Unlawful entry into a home is a criminal offense. It is committed against the will of a person who is in such a room. The article of the Criminal Code “Illegal Entry into the Home” contains three parts. Let's consider them in detail.
Criminal Code: "Illegal entry into the home"
For the specified act committed against the will of the subject staying in the premises, a penalty of:
- Cash recovery up to 40 t. or equal to the amount of salary / income for 3 months.
- Correctional work up to a year.
- Arrest up to 3 months.
- Mandatory work for 120-180 hours.
Qualifying composition
It is provided in part two. Illegal infiltration may be committed with the use of force or under the threat of violence. For such an act, a penalty of the form:
- Cash recovery up to 200 tons or in the amount of income / salary for a period of up to one and a half years.
- Imprisonment up to 2 liters.
Aggravating circumstances
Unlawful entry committed against the will of a person in the building with the use of violence or threatened with the use of official position, shall be punished:
- Cash collection in the amount of from 100 to 300 tons or equal to the guilty salary / income for 1-2 g.
- A ban on staying in certain positions and engaging in specific activities for a period of 2 to 5 liters.
- Arrest for 2-4 months.
- Imprisonment up to 3 liters.
Note
The dwelling house acts as a dwelling in this article, including all premises, including non-residential. When qualifying an act, the form of ownership of the structure does not matter. The building may or may not be part of the housing stock. The object can be any other room or structure suitable for temporary residence.
Commentary on Art. "Illegal penetration"
The acts considered in the article primarily violate the provisions of the Constitution. In Art. 25 of the Basic Law states that no one can enter the home against the will of the people living in it, except in cases established by federal law or by court order. As a guarantee of the execution of this requirement, a criminal legal defense is provided, which is provided for in the commented norm. The former Code contained specific prohibitions. In particular, unlawful searches, eviction and other unlawful acts that violate the integrity of the premises were stipulated. Provided for in the current CC Art. “Illegal penetration” contains a broader definition. It also covers cases that were specified in the previous code.
Objective part
Public relations regarding the enforcement of the right established by Article 25 of the Constitution are the object of the violation. The objective part of the crime in question is formed by the action - illegal entry. The note to the article explains the key concept - the subject of abuse. This can be a private (individual) house, a hotel room, an apartment, a summer house, a garden house, etc. Actions aimed at the constructive parts of these objects, if they are used to store property, rest or satisfy other economic or personal needs, will be unlawful. In particular, this refers to balconies, pantries, verandas, etc. A dormitory room is also considered a dwelling. The decision of the plenum of the Armed Forces establishes exceptions. In particular, premises that are not adapted and not intended for temporary or permanent residence are not recognized as housing. For example, these are isolated barns, cellars, garages and other utility areas.
The specifics of the act
Illegal entry is an invasion of a building. It can be carried out both secretly and openly. In this case, an attacker can overcome any obstacles or resistance of people in the room. According to the Criminal Code, illegal entry can be unhindered. The perpetrator can commit a crime using any means or objects. Entry into the home, control of the premises from the inside with the help of special technical devices will be considered illegal entry.
Wrongfulness
The illegal entry of the Criminal Code identifies with the concept of "unauthorized intrusion in the manner prescribed by law." It is also considered unlawful to enter the premises without the knowledge, consent of the victim, use of the area in his absence, unlawful search, eviction and other similar actions that violate the inviolability of the space. Unlawful entry into a dwelling (Article 139) by its design refers to formal compositions. Accordingly, the act will be considered completed at the time of the invasion of the premises.
Normative base
The limits and grounds for limiting the constitutional right of persons are established by Art. 11, paragraphs 18 and 24 of the Law "On Police" (adopted during the RSFSR) as amended by the Federal Law of 1993, as well as Art. 6, 7 and 9 of the Federal Law regulating operational-search measures, the Criminal Procedure Code, clause “e” of the Federal Law regulating the activities of federal state security bodies with amendments and changes introduced by the Law of July 1, 1993. The last normative document has lost its force Federal Law No. 40.
According to the decision of the plenum of the Armed Forces, which explains some issues regarding the application of Art. 23 and 25 of the Constitution, the courts should consider materials proving the need to enter the premises, and make an appropriate decision. In Art. 165 of the Code of Criminal Procedure, the investigator has the right to search immediately if such a need is caused by the circumstances of the case. However, he is obliged to notify the judge after such actions. A search conducted in such situations cannot qualify as illegal. This is primarily due to the fact that the CPC acts as a federal regulatory document. Secondly, a search carried out in extreme circumstances, not previously agreed with the judge, but subsequently confirmed by him, cannot be considered unlawful.
Violence or threats
These signs are present in various articles of the Criminal Code. Unlawful entry into a home may occur with slight damage to health. Such damage is damage that entails a minor, fleeting consequence, lasting no more than six days. Violence can manifest itself in the form of beatings (repeated striking), restriction of the victim’s freedom (binding, for example). In these cases, the act does not qualify additionally under Art. 115 and Art. 116.
If the violent actions were accompanied by causing moderate harm, as well as serious damage to health, as well as the death of the victim, the act is additionally covered by Art. 111, Article 112 or 105. A warning is the threat of an intention to inflict damage, personal injury, beating, and killing. Moreover, additional qualifications under Art. 119 not required. As an additional object of encroachment on the second part of the commented article, public relations act that ensure the inviolability of the person and health, as well as individual freedom of the citizen. The subjects of crimes established in part 1 and part 2 of article 139, there can be any sane person from 16 years old. The guilty person realizes that his behavioral acts violate the constitutional right to the inviolability of housing, he understands the social danger of the act and wants the corresponding consequences.
Special composition
It is installed in part three. A qualifying attribute is the use by the perpetrator of his official position. Accordingly, the subject of the crime is special. They may be, for example, an employee of the municipal service, law enforcement agencies, etc. Illegal infiltration using an official position contrary to the will of a person in a residential building takes place in cases where the perpetrator does not have the authority to limit the right established by Article . 25 of the Constitution. It will be illegal to enter the premises if they exist, but the employee has no reason to implement them.
Additionally
If the illegal entry was carried out with a lock breaking or other locking device, accompanied by damage to the floor, walls, property damage, the crime should be considered in the aggregate of Art. 139 and Art. 168. If, after an unlawful entry into the premises, theft of the victim’s material assets took place, the act falls under subsection “in” part 2 of Art. 158. However, additional qualifications for the commented article are not required. Unlawful intrusion is not covered by the norm if it acts as a way to commit theft, robbery or robbery. In such cases, the offense should be qualified under paragraph "c" of Part 2 of Art. 158, paragraph "c" of Part 2 of Art. 161 or paragraph "c" of Part 2 of Art. 162.
Conclusion
The unlawful entry into the premises of a person without his consent, therefore, in itself acts as a violation of the constitutional right of a citizen. However, this action may be justified by circumstances, extreme necessity. As a rule, this restriction is valid when civil servants exercise their powers. However, even in this case, the need for entry into a dwelling must be justified and authorized. The rules of law allow for uncoordinated intrusion by law enforcement officials. But even in this case, after taking the necessary actions, the employees are obliged to notify the court of the measures taken. Otherwise, their behavior will be declared illegal. When committing a crime, there is direct intent. A person entering a room clearly understands the harm that he causes, the consequences of his actions. Responsible persons may be held liable. In the first and second parts, they can be citizens of 16 years. Part three establishes liability for employees. When considering an act, it is necessary to delimit it from other crimes containing the basic composition in qualifying features. Separately, it is necessary to investigate violent acts or the threat of their use in case of illegal entry into the premises.