Past the cash register, but not past the pocket: who bought the police from the Central Market?

In MUP “Central Market” of the city of Irkutsk, it is restless. In September 2021, during an internal audit of financial discipline, curious details of the underground activities of the deputy director for development of MUP were revealed.

During the audit, it turned out that the revenue collection operator individually indicated the amount of money (the so-called revenue plan) for car parking services. These cash and non-cash funds had to be carried out at the cash desk and reflected in fiscal documents. And funds received in excess of the established plan were not carried out according to fiscal documents, checks for these amounts were not made. In short, the money went past the cash register.

Where is the money going?

According to the employees of the enterprise, these funds were transferred to Veronika Titova (currently Lazareva), deputy director for development of the Central Market Municipal Unitary Enterprise, at the oral direction of the latter. When transferring funds received in excess of the plan, Lazareva The.The. used means of conspiracy: made appointments in different places, without the participation of unauthorized persons, used WhatsApp and Viber instant messengers when talking on a mobile phone. For reporting, parking lot operators at the end of their shift on a piece of paper or on a cash receipt wrote down the number, their last name / signature, the amount of the plan that they needed to transfer through the cash register, as well as the amount received in excess of the plan. The latter they transferred and the total amount of money received during the shift. These notes were handed over to Mrs. Lazareva.

During the check, the commissioners calculated the amount of transferred funds, according to the records on pieces of paper and cashier’s checks.

In total, information is available on sixty-seven days of car parking. During this time, Veronika Lazareva received 785,496 rubles. Think about these numbers, friends. On average, Ms. Lazareva received almost twelve thousand rubles per day, which is almost equal to the monthly subsistence level. And this, we recall, is only part of the money spent by the cash register.

In the legal field

On October 8, 2021, the director of MUE “Central Market” filed statement to the Police Department No. 5 of the MU of the Ministry of Internal Affairs of Russia “Irkutsk”. The application was registered with the KUSP under the number 1256.

On December 6, 2021, MUP received refusal order in initiation of a criminal case dated October 5, 2021 with outgoing number 11212, issued by the detective of the EBiPK department in the Kirovsky district of the OEBIPC of the MU of the Ministry of Internal Affairs of Russia “Irkutsk”. Then the specified The ruling was challenged and overturned.transferred for verification under Articles 144-145 of the Code of Criminal Procedure of the Russian Federation to SO-5 of the Investigative Department of the Ministry of Internal Affairs of Russia “Irkutsk”.

But the saga with statements did not end there. July 27, 2022 Irkutsk again refused to initiate a criminal case. The resolution is dated July 1 last year, registration number 42/33-7075.

It is important to point out one detail here.. After the first refusal to initiate a criminal case, a forensic accounting examination was appointed. The expert’s conclusion was issued on March 1, 2022. According to the document, the amount of cash unpaid to the cash desk of the enterprise amounted to 730 956 rubles. At the same time, the second decision to refuse to initiate a criminal case was issued only on July 1, that is, 4 months after the completion of the forensic accounting examination.

Both decisions to refuse to initiate criminal proceedings were absolutely identical, despite the presence of a forensic accounting report when issuing the second decision. This allows us to conclude that there was a violation of the reasonable terms of criminal proceedings provided for by Article 61 of the Code of Criminal Procedure of the Russian Federation, as well as the formal, superficial approach of an official to this case.

In addition, when the official issued the above decisions, some circumstances were not taken into account. For example, the decision to refuse states that the arguments set forth in the application, based on the testimony of an employee of the Municipal Unitary Enterprise “Central Market”, are refuted by the explanations of citizen Lazareva. Like little children, by God. Are the police so naive that they hope for a sincere confession even before the criminal case and trial?

At the same time, it is not taken into account that the circumstances set forth in the application are also confirmed by witnesses – other employees of the MUP.

For negligent police officers, we recall that the evidence and circumstances relevant to the case must be assessed by the official in their totality and interconnection, which is a guarantee of a comprehensive and objective study of all the circumstances of the case and evidence. This is what the law tells us.

In this situation, it seems that Lazareva’s testimony about the refutation of the fact of transferring funds to her and paying wages to her personal card should be viewed critically in view of the direct interest in the outcome of the case and the right not to testify against oneself, guaranteed by Article 51 of the Constitution of the Russian Federation.

In the theory of criminal procedure, there is a position according to which unwillingness to participate in conducting a polygraph examination (in the absence of circumstances preventing its implementation) should alert investigator and be the basis for an in-depth study of the identity of the “refusenik” and the nature of his relationship with the victim. In addition, supporters of the use of psychophysiological expertise believe that the refusal to undergo it will indicate the involvement of the subject in the event under study.

However, the refusal to pass Lazareva The.The. polygraphic research was not taken into account by the official.

In accordance with Article 17 of the Code of Criminal Procedure of the Russian Federation, a judge, jurors, a prosecutor, an investigator and an interrogating officer evaluate evidence according to their inner conviction, based on the totality of evidence available in a criminal case, guided by the law and conscience. No evidence has a predetermined force.

Based on the input, we can conclude that in this case, when issuing a decision to refuse to initiate a criminal case, the official improperly assessed and analyzed the evidence confirming the information set out in the application. We are talking about the handwritten notes of the operators, reflecting the activities of the parking lot of the Municipal Unitary Enterprise “Central Market”, the testimony of witnesses and the forensic investigation.

