Article 322.1 of the Criminal Code of the Russian Federation. Organization of illegal migration

Criminal Code of the Russian Federation in the latest edition:

Article 322.1 of the Criminal Code of the Russian Federation. Organization of illegal migration

1. Organization of illegal entry into the Russian Federation of foreign citizens or stateless persons, their illegal stay in the Russian Federation or illegal transit passage through the territory of the Russian Federation -

shall be punishable by imprisonment for a term of up to five years, with or without restriction of freedom for a term of up to two years.

2. The same acts committed:

a) by a group of persons by prior conspiracy or an organized group;

b) for the purpose of committing a crime on the territory of the Russian Federation;

c) by a person using his official position, -

shall be punishable by imprisonment for a term of up to seven years with or without 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 and with or without restriction of freedom for a term of up to two years.

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Comments on Article 322.1 of the Criminal Code of the Russian Federation

Migration is a set of territorial movements of the population accompanied by a change in place of residence.

Migrant is a person moving to a new place of residence (temporary or permanent). A migrant entering the territory of the state of his new place of residence is an immigrant . A migrant leaving the territory of his state of residence is an emigrant .

The object of the crime provided for in Art. 322.1 of the Criminal Code of the Russian Federation is the regime of the State Border of the Russian Federation, the established procedure for entry into and exit from the territory of the Russian Federation, as well as the procedure for the stay of foreign citizens or stateless persons on the territory of the Russian Federation.

The objective side of the crime alternatively consists of active actions to organize:

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 passage through the territory of the Russian Federation.

The legal entry of a foreign citizen or stateless person into the Russian Federation will be in the presence of a visa (diplomatic, service, ordinary, transit or temporary resident) issued on the basis of valid documents proving their identity, as well as the grounds for its issuance (invitation, decision of the federal or territorial executive authority, agreement on the provision of tourism services). All types of visas are issued for specific periods. They depend on the purpose of entry and purpose of stay.

When entering the Russian Federation, a foreign citizen or stateless person is also required to obtain and fill out a migration card, which must be handed in at the checkpoint across the State Border of the Russian Federation when leaving the Russian Federation.

In order to determine the presence of a sign of illegality of the acts specified in Article 322.1 of the Criminal Code of the Russian Federation, one should refer to the content of other legislative acts.

The procedure for entry into and exit from the Russian Federation is established by Federal Law No. 114-FZ of August 15, 1996 “On the procedure for exit from and entry into the Russian Federation.” Exit from the Russian Federation and entry into the Russian Federation (including transit travel through its territory) are also regulated by international treaties of the Russian Federation, other federal laws and decrees of the Government of the Russian Federation adopted on the basis of federal laws.

In Art. Art. 26 of the Federal Law of August 15, 1996 N 114-FZ “On the procedure for leaving the Russian Federation and entering the Russian Federation” lists cases when foreign citizens or stateless persons may not be allowed to enter the Russian Federation . For example, entry may be prohibited if the specified person(s):

at the checkpoint across the State Border of the Russian Federation, the rules for crossing the State Border of the Russian Federation, customs rules, and sanitary standards were violated;
provided deliberately false information about themselves or the purpose of their stay in the Russian Federation;
repeatedly (two or more times) within three years were brought to administrative responsibility for committing an administrative offense on the territory of the Russian Federation;
during their previous stay in the Russian Federation, did not leave the Russian Federation before the expiration of thirty days from the date of expiration of the period of temporary stay, with the exception of cases of inability to leave the territory of the Russian Federation due to circumstances related to the need for emergency treatment, serious illness or the death of a close relative living in the Russian Federation , or due to force majeure;
participates in the activities of a foreign or international non-governmental organization in respect of which a decision has been made to recognize its activities as undesirable on the territory of the Russian Federation;
participates in the activities of an organization included in the list of organizations and individuals in relation to which there is information about their involvement in extremist activities or terrorism.

