New edition of Art. 139 of the Criminal Code of the Russian Federation
1. Illegal entry into a home, committed against the will of the person living in it, -
shall be punishable by a fine in the amount of up to forty thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to three months, or by compulsory labor for a term of up to three hundred sixty hours, or by corrective labor for a term of up to one year, or by arrest for a term of up to three months.
2. The same act, committed with the use of violence or with the threat of its use, -
shall be punishable by a fine in the amount of up to two hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to eighteen months, or by correctional labor for a term of up to two years, or by forced labor for a term of up to two years, or by imprisonment for the same term.
3. Acts provided for in parts one or two of this article, committed by a person using his official position, -
shall be punishable by a fine in the amount of one hundred thousand to three hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of one to two years, or by deprivation of the right to hold certain positions or engage in certain activities for a period of two to five years, or by forced labor. for a term of up to three years, or arrest for a term of up to four months, or imprisonment for a term of up to three years.
Note. Housing in this article, as well as in other articles of this Code, means an individual residential building with its residential and non-residential premises, residential premises, regardless of the form of ownership, included in the housing stock and suitable for permanent or temporary residence, as well as other premises or buildings that are not part of the housing stock, but are intended for temporary residence.
Commentary on Article 139 of the Criminal Code of the Russian Federation
1. The commented article consists of three parts, providing for the main (part 1), qualified (part 2) and especially qualified (part 3) elements of the crime. Parts 1 and 2 reflect socially dangerous acts that fall into the category of crimes of minor gravity, and part 3 — acts that fall into the category of crimes of medium gravity.
1.1. The main object of criminal encroachment is social relations arising in connection with the exercise by citizens of the constitutional right to the inviolability of their home. Home is inviolable. No one has the right to enter a home against the will of the persons living there, except in cases established by federal law, or on the basis of a court decision (Article 25 of the Constitution).
2. The objective side of the crime is expressed in illegal entry into a home, committed against the will of the person living in it.
2.1. Housing means an individual residential building with residential and non-residential premises included in it, residential premises, regardless of the form of ownership, included in the housing stock and suitable for permanent or temporary residence, as well as other premises or buildings not included in the housing stock, but intended for temporary residence (note to the commentary article).
2.2. Entering a home will be illegal if it is committed against the will of the person living there and in violation of current Russian legislation.
The legal grounds for entering a home against the will of the person living there are established in Art. 6 - 8 of the Law on Operational Investigative Activities; clause 18, part 1, art. 11 of the Police Law.
2.3. The elements of the crime are formal in design. The crime is completed (by the elements) at the moment of commission of the comments specified in the disposition. action articles.
3. In part 2 comments. Article provides a qualifying feature - the use of violence or the threat of its use.
Violence is understood as physical influence on the victim, expressed in the suppression and elimination of his resistance, striking, beating, intentional infliction of minor harm to health, infliction of moderate and serious harm to health through negligence.
The threat of violence is understood as a mental impact on the victim, expressed in a demonstration of readiness to inflict blows, beatings, or intentionally cause light or moderate harm to health.
4. From the subjective side, the elements of a crime are characterized by guilt in the form of direct intent. The motive and purpose for qualifying an act as a crime do not matter.
5. The subject of a criminal offense is a sane individual who has reached the age of 16 at the time of the commission of the crime.
6. In part 3 comments. Article provides for a special subject - a person who uses his official position to facilitate the commission of a crime, i.e. powers and privileges granted in the service, including on the basis of an employment agreement (contract).
Government of the Republic of Khakassia
The most important constitutional right of a citizen is the right to inviolability of home. No one has the right to enter a home against the will of the persons living in it except in cases established by federal law, or on the basis of a court decision (Article 25 of the Constitution of the Russian Federation). For illegal entry into a home, committed against the will of the person living there, criminal liability is provided under Art. 139 of the Criminal Code of the Russian Federation.
In this article, as well as in other articles of the Criminal Code of the Russian Federation, housing is understood as an individual residential building with its residential and non-residential buildings, residential premises, regardless of the form of ownership, included in the housing stock and suitable for permanent and temporary residence, as well as other premises or a building that is not part of the housing stock, but intended for temporary residence. An essential feature of a room as a home is its use as such.
The inviolability of residential premises extends to the owners of the premises, persons entitled to use the premises under a lease, sublease, lease, warrant; persons moved into the premises temporarily at the will of those legally living there.
