ST 322.3 of the Criminal Code of the Russian Federation.
Fictitious registration of a foreign citizen or stateless person at the place of stay in the Russian Federation -
shall be punishable by a fine in the amount of one hundred thousand to five hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to three years, or by forced labor for a period of up to three years, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years, or without it, or imprisonment for a term of up to three years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years, or without it.
Notes. 1. Fictitious registration of foreign citizens or stateless persons at the place of stay in the Russian Federation means their registration at the place of stay in the Russian Federation on the basis of the submission of knowingly unreliable (false) information or documents, or the registration of foreign citizens or stateless persons registration at the place of stay in the Russian Federation in premises without their intention to actually reside (stay) in this premises or without the intention of the receiving party to provide them with this premises for actual residence (stay), or registration of foreign citizens or stateless persons at the place of stay at the address of the organization in which they do not, in accordance with the established procedure, carry out labor or other activities not prohibited by the legislation of the Russian Federation.
2. A person who has committed a crime under this article is exempt from criminal liability if he contributed to the disclosure of this crime and if his actions do not contain another crime.
Commentary to Art. 322.3 of the Criminal Code
1. Most of the signs of this crime coincide with the corresponding signs of the crime provided for in Art. 322.2 CC. The objective side covers registration actions for registering a foreign citizen or stateless person at the place of stay in a residential building in the Russian Federation that is not a place of residence: a) on the basis of submitting knowingly unreliable (false) information or documents for registration; or b) without the person’s intention to stay (live) in the relevant premises; or c) without the intention of the receiving party to provide this residential premises for the stay (residence) of the person.
2. The crime is considered completed from the moment the registration actions are carried out.
Responsibility for fictitious registration of a citizen of the Russian Federation
Until 2013, fictitious registration was subject to exclusively administrative punishment in the form of a fine, outlined in Article 322.1 of the Criminal Code of the Russian Federation.
However, since 2013, in order to strengthen the fight against “fictitious apartments”, criminal penalties were introduced, and the current Criminal Code was supplemented with new articles - 322.2 and 322.3.
So, in 2022 the following punishment options under Art. 322.2:
- fines up to half a million rubles;
- up to 3 years of restriction of freedom;
- forced public works.
The court has the right to apply an additional measure of punishment - a ban on the culprit from engaging in certain labor activities for one and a half years.
Liability will be removed if the accused actively participated in solving the crime.
When qualifying the nature of the crime under Art. 322.2 the purpose of obtaining fictitious registration is taken into account. If the culprit did not intend to live in the premises, then registration will be considered an offense.
It does not matter what nature the fictitious registration was - temporary or permanent.
It should be borne in mind: citizens of the Russian Federation are exempt from liability for living without registration in a certain place for more than a specified period of time if:
- they already have a place for permanent registration at a different address, but in a similar locality;
- they live in an apartment located in regions adjacent to federal cities;
- they are closely related to the actual owner of the residential premises.
Such violations were committed in this case.
As can be seen from the verdict, P.M. the crime was committed DD.MM.YYYY, that is, before the previous verdict of October 13, 2014.
Taking this into account, the final punishment was imposed by the magistrate in accordance with Part 5 of Art. 69 of the Criminal Code of the Russian Federation for the totality of crimes under this verdict and the sentence of October 13, 2014.
At the same time, the magistrate did not take into account that according to the verdict of October 13, 2014, the punishment of P.M. assigned using Art. 73 of the Criminal Code of the Russian Federation, that is, conditionally, and according to this sentence - in the form of real imprisonment.
By imposing the final punishment on P.M. according to Part 5 of Art. 69 of the Criminal Code of the Russian Federation, the magistrate actually canceled the suspended sentence based on the acting sentence. Magistrate Judge of Judicial District No. 139 - Magistrate Judge of Judicial District No. 92 of the Volgograd Region dated October 13, 2014.
