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In practice, law enforcement officials have many questions regarding prosecution for committing migration crimes. The Supreme Court of the Russian Federation answered many questions in its Plenum Resolution No. 18 dated 07/09/2020. However, the Supreme Court did not answer all some important questions at this plenum, including the issues of differentiation of responsibility for facilitating illegal migration.
Migration offenses include crimes provided for in Art. 322–322.3 of the Criminal Code of the Russian Federation, as well as the torts specified in Chapter. 18 and partly in ch. 19 Code of Administrative Offenses of the Russian Federation. These are rules on liability for illegal migration or for facilitating it.
Responsibility for illegal migration is enshrined in Article 322.1 of the Criminal Code of the Russian Federation. The stumbling block in the correlation of migration offenses was the “organization” attribute of this norm of the Criminal Code. This feature is used in different meanings in the text of the code and therefore complicates the interpretation of the norms.
In science, the sign “organization” is often associated with the organizer of a crime, who is responsible for the completed crime as a perpetrator. However, this is only true in relation to one alternative form of action provided for in Art. 322.1 of the Criminal Code, - organizing illegal entry by foreign citizens (stateless persons), since liability for violation of the rules of entry by these persons arises under Art. 322 of the Criminal Code of the Russian Federation. There are other forms of illegal migration: violation by foreign citizens and stateless persons of the rules of stay (residence) on the territory of the state, transit travel. Such acts, if they are not related to Art. 322.1 of the Criminal Code entail administrative liability.
In practice, the relationship between the organization of illegal migration and the organization of illegal crossing of the state border is determined as follows: “The actions of a person who organized the illegal entry into the territory of the Russian Federation of foreign citizens or stateless persons by illegally crossing the state border are covered by the relevant part of Article 322.1 of the Criminal Code of the Russian Federation and additional qualifications regarding 3 of Article 33 and Article 322 of the Criminal Code of the Russian Federation are not required” (clause 11 of Resolution No. 18).
The approach of the RF Armed Forces in this part corresponds to its position set out in paragraph 17.2 of the Plenum Resolution No. 41 dated November 3, 2016 in relation to anti-terrorist compounds. This corresponds to the principle of fairness enshrined in Art. Art. 6 of the Criminal Code of the Russian Federation.
In practice, there is difficulty in distinguishing the organization of illegal migration from other special cases of facilitating violation of the rules of stay (residence), transit passage of foreign citizens and stateless persons, for which independent administrative or criminal liability has been established. Such cases include:
1. fictitious registration with migration authorities (Articles 322.2, 322.3 of the Criminal Code);
2. violation of the rules of employment of foreign citizens and stateless persons (Articles 18.15, 18.16 of the Administrative Code);
3.providing residential premises or a vehicle or providing other services to a foreign citizen or stateless person located in the Russian Federation in violation of the established procedure or rules for transit passage through its territory (clause 3 of Article 18.9 of the Administrative Code).
The RF Armed Forces interprets the organization of illegal migration as “actions that create conditions for one or more foreign citizens or stateless persons to carry out illegal entry into the Russian Federation, illegal stay in the Russian Federation, illegal transit passage through the Russian Federation...” (clause 7 of Resolution No. 18). The objective side of this crime is defined in a similar way in science.
However, this approach does not allow us to distinguish the above-mentioned elements of migration offenses from the organization of illegal migration. As a result, this led to rather contradictory judicial practice. There are often cases of different legal assessments of the same acts or bringing a person to both criminal and administrative liability for the same fact.
Concept of illegal migration
Migration processes largely determine the picture of the modern world. Some states actually owe their appearance on the political map of the world precisely to migration processes. The most developed countries - the United States of America, Canada, Australia, New Zealand, and the Republic of South Africa - were created precisely by immigrants.
But migration processes can have both positive and negative impacts on the social and economic situation in a particular state.
Migration can be legal or illegal. The first is carried out on a legal basis with the availability of appropriate documents, is regulated by interstate treaties, agreements, etc., it is controllable and predictable. Illegal migration is often a virtually uncontrollable factor.
Illegal (illegal) migration is a migration process carried out in violation of the relevant state legislation.
Illegal (illegal) migration is a migration process carried out in violation of the relevant legislation of the state
Another comment on Art. 322.1 of the Criminal Code of the Russian Federation
1. The objective side of the crime consists of committing one of the actions specified in the law.
2. The organization of illegal entry into the Russian Federation of foreign citizens or stateless persons consists of performing any actions aimed at ensuring the entry into the territory of the Russian Federation of these persons in the absence of the necessary documents (for example, a Russian visa, identity documents) or with the presentation of counterfeit ones or invalid documents, as well as in violation of customs rules or sanitary standards by these persons.
3. The organization of illegal stay in the Russian Federation of persons specified in the law is the commission of any actions aimed at ensuring the stay or residence on the territory of the Russian Federation of these persons in the absence of the necessary documents (for example, a migration card, temporary residence permit) or in violation of the registration procedure foreign citizens and stateless persons.
4. Organization of illegal transit passage through the territory of the Russian Federation of foreign citizens or stateless persons is the commission of actions aimed at ensuring transit passage through the territory of the Russian Federation of these persons by any type of transport in the absence of the necessary documents (for example, visas of the destination state, travel tickets) or with their presentation of forged or invalid documents.
What factors contribute to the emergence of illegal migration?
