Vitaly Topchiy,
Researcher of the Open International
University for Human Development "Ukraine"
UDC 343.1:351.83
Characteristics of questioning victims and witnesses
during investigation of criminal offenses against labor rights
Based on the extensive literature reviews and synthesis of investigative practices, the main characteristics of organization and tactics of victims and witnesses questioning during investigation of criminal offenses against labor rights, have been studied herewith.
Keywords: crimes against labor rights, pre-trial investigation, interrogation, victim, witness, investigative tactics.
Current problematic issues description. As it noted in literature, a questioning is one of the most common investigative actions that is conducted during the pre-trial investigation. The value of questioning is because of the fact that, it is the way to obtain new evidence-based information, as well as to conduct verification, refinement, deepening, consolidating of information received from other sources, as well as means of receipt and verification of orienting information. Using the information obtained in the course of interrogation, an investigator can not only check the validity of earlier nominated versions, but also adjust it, as well as promote new releases, reach the level of innovative tasks, identify trends, tools, methods and techniques of their solution [1, p. 16-17].
An overview of recent researches and publications. The interrogation issues of various person categories have been the subject of a special attention in almost all papers devoted to the methods of crime investigation. Methods of investigation of criminal offences against the rights of working persons, characteristics of interrogation of company's officials, victims, and witnesses have been considered in the works of O.V.Taran, V.M. Fihurskoho, E.P. Osipova et al.
Purpose and objectives of the article is to clarify, based on the analysis of literature and investigative practices, an essential characteristics and tactics of questioning of victims and witnesses during the investigation of criminal offenses against labor rights.
The basic material. Investigation practices analysis of crimes against labor rights showed that interrogation records are contained in all criminal proceedings what confirms the possibility and feasibility of obtaining evidence-based information through questioning during investigation of these crimes. Extensive search capabilities of interrogations make it one of the most popular methods of obtaining evidence-based and other important information. The main objective of interrogations, including questioning of victims in the investigation of crimes against labor rights, is gathering information about the event of a criminal offense that is committed by person(s), the manner of criminal offense, the identity of victim, the state of the financial and economic discipline, general compliance with labor laws in particular company, work relationships in collective, as well as other circumstances caused by tasks of the certain proceedings. Further compilation and comparison of the data often makes it possible to establish almost all elements of the matter of proof subject.
Taking into consideration the peculiarities of commission and investigation of crimes against labor rights, an interrogation may not be the only single effective investigation (detective) action. At the same time, it is also important to note that results of interrogations should be critically evaluated by an investigator, as it happens quiet often for various reasons on objective or subjective matters, when the obtained evidences doesn’t correspond the truth, and reflect only estimate arguments of person being interrogated. Therefore, in each case it should be verified the (validate) objectivity, completeness and truthfulness of the obtained information through the examination of documents and performance of other investigative (detective) actions.
The process of obtaining reliable information through interrogations significantly promotes the creation of favorable conditions for their implementation.
The reason of that, is because almost all categories of the interrogated individuals don’t have any experience in cooperation with law enforcement agencies in matters of criminal proceedings, so negative hostile attitude can be prevented, for example by choosing a convenient place and time for the conduction of an interrogation, ensuring absence of any unauthorized persons during the process of interrogation.
There is no doubt in the fact that the reliability of information received is also depending on the skills and abilities of an investigator.
It would be fair to say, that questioning is considered as one of the most complicated investigative (detective) actions. Its difficulty lies in the fact, that the investigator for the effective interrogation requires knowledge in fields of labor, tax, economic legislation, as well as he/she might be aware in issues of accounting, personnel records management, workflow rules, what in turn often require a proper professional’s advice.
In practice, the established approach which justified its effectiveness - is considered the primary questioning of victims and witnesses (employees who are not related to state employees).
Thus, an investigator during interrogating these persons mainly discovers the reliable information about the general state of compliance with labor laws in a particular enterprise, other violations of labor laws, features of activities and interaction between structural units of the certain company, the nature of work relationships in the collective, an attitude of management to subordinates and other information, which identification and comparing with actual data, obtained from the analysis of documents and other materials of criminal proceedings, will allow to form a complete picture of events under an investigation, and to prepare for interrogations of officials of a company and its director.
However, despite the fact that victims and witnesses are usually more likely to give truthful testimonies, the obtained information is subject to critical assessment in the view of possibility of distortion under the influence of subjective factors (resentment, unsympathetic attitude, erroneous assessment of events, phenomena and processes, pressure and other).
Victims of crimes against labor rights in accordance with Article 55 of the Labor Code of Ukraine may be an individual to whom the committed criminal offense caused moral, physical or property damage. Rights and obligations of a victim are arising, since the moment of submission of application on commitment of a criminal offense against him/her, or application on involvement him/her into proceedings as a victim. A victim is also a person who is not an applicant, but to whom a committed criminal offense caused damage and therefore, after criminal proceedings opening he/she have applied for own involvement in the proceedings as a victim.