At the same time, the magistrate did not take into account that, according to paragraph 47 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of January 11, 2007 No. 2 “On the practice of imposing criminal punishment by the courts of the Russian Federation,” if in relation to a conditionally convicted person it is established that he is also guilty in another crime committed before the verdict in the first case, the rules of Art. 69 of the Criminal Code of the Russian Federation cannot be applied, since Art. 74 of the Criminal Code of the Russian Federation provides an exhaustive list of circumstances on the basis of which a suspended sentence can be revoked.
Consequently, the sentence of the acting Magistrate Judge of Judicial District No. 139 - Magistrate Judge of Judicial District No. 92 of the Volgograd Region dated October 13, 2014, by whom P.M. convicted under Part 1 of Art. 158 of the Criminal Code of the Russian Federation to 6 months of suspended imprisonment, with a probationary period of 6 months, subject to independent execution.
Thus, the magistrate unreasonably applied the provisions of Part 5 of Art. 69 of the Criminal Code of the Russian Federation when appointing P.M. final punishment, which indicates a violation of the General Part of the Criminal Code of the Russian Federation.
Under such circumstances, the presidium comes to the conclusion that the verdict of the magistrate of judicial district No. 96 of the Volgograd region dated March 11, 2015 in relation to P.M. subject to change, the instruction on the imposition of the final punishment according to the rules of Part 5 of Art. 69 of the Criminal Code of the Russian Federation - exception, and the sentence of October 13, 2014 - independent execution.
Based on the aforesaid and guided by Article. 401.14, 401.15 Code of Criminal Procedure of the Russian Federation, Presidium of the Volgograd Regional Court
Punishment for fictitious registration of foreign citizens
Responsibility for this offense is established by Art. 322.3 of the Criminal Code of the Russian Federation.
It is worth noting that within the framework of this issue, the legislation does not establish any special differences between citizens of the Russian Federation and foreigners.
Once a crime is discovered, the fictitious registration is automatically canceled and sanctions are imposed on the culprit, such as:
- a fine of up to 500,000 rubles or in the amount of salary for the last 3 years and deportation from the territory of the Russian Federation with the closure of entry for a certain period;
- forced labor;
- up to 3 years of restriction of freedom with deprivation of the right to engage in certain types of activities.
Both the holder of a fictitious registration and the owner of the residential premises are subject to punishment. Criminal liability is provided for all registration participants.
At the same time, a citizen can avoid a fine if the owner of the so-called “rubber” apartment actively contributed to solving the crime.
In 2022, liability for fictitious registration at the place of residence also extends to legal entities, which in this case will be accused of concealing information about illegal residents. A legal entity may be fined up to 800,000 rubles.
Judicial practice shows that the key difficulty lies in collecting evidence of a person’s guilt. For example, a citizen may be absent from his place of residence for a long time, but sometimes come to the premises at his place of registration. In this case, the registration will be considered legal.
Most often, property owners are arrested for fictitious registration if there is significant evidence of an intentional offense committed by them.
How to prove that registration is fictitious?
Only a judicial authority has the right to declare registration (temporary or permanent) illegal . An application to the court is usually filed by a local police officer or employees of the Migration Service, who have discovered that more people are registered in the apartment than live.
Sometimes vigilant neighbors of a “rubber” apartment ask to conduct a similar check for fictitiousness.
After reporting to the Migration Service about the suspicion of the presence in the apartment of people fictitiously registered in it, an inspection will be initiated, during which documents are examined, including documents from the place of work, and neighbors are interviewed.
As a result, the case will be considered in court, and the perpetrators will be punished.
So, it is not easy to prove the registration is fictitious, but it is possible, so lawyers recommend that both parties do everything according to the law.
You should not apply for a fictitious registration to dubious offices that promise to register you on the same day, for money, of course.
Remember that liability can be not only administrative, but also criminal, including imprisonment.
Verdict in the name of the Russian Federation
1-8/2014
SENTENCE
IN THE NAME OF THE RUSSIAN FEDERATION
February 26, 2014 Moscow
Magistrate of judicial district No. 4 of the Staroe Kryukovo district of Moscow
with the secretary
with the participation of the state prosecutor of the prosecutor's office of the Zelenograd Autonomous District of Moscow,
defendant
defense attorney - lawyer of the Moscow Bar Association "ZASCHITA", who presented certificate No. ** and warrant No. ** dated 01.01.01,
having examined in open court a criminal case on charges of:
Kovalenko E.V.
