Article 322 of the Criminal Code of the Russian Federation in a new edition with Comments and latest amendments for 2022

New edition of Art. 322 of the Criminal Code of the Russian Federation

1. Crossing the State Border of the Russian Federation without valid documents for the right to enter or exit the Russian Federation or without proper permission obtained in the manner established by the legislation of the Russian Federation -

shall be punishable by a fine in the amount of up to two hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to eighteen months, or by forced labor for a term of up to two years, or by imprisonment for the same term.

2. Crossing the State Border of the Russian Federation upon entry into the Russian Federation by a foreign citizen or stateless person whose entry into the Russian Federation is known to be not permitted for the culprit on the grounds provided for by the legislation of the Russian Federation -

shall be punishable by a fine in the amount of up to three hundred thousand rubles, or forced labor for a term of up to four years, or imprisonment for the same term.

3. Acts provided for in parts one or two of this article, committed by a group of persons by prior conspiracy or by an organized group, or with the use of violence or the threat of its use, -

shall be punishable by imprisonment for a term of up to six years.

Note. This article does not apply to cases of foreign citizens and stateless persons arriving in the Russian Federation in violation of the rules for crossing the State Border of the Russian Federation to exercise the right of political asylum in accordance with the Constitution of the Russian Federation, unless the actions of these persons contain another crime.

Commentary on Article 322 of the Criminal Code of the Russian Federation

1. The object of the criminal attack is the procedure for crossing the State Border of the Russian Federation established by law.

1.1. In accordance with Art. 1 of the Law on the State Border The state border of the Russian Federation is a line and a vertical surface passing along this line, defining the limits of the state territory (land, water, subsoil and airspace) of the Russian Federation, i.e. spatial limit of the state sovereignty of the Russian Federation. Resolution of the Supreme Council of the Russian Federation dated 04/01/1993 N 4732-1 “On the procedure for enacting the Law of the Russian Federation “On the State Border of the Russian Federation” <1> establishes that before concluding agreements on the passage of the State border of the Russian Federation with neighboring states - former union republics of the USSR — the border with these states is given the status of the State Border of the Russian Federation. ——————————— <1> Vedomosti RF. 1993. N 17. Art. 595.

1.2. According to the Law on the State Border (Sections VI and VII), the State Border of the Russian Federation is subject to protection without any exceptions.

2. The objective side of the crime (Part 1) consists of the actions of an individual aimed at moving across the State Border of the Russian Federation in any direction without valid documents for the right to enter or leave the Russian Federation or without proper permission obtained in the manner established by the legislation of the Russian Federation. Movement can be carried out in any form: transition, crossing, flight, swimming.

The crime is completed (by the train) at the moment of crossing the line (corresponding surface) of the State Border of the Russian Federation.

3. It is not a crime under Art. 322, arrival in the Russian Federation of foreign citizens and stateless persons to exercise the right of political asylum in accordance with Art. 63 of the Constitution, unless the actions of these persons contain elements of another crime. By virtue of Part 1 of Art. 63 of the Constitution, the Russian Federation provides political asylum to foreign citizens and stateless persons in accordance with generally recognized norms of international law. Part 2 Art. 63 of the Constitution prohibits the authorities of the Russian Federation from extraditing to other states persons persecuted for political beliefs, as well as for actions (or inactions) that are not recognized as a crime in the Russian Federation. The procedure for granting political asylum by the Russian Federation is regulated by the relevant Regulations, approved. By Decree of the President of the Russian Federation of July 21, 1997 N 746 (as amended on December 1, 2003) <1>. ——————————— <1> NW RF. 1997. N 30. Art. 3601; 2003; N 49. Art. 4755.

4. For valid documents for the right to enter or exit the Russian Federation, see the Law on the State Border and the Federal Law of August 15, 1996 N 114-FZ “On the procedure for leaving the Russian Federation and entering the Russian Federation” (as amended. dated July 18, 2006) <1>. Valid documents are original diplomatic, official, general foreign passports, seaman's passport, certificate of return. ——————————— <1> NW RF. 1996. N 34. Art. 4029; 1998. N 4. Art. 531, N 30. Art. 3606; 1999. N 26. Art. 3175; 2003. N 2. Art. 159, N 27 (part 1). Art. 2700; 2004. N 27. P. 2711; 2006. N 27. Art. 2877, N 31 (part 1). Art. 3420.