The refusal to initiate is based on an oral refutation by Ms. Lazareva. This may indicate a violation of the principle of freedom of assessment of evidence, enshrined in Article 17 of the Criminal Procedure Code of the Russian Federation.

And that is not all.

Also, the appealed decision states that, taking into account the analysis of the job description of the deputy director for development of MUE “Central Market”, it is advisable to classify the person as an official, specified in note 1 to article 285 of the Criminal Code of the Russian Federation “Abuse of official powers”. This refers to persons who permanently, temporarily or by special authority perform organizational, administrative, administrative and economic functions in a municipal institution.

This conclusion of the official is erroneous and is based on the substitution of the concepts of “municipal institution” and “municipal enterprise”.

We dug into the legislation and found differences between these two concepts. According to part 1 of article 123.21 of the Civil Code of the Russian Federation, an institution is a unitary non-profit organization created by the owner to carry out managerial, socio-cultural or other functions of a non-profit nature. In accordance with Article 91 FZ dated 01/12/1996 M 7-FZ “On non-profit organizations” A municipal institution is an institution established by a municipality.

According to part 1 article 113 of the Civil Code of the Russian Federation, a unitary enterprise is a commercial organization that is not endowed with the right of ownership of the property assigned to it by the owner. The property of a unitary enterprise is indivisible and cannot be distributed among contributions (shares, shares), including among employees of the enterprise. State and municipal enterprises operate in the organizational and legal form of unitary enterprises. In accordance with Article 2 Federal Law of November 14, 2002 No. 161-FZ “On State and Municipal Unitary Enterprises, a municipal unitary enterprise is a commercial organization that is not endowed with the right of ownership of property assigned to it by the owner, the property of a municipal unitary enterprise belongs to the municipality. We hope this is enough.

Based on the foregoing, we can make an unambiguous conclusion that MUP “Central Market” of the city of Irkutek is not a municipal institution, but is a municipal enterprise. And that is why citizen Lazareva cannot be classified as an official.

In connection with the above, a complaint was filed against the decision taken by the preliminary investigation bodies. It was addressed to the head of the investigative department of the Ministry of Internal Affairs of Russia. As a result, on July 1, 2022, the decision was canceled and the material was transferred for verification under Articles 144-145 of the Criminal Code of the Russian Federation to the Irkutsk Department of the Ministry of Internal Affairs of Russia.

It took five months for the SU MU of the Ministry of Internal Affairs of Russia “Irkutsk” to conduct an audit on this material. At the same time, the investigators did not bother to collect additional exculpatory or accusatory evidence.

Five months later, on December 30, 2022, the investigator issued another decision to refuse to initiate a criminal case, citing all the same formal grounds. For example, the denial stated that Lazareva’s intent to seize funds has not been proven (well, of course, what intent, it’s just an accident!). At the same time, it is important to note that the fact of shortage of funds in the amount of 730,956 rubles has already been established.

That is, the fact of committing a crime in the form of causing damage to the enterprise as a result of illegal actions of any of the employees of MUP “Central Market” is not disputed. However, the investigating authorities stubbornly do not see the crime committed and, when interviewing the expert who conducted the forensic accounting examination, they ask questions in order to recognize the primary accounting documents that form the basis of the examination and confirm the fact of receiving cash as unacceptable.

And here we again plunge into the law. According to part 1 of article 74 of the Criminal Procedure Code of the Russian Federationevidence in a criminal case is any information on the basis of which the court, prosecutor, investigator, inquirer, in the manner prescribed by the Code of Criminal Procedure, establishes the presence or absence of circumstances to be proved in the proceedings on a criminal case, as well as other circumstances that are important for criminal case.

The second part of this article states that the following are allowed as evidence: testimony of a suspect, an accused; testimonies of the victim, witness; conclusion and testimony of an expert; conclusion and testimony of a specialist; evidence; protocols of investigative and judicial actions and other documents.

The comments to the Code of Criminal Procedure clarify that other documents are understood as documents containing information relevant to establishing the circumstances specified in the article mentioned above.

Documents may contain information recorded both in writing and in another form. These may include photographic and filming materials, audio and video recordings and other information media received, requested or submitted in accordance with the procedure established by Article 86 of the Code of Criminal Procedure of the Russian Federation.

Further. Documents that have the characteristics specified in part 1 of article 81 of the Criminal Procedure Code of the Russian Federation, are recognized as physical evidence (part 4 of article 84 of the Code of Criminal Procedure of the Russian Federation). By virtue of paragraph 3 of part 1 of article 81 of the Criminal Procedure Code of the Russian Federationmaterial evidence are objects and documents that can serve as means for detecting a crime and establishing the circumstances of a criminal case.

In turn, the article 75 Code of Criminal Procedure contains a definition of the concept of inadmissible evidence, as well as signs of their inadmissibility. Thus, evidence obtained in violation of the requirements of the said Code is inadmissible.

Thus, the handwritten records of the operators, reflecting the activities of the parking lot of the MUE “Central Market” of the city of Irkutsk, received by the employees of the OEBiPK of the Ministry of Internal Affairs of Russia “Irkutsk” in the manner prescribed by law, are evidence in the case.

An indication that handwritten notes cannot be taken into account as documents confirming the receipt of cash from car parking customers to the cash desk due to the lack of necessary details does not comply with the criminal procedure law.

And this means that the refusal to initiate a criminal case is unlawful.. And here we already have questions for the investigators, who, judging by the above data, ignore the law, covering up the fact of embezzlement of funds.

Babr will continue to monitor developments.

Photo: 2gis