A victim depending on the circumstances of the criminal offense is being questioned as follows:
1) details of employment:
whether an employer proposed to pass probation period without registration of labor relations;
probationary period, the conditions of probation;
whether the employer offered to pass an internship, its terms;
whether the employer offered to work without registration of labor relations;
whether the employer offered to conclude a civil contract;
whether such a contract was concluded;
whether the employer offered to voluntarily resign on their own, with "no date" stipulated;
2) circumstances of labor relations (labor contract):
whether a victim wrote the statement on hiring and submitted proper documents stipulated by the labor law;
whether a labor contract was concluded, in what form;
whether a corresponding decree (order) on admission of a victim has been issued;
whether an appropriate record in the workbook has been made;
whether victim’s admission to work actually took place;
whether a victim was briefed on receipt of order (order) of the employment;
whether a record of an employment in the workbook has been made, whether the content of the record (position), reflects the earlier reached agreement;
whether a victim was familiarized with a proper receipt in the personal card;
whether a victim was familiarized with the internal labor regulations;
3) circumstances of dismissal, transfer to another position, mode changing, etc.:
grounds for dismissal, which were submitted by the employer;
the method of notification and compliance with the requirements of labor legislation;
whether an employee signed documents (specify), whether he/she had time to acquainted them, whether he/she got copies of the relevant details;
whether a victim addressed the employer with statements, services notes, etc. on the particular facts (specify);
4) concerning non-payment of wages and other statutory payments:
whether there is a fact of indebtedness, its duration;
how the payments were made before and whether there were any violations;
whether a victim turned to the employer with a written statement to clarify the grounds of delayed payment of funds;
whether appeared payroll followed by non-payment;
5) termination (cancellation) of a labor contract:
by the employer initiative (whether a proper changes in the production organization really took place, including liquidation, reorganization (bankruptcy) or conversion of enterprise, institution, organization, downsizing or staff, other grounds for termination of the contract, whether it can be confirmed (denied) by a victim );
by mutual agreement of the parties (whether a decree (order) has been issued in compliance with paragraph 1 of Article 36 of the Labor Code of Ukraine);
on the initiative of an employee (the victim) (whether the requirements of the current labor legislation has been satisfied);
expiration of the labor contract (whether there was an initiative of one of the parties to terminate an employment contract, if a legal act specification has been issued) [2, p. 27];
6) other information and facts:
position of the victim, his/her functional responsibilities;
attitude to work and work rules;
education, work experience (total and ex-officio), qualifications, availability of documents required to perform certain types of work;
how a victim may describe relationships in the collective, his/her own relations with the head of a company;
whether conflicts between the victim and the company officials took place, their causes and content;
general state of health of a victim, contraindications for performing a specific job;
whether a victim was violating the labor discipline, or work rules; what was the violation about, what measures have been applied by the authorized officers of a company, what they were consisted of and how they were issues;
whether the repayment disciplinary action has been conducted in accordance with established procedure;
whether a victim provided written explanations on the request of the head and other officials of a company; for what reason victim had provided these explanations and its content.
The main purpose of victim’s interrogation is to obtain information that promote the establishment of the fact of labor relations between an employer, as well as motives of an offense, the fact and manner of violations of labor laws in employment, transfer to another position, dismissal, breach of work agreement, unpaid wages and so on.
Witnesses who are not among the officials and are who are not interested in the results of an investigation, should be questioned concerning circumstances known to them regarding any specific violations of labor rights and other violations of labor rights, the nature of work relationships in the collective, the attitude to subordinates on administrative policies, internal labor regulations, conditions and timeliness of statutory payments etc. It should also be borne in mind, that the testimonies of this category of interrogated individuals may be influenced by certain factors, unknown to investigator. In particular, the abovementioned person may feel fear of being dismissed due to cooperation with investigation authorities; have a misconception about the corporate culture and ethics, the authority of director and likewise.
Investigator should use each opportunity for questioning of individuals, who used to work in the particular company, and is able to provide information of interest. In practice, there are few cases where testimonies of people who worked in company, and further helped in establishment of factual circumstances of an incident, while the management and employees of a company purposefully concealed. Motivation of cooperation with the investigation for such persons may vary, thus it may influence on the content of their testimonies. Thus, a witness may be guided by desire for "personal accounts" with the company or certain officers, if in past between them some conflicts or disagreements took place, which caused person’s dissatisfaction with his/her position. However, often the desire to help in establishing the truth comes from awareness of civic duty or other moral motives of an individual (honesty).
Conclusion. Taking into account these organizational and tactical features during preparation for and during conduct of interrogations, as a part of preliminary investigation of crimes against labor rights, would promote the improvement of effectiveness of interrogations, as means of obtaining new evidences by prosecution.
References:
1. V.A. Obrazcov, S.N. Bogomolova Interviewing the victim and a witness at the preliminary investigation. - M .: Izd-vo Omen - LYMPA A.S. Griboedova, 2003 - 159 p.
2. Labor rights protection - forewarned is forearmed! Guidance for employees and individuals seeking employment / M. Tsumaryev, V. Vlasyuk, V. Maslennikov. - Kirovograd: 2012 - 68 p.