To penetrate a home means to get inside (enter the confines of a home), gain access for this (break a lock, open a door with a stolen, selected or made key, break or open a locked window, make a hole in a wall, etc.) Methods of entry can be open and secret. It is a crime to illegally enter someone else's home. It is illegal to enter a home if it is carried out against the will of the persons living there (except for cases established by federal law or on the basis of a court decision).
Often, violations of the inviolability of the home are committed in conjunction with other, usually more serious, crimes: murder, causing grievous bodily harm, rape, kidnapping. In these cases, violation of the inviolability of the home is not the final goal, but is committed incidentally to facilitate the planned crime, because To do this, you need to enter the home. This crime is committed intentionally. The culprit realizes that he is violating the inviolability of the home and wants to commit these actions. Motives and goals can be very diverse. Among the reasons for the commission of these crimes are: a general decline in the legal culture of citizens, disrespect for the rights and freedoms of other persons, devaluation of interpersonal relationships, legal illiteracy and legal nihilism. As judicial practice shows, many persons brought to justice do not understand well that they are committing a crime by invading someone else’s home, for example, to debtors in order to repay a debt, during domestic quarrels, in the process of clarifying relations between former spouses, cohabitants, acquaintances and for other, as it seems to them, “good reasons.” The crime is considered completed from the moment of illegal entry into the home, regardless of the duration of stay in it.
For example, in 2022, a 42-year-old resident of the village. Firkal of the Shirinsky district was convicted under Art. 139 of the Criminal Code of the Russian Federation for the fact that, while intoxicated, he came to the front door of the apartment in which his friend lived in order to talk with her. The victim refused to let him in. After which, the man broke a glass window on the veranda of the house, through which he illegally entered the home against the will of a friend, thereby violating her constitutional right to the inviolability of her home. The actions of the perpetrator are qualified under Part 1 of Art. 139 of the Criminal Code of the Russian Federation, a punishment of 300 hours of compulsory labor was imposed.
A person who has reached the age of 16 may be held criminally liable for committing this crime. The sanction of the article provides for the following types of punishment: a fine in the amount of up to 40 thousand rubles or in the amount of wages or other income of the convicted person for a period of up to three months, or compulsory labor for a period of up to three hundred sixty hours, or correctional labor for a period of up to one year, or arrest for up to three months. The qualifying elements of this crime provide for liability for violation of the inviolability of the home, committed: 1) with the use of violence or the threat of its use (Part 2 of Article 139 of the Criminal Code of the Russian Federation); 2) by a person using his official position (Part 3 of Article 139 of the Criminal Code of the Russian Federation), for which stricter liability is provided, up to imprisonment for up to 3 years.
Press service of the prosecutor's office of the Republic of Khakassia
Another comment on Art. 139 of the Criminal Code of the Russian Federation
1. The objective side of the crime is characterized by illegal entry into a home, committed against the will of the person living in the latter, i.e. committed in violation of the order established by law by physical (personal) or technical (using special technical means intended for secretly obtaining information) intrusion into a home, either with open disregard for the will of the person living in it, or fraudulently or secretly. The concept of “dwelling” is explained in the notes to the article.
2. Theft, robbery or robbery committed with illegal entry into a home (clause "a" part 3 of article 158, clause "c" part 2 of article 161, part 3 of article 162 of the Criminal Code of the Russian Federation) are qualified under the relevant articles of Ch. 21 of the Criminal Code of the Russian Federation and qualifications in conjunction with Art. 139 of the Criminal Code of the Russian Federation is not required. However, illegal entry into a home associated with the commission of other crimes (for example, murder, rape) is classified together with such crimes.
3. The crime is considered completed from the moment of gaining access or actual access to the premises, regardless of the duration of such access.
4. The qualified corpus delicti (Part 2) provides for liability for committing an act with the use of violence or the threat of its use. The commented article covers the threat of violence of any degree of severity, as well as violence consisting of beatings or resulting in the intentional infliction of minor harm to health.
On the issue of defining the concept of “dwelling” in criminal law
Many pages in the scientific legal literature are devoted to the study of the concept of “dwelling”. Of particular interest to it is shown by practitioners involved in law enforcement activities, since in order to correctly qualify crimes related to illegal entry into a home, it is necessary to accurately define the meaning of this concept, as well as to clearly understand which premises can be classified as such.