In Art. 27 of the Federal Law of August 15, 1996 N 114-FZ “On the procedure for leaving the Russian Federation and entering the Russian Federation” lists cases when foreign citizens or stateless persons are not allowed to enter the Russian Federation . For example, entry is prohibited if:

this is necessary to ensure the defense or security of the state, or public order, or the protection of public health;
in relation to a foreign citizen or stateless person, a decision has been made on administrative expulsion from the Russian Federation, on deportation or transfer by the Russian Federation to a foreign state in accordance with the international treaty of the Russian Federation on readmission;
in relation to a foreign citizen or stateless person, a decision was made repeatedly (two or more times) on administrative expulsion from the Russian Federation, on deportation or transfer by the Russian Federation to a foreign state in accordance with the international treaty of the Russian Federation on readmission;
during the previous stay in the Russian Federation, the readmission procedure for a foreign citizen or stateless person was terminated;
a foreign citizen or stateless person has an unexpunged or outstanding conviction for committing an intentional crime on the territory of the Russian Federation or abroad;
a foreign citizen or stateless person has not submitted the documents required to obtain a visa in accordance with the legislation of the Russian Federation;
a foreign citizen or stateless person has not presented a health insurance policy valid on the territory of the Russian Federation;
when applying for a visa or at a checkpoint across the State Border of the Russian Federation, a foreign citizen or stateless person was unable to confirm the availability of funds for living in the territory of the Russian Federation and subsequent departure from the Russian Federation or provide guarantees for the provision of such funds;
in relation to a foreign citizen or stateless person, a decision has been made that it is undesirable to stay (reside) in the Russian Federation;
a foreign citizen or stateless person used false documents;
a foreign citizen or stateless person during his previous stay in the Russian Federation evaded paying a tax or an administrative fine or did not reimburse expenses associated with administrative expulsion from the Russian Federation or deportation;
a foreign citizen or stateless person has been repeatedly (two or more times) within one year brought to administrative responsibility for committing an administrative offense related to an encroachment on public order and public safety or violation of the regime of stay (residence) of foreign citizens or stateless persons in the Russian Federation or the procedure for carrying out their labor activities on the territory of the Russian Federation;
a foreign citizen or a stateless person during his previous stay in the Russian Federation exceeded the period of stay of ninety days in total during each period of one hundred and eighty days;
a foreign citizen or a stateless person did not leave the Russian Federation during his previous stay in the Russian Federation and stayed in the Russian Federation continuously for more than one hundred and eighty days;

The stay of a foreign citizen or stateless person in the Russian Federation is legal if he follows the established procedure for registration, movement, choice of place of residence, and does not shy away from leaving the Russian Federation after the expiration of his stay.

The procedure for staying on the territory of the Russian Federation is determined depending on the purpose of the foreign citizen’s entry into the Russian Federation and the purpose of his stay in the Russian Federation. A foreign citizen is issued a visa, which can be a diplomatic, official, ordinary, transit or temporary residence visa. In turn, ordinary visas are divided into private, business, tourist, study, work, humanitarian and visas to enter the Russian Federation for the purpose of obtaining asylum.

Transit travel through the territory of the Russian Federation is usually carried out without the right to stop if you have a visa to enter a state adjacent to the Russian Federation, travel tickets valid for leaving the Russian Federation, etc. Failure to comply with the requirements of Chapters IV - VI of Federal Law No. 114-FZ “On the procedure for leaving the Russian Federation and entering the Russian Federation” makes the entry, transit passage, and stay of these persons in the Russian Federation illegal.

Transit travel through the territory of the Russian Federation by foreign citizens and stateless persons to the destination state by all means of transport is permitted upon presentation of a Russian transit visa, an entry visa to a state adjacent to the Russian Federation along the route, or a visa of the destination state and travel tickets valid for leaving the Russian Federation or a confirmed guarantees of their purchase at a transfer point on the territory of the Russian Federation. A transit visa is not required for a foreign citizen in case of transit passage of this foreign citizen through the territory of the Russian Federation in a non-stop mode on sections of transport highways in accordance with the list and in the manner established by the Government of the Russian Federation.

The organization of illegal migration is understood as the deliberate commission of 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 territory of the Russian Federation, including entry into the Russian Federation of foreign citizens on tourist visas for the purpose of illegal migration to another state using the territory of the Russian Federation as a transit territory (clause 7 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated July 9, 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”).