There are many factors that contribute to the emergence of illegal migration and the increase in the level of illegal migration traffic in certain regions of the world or countries. These include:
- economic factors;
- armed conflicts;
- natural disasters, epidemics, famine;
- attempts by illegal migrants to avoid responsibility for committing crimes, as a result of which they are forced to leave the territory of the state where criminal proceedings have been initiated against them;
- the desire to move to a country with a stable political system, democratic values and developed freedom of speech.
The adventurism of some illegal migrants can also be safely attributed to the factors of illegal migration. After all, there is a certain category of people who simply want to change something in their lives. They see the first step in changing their country of residence. Among other things, there may be a combination of several factors that force a certain person to leave his homeland or country of residence.
Armed conflicts are one of the factors contributing to illegal migration
What are the ways to carry out illegal migration
There are many ways in which illegal migrants cross the border of a certain state or stay illegally on its territory.
Fake documents
Forging documents with the current level of technology development does not seem to be a particularly difficult task. The use of fake documents to cross the border of a certain state or for supposedly legal stay on its territory is one of the methods of illegal migration. A visa, residence permit, permanent residence permit, or even a national passport of the host state or another state whose citizen is allowed to cross borders and stay in the territory of the host country on preferential terms may be fake.
At the beginning of November 2022, more than 20 employees of its migration department were arrested in Bulgaria. They were accused of issuing fake Bulgarian passports to foreigners who had no right to do so. Naturally, such a service was not cheap. For one passport, an illegal immigrant had to pay from 6 thousand euros. But the game was worth the candle, so many residents of the CIS countries rushed to take advantage of this opportunity.
Bulgaria is a member of the European Union, and its passport is a kind of “golden key” that opens the borders of the EU. In addition, a citizen of Bulgaria has the right to legal employment in any country that is part of this interstate association, and is also considered by her employer as a priority, to which he is obliged by the unified labor legislation of the European Union. There were people I knew who took advantage of this opportunity. Some of them managed to work in Germany or Belgium for three or four years using false documents. During this time, naturally, the funds spent on purchasing a fake passport paid off handsomely. But the exposure of the criminal group by the Bulgarian prosecutor’s office came as a bolt from the blue for them. After all, along with other evidence, Bulgarian law enforcement agencies seized information about already issued “fake” Bulgarian passports. Accordingly, immigration services in all EU countries were informed. Those who were able to react in time managed to leave the EU and similarly evade responsibility. And those who did not “keep their nose to the wind” fell into the tenacious hands of the immigration police of European countries. Some have already been punished by court decisions for using false documents. On the Internet today you can find many offers for the purchase of Romanian, Bulgarian, Hungarian and even Polish passports. As a rule, in this case there are two ways. The first is document forgery, in which even an experienced specialist is unlikely to be able to distinguish a fake passport from a real one with the naked eye. The second way is to use the repatriation program and obtain citizenship in these countries on the basis of forged documents indicating the presence of national roots in the family tree of the citizenship applicant. In fact, this method is also illegal, but the passport that a repatriate can receive under the program (though you will have to wait much longer for it than a fake passport) is already a real document. From a legal point of view, “fake” repatriates are also illegal immigrants.
Illegal crossing of the state border
This method of illegal migration has always existed. You can illegally cross almost any border and experience many thrills. For example, today we are seeing a situation in which the United States has concentrated a significant military contingent on the Mexican border, and is also taking the most effective measures to build a protective wall against illegal migrants from Mexico.
Illegal border crossing can be accomplished in many ways. Each of them is risky and implies that the illegal immigrant is committing a criminal act.
Video: Illegal migration to the USA
Fictitious reason for entering the country
An entry permit (visa) that was obtained by a foreign citizen on a fictitious basis automatically makes him an illegal migrant. For example, this could be an invitation from non-existent relatives under a family reunification program or a fictitious employment contract with an employer from the host state. Identification of this fact, as a rule, leads to the immediate deportation of the person and a ban on entry into the country, as well as often to a considerable fine.
Illegals with expired documents
Staying in the country on the basis of expired permits can also be called a method of illegal migration. For example, an international student has completed his studies at a higher education institution and his student residence permit has expired. Therefore, accordingly, he must leave the country in which he studied. But he does not do this and continues to remain within its borders, taking, for example, an illegal job. As a second example, we can cite yesterday’s legal labor migrant, whose labor contract with the employer who issued an invitation to work for him has expired. The work visa has already expired, but its holder yesterday prefers not to leave for his homeland, remaining in the role of an illegal labor migrant.
Forced migration
Forced migration is essentially illegal. But in this case we are talking about people fleeing armed conflicts, epidemics, natural disasters and famine. Most of them intend to request refugee status in the country to which they intend to move. It is defined by the Geneva Convention. This is a special method of illegal migration, which, however, is very relevant in modern conditions.
Forced migration is very relevant in the modern world
Commentary on Article 322.1 of the Criminal Code of the Russian Federation
1. Migration (lat. migratio, from migro - moving, moving) in the context of the comments. Article - the movement of foreign citizens or stateless persons from abroad to Russia, as well as across or through the territory of Russia.
2. The social danger of the crime lies in undermining the legally established procedure for crossing the State Border of the Russian Federation, the stay of foreigners and stateless persons in the Russian Federation, in creating a threat to public safety, economic and other relations in the state.
3. The main elements of the crime are described in part 1, and the qualified elements are fixed in part 2 of the comment. articles. They express intentional acts that fall into the categories of crimes of minor (part 1) and medium (part 2) gravity, respectively.
4. The main objects of criminal encroachment are the procedure established by law for crossing the State Border of the Russian Federation and the stay of foreigners and stateless persons in the Russian Federation. Optional objects are the safety of citizens of the Russian Federation, economic and other intrastate relations.