Note Article Art. 139 of the Criminal Code of the Russian Federation defines housing. It is understood as an individual residential building with residential and non-residential premises included in it, residential premises, regardless of the form of ownership, included in the housing stock and suitable for permanent or temporary residence, as well as other premises or buildings not included in the housing stock, but intended for temporary residence. There are no problems with the first part of the wording, but what the legislator refers to as another room or building is of interest. Can it be classified as a tourist tent or a compartment car of a long-distance train? What to do with penetration, for example, into a country house, summer kitchen or other outbuilding, where people do not live permanently, but spend the night or live for some time? Such questions raise difficulties with the qualification of crimes, in particular with theft involving illegal entry into a home.
According to A.V. Brilliantov, outbuildings, cellars, barns, garages and other premises separated from residential buildings cannot be classified as housing, even temporary ones, because they are not used for human habitation. But a cabin and a carriage cannot be equated to a dwelling due to the fact that a train and a motor ship are vehicles [1].
Many scientists do not support this approach and, in this case, suggest taking into account the factor of the duration of use of the premises as a home. In their opinion, a train carriage and a ship's cabin can be considered a home if a person stays there for more than 24 hours (i.e., the duration of the trip exceeds this period).
Academician B.N. Topornin believes that housing includes any premises intended or adapted for permanent or temporary residence of people: living rooms, common areas (corridor, kitchen, bathroom, toilet, balcony, veranda). A basement, an attic, a kitchen, a room in a hotel, a sanatorium, a holiday home, a separate room in a hospital, a tent, a plot of land adjacent to the house, as well as a ship cabin and a train compartment have a housing regime. A broad definition best ensures the rights of citizens, since entry into a home is permitted by law only as an exception and subject to special rules (guarantees) [2].
A similar point of view is shared by V. Yu. Turanin; he is sure that the note to Art. 139 of the Criminal Code of the Russian Federation covers almost the entire range of objects intended for permanent or temporary residence, including the compartment of a long-distance train and the cabin of a ship.
The European Court of Human Rights, whose jurisdiction is recognized by the Russian Federation, has repeatedly classified not only premises for temporary residence of citizens, but also vehicles as housing. For example, the vans placed by the Roma applicant on a piece of land that she owned, in which she lived with her family, were recognized as housing, as well as the vehicles of journalists associated with their personal lives due to the nature of their activities [3].
This logic of the court’s determination is clear: regardless of the place of residence, a citizen must be guaranteed the right to the inviolability of his home.
In national law enforcement practice there are also different, often contradictory, approaches to understanding and interpreting the term “dwelling”. In 2015, the Tikhoretsky City Court recognized a tour railway carriage of a train as a dwelling, and citizen A. was convicted of robbery with illegal entry into a dwelling. A similar situation occurred in Krasnoyarsk, where citizen I. was accused of stealing a large sum of money from a long-distance train carriage during a stop. His attempts to challenge the qualification, in terms of the imputation of the qualifying feature “with penetration into the home,” were not confirmed.
However, these are not established practices, but only examples of individual court decisions. In the same court, in a similar case, a citizen was convicted of theft with illegal entry into a premises where the premises were recognized as the conductors' compartment on a train. Consequently, judicial practice on violation of the inviolability of the home is ambiguous and unstable, and the inaccurate formulation of the concept given in the note to Article 139 of the Criminal Code of the Russian Federation negatively affects law enforcement.
Guided by the method of grammatical interpretation, let us turn to the explanatory dictionary of S.I. Ozhegov, where “dwelling” is “a room in which one lives, one can live” [4].
If we consider this concept from the point of view of the principle of inviolability of the home, enshrined in Article 25 of the Constitution of the Russian Federation, then in the premises into which a criminal invades, someone must reside permanently or temporarily, and at the time of the criminal attack.
Thus, a country house where a person does not live, but, for example, stores household equipment, cannot be classified as a dwelling. The criminal act, in this case, is subject to qualification under paragraph “b” of Part 2 of Art. 158 of the Criminal Code of the Russian Federation, as illegal entry into premises or other storage. If a person uses a dacha for temporary seasonal residence and lives in it during this period of time, then such theft should be charged with the qualifying characteristic of “illegal entry into the home.”
It seems that the addition of the note to Art. 139 of the Criminal Code of the Russian Federation would clarify the understanding of this term. It would be advisable to add the words “and used for these purposes” after the words “but intended for temporary residence.”
The point of view of N. Yu. Akinina seems quite justified, the essence of which is that this issue should be resolved not only on the basis of classification as a temporary or permanent place of residence of people. She believes that it is necessary to take into account the criterion that ensures privacy [5].