A proper permit should be understood as the mandatory permission provided by law or other regulatory act from the competent state bodies to cross the State Border of the Russian Federation, as a rule, in a simplified manner (for example, to carry out official tasks by military personnel of the Border Troops).

5. The subject of a criminal offense is a sane individual who has reached the age of 16.

6. The subjective side is characterized by guilt in the form of intent.

7. Part 2 comments. The article provides for criminal punishment for illegally crossing the State Border of the Russian Federation, including with valid documents, in the presence of qualifying criteria: committed by a criminal group of persons by prior conspiracy, by an organized group (see commentary to Parts 2 and 3 of Article 35), with the use of violence or the threat of its use.

7.1. Violence should be understood as causing physical pain or harm to the health of a person exercising forms of control when crossing the State Border of the Russian Federation. Violence by comment. The article includes forms up to intentional infliction of moderate harm to health. More dangerous forms of violence require additional qualifications.

7.2. The threat of violence includes the threat of causing any harm to health or life.

8. Criminal Code for preparation for illegal crossing of the State Border of the Russian Federation of the Criminal Code of the Russian Federation by virtue of Part 2 of Art. 30 does not provide.

9. An attempt to cross the State Border of the Russian Federation is possible even far from the border (for example, when boarding an aircraft or ship operating an international flight).

10. Part 1 contains acts that fall into the category of crimes of minor gravity, and part 2 - those of moderate gravity.

Commentary to Art. 322 of the Criminal Code of the Russian Federation

The main object of the crime is the inviolability of the State border of the Russian Federation, the normal mode of its functioning. An additional subject is human health.

The concept of the State Border of the Russian Federation is given in Art. 1 of the Law of the Russian Federation of April 1, 1993 N 4730-1 “On the State Border of the Russian Federation”. The State Border of the Russian Federation is understood as a line and a vertical surface passing under this line, defining the limits of the state territory (land, subsoil and airspace) of the Russian Federation, i.e. spatial limit of the state sovereignty of the Russian Federation. The passage of the State border of the Russian Federation is established and changed by international treaties of the Russian Federation and federal laws.

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Gazette of the SND and the Armed Forces of the Russian Federation. 1993. N 17. Art. 594.

The passage of the State Border of the Russian Federation, unless otherwise provided by international treaties of the Russian Federation, is established:

a) on land - along characteristic points, relief lines or clearly visible landmarks;

b) at sea - along the external border of the territorial sea of the Russian Federation;

c) on navigable rivers - in the middle of the main fairway or thalweg of the river; on non-navigable rivers and streams - in their middle or in the middle of the main branch of the river; on lakes and other bodies of water - along an equally spaced, median, straight or other line connecting the exits of the State Border of the Russian Federation to the shores of a lake or other body of water. The state border of the Russian Federation, passing along a river, stream, lake or other body of water, does not move either when the outline of their banks or water level changes, or when the bed of the river, stream deviates in one direction or another;

d) on the reservoirs of hydraulic structures and other artificial reservoirs - in accordance with the line of the State Border of the Russian Federation, which ran on the area before it was flooded;

e) on bridges, dams and other structures passing through rivers, streams, lakes and other bodies of water - in the middle of these objects.

The state border of the Russian Federation is marked on the ground by clearly visible border signs.

The objective side consists of the action - illegal crossing of the State border of the Russian Federation.

The procedure for crossing the State Border of the Russian Federation, leaving or entering the Russian Federation is established by Federal Law of August 15, 1996 N 114-FZ “On the procedure for leaving the Russian Federation and entering the Russian Federation”.

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NW RF. 1996. N 34. Art. 4029.

Citizens of the Russian Federation exit from and enter the Russian Federation using valid identity documents of a citizen of the Russian Federation outside the territory of the Russian Federation.