5. The objective side of the crime is expressed in the form of an action consisting in organizing: a) the entry into the Russian Federation of a foreign citizen and (or) a stateless person, or b) the stay of these persons in the Russian Federation, as well as c) the transit passage of these persons through the territory RF without valid documents or without proper permission obtained in the manner prescribed by the legislation of the Russian Federation.
6. The disposition of the article is of a reference-blanket nature. In other words, for the correct qualification of what was done according to the comments. Article disposition refers the law enforcement officer to other laws and by-laws, for example to the Federal Law “On the procedure for leaving the Russian Federation and entering the Russian Federation”, Federal Law dated July 25, 2002 N 115-FZ “On the legal status of foreign citizens in the Russian Federation” ( as amended on July 18, 2006) <1>, Regulations on the issuance of residence permits to foreign citizens and stateless persons, approved. Decree of the Government of the Russian Federation dated November 1, 2002 N 794 <2>, Instructions on the organization of activities of the internal affairs bodies of the Russian Federation for registration and issuance of temporary residence permits and residence permits to foreign citizens and stateless persons, approved. By Order of the Ministry of Internal Affairs of Russia dated April 14, 2003 N 250 <3>. ——————————— <1> NW RF. 2002. N 30. Art. 3032; 2003. N 27 (part 1). Art. 2700, N 46 (part 1). Art. 4437; 2004. N 35. Art. 3607, N 45. Art. 4377; 2006. N 30. Art. 3286, N 31 (part 1). Art. 3420.
<2> Northwestern Russian Federation. 2002. N 45. Art. 4520.
<3> BNA. 2003. N 33.
7. Organization of illegal entry into the Russian Federation, stay in the Russian Federation, transit passage through the territory of the Russian Federation of foreign citizens and (or) stateless persons presupposes the conscious, strong-willed active behavior of the guilty person, aimed at developing a plan for these actions, selecting persons for its implementation, distribution of roles and functions between them, selection of means to commit a given crime, etc.
8. About the territory of the Russian Federation, see paragraph 3 of the commentary. to Art. eleven.
9. Foreign citizen - an individual who is not a citizen of the Russian Federation and has evidence of citizenship of a foreign state. This individual is in the Russian Federation legally if he has a valid: a) residence permit, or b) temporary residence permit, or c) visa, or d) other documents provided for by federal law or an international treaty of the Russian Federation confirming the right of a foreign citizen for stay (residence) in the Russian Federation (Article 2 of the Federal Law of July 25, 2002 N 115-FZ).
10. A stateless person is an individual who is not a citizen of the Russian Federation and does not have evidence of citizenship (nationality) of a foreign state (Article 2 of the Federal Law of July 25, 2002 N 115-FZ).
11. The elements of the crime described in the commentary. article, have a formal legislative structure. The crime is completed (by elements) at the moment of commission of at least one of the comments noted in paragraph 5. to the article of action regardless of the occurrence of a material socially dangerous consequence.
12. In part 2 comments. Article contains qualifying features consisting in the implementation of a criminal act: a) by an organized group (see Part 3 of Article 35), b) for the purpose of committing a crime on the territory of the Russian Federation.
13. The subjective side of the crime is characterized by guilt in the form of intent, and direct intent. It is enough for the law enforcement officer to establish that the guilty person is aware of the social danger of organizing illegal migration and nevertheless wants to organize it. The goal - committing a crime on the territory of the Russian Federation - influences the qualification of the offense under paragraph “b”, part 2 of the comment. articles.
14. The subject of the criminal offense is general - i.e. a physically sane person who has reached the age of 16 at the time of committing the crime.
How does illegal migration affect the socio-economic development of countries?
Population migration is a huge resource that requires rational use. Illegal migration leads to social and economic crises.
Today we can observe what negative consequences the European migration crisis has led to. This once again confirms the danger of a lack of control over migration processes, which can lead to disruption of stability and harmony in society, as well as to interethnic strife.
United Nations experts believe that today about 3% of the world's population are illegal migrants.
There are many negative consequences of illegal migration of the population. Let's list the main ones:
- employers who hire illegal migrant workers create extremely low standards of labor relations;
- illegal migrants violate the housing code, which manifests itself in housing overcrowding, since both they and their employers always save on rent;
- Illegal labor migrants often have their families destroyed because they spend a very long time outside their homeland and do not communicate with them;
- taxpayers of the receiving country bear a serious burden, because illegal migrants receive medical care in public medical institutions, their children often study in public schools, etc.;
- illegal migration contributes to the spread of dangerous diseases;
- Illegal migrants significantly increase the crime situation, and therefore law enforcement agencies of receiving countries are forced to spend much more money and effort on maintaining public order. In these countries, the level of street crime and the number of property crimes committed by illegal migrants are significantly increasing.
Illegal migration causes not only an economic and social crisis in the receiving countries, but also often a political crisis. For example, Angela Merkel barely managed to win the last elections in Germany, because the German electorate believed that the Chancellor's policy towards illegal migrants was very liberal. And the current American President Donald Trump won the election in the wake of the fight against illegal migration. These facts prove how acute the problem is in the modern world.