The organization of illegal migration (illegal entry, transit, stay in the Russian Federation) can only be carried out through actions . They may consist of creating a group involved in ensuring illegal migration, developing methods and routes for illegal entry into the Russian Federation, finding persons wishing to migrate illegally, providing them with the relevant documents, establishing illegal contacts with persons monitoring the procedure for entering the country and staying in those in charge of issuing visas, and in carrying out other actions aimed at ensuring the illegal entry into the Russian Federation of foreign citizens or stateless persons, their illegal stay in the Russian Federation or illegal transit passage through its territory.

The end of the crime

The crime by design has a formal composition. Paragraph 7 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 07/09/2020 N 18 states the following:

“The organization of illegal migration is qualified as a completed crime from the moment the guilty person deliberately creates conditions for foreign citizens or stateless persons to carry out at least one of the illegal actions listed in this article, regardless of whether they have committed such actions or not.

The qualification of a person’s actions under Article 322.1 of the Criminal Code of the Russian Federation is not affected by the fact that foreign citizens or stateless persons in whose interests this crime was committed were not brought to justice, including due to their location outside the Russian Federation.”

Committing several illegal actions is a single crime

Creation with a single intent of conditions for a foreign citizen or stateless person to commit several violations of migration legislation specified in Part 1 of Article 322.1 of the Criminal Code of the Russian Federation (for example, illegal entry into the Russian Federation and illegal stay on the territory of the Russian Federation), as well as for the commission of one or more such illegal actions simultaneously by two or more foreign citizens or stateless persons should be qualified as one crime provided for in the relevant part of Article 322.1 of the Criminal Code of the Russian Federation (clause 9 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 07/09/2020 N 18).

The subjective side of the crime is characterized by a deliberate form of guilt in the form of direct intent. A person organizing illegal entry, transit, or stay in the Russian Federation is aware of the illegality of his actions and their danger and wants to act that way. The motivation of behavior does not affect the presence of a crime. Most often, the crime in question is committed for mercenary reasons.

The subject of the crime is a sane individual who has reached the age of 16, who organizes the illegal entry, transit, stay in the Russian Federation of a foreign citizen or stateless person.

Commentary to Art. 322.1 of the Criminal Code

1. The objective side is the organization of illegal external migration (resettlement), i.e. any activity as a result of which the possibility is created or carried out illegally: a) entry into the Russian Federation of foreign citizens and stateless persons; b) their stay in the country or c) passage through the territory of the Russian Federation. This may include planning the above-mentioned acts, selecting and training accomplices, finding documents, hiring transport, directing the actual commission of a crime.

2. The conclusion about the legality or illegality of the actions for which organizational activities are carried out must be based on the norms and institutions of public law regulating the entry and stay of foreign citizens and stateless persons in Russia.

3. Organizational activities can be aimed at ensuring the entry into Russia of migrants in violation of the statutory obligation to receive and fill out a migration card, without a visa, identity documents, with the presentation of fake documents, stay in Russia in violation of the established registration procedure, movement, after expiration length of stay, etc.

4. The moment of completion of the crime is determined differently. It is sometimes argued that it is necessary to establish the fact of illegal entry or stay in Russia or illegal transit passage.

Qualified members of the organization of illegal migration

In Part 2 of Art. 322.1 of the Criminal Code of the Russian Federation formulates a qualified crime: commission of the provisions provided for in Part 1 of Art. 322.1 of the Criminal Code of the Russian Federation crimes:

a) a group of persons by prior conspiracy or an organized group (see Article 35 of the Criminal Code of the Russian Federation with comments);

b) for the purpose of committing a crime on the territory of the Russian Federation . The purpose of committing this crime on the territory of the Russian Federation may be the intention to commit one or more crimes on the territory of Russia. The presence of such a goal will occur both in the case of the intention to commit a crime by the person organizing illegal migration, and in the presence of such an intention by the persons against whom illegal migration is being organized. “Organization of illegal migration for the purpose of committing a specific crime on the territory of the Russian Federation with the participation of or in relation to foreign citizens or stateless persons, including in cases where the foreign citizens or stateless persons themselves were not aware of their participation in the commission of this crime, is fully covered by paragraph “b” of part 2 of article 322.1 of the Criminal Code of the Russian Federation. If a person who organized illegal migration for such purposes took part in the commission of the specified crime, then his actions, if there are grounds, are classified as a set of crimes provided for in paragraph “b” of part 2 of Article 322.1 of the Criminal Code of the Russian Federation and the corresponding article (paragraph, part of the article) of the Special Part Criminal Code of the Russian Federation" (clause 10 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 07/09/2020 N 18);

