature of the judicial process, as well as in other types of court procedures, for the prosecution and the defense. The presented theory concept includes the idea that counteraction to prosecution could be not only unlawful and amoral, but also lawful and ethically admissible. The motives of persons involved in this counteraction could include their subjective confidence in their total or partial innocence, as well as the unlawful and (or) amoral, in that persons opinion, actions of some law enforcement employees. These clauses are developed through the authors own definition of counteraction and the classification of its acts. They have formulated six theses that form the basis of the updated paradigm of the theory. The authors conclude that the presented research approach, the concept reflected in the didactics of university law schools, could instill in students and practitioners a deep and stable personal motivation to study not only the corresponding academic disciplines, but the whole criminalistics and criminology as well as other theories and disciplines of the anti-criminal cycle. The suggested approach and the practical recommendations based on it could be used in the conceptually new syllabus (and subjects) already taught in the leading Russian universities, like «Counteracting Crime», «Criminalistic Support of Business Security», «Tactics of Protection against Unlawful Actions of Government Employees», «Tactics of Interaction between Business Structures and Controlling Bodies».