** year of birth, native of **, registered and residing at the address: **, no criminal record,
in committing a crime under Article 322.3 of the Criminal Code of the Russian Federation,
U S T A N O V I L
:
made a fictitious registration of a foreign citizen or stateless person at the place of residence in a residential building in the Russian Federation.
The crime was committed under the following circumstances:
He, being a citizen of the Russian Federation, having information about the need, in order to comply with the established procedure for registration, movement and choice of place of residence for foreign citizens, to notify the migration control authorities about their place of stay and understanding that without this notification their stay on the territory of the Russian Federation is illegal, being involved in administrative liability under Part 2 of Art. 19.27 of the Code of the Russian Federation on Administrative Offenses, in violation of Art. 2 Federal Law No. 000 “On migration registration of foreign citizens and stateless persons in the Russian Federation” dated January 1, 2001, without actually being the receiving party in accordance with clause 7, part 1, art. 2 of the above law, a citizen of the Russian Federation, with whom a foreign citizen or stateless person actually resides (is), or for whom a foreign citizen or stateless person works, and, without providing a place of residence to foreign citizens, acting in pursuance of his criminal intent, for monetary remuneration, during the period from November 16, 2013 to December 19, 2013, while in the department of the Federal Migration Service of Russia at *** at ***, located ***, carried out fictitious registration of foreign citizens, namely, provided deliberately false information about the registration them to be registered at the place of stay in the residential premises without their intention to stay in this premises and without the intention of the receiving party to provide them with this premises for stay, filling out a notification of the arrival of a foreign citizen or stateless person at the place of stay, established by Federal Law No. 000 of 01.01.01 year of the sample, which he certified with his signature and transferred to the department of the Federal Migration Service of Russia by *** by ***, thus he () handed over to the department of the Federal Migration Service of Russia by *** by *** a notification of the arrival of a foreign citizen who is a citizen of the Republic Kyrgyzstan ** G. M, indicating the place of registration at the address: ***, for a period of stay until February 12, 2014, notification of the arrival of a foreign citizen who is a citizen of the Republic of Kyrgyzstan ** V. A., indicating the place of registration at the address: ***, for a period of stay until February 18, 2014, notification of the arrival of a foreign citizen who is a citizen of the Republic of Moldova ** M., indicating the place of registration at the address: ***, for a period of stay of February 19, 2014, notification of the arrival of a foreign citizen , who is a citizen of the Republic of Uzbekistan ** N. N., indicating the place of registration at the address: ***, for a period of stay until February 22, 2014, notification of the arrival of a foreign citizen who is a citizen of the Republic of Kyrgyzstan ** ** Ch., indicating place of registration at the address: ***, for a period of stay until February 19, 2014, notification of the arrival of a foreign citizen who is a citizen of the Republic of Uzbekistan ** E. G., indicating the place of registration at the address: ***, for a period of stay until February 22 2014, notification of the arrival of a foreign citizen who is a citizen of the Republic of Uzbekistan ** Zh. A., indicating the place of registration at the address: ***, for a period of stay until February 22, 2014, notification of the arrival of a foreign citizen who is a citizen of the Republic of Kyrgyzstan ** A.E., indicating the place of registration at the address: ***, for a period of stay until March 12, 114, notification of the arrival of a foreign citizen who is a citizen of the Republic of Uzbekistan ** F.I., indicating the place of registration at the address: ** *, period of stay March 7, 2014, notification of the arrival of a foreign citizen who is a citizen of the Republic of Kyrgyzstan *** M., indicating the place of registration at the address: ***, period of stay until March 15, 2014, where he () is registered, at the same time, knowing for certain that these foreign citizens would not actually stay at the specified address and in fact, residential premises at the specified address were not provided to foreign citizens, thereby, by his deliberate actions, he violated the requirements of Part 3 of Art. 7 Federal Law No. 000 “On migration registration of foreign citizens and stateless persons in the Russian Federation” dated 01/01/01, according to which foreign citizens who temporarily arrived in the Russian Federation are subject to registration at the place of stay, thereby carrying out fictitious registration at place of stay in a residential building in the Russian Federation - in an apartment at the address of his () registration of the following foreign citizens *** G. M., *** V. A., chvuu *** M., *** N. N. , *** uulu Ch., *** E. G., *** Zh. A., *** A. E., *** F. I., *** M., than deprived ** *by ***, as well as bodies monitoring the implementation of legislative acts of the Russian Federation, the ability to monitor compliance by these foreign citizens with migration registration and their movement of the territory of the Russian Federation.