The German Chancellor's policy towards illegal migrants is very liberal, which is why she barely managed to win the last elections
Special mention should be made of the European migrant crisis. Old Europe is being attacked from all sides. Illegal labor migrants from the CIS countries are trying to infiltrate from the east. From the south - residents of the African continent, from the southeast, Europe is being attacked by streams of forced migrants from the Middle Eastern countries. The situation is getting worse every year, although the measures taken by Brussels to establish control over illegal migration and reduce illegal migration traffic have nevertheless borne fruit. Quotas for the reception of forced migrants by EU countries have been adopted, and stricter controls have been established at the borders of member countries. Also, one of the countermeasures was the allocation of considerable funds to Turkey to create specialized camps for refugees and most effectively limit their illegal transportation to Europe (every year more than a million illegal migrants intend to break through Turkey to the shores of Europe). Today, the number of illegal immigrants looking for a new home in European countries is estimated at 5–6 million people. Some consider this number to be greatly underestimated. In the first 4 months of 2022 alone, over 206 thousand people submitted an asylum request to the EU.
Expert opinions agree on one thing: the most likely scenario for the development of events will be an annual increase in the number of illegal immigrants in the European Union countries, despite the measures taken by their governments. In 2022, there were approximately 1.3 million migrants registered in the EU. Their dominance can lead to tension in the socio-political situation, a decrease in the birth rate among Europeans, as well as conflicts on an interethnic basis.
In 2022 alone, the number of property crimes in major German cities increased by 40%. This caused great concern in German society. In most cases, those involved in criminal cases are forced migrants from African and Middle Eastern countries.
What is the situation in other countries that are most attractive to illegal immigrants?
There are several centers of attraction for illegal migrants in the world. These can be not only individual countries, but also entire interstate formations, like the European Union, the situation in which is described above. Let us briefly characterize the remaining centers of attraction for illegal immigrants.
USA
In the United States, illegal migration has become a national disaster. Official estimates by the US government indicate that there are about 12 million illegal immigrants in the country today. Unofficially they say about 40 million people. Most of those who arrived illegally crossed the Mexican border. 90% of them are of Mexican or Hispanic origin. This category of illegal immigrants makes up about a third of the total number in the United States. The remaining 70% are represented by those who came to the United States legally, and then remained to reside there with expired permits.
The wall between the US and Mexico does not always protect against illegal immigrants
South Korea
Estimates by South Korean authorities indicate that there are at least 3 million illegal migrants in the country today. The vast majority of them are illegal labor migrants from Middle Eastern countries, China and North Korea.
China
China is both a donor country of migrants and one of the world centers of their attraction. The estimates of the Chinese government coincide with those of international experts: today there are at least 50 million (!) illegal migrants in the PRC (most of them are labor migrants). About 90% are from India and Pakistan. Also, about 300 thousand illegal immigrants arrived in China from Russia. At the same time, only 8 million foreign specialists are legally employed in China.
Commonwealth of Australia
In Australia, the situation is as follows: 3.2 million foreigners are legally employed; according to government estimates, there are about 5 million foreigners in the country illegally, who also belong to this category. This country is characterized by an annual increase in legal migration (by at least 300 thousand people). At the same time, every year there are 9% fewer illegal migrants on the Green Continent. This is facilitated by the significant tightening of immigration laws by the Australian authorities.
Israel
Israeli authorities estimate the number of illegal migrants in the country at approximately 2 million people. Most of them come from CIS countries and work without registration with local employers. In recent years, Israeli authorities have significantly increased security measures and tightened entry rules for foreigners. The recurring military threat periodically significantly reduces the number of illegal migrants in the country.
Video: how Israel fights potential illegal immigrants
South Africa
South Africa, a member of the G-20, is considered a target of illegal migrants from almost the entire African continent. The country's authorities have taken unprecedented measures to protect state borders with neighboring African states, as well as strengthen migration control in the country. In 2022 alone, the migration police staff will be increased by almost 20%.
Features of the Russian Federation
Russia is both a center of attraction for migrants and their donor. It is one of the twenty world centers of gravity, as well as twenty donor countries. At the moment, the exact number of illegal migrants in Russia is unknown. The tense situation in some CIS countries and in the world is forcing many people to move to the Russian Federation.
The emergence of new norms in Russian immigration legislation, significantly tightening it, helps to reduce the number of illegal migrants, in particular labor migrants.
A special feature of the Russian Federation is that, according to estimates from its migration department, about 83% of immigrants are citizens of the CIS republics who have the right to visa-free entry into Russian territory. Therefore, the situation looks ambiguous. If we talk about labor migrants, then most of them in Russia are from Tajikistan, Turkmenistan, Uzbekistan, Azerbaijan, Moldova and Ukraine.
Video: illegal migration in Russia
What is the penalty for illegal migration Punishment for illegal migration
Population migration, being a complex and multifaceted phenomenon affecting many spheres of society, today is becoming a pressing issue not only for European countries, but also for Russia. In the formation and development of the Russian state with its unique geographical location on the Eurasian continent, the processes of population movement (migration processes) have always played an important role.
In this regard, the issues of regulating public relations in the migration sphere have constantly been given attention by the government, which is reflected accordingly in domestic legislation. Note that even within Europe, five different types of countries are distinguished depending on their attitude to migration: old recipients, new recipients, small islands, countries in transition, countries without immigration. Russia, having cultural characteristics that distinguish it from European countries, also has its own characteristics in the field of migration. However, both Russia and Western countries have common problems related to migration, namely illegal migration and the formation of national diasporas. Illegal migration today represents a serious threat that poses many problems that require immediate solutions. Until 2004, the criminal legislation of the Russian Federation did not prioritize issues related to the organization of illegal migration. At that time, the situation in the country was not as critical as it is now. However, according to official statistics, every year there is a colossal increase in migrants on the territory of the Russian Federation. If we talk about illegal migrants, then within the framework of our research we would like to focus attention specifically on the problems of countering the organization of illegal migration.