Foreign citizens or stateless persons are required, when entering and leaving the Russian Federation, to present valid documents identifying them and recognized by the Russian Federation in this capacity, and a visa, unless otherwise provided by an international treaty of the Russian Federation.

Stateless persons enter and exit the Russian Federation in accordance with the rules established for foreign citizens, unless otherwise provided by law or an international treaty of the Russian Federation.

It will be illegal to cross the State Border in violation of the specified requirements, as well as crossing it in unspecified places, such as checkpoints.

A checkpoint across the State Border of the Russian Federation is understood as a territory (water area) within a railway, automobile station or terminal, sea (commercial, fishing, specialized), river (lake) port, airport, military airfield, open for international communications (international flights), as well as another specially designated area in the immediate vicinity of the State Border of the Russian Federation, where, in accordance with the legislation of the Russian Federation, persons, vehicles, cargo, goods and animals are passed through the State Border of the Russian Federation. The limits of checkpoints across the State Border of the Russian Federation and the list of checkpoints across the State Border of the Russian Federation, specialized by the types of cargo, goods and animals being transported, are determined in the manner established by the Government of the Russian Federation.

Crossing the border will be illegal if it is carried out without valid entry or exit documents. And also without proper permission. The procedure for issuing these documents and permits is determined by the Federal Law “On the procedure for leaving the Russian Federation and entering the Russian Federation.”

Illegal border crossing can be carried out in the absence of established documents; using forged or someone else's documents; with valid documents, but without appropriate permission; bypassing border controls; in an unspecified place, etc.

The corpus delicti is formal. It will be completed from the moment of actual crossing of the State Border of the Russian Federation without established documents and (or) proper permission.

The crime under consideration should be distinguished from the elements of the offense provided for in Art. 18.1 of the Code of Administrative Offenses of the Russian Federation, establishing liability for violation of the rules for crossing the State Border of the Russian Federation by persons and (or) vehicles or violation of the order of passage of such persons and (or) vehicles from the State Border of the Russian Federation to checkpoints across the State Border of the Russian Federation and in the opposite direction .

The differentiation criterion is specified in the disposition of Art. 322 of the Criminal Code of the Russian Federation, where crossing the State Border of the Russian Federation without valid documents or without proper permission is recognized as a crime. All other violations are subject to administrative legislation.

The subjective side of the crime is characterized by direct intent. The culprit is aware that he is illegally crossing the State Border of the Russian Federation, and desires this.

The general subject of the crime is a sane person who has reached the age of sixteen.

The effect of the article in question does not apply to cases of arrival in the Russian Federation in violation of the rules for crossing the State Border of the Russian Federation of foreign citizens and stateless persons to exercise the right of political asylum in accordance with the Constitution of the Russian Federation, unless the actions of these persons contain another crime (note to Art. 322 of the Criminal Code of the Russian Federation).

The qualified crime is provided for in Part 2 of Art. 322 of the Criminal Code of the Russian Federation. The qualifying criteria for illegally crossing the State Border of the Russian Federation are: commission of a crime by a group of persons by prior conspiracy; organized group; with the use of violence or the threat of its use. The first two signs are revealed in Art. 35 of the Criminal Code of the Russian Federation. The qualifying sign of the use of violence or the threat of its use is similar to the content of these concepts discussed in relation to Art. 318 of the Criminal Code of the Russian Federation.

Another comment on Art. 322 of the Criminal Code of the Russian Federation

1. The objective side of the crime is to cross the State Border of the Russian Federation: a) without valid documents for the right to enter or leave the Russian Federation, or b) without proper permission obtained in the manner established by the legislation of the Russian Federation.

2. The documents used to exit from and enter the Russian Federation are determined by Federal Law No. 114-FZ of August 15, 1996 “On the procedure for exiting and entering the Russian Federation.”

3. The crime is considered completed from the moment of crossing the State Border of the Russian Federation.

4. If illegal crossing of the State Border of the Russian Federation is associated with the intentional infliction of grievous or moderate harm to health on the victim (Part 2), additional qualification is required under Art. Art. 111 or 112 of the Criminal Code of the Russian Federation.