c) by a person using his official position . This qualifying feature presupposes that the person used the powers granted to him through his service or position, managerial functions in commercial organizations, the capabilities of a state or municipal employee, or other opportunities due to his official position. It is enough to establish that the official position allows such a person to use his position to perform actions that form the objective side of the crime.

Position of the defense on charges of fictitious registration (Article 322.3 of the Criminal Code of the Russian Federation)

Position of the defense on the charge under Article 322.3 of the Criminal Code of the Russian Federation

in accordance with Part 2 of Article 273 of the Code of Criminal Procedure of the Russian Federation

On March 19, 2014, an indictment was approved on charges against Dmitriev S.A. (defendant) in committing crimes under Part 1 of Art. 322.3 of the Criminal Code of the Russian Federation. The defendant is charged with the fact that, in the opinion of the prosecution, by personally filling out and submitting a notification of arrival to the Federal Migration Service in the Butyrsky district of Moscow, followed by issuing a tear-off coupon to the citizens indicated in the notification, he registered without the intention of providing residential premises at the address: Moscow, st. Yablochkova 43-B, apt. 41:

February 13, 2013 from 8.00 to 20.00 - citizen of the Republic of Uzbekistan Urazov A.N.
September 03, 2013 from 8.00 to 20.00 – citizen of the Republic of Moldova Yutish I.G.,

thereby committing crimes under Article 322.3 Part 1 of the Criminal Code of the Russian Federation.

We consider the position of the prosecution to be illegal and unfounded due to the lack of corpus delicti in the actions of the defendant as provided for in Article 322.3 Part 1 of the Criminal Code of the Russian Federation , as evidenced by the following circumstances.

According to Part 1 of Art. 14 of the Criminal Code of the Russian Federation, a crime is recognized as a socially dangerous act committed guilty of guilt, prohibited by the Criminal Code of the Russian Federation under threat of punishment. In accordance with Part 1 of Art. 29 of the Criminal Code of the Russian Federation, a crime is considered completed if the act committed by a person contains all the elements of a crime provided for by this Code.

Article 322.3 of the Criminal Code of the Russian Federation provides for criminal liability for fictitious registration of a foreign citizen or stateless person at the place of stay in residential premises in the Russian Federation. Fictitious registration of foreign citizens or stateless persons at the place of stay in residential premises in the Russian Federation means their registration at the place of stay (residence) in residential premises on the basis of the submission of knowingly unreliable (false) information or documents or their registration according to place of stay in residential premises without the intention to stay (reside) in these premises or without the intention of the receiving party to provide them with these premises for their stay (residence).

According to paragraphs. 6 clause 1 art. 2 Federal Law of the Russian Federation dated July 18, 2006 No. 109-FZ “On migration registration of foreign citizens and stateless persons in the Russian Federation”, registration of a foreign citizen or stateless person at the place of stay is the recording in the prescribed manner by authorized bodies of information about the location of a foreign citizen or stateless persons at the place of stay.

According to paragraphs. 7 clause 1 art. 2 of the Federal Law “On Migration Registration”, the “host party” means, inter alia, a citizen of the Russian Federation, a foreign citizen or stateless person permanently residing in the Russian Federation, with whom the foreign citizen or stateless person actually resides or carries out work activities (is located) .

The necessary actions of the receiving party, performed by it in the process of registering foreign citizens at the place of stay, are defined in paragraphs. 2 p. 2 art. 22 of the Federal Law “On Migration Registration” and include: 1) providing the migration registration authority with a notification of the arrival of a foreign citizen at the place of stay, and 2) transferring to the foreign citizen the detachable part of the notification form.

