Criminal Code of the Russian Federation in the latest edition:
Article 322.3 of the Criminal Code of the Russian Federation. Fictitious registration of a foreign citizen or stateless person at the place of stay in the Russian Federation
Fictitious registration of a foreign citizen or stateless person at the place of stay in the Russian Federation -
shall be punishable by a fine in the amount of one hundred thousand to five hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to three years, or by forced labor for a period of up to three years, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years, or without it, or imprisonment for a term of up to three years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years, or without it.
Notes. 1. Fictitious registration of foreign citizens or stateless persons at the place of stay in the Russian Federation means their registration at the place of stay in the Russian Federation on the basis of the submission of knowingly unreliable (false) information or documents, or the registration of foreign citizens or stateless persons registration at the place of stay in the Russian Federation in premises without their intention to actually reside (stay) in this premises or without the intention of the receiving party to provide them with this premises for actual residence (stay), or registration of foreign citizens or stateless persons at the place of stay at the address of the organization in which they do not, in accordance with the established procedure, carry out labor or other activities not prohibited by the legislation of the Russian Federation.
2. A person who has committed a crime under this article is exempt from criminal liability if he contributed to the disclosure of this crime and if his actions do not contain another crime.
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Commentary to Art. 323 Criminal Code
1. The subject of the crime is border markers as visible objects on the ground that serve to mark the State Border, the description and installation procedure of which is determined by international treaties and decisions of the Government of the Russian Federation (Article 6 of the Law of the Russian Federation of April 1, 1993 N 4730-1 “On State Border border of the Russian Federation").
2. The act of changing the State Border of the Russian Federation can be carried out (alternatively) by three actions: a) removal of border markers, i.e. through their extraction or other removal from the area; b) by moving signs, i.e. removal with subsequent installation in a new location; c) destruction.
Within the meaning of the law, it is sufficient that the specified actions are carried out in relation to at least one border sign.
3. The qualifying sign of an illegal border change - the onset of grave consequences - is evaluative.
4. The subjective side of the main body is characterized by guilt in the form of direct intent and the purpose of illegally changing the State Border of the Russian Federation. Regarding the subjective side of qualified personnel, the possibility of intentional and careless attitude to grave consequences is recognized.
Paragraph 2 of the note to Article 322.3 of the Criminal Code of the Russian Federation
Paragraph 2 of the note to Article 322.3 of the Criminal Code of the Russian Federation, as well as the note to Article 322.2 of the Criminal Code of the Russian Federation, provides for the possibility of exemption from criminal liability of a person who fictitiously registered a foreign citizen or a stateless person if he contributed to the disclosure of this crime and there is no other element in his actions crimes.
“ In the note to Article 322.2 of the Criminal Code of the Russian Federation and in paragraph 2 of the notes to Article 322.3 of the Criminal Code of the Russian Federation, one should understand the actions of a person committed both before the initiation of a criminal case and after the institution of a criminal case against a specific person or upon the commission of a crime and aimed at assisting the preliminary investigation authorities in establishing the time, place, method and other circumstances of the commission of the crime, the participation of the person himself in it, as well as in exposing accomplices to the crime. The question of the presence or absence of grounds for releasing a person from criminal liability in accordance with the note to Article 322.2 of the Criminal Code of the Russian Federation or paragraph 2 of the notes to Article 322.3 of the Criminal Code of the Russian Federation in each criminal case is decided by the court depending on the nature, content and scope of the actions committed by the person, and also their significance for establishing the circumstances of the crime and exposing the persons who committed it, with the reasons for the decision being given in the court decision” (clause 17 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 07/09/2020 N 18).
The release of a person from criminal liability for committing a crime under Article 322.2 or Article 322.3 of the Criminal Code of the Russian Federation, on the basis of notes to these articles, does not prevent the prosecution of this person for other illegal actions committed by him, if they are subject to independent qualification (for example, for organizing illegal migration, falsification of a citizen’s passport for the purpose of using it).
Second commentary to Art. 323 of the Criminal Code of the Russian Federation
1. According to Art. 6 of the Law of the Russian Federation “On the State Border of the Russian Federation”, the passage of the State border is established and changed by federal laws (in accordance with international treaties of the Russian Federation).
2. The subject of this crime is: border signs - clearly visible special objects intended to accurately mark the State Border on the ground. The procedure for their establishment (and description) is determined by an act of the Government of the Russian Federation (in accordance with international treaties).
3. The objective side of this crime includes alternative signs: removal of a boundary sign (removal or removal of a boundary sign from its location without the intention of installing it in another place); moving a boundary sign (changing the position of a boundary sign in space); destruction of the border sign.
4. The subjective side of this crime is characterized by direct intent and the special purpose of illegally changing the State Border of the Russian Federation. The subject of the crime is a person who has reached the age of 16 years.
5. The qualified elements of this crime are provided for in Part 2 of Art. 323 of the Criminal Code and contains, in addition to the main elements, a sign of the onset of grave consequences. Taking into account the content of the object, the nature of the public danger of the crime, grave consequences may include border conflicts, mass illegal crossing of the State Border, etc.
Comments on Article 322.3 of the Criminal Code of the Russian Federation
The social danger of the crime is that it violates the procedure for migration registration of foreign citizens or stateless persons, the regime of legal stay at the place of their stay in residential premises in the Russian Federation.
Most of the elements of a crime under Art. 322.3 of the Criminal Code of the Russian Federation, coincide with the corresponding features of the composition provided for in Art. 322.2 of the Criminal Code of the Russian Federation.
The object of the crime is the established procedure for carrying out migration registration of foreign citizens and stateless persons in the Russian Federation. Such accounting is one of the forms of state regulation of migration processes.