Since 2004, the Criminal Code of the Russian Federation has had Article 322.1, which provides for liability for organizing illegal migration. What is meant by the term “organization of illegal migration”? Neither in the disposition, nor in the note to the article of the Criminal Code, nor in official comments and explanations can one find a definition of this term. This fact may mean that the law enforcement officer repeatedly has difficulties in bringing the guilty person to justice for this type of criminal act, which gives him the right to interpret the concept differently.
We believe that the development of this concept will help to take a more detailed and comprehensive approach to the issue of combating the organization of illegal migration. In this regard, we propose to clarify that responsibility for organizing illegal migration as a criminal act comes precisely for organizing activities that are aimed at carrying out the illegal entry of foreign citizens or stateless persons, their illegal stay on the territory of the Russian Federation, the illegal movement of these persons across the territory of the Russian Federation. Federation, including activities aimed at carrying out illegal transit passage.
Since the introduction of this composition in the Criminal Code of the Russian Federation, numerous changes have been made to the article. However, this article has been in the Criminal Code of the Russian Federation for quite a long time, and one can constantly talk about the absence of any of its effectiveness in practice. We believe that we cannot do without comprehensive, reasonable decisions based on the real situation in the state, as well as taking into account the experience of foreign countries on the issue of illegal migration. This is necessary, first of all, to effectively combat the organization of illegal migration. Within the framework of this article, I would like to propose an option for modernizing the sanctions of both parts of Art. 322.1 of the Criminal Code of the Russian Federation. Firstly, the sanction of Part 1 of Art. 322.1 of the Criminal Code of the Russian Federation has been repeatedly amended. The latest changes were in July 2016, when the legislator decided to exclude all additional types of punishment, leaving the penalty in the form of imprisonment for up to 5 years with or without restriction of freedom for up to two years.
I would like to note that the sanction under Part 1 of Art. 322.1 of the Criminal Code of the Russian Federation did not move into the category of serious ones, with which we categorically disagree. The situation in the country is becoming criminogenic, and the number of crimes associated with illegal migration is growing. Leave part 1 tbsp. 322.1 of the Criminal Code of the Russian Federation in the category of crimes of medium gravity is unreasonable and dangerous. In this regard, we propose to increase the sanction of Part 1 of Art. 322.1 of the Criminal Code of the Russian Federation up to 6 years of imprisonment, thereby transferring the entire article into the category of serious crimes. Among other things, we do not agree with the legislator’s decision on the issue of excluding such additional punishment under Part 1 of Art. 322.1 of the Criminal Code of the Russian Federation, as a fine. The abolition of fines for violating immigration laws was a major change in federal legislation. At the same time, the practice of imposing punishment for crimes provided for in Art. 322.1 of the Criminal Code of the Russian Federation is such that under the first named article, in most cases, the courts imposed punishment in the form of a fine.
Thus, according to the results of P. Filippov’s study of judicial practice under Art. 322.1 of the Criminal Code of the Russian Federation for 2010–2014. It was found that a fine is the most common punishment for organizing illegal migration (58.8%), the second most frequently used is imprisonment (32%), the remaining share is approximately equally divided into compulsory and correctional labor. Considering that before the changes made by Federal Law No. 308-FZ of December 30, 2012, this crime was a crime of minor gravity, since it was committed, as a rule, by persons brought to criminal responsibility for the first time, such an approach to sentencing should be considered fair. In this regard, we propose to return the fine in Part 1 of Art. 322.1 of the Criminal Code of the Russian Federation as an additional punishment, which will be imposed in conjunction with the main one - imprisonment. Therefore, we propose to state the sanction of Part 1 of Article 322.1 of the Criminal Code of the Russian Federation as follows: “punishable by imprisonment for a term of up to six years with a fine in the amount of up 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 without it with or without restriction of freedom for a term of up to two years.”
We believe that these changes will fill the gaps in Russian criminal legislation in terms of combating the organization of illegal migration and will help change the criminal situation in the Russian Federation. Among other things, I would like to talk about Part 2 of Article 322.1 of the Criminal Code of the Russian Federation, namely, paragraph “b” of Part 2 of Art. 322.1 of the Criminal Code of the Russian Federation. Undoubtedly, the presence of such a qualifying feature as “for the purpose of committing a crime on the territory of the Russian Federation” is quite justified, since the organization of illegal migration is often closely related to the illegal trafficking of drugs and weapons. The labor of illegal migrants is used in underground workshops and production facilities for the production of various goods, in logging, in the harvesting of biological resources, as part of attacks on public relations that ensure the protection of the business reputation of producers of goods and services, as well as guarantees of consumer rights, rational use and protection of aquatic living resources, forests and non-forest trees and shrubs. The organization of illegal migration can be carried out for the purpose of committing crimes that encroach on public relations that ensure the moral and spiritual foundations of society (Article 240 of the Criminal Code of the Russian Federation “Involvement in prostitution”, Article 241 of the Criminal Code of the Russian Federation “Organization of prostitution”). At the same time, it seems necessary to revise this qualifying feature in the direction of expanding criminal liability for organizing illegal migration and reflect it in the following wording: “for the purpose of committing illegal actions.”
Not only crimes, but also administrative offenses will fall under this criterion. Indeed, today we are witnessing a complication of the geopolitical situation in the world in general and in our country in particular. So, for example, speaking about the processes currently taking place in Ukraine, we can draw conclusions that the events of 2014, according to many analysts, may well be repeated in Russia. It should be emphasized that these events were organized not without the participation of some Western countries, which actively supported the opposition, prepared participants for future mass riots, and also recruited citizens of other states to participate in the protest, including with the aim of creating a mass effect, without committing any criminal acts.