Judicial practice under Article 322 of the Criminal Code of the Russian Federation

Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated 08/01/2018 N 25-APU18-4
Having disagreed with this court decision, Embergenov E.K. appealed it to the Supreme Court of the Russian Federation, pointing out that he did not evade serving the sentence assigned to him, but was forced to leave for Kazakhstan, since he did not have a job in the Republic of Uzbekistan, and he could not provide for his family, including two young children. He claims that when moving to other countries he always followed the rules for crossing state borders and visa regimes. Expresses doubts about the fairness of his conviction under Part 3 of Art. 322 of the Criminal Code of the Russian Federation. He notes that due to his arrest and detention in the Astrakhan region, his clothes, shoes, construction tools, money, and other things were left unattended in the Republic of Kazakhstan, he does not receive any information about his family, relatives and friends. He declares his desire to return to his homeland, asks to be released from custody and allowed to travel to the Republic of Uzbekistan on his own, and not through the use of extradition measures.

Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated September 25, 2018 N 5-APU18-50sp

November 22, 2016 under Part 1 of Art. 322, part 3 art. 327 of the Criminal Code of the Russian Federation, in accordance with Part 2 of Art. , art. of the Criminal Code of the Russian Federation to punishment in the form of imprisonment for a period of 1 year 15 days with serving in a high-security correctional colony,

Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated October 25, 2018 N 23-APU18-6

Krymshamkhalov Yusuf Ibragimovich, ... unconvicted, convicted on January 12, 2004 by the Moscow City Court, taking into account the changes made by the cassation ruling of the Supreme Court of the Russian Federation dated July 8, 2004, under Part 2 of Art. 208; Part 3 Art. 222; Part 3 Art. 223; Part 3 Art. 205; pp. “a”, “c”, “d”, “f”, “g” part 2 art. 105; Part 3 Art. , paragraphs “a”, “c”, “d”, “f”, “g” part 2 of Art. 105; Part 1 Art. , part 3 art. 205; Part 2 Art. 322 of the Criminal Code of the Russian Federation, on the basis of Part 3 of Art. of the Criminal Code of the Russian Federation for a combination of crimes, ultimately to life imprisonment with serving the sentence in a special regime correctional colony,

Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated December 26, 2018 N 203-APU18-25

- November 20, 2014 under Part 3 of Art. 223, part 3 art. clause "a" part 2 art. 205, part 3 art. 222, paragraph “a”, part 2, art. 205, part 3 art. 222, paragraph “a”, part 2, art. 205, paragraph “a”, part 2, art. 205, part 3 art. 222, paragraph “a”, part 2, art. 205, part 3 art. 222, paragraph “a”, part 2, art. 205, part 3 art. 222, paragraph “a”, part 2, art. 205, part 3 art. 222, paragraph “a”, part 2, art. 205, part 3 art. 222, part 1 art. 222, part 2 art. 327, part 1 art. 322, part 3 art. 327 of the Criminal Code of the Russian Federation; on the basis of Part 3 of Art. of the Criminal Code of the Russian Federation to 13 years in prison with a fine of 50,000 rubles,

Appeal ruling of the Judicial Collegium for Military Personnel Cases of the Supreme Court of the Russian Federation dated October 8, 2019 N 201-APU19-45

sentenced to imprisonment: under Part 3 of Art. 222.1 of the Criminal Code of the Russian Federation for a period of 6 years using Art. Criminal Code of the Russian Federation - no fine; according to Part 3 of Art. 222 of the Criminal Code of the Russian Federation for a period of 5 years; according to Part 2 of Art. 205.4 of the Criminal Code of the Russian Federation for a period of 6 years; according to Part 2 of Art. 205.5 of the Criminal Code of the Russian Federation for a period of 10 years; according to Part 1 of Art. , clause “a”, part 2, art. 205 of the Criminal Code of the Russian Federation for a period of 6 years; according to Part 2 of Art. 322 of the Criminal Code of the Russian Federation for a period of 2 years; according to Art. 205.3 of the Criminal Code of the Russian Federation for a period of 12 years.