Registration of a foreign citizen at the place of stay is the recording in the prescribed manner by migration registration authorities of information about the presence of a foreign citizen at the place of stay.
The basis for registration at the place of residence is the temporary actual presence of a foreign citizen in a place that is not his place of residence, or the specified foreign citizen does not have a place of residence.
The objective side of the crime is the fictitious registration of these citizens at their place of residence in a residential building in the Russian Federation. A detailed description of this act is contained in paragraph 1 of the note to Article 322.3 of the Criminal Code of the Russian Federation, which states that fictitious registration of foreign citizens or stateless persons at the place of stay in the Russian Federation means their registration at the place of stay in the Russian Federation:
- a) based on the submission of knowingly unreliable (false) information or documents;
- b) without their intention to actually reside (stay) in this premises;
- c) without the intention of the receiving party to provide them with this premises for actual residence (stay);
- d) at the address of the organization in which they do not, in accordance with the established procedure, carry out labor or other activities not prohibited by the legislation of the Russian Federation.
All four of the above forms indicate misleading of an official of the territorial body of the Ministry of Internal Affairs of Russia (migration registration authorities) by persons participating in the commission of the act, i.e. it's about deception. Deception consists of deliberately communicating false information that does not correspond to reality, or keeping silent about true facts, or deliberate actions aimed at misleading people.
The crime has a formal composition. “Acts provided for in Article 322.3 of the Criminal Code of the Russian Federation are qualified as completed crimes from the moment the migration registration authorities record these facts” (clause 13 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 07/09/2020 N 18 “On judicial practice in cases of illegal crossing of the State Border of the Russian Federation and crimes related to illegal migration").
Fictitious registration of two or more persons
If the single intention of the guilty person included the registration at the same place of stay of two or more foreign citizens or stateless persons at the same time, what he did constitutes one crime provided for in Article 322.3 of the Criminal Code of the Russian Federation (clause 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 09.07 .2020 N 18).
The subjective side is characterized by direct intent. The person is aware that he is making a fictitious registration and wants to do it. There will be no corpus delicti, for example, in cases where a person was inattentive when working with documents or made technical errors.
“Taking into account that the crimes provided for in Articles 322.2 and 322.3 of the Criminal Code of the Russian Federation can only be committed with direct intent, the employee of the registration (migration) registration authority who registered (registered) a citizen of the Russian Federation, a foreign citizen or a stateless person shall bear criminal liability for the committed act in the event that he realized the unreliability (falsity) of the information or documents submitted for registration or registration or the presence of other circumstances preventing registration (registration)” (clause 14 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 09.07 .2020 N 18).
The subject of the crime is an official of the migration registration authority who has the right to register foreign citizens and stateless persons at the place of their stay in residential premises in the Russian Federation.
“The owner or tenant of the relevant residential premises, a person authorized by them, a manager or other authorized employee (member) of an organization in which a foreign citizen or stateless person does not, in accordance with the established procedure, carry out labor or other activities not prohibited by the legislation of the Russian Federation, or other persons acting on their behalf, may be subjects of a crime provided for in Article 322.2 or Article 322.3 of the Criminal Code of the Russian Federation, if they submitted knowingly unreliable (false) information or documents to the registration (migration) authorities for registration (registration), or when submitting information or documents they were aware the presence of other circumstances that impede registration (registration)” (clause 14 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 07/09/2020 No. 18).
Article 323. Illegal change of the State border of the Russian Federation
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- Article 323. Illegal change of the State border of the Russian Federation
1. Confiscation, movement or destruction of border markers for the purpose of unlawfully changing the State Border of the Russian Federation
is punishable by restriction of freedom for a term of up to two years, or by arrest for a term of up to six months, or by imprisonment for a term of up to two years.
2. The same acts that entailed grave consequences -
shall be punishable by imprisonment for a term of up to four years.
Commentary on Article 323
Object
crimes are the inviolability of the State border of the Russian Federation and the established procedure for its demarcation. The subject of the crime is a border sign.
The state border of the Russian Federation is marked on the ground by clearly visible border signs.
The description and procedure for installing border markers are determined by international treaties of the Russian Federation and decisions of the Government of the Russian Federation.
Objective side
consists of confiscating, moving or destroying border markers for the purpose of illegally changing the State Border of the Russian Federation. Thus, the objective side can only be accomplished through action.
Removal of a boundary sign means its removal from its location without subsequent installation in another place. Moving means changing the location of a boundary marker. Relocation involves the removal of a border sign and its subsequent installation in another location. Destruction is the destruction of a boundary sign, in which it cannot be restored and cannot be used for its intended purpose.
The commission of any of these actions constitutes a completed crime. The composition is formal in design.
Subjective side
characterized by direct intent.
A mandatory feature of the subjective side is the purpose of illegally changing the State Border of the Russian Federation.
Subject
general crime - a sane person who has reached the age of sixteen. Persons under the age of sixteen, in the event of destruction or damage to a border sign in a generally dangerous way or in the event of grave consequences, are liable under Part 2 of Art. 167 of the Criminal Code of the Russian Federation.
The qualifying feature of the crime under consideration (Part 2 of Article 323 of the Criminal Code of the Russian Federation) is the onset of grave consequences. This sign is evaluative and must be established in each specific case. Thus, complications in diplomatic relations between countries, disruption of the normal operation of checkpoints, suspension of entry into the territory of the Russian Federation, etc. can be considered grave consequences.
From the point of view of the objective side, the qualified corpus delicti is material; the crime will be completed only from the moment of the onset of grave consequences. The subjective side in this case can be characterized by direct or indirect intent, as well as two forms of guilt.