Thus, the objective side of the crime under Art. 322.3 of the Criminal Code of the Russian Federation, if committed by a citizen who fictitiously takes part in registering a foreign citizen as a “host”, is the provision by such a citizen to the migration registration authority of information about the stay of a foreign citizen in his residential premises by submitting a notification form signed by him containing relevant information. A mandatory sign of the objective side of the crime is the citizen’s lack of intention at the time of committing the described actions to actually provide residential premises for a foreign citizen to stay.

According to Part 2 of Art. 9 of the Criminal Code of the Russian Federation, the time of commission of a crime is recognized as the time of commission of a socially dangerous action (inaction), regardless of the time of the onset of consequences.

Consequently, the time of commission of the crime under Art. 322.3 of the Criminal Code of the Russian Federation, a citizen fictitiously representing the “receiving party” is the time he submits to the migration registration authority a notification of the arrival of a foreign citizen or stateless person. From the moment the citizen completes this action, the crime is considered completed.

As follows from the case materials, notifications of the arrival of foreign citizens were submitted by the defendant to the Federal Migration Service of the Butyrsky district of Moscow

February 13, 2013 – in relation to a citizen of the Republic of Uzbekistan Urazov A.N.
September 3, 2013 – in relation to a citizen of the Republic of Moldova Yutish I.G.

As follows from the information provided by the Federal Migration Service during the investigation, these foreign citizens were registered at their place of residence in a residential building at the address: Moscow, st. Yablochkova 43-B, apt. 41 on the following dates _______. The term of stay of each of them expired in ___________ 20__.

In accordance with Part 1 of Art. 9 of the Criminal Code of the Russian Federation, the criminality and punishability of an act are determined by the criminal law in force at the time the act was committed.

Article 322.3 “Fictitious registration of a foreign citizen or stateless person at the place of stay in a residential premises in the Russian Federation” was introduced into the Criminal Code of the Russian Federation on December 21, 2013 by Federal Law of December 21, 2013 No. 376-FZ “On amendments to certain legislative acts of the Russian Federation" (Clause 2, Article 2 of the said federal law). The specified federal law was officially published on December 23, 2013 and, in accordance with the provisions of the Federal Law of June 14, 1994 No. 5-FZ “On the procedure for publication and entry into force of federal constitutional laws, federal laws, acts of the chambers of the Federal Assembly,” came into force effective January 3, 2014

In accordance with Part 1 of Art. 10 of the Criminal Code of the Russian Federation, a criminal law establishing the criminality of an act, increasing punishment or otherwise worsening a person’s position, does not have retroactive effect.

Thus, the actions of submitting notifications of the arrival of foreign citizens to the Federal Migration Service Office, carried out in 2013, cannot be qualified under Art. 322.3 of the Criminal Code of the Russian Federation and are not a crime.

Based on the above, guided by paragraphs. 2) and 3) part 1 art. 299, part 2 art. 302 Code of Criminal Procedure of the Russian Federation,

ASK:

Find the defendant innocent and render a verdict of acquittal.

Distinguishing the organization of illegal migration from related crimes

Illegal migration and fictitious registration

If the organization of illegal migration, along with other actions of an organizational nature, includes fictitious registration (registration) of foreign citizens or stateless persons at the place of residence or place of stay in the Russian Federation, the act shall be classified as a set of crimes provided for in the relevant part of Article 322.1 of the Criminal Code of the Russian Federation and Article 322.2 of the Criminal Code of the Russian Federation or Article 322.3 of the Criminal Code of the Russian Federation. In cases where the actions of a person consist only of fictitious registration (registration) of a foreign citizen or stateless person at the place of residence or place of stay, the act is qualified under Article 322.2 or Article 322.3 of the Criminal Code of the Russian Federation and does not require additional qualification under Article 322.1 of the Criminal Code of the Russian Federation ( clause 8 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 07/09/2020 N 18).

Illegal crossing of the State Border by the person who organized the illegal migration

“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 do not require additional qualifications under Part 3 of Article 33 and Article 322 of the Criminal Code of the Russian Federation.

If the person who organized illegal migration, while committing this crime, himself illegally crossed the State Border (for example, acting as a guide), then his actions are subject to qualification under the totality of crimes provided for in Articles 322 and 322.1 of the Criminal Code of the Russian Federation” (clause 11 of the Resolution of the Plenum of the Supreme Court RF dated 07/09/2020 N 18).