As noted by the Chairman of the Supervisory Board of the Institute of Demography, Migration and Regional Development, Chairman of the Development Movement Yu. Krupnov, it is likely that already legalized, organized and grouped migrants can be used to transform the Maidan in Moscow: “We used to see a lot of migrants in the city center on holidays . Now this is not the case. Why? Diasporas organize the situation “correctly” by prohibiting their wards from going into the city center on holidays. And this shows a serious organization.” The expansion of this qualifying feature will have positive dynamics in the fight against the organization of illegal migration. Summing up the results of our research, it should be noted that Article 322.1 of the Criminal Code of the Russian Federation in its current version is ineffective. There are huge problems in qualifying illegal actions under this article, not to mention the problems of distinguishing between criminal liability for organizing illegal migration and administrative offenses in the field of illegal migration. But we will definitely talk about this in another research work. The above ideas and proposals should contribute to the development of legislation in the field of combating the organization of illegal migration. The ongoing improvement of legislation should clearly define the subject of regulation on the issue of organizing illegal migration. Thus, gaps in migration legislation must be eliminated, and subsequently more than one set of problems in regulating such a modern phenomenon as illegal migration must be resolved. Only an integrated approach to this problem, combined with enhanced control over the organization of illegal migration, identification and destruction of these structures, as well as prevention and suppression of the wave of illegal migrants, can lead to a positive result.
Responsibility for organizing illegal migration
In almost all countries, organizing illegal migration is a criminal offense. The sanction is usually imprisonment, sometimes the term can be ten years or more.
In the context of the topic under consideration, it is necessary to determine what, from a legal point of view, constitutes the organization and promotion of illegal migration. A person may be brought to criminal liability if he was involved in organizing the illegal crossing of the state border and the further illegal stay of migrants on the territory of a certain state. Those who organized the transit of illegal immigrants through the country will also be punished.
The law stipulates that the organizer will be considered the person involved in planning, selecting participants, and also directly managing illegal migration.
Some countries also provide for criminal liability for facilitating illegal migration. Persons against whom criminal proceedings may be opened, in this case, may be assistants to the organizers, responsible for logistics, accommodation of migrants, etc. That is, perform auxiliary functions.
Responsibility for organizing illegal migration in Russia is provided for in Article 322.1 of the Criminal Code of the Russian Federation. The maximum sanction of the article provides for up to seven years in prison and a fine of up to half a million rubles.
Organizing illegal migration in Russia is criminally punishable
In recent years, the fight against illegal migration in the Russian Federation has become tougher, which is bearing fruit. Nevertheless, in Moscow alone, according to municipal authorities, today a third of migrants are illegal immigrants.
The main centers of attraction for illegal migrants in Russia are Moscow and the Moscow region, as well as St. Petersburg and the Leningrad region. There are also many illegal immigrants in Tyumen and other regions of the Russian Federation, where there are well-paid jobs and a sufficient number of jobs.
Why does illegal labor migration continue to flourish in Russia? For example, the average salary in Russia in October 2018 was 42 thousand rubles. But taxes must be paid on this amount. An illegal migrant, for example, from Tajikistan, is ready to work for 30 thousand. This amount, by the standards of his home country, is very respectable. In addition, the employer does not need to pay contributions to the state budget for the employee. Is it beneficial for him or not? Of course it's profitable. It is also beneficial for illegal labor migrants, who do not need to pay for a work permit and so on. A similar situation is relevant for other countries.
The objective side of organizing illegal migration (Article 3221 of the Criminal Code of the Russian Federation)
The legal literature contains a large number of interpretations of Art. 3221 CC. Most authors believe that the objective side
The crime in question alternatively (or in any combination) consists of: organizing illegal entry into the Russian Federation of foreign citizens or stateless persons; organization of their illegal stay in the Russian Federation; organization of their illegal transit passage through the territory of the Russian Federation.
However, in judicial and prosecutorial practice, there is an opinion that the legislator deliberately separated the organization of transit passage with the conjunction “or”, and lists the organization of illegal entry and stay as a single act. In this case, organizing illegal stay does not constitute a completed crime without organizing illegal entry.
In our opinion, this point of view is casuistic and is not supported by legal theory.
The objective side of the crime under Part 1 of Art. 3221 of the Criminal Code is a member of the organization:
a) illegal entry into the Russian Federation of foreign citizens or stateless persons;
b) their illegal stay in the Russian Federation;
c) their illegal transit through the territory of the Russian Federation.
Analyzing the objective side of the crime provided for in Art. 3221 of the Criminal Code, it is necessary to start with the term “organization”. Organization in the Dictionary of Foreign Words means “the structure, arrangement of something; a set of people, groups united to achieve a goal, solve a problem based on the principles of division of labor, division of responsibilities and hierarchical structure...” In the Dictionary of the Russian Language, organization is understood as “organization, good, systematic, thoughtful arrangement, internal discipline.”
Today, in theory, there is no clear definition of the concepts “organization of illegal entry into the Russian Federation” and others specified in Art. 3221 Criminal Code of Actions.
In our opinion, in relation to the norm under consideration, it is impossible to consider the concept of organizing illegal migration without its components - illegal entry, stay and transit passage. In our opinion, the term “organization” includes the commission of various, premeditated actions, mostly aimed at obtaining one’s own benefit by creating conditions for illegal border crossing by third parties.