The defendant agreed with the charges brought against him, pleaded guilty in full, and petitioned the court to pass a sentence without a trial.
The defender supported the stated petition.
The state prosecutor agreed with the defendant's request to impose a sentence without a trial.
The court, having checked the case materials, having listened to the defendant, the lawyer, and the state prosecutor, takes into account that the punishment for the crime provided for in Art. 322.3 of the Criminal Code of the Russian Federation, of which the accused is accused, does not exceed ten years of imprisonment, the defendant is aware of the nature and consequences of the voluntarily submitted petition after consultation with the defense lawyer, as well as the fact that the charge with which the defendant agreed is justified and supported by the evidence collected in the case.
The court qualifies the actions of the defendant under Art. 322.3 of the Criminal Code of the Russian Federation as the commission of fictitious registration of a foreign citizen or stateless person at the place of stay in a residential premises in the Russian Federation.
When deciding the issue of punishment, the court takes into account the nature and degree of public danger of the crime committed, which is a crime of minor gravity, information about the person who has not been convicted, was brought to administrative responsibility, is registered *** Characterized formally by place of residence. Takes into account his marital status, age, state of health, the impact of the imposed punishment on the correction of the defendant, the defendant’s repentance for his crime, and admission of guilt.
Based on Art. 64 of the Criminal Code of the Russian Federation in the presence of exceptional circumstances related to the goals and motives of the crime, the role of the perpetrator, his behavior during or after the commission of the crime, and other circumstances that significantly reduce the degree of public danger of the crime, as well as with the active assistance of a participant in a group crime in solving this crime, punishment may be assigned below the lower limit provided for by the relevant article of the special part of this Code.
At the court hearing it was established that he has the disease - **. Due to the presence of this disease, as well as his age, he is unable to get a well-paid job, that is, he is currently in a difficult financial situation. In fact, he is dependent on his adult sons. registered a number of foreign citizens, receiving from this a small income in the amount of 3,000 rubles, and sincerely repented of what he had done.
Taking into account the above and recognizing the above circumstances as exceptional, the court considers it possible to impose a punishment below the lower limit provided for by the sanction of Art. 322.3 of the Criminal Code of the Russian Federation, using Art. 64 of the Criminal Code of the Russian Federation in the form of a fine.
Based on the above, guided by art. Art. 304-306, 307-309 Art. 316 of the Code of Criminal Procedure of the Russian Federation, magistrate -
P R I G O V O R I L :
Recognize Kovalenko EV
guilty of committing a crime under
Article 322.3
of the Criminal Code of the Russian Federation and assign him criminal punishment using Art.
64 of the Criminal Code of the Russian Federation in the form of a fine in the amount of 50,000 (fifty thousand) rubles.
The preventive measure for the convicted person in the form of a written undertaking not to leave the place and proper behavior shall be canceled after the court verdict enters into legal force.