Resolution of the Presidium of the Supreme Court of the Russian Federation dated December 5, 2018 N 126P18

Alikhanov was detained on February 3, 2015 in accordance with Art. Art. 91 and 92 of the Code of Criminal Procedure of the Russian Federation on suspicion of committing crimes under Part 4 of Art. 159, part 4 art. 159, part 1 art. 322 of the Criminal Code of the Russian Federation. On February 4, 2015, the judge of the Petrozavodsk City Court of the Republic of Karelia chose a preventive measure against Alikhanov in the form of detention for a period of 2 months, that is, until April 2, 2015 inclusive.

Resolution of the Presidium of the Supreme Court of the Russian Federation dated December 28, 2018 N 296P18pr

Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated May 24, 2018 N 5-APU18-19

- according to Part 1 of Art. 322 of the Criminal Code of the Russian Federation, for each of eight crimes, in the form of forced labor for a period of 1 year with the deduction of 10% of wages to the state. Based on Part 3 of Art. The Criminal Code of the Russian Federation, based on the totality of crimes by partial addition of punishments, finally imposed 17 years of imprisonment to be served in a high-security correctional colony.

Appeal ruling of the Judicial Collegium for Military Personnel of the Supreme Court of the Russian Federation dated September 12, 2017 N 209-APU17-2

sentenced to imprisonment under paragraphs “a”, “g”, part 2 of Art. 105 of the Criminal Code of the Russian Federation for a period of 17 years; according to paragraphs “a”, “b”, “c”, part 2 of Art. 158 of the Criminal Code for a period of 2 years; according to Part 1 of Art. 158 of the Criminal Code of the Russian Federation to a fine of 30,000 rubles; according to Part 3 of Art. , part 3 art. 322 of the Criminal Code of the Russian Federation to imprisonment for a term of 2 years.

Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated October 27, 2017 N 72-APU17-23sp

- during the trial, the requirements of Part 2 of Art. 345 of the Code of Criminal Procedure of the Russian Federation, which provides that if the jury’s verdict is unclear or contradictory, the presiding judge is obliged to point out these circumstances to the jurors and invite them to clarify the verdict in the deliberation room. At the same time, the state prosecutor draws attention to the jurors' answers to questions No. 2-a (in relation to Borisenko) and No. 2-b (in relation to Banshchikov) contained in the verdict, considering them contradictory and unclear. The cumbersome design of question No. 27, according to the prosecutor, was difficult for the jurors to understand and did not allow them to understand the essence of the issue. At the same time, according to the state prosecutor, in the first copy of the question sheet issued to the jurors, the jurors, when answering question No. 27, indicated that Borisenko’s actions in organizing a close-knit group for the illegal alienation of apartments were proven and that the organization of Sh’s murder was not proven. After the presiding officer’s explanations about integrity of this issue, the jurors responded that Borisenko’s actions were not proven. The state prosecutor draws attention to another verdict of the Trans-Baikal Regional Court dated December 3, 2014, which entered into legal force, according to which Borisenko N.N. found guilty of creating an organized group for the purpose of committing grave and especially grave crimes and obtaining a permanent source of income, as well as committing a number of crimes as part of an organized group under Articles 105, 159, 291, 322, 327, 330 of the Criminal Code of the Russian Federation. The contradictions in the question paper, according to the prosecutor, resulted in an illegal verdict against Borisenko, Nozdrin, Banshchikov, Kolobov, Fedoreev and Volkov, an unfounded acquittal of Borisenko, Banshchikov and the imposition of an excessively lenient sentence for Borisenko;

Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated May 14, 2019 N 4-APU19-8

according to Part 1 of Art. 322 of the Criminal Code of the Russian Federation (for each of 6 crimes) for 1 year with exemption from punishment due to the expiration of the statute of limitations for criminal prosecution; according to Part 1 of Art. 210 of the Criminal Code of the Russian Federation for 18 years;