The exact concept of “entry” has not yet been defined in science. According to A. Bessonov, entry is crossing the State border of the Russian Federation “by land by international rail, road transport or in places determined by international treaties of the Russian Federation or decisions of the Government of the Russian Federation.” However, the Russian border does not only lie on land. In accordance with Art. 1 of the Law of the Russian Federation “On the State Border” The state border is a line and a vertical surface passing along this line, defining the limits of the state territory, defining the boundaries of the state territory (land, subsoil and airspace of the Russian Federation), this is the spatial limit of the action of the state sovereignty of the Russian Federation.
It should be emphasized that not only air, land and water vehicles can cross land, air, and water borders. As O. and S. Yakimov believe, it can be crossed by swimming, on foot, or by non-traditional means of transport. In their opinion, as stated earlier, the criminalization of “organizing illegal migration” is unnecessary, Art. 3221 of the Criminal Code is consistent with Art. 322 of the Criminal Code “Illegal crossing of the State Border of the Russian Federation.”
While we partly agree with the opinion of the Yakimovs, it is worth noting that Art. 3221 of the Criminal Code provides for liability not only for organizing illegal entry, but also for committing such actions as organizing illegal stay in the Russian Federation, as well as illegal transit passage through the territory of the Russian Federation, which were not previously provided for by articles of the Criminal Code of the Russian Federation.
Giving a general broad meaning to the concept of “entry,” the legislator defined it as crossing the State border of the Russian Federation by any means and means.
We agree with the opinion of N.G. Kiriyenko, whose position is that organizing illegal entry is any action aimed at facilitating the movement of foreign citizens or stateless persons across the State Border of the Russian Federation into the territory of our country in violation of the current legislation of the Russian Federation or resulting from the actual movement of migrants to territory of the Russian Federation.
In the concept of “organizing illegal stay in the Russian Federation” A. Bessonov includes “committing actions aimed at finding employment, providing housing, material resources on the territory of Russia, etc.” Thus, organizing an illegal stay in the Russian Federation is the commission of actions by the perpetrators aimed at ensuring the location of foreign citizens and stateless persons on the territory of the Russian Federation in violation of migration legislation.
According to the construction of the objective side, the crime under consideration is formal, a crime provided for in Art. 3221 of the Criminal Code, will be completed from the moment of committing one of the actions listed in the disposition.
The disposition of the article is of a reference-blanket nature. In other words, for the correct qualification of the offense under Art. 3221 of the Criminal Code, the disposition refers the law enforcement officer to other laws and by-laws, for example, to the Federal Law “On the procedure for leaving the Russian Federation and entering the Russian Federation” of August 15, 1996. No. 114-FZ (as amended on March 9, 2010. No. 24-FZ), Federal Law “On the Legal Status of Foreign Citizens in the Russian Federation” dated July 25, 2002. No. 115-FZ (as amended on May 19, 2010. No. 86-FZ), Regulations on the issuance of residence permits to foreign citizens and stateless persons, approved by the Decree of the Government of the Russian Federation of November 1, 2002. No. 794 (as amended on January 23, 2007, March 28, 2008), Instructions on organizing the activities of the internal affairs bodies of the Russian Federation in processing and issuing temporary residence permits and residence permits to foreign citizens and stateless persons, approved by the Order Ministry of Internal Affairs of Russia dated April 14, 2003. No. 250.
Exit from the Russian Federation and entry into the Russian Federation (including transit passage through its territory) are also regulated by the Constitution of the Russian Federation, international treaties of the Russian Federation, other federal laws and resolutions of the Government of the Russian Federation adopted on the basis of these federal laws. If an international treaty of the Russian Federation establishes rules other than those provided for by the above federal law, the rules of the international treaty apply.
A study conducted by the All-Russian Research Institute of the Ministry of Internal Affairs of Russia showed that the main difficulties arise with establishing signs of the objective side of the crime under Art. 3221 of the Criminal Code of the Russian Federation, as well as when distinguishing this crime from related administrative offenses: Art. 18.9 of the Code of Administrative Offenses of the Russian Federation (“Violation by an official of an organization hosting a foreign citizen or stateless person in the Russian Federation, or by a citizen of the Russian Federation or a foreign citizen or stateless person permanently residing in the Russian Federation, of the rules of stay of foreign citizens or stateless persons in the Russian Federation”) and Art. 18.15 of the Code of Administrative Offenses of the Russian Federation (“Illegal recruitment of a foreign citizen or stateless person to work in the Russian Federation”).
The criminal law establishes responsibility specifically for organizing illegal migration, as the most dangerous act that contributes to an increase in the concentration of persons illegally staying in the country, which can subsequently cause harm to other objects of criminal legal protection, for example, an individual or the economic sector. This thesis is confirmed by statistical data, which indicate that the presence of illegal migrants is often associated with their commission of various types of criminal acts on the territory of the Russian Federation.
The organization of these actions as a whole is a complex, diverse organizational activity and covers:
— selection of migrants abroad;
— resolving issues with employers and employees of the Federal Migration Service of Russia regarding obtaining the necessary permits;
— ensuring the production, acquisition, registration and transfer of false documents to migrants;
— briefing of migrants;
— solving transport issues;
— maintaining existing and establishing new connections with officials involved in border and immigration control;
— ensuring the preparation of places of shelter (residence) on the territory of the Russian Federation, etc.
Such organizational activity presupposes the involvement of many people in one form or another. Thus, there may be several actual organizers (legally, co-perpetrators of a given crime) by prior conspiracy; complicity (aiding) of officials of control bodies; improper performance of their official duties (indulgences based on acquaintance), etc.