Physical evidence: Forms of notification of the arrival of a foreign citizen or stateless person at the place of stay, in the columns of which information about arrival at the address: *** addressed to a citizen of the Republic of Kyrgyzstan *** GM, registration date November 16, 2013, with a deadline stay until 02/12/2014; citizen of the Republic of Kyrgyzstan *** VA, registration date 11/22/13 with a period of stay until 02/18/2014; citizen of the Republic of Moldova *** M, registration date 11/25/13 with a period of stay until 02/19/2014; citizen of the Republic of Uzbekistan *** NN, registration date 11/25/13 with a period of stay until 02/22/2014; citizen of the Republic of Kyrgyzstan *** uulu Ch, registration date 11/25/13 with a period of stay until 02/19/2014; citizen of the Republic of Uzbekistan *** EG, registration date 11/25/13 with a period of stay until 02/22/2014; citizen of the Republic of Uzbekistan *** ZHA, registration date 11/26/13 with a period of stay until 02/22/2014; citizen of the Republic of Kyrgyzstan *** AE registration date December 16, 2013 with a period of stay until March 12, 2014; citizen of the Republic of Uzbekistan *** Name, registration date 12/16/13 with a period of stay until 03/07/2014; citizen of the Republic of Kyrgyzstan *** M, registration date December 19, 2013 with a period of stay until March 15, 2014 - upon entry of this verdict into legal force - leave for storage in the criminal case file.
The verdict can be appealed on appeal to the Zelenogradsky District Court of Moscow within 10 days from the date of proclamation, and by those convicted within the same period from the date of delivery of a copy of the verdict. The appeal must be made through a magistrate. If an appeal is filed, the convicted person has the right to petition for his participation in the consideration of the criminal case by the appellate court, which must be indicated in the appeal or in objections to complaints and submissions brought by other participants in the criminal process.
World judge
PRESIDIUM OF THE VOLGOGRAD REGIONAL COURT
RESOLUTION
dated October 21, 2015 N 44у-99/2015
The Presidium of the Volgograd Regional Court consisting of: presiding officer - Tulenkov D.P.,
members of the presidium - Sarnitsky S.N., Sundukova S.O., Povolotskaya I.N., Sviridova Yu.V., Solovyova N.A., Yutkina S.M.,
with the participation of the Deputy Prosecutor of the Volgograd Region Rusyaev A.M.,
under secretary K.,
examined in open court a criminal case on the cassation submission of the Deputy Prosecutor of the Volgograd Region Rusyaev A.M. on the review of the verdict of the magistrate of judicial district No. 96 of the Volgograd region dated March 11, 2015, by which
P.M., born DD.MM.YYYY in <address>, convicted:
- September 26, 2012 under Part 1 of Art. 157 of the Criminal Code of the Russian Federation to 5 months of correctional labor with deduction of 10% from earnings to the state income, by a resolution of October 2, 2013, the unserved part of the sentence in the form of correctional labor was replaced by imprisonment for a period of 15 days, released on October 17, 2013 upon completion of the sentence;
- October 13, 2014 under Part 1 of Art. 158 of the Criminal Code of the Russian Federation to 6 months in prison, on the basis of Art. 73 of the Criminal Code of the Russian Federation conditionally, with a probationary period of 6 months,
convicted under Art. 322.3 of the Criminal Code of the Russian Federation to 1 year of imprisonment.
In accordance with Part 5 of Art. 69 of the Criminal Code of the Russian Federation for the totality of crimes, the punishment imposed by the acting sentence was partially added to the newly imposed punishment. magistrate judge of judicial district No. 139 of the Volgograd region - magistrate judge of judicial district No. 92 of the Volgograd region on October 13, 2014, the final sentence was 1 year 1 month of imprisonment in a penal colony.
The term of serving the sentence is calculated from March 11, 2015.
The issue was resolved based on the suppression and material evidence.
The head of the FKU pre-trial detention center No. 4 of the Federal Penitentiary Service of Russia for the Volgograd Region was instructed to accept P.M. for further sending her to a penal colony to serve her sentence.
The verdict was not considered on appeal.
In the cassation submission, Deputy Prosecutor of the Volgograd Region Rusyaev A.M. raises the question of changing the sentence due to violation of the requirements of the criminal law.
Having heard the report of the judge of the Volgograd Regional Court Ananskikh E.S., who outlined the content of the court decision, the arguments of the cassation presentation, which served as the basis for transferring the criminal case to the cassation court, the opinion of the Deputy Prosecutor of the Volgograd Region A.M. Rusyaev, who supported the arguments of the cassation presentation, the presidium Volgograd regional court