Article 3221 of the Criminal Code establishes criminal liability for organizing illegal migration only in the three specified forms and only in relation to foreign citizens and stateless persons. The same actions against citizens of the Russian Federation are criminally punishable only in relation to the organization of illegal crossing of the State Border of the Russian Federation, but they are qualified under Art. 322 of the Criminal Code with reference to Part 3 of Art. 33 of the Criminal Code.
Migrants - foreign citizens and stateless persons in this case bear criminal liability for illegally crossing the State Border of the Russian Federation (if any). Administrative liability is provided for their violation of the regime of stay in the Russian Federation (Article 18.8 of the Administrative Code).
Organizing the illegal stay of migrants in the Russian Federation may be a continuation of an act related to their illegal entry into the Russian Federation, or constitute an independent act when the evasion of migrants who have legally entered the Russian Federation from leaving the Russian Federation at the end of the permitted period of their stay in Russia is organized. Among the organizers of illegal migration, the roles can be distributed in such a way that some organize the illegal entry of migrants into the Russian Federation, while others organize their illegal stay in Russia or transit passage through the territory of the Russian Federation. This does not affect the classification of the crime.
The corpus delicti is formal. For the actual organizer, the crime is considered completed from the moment of illegal entry into the Russian Federation of foreign citizens or stateless persons or the fact of their illegal stay in the Russian Federation (in the case of legal entry and evasion of exit at the end of their stay).
If we talk about the social danger of each of the three types of actions that form the objective side of the crime provided for in Article 3221 of the Criminal Code, then, as Yu.Yu. Byshevsky, the most dangerous of them seems to be the organization of illegal entry of these persons into Russia, the other two are to a certain extent derived from the first (organization of entry).
As you know, the Criminal Code of the Russian Federation provides for many articles related to the organization of criminal actions as an element of the objective side. Examples include the organization of an illegal armed group (Article 208 of the Criminal Code); organization of a criminal community (Article 210 of the Criminal Code) and others. In addition, in many crimes the concept of organization is associated with the activities of organized criminal groups (Article 35 of the Criminal Code). In Art. 3221 of the Criminal Code, this concept acts not only as an element of the objective side, but also as a characteristic feature of its qualified type (clause “a”, part 2 of article 3221 “the same acts committed by an organized group”). However, in both cases, such an act is inextricably linked with the concept of the organizer of the crime, in our case - illegal migration.
According to Yu.Yu. Byshevsky, organization of the commission of a crime under Art. 3221 of the Criminal Code “Organization of illegal migration” is the main, defining activity, which includes a very diverse range of actions, namely: developing criminal plans, finding accomplices, especially accomplices, if necessary, determining the methods and means by which the crime will be committed (registration documents, finding transport, etc.). Most often, the organizer of a crime is also its leader. However, this does not mean that the management of a crime also covers the activity of organizing a crime, which is more diverse than the activity of directing the commission of a crime. It seems that the latter has a subordinate meaning in relation to the first.
In our opinion, the organizer of the crime can take a direct part in fulfilling the objective side of the crime, that is, organizing the entry, stay, and transit through the territory of the Russian Federation of foreigners and stateless persons, or he can remain on the sidelines. For his criminal liability, it is sufficient to take actions to organize illegal migration, that is, the entry, stay or transit of foreign citizens or stateless persons in violation of the procedure established for them in this regard in accordance with Russian legislation.
It seems that the legislator’s omission is that bringing to criminal liability under Art. 3221 of the Criminal Code can only be carried out by the person who organized the illegal entry, and whether persons who facilitate it but are not part of its organized group will be held accountable remains questionable. For example, assistance to the organizer of illegal migration can be provided by persons who provide accommodation for illegal migrants.
Thus, as an element of the objective side of Art. 3221 of the Criminal Code, it is possible, in our opinion, to include such an act as facilitating illegal migration, because processes associated with illegal migration often become possible not so much as a result of their organization by individuals, but as a result of assistance (action or inaction) on the part of officials , on which, for example, the issuance or execution of documents, the provision of jobs, and so on depend. Obviously, such persons cannot be classified as the organizers of this crime, and even identifying them as an accomplice is problematic here. In this case specifically, as, indeed, in others, selfish interest is very likely, which also, in our opinion, requires its additional inclusion in Art. 3221 of the Criminal Code as, for example, a qualifying circumstance.
From the above it follows that the organization of illegal migration can only be carried out through actions that may consist in developing methods of illegal entry into the Russian Federation, searching for persons wishing to migrate illegally, providing them with the relevant documents, establishing illegal contacts with persons monitoring the entry procedure and stay on the territory of the Russian Federation, responsible for issuing visas, and in committing other actions aimed at ensuring illegal entry, stay or illegal transit passage. The act will be completed from the moment any of the above actions are completed.
What measures are taken by different countries to combat illegal migration?
There are 195 independent states in the world today. Many of them suffer to one degree or another from the problem of illegal migration. Therefore, countermeasures differ significantly.
Let's give a few examples. The US counteraction to illegal migration has already been discussed. In mononational Japan, for example, an identified illegal migrant will be fined 30 thousand yen. This amounts to almost 3 thousand dollars. In Israel, illegal immigrants are subject to imprisonment for up to two years. Hungary has built a line of engineering barriers on the border with Serbia and strengthened state border security. Austria unilaterally introduced enhanced controls at its borders.
Australia is implementing Prime Minister Tony Abbott's Sovereign Shores plan. The Australian Navy has taken no-interest measures to protect Australian shores from illegal migrants from Indochina, India, Indonesia and Oceania.
Australia is implementing Prime Minister Tony Abbott's Sovereign Shores plan.