Each person himself determines the area of his personal life and decides whether to expose it to publicity or not. In his home he deals with personal affairs, which constitute his private life. In other words, in relation to criminal law, a hospital ward, for example, cannot be considered a home, because living is not its main purpose, and also a person does not have the opportunity to limit the access of other persons to it (lock it), that is, to ensure privacy.
It should be noted that the definition of housing is contained not only in the Criminal Code of the Russian Federation, but also in paragraph 10 of Article 5 of the Criminal Procedure Code of the Russian Federation. In accordance with it, housing is an individual residential building with residential and non-residential premises included in it, residential premises, regardless of the form of ownership, included in the housing stock and used for permanent or temporary residence, as well as other premises or buildings not included in the housing fund, but used for temporary residence. It is difficult not to notice that the definitions given in the Criminal Code and the Criminal Procedure Code are similar, but, nevertheless, have significant differences. In the Code of Criminal Procedure of the Russian Federation, the concept of “dwelling” is interpreted more broadly than in the Criminal Code of the Russian Federation, since in fact it recognizes as a dwelling any premises used for this purpose. The Code of Criminal Procedure of the Russian Federation deals with the use of a dwelling for living, and the Criminal Code of the Russian Federation deals with the suitability of a dwelling for habitation. Consequently, to be recognized as a dwelling under the Criminal Code of the Russian Federation, mandatory conditions are necessary - its purpose and suitability.
Having analyzed the opinions of scientists and judicial practice on the problem under study, it becomes obvious that the lack of a clear understanding of the definition of housing gives rise to its arbitrary interpretation. To ensure a uniform approach to this concept, the legislator needs to add a note to Art. 139 of the Criminal Code of the Russian Federation, stating it in the following wording: an individual residential building with residential and non-residential premises included in it, residential premises, regardless of the form of ownership, included in the housing stock and suitable for permanent or temporary residence and used for these purposes, as well as other premises or a building that is not part of the housing stock, but intended for temporary residence and capable of ensuring the privacy of the person living in it.
Literature:
- Criminal law of Russia. Parts General and Special: textbook / ed. A. V. Brilliantova. 2nd ed., revised. and additional M.: Prospekt, 2015. 1184 p.
- Constitution of the Russian Federation: scientific and practical commentary / ed. acad. B. N. Topornina. M., 1997. P. 216.
- Khaldeev A.V. On the concept of “dwelling” in the practice of the European Court of Human Rights // Housing Law. 2007. No. 5.
- Ozhegov S.I., Shvedova N.Yu. Explanatory dictionary of the Russian language: 80,000 words and phraseological expressions / Russian Academy of Sciences; Russian Cultural Foundation; - 3rd ed., stereotypical - M.; AZB, 1996. - 190 pp.
- Akinina N. Yu. Criminal-legal characteristics of violation of the inviolability of the home. Khanty-Mansiysk: Ugra State University. 2011. pp. 66–7
Violation of the inviolability of the home. The concept and types of this crime
According to Art. 25 of the Constitution of the Russian Federation, citizens are guaranteed the right to inviolability of their home.
Unauthorized entry into the home of non-residents against the will of the owner is recognized as an unlawful act. The inviolability of the home is an important right and one of the conditions for freedom of private life of a person.
The object of this crime is the right of a private person to the inviolability of his home. All citizens living in the home should be considered victims of this crime.
The objective side of the crime is characterized by illegal entry into a home. Housing should be understood as any premises that is specifically designed or adapted for permanent or temporary residence. Dwelling is a living area with all auxiliary premises (toilet, bathroom, corridor, kitchen). The concept of “dwelling” includes a dacha, a dorm room, a sanatorium, etc.
Russian legislation does not provide a definition of the concept of “dwelling,” which leads to different interpretations. It would be appropriate to define the legal concept of “dwelling” in the Housing Code.
The elements of violation of the inviolability of the home will be evident if the culprit invades it without the consent of the citizen living in it. Penetration into a home will be criminal not only in cases where disagreement is openly ignored, but also if it is carried out by deception, for example, by presenting a false document for a search, etc. Penetration into a home should also be understood as the installation in the home of technical means for collecting information using, for example, ventilation ducts, etc.
Penetration into a home against the will of the citizens living in it may be recognized as lawful in exceptional cases. For example, entering a room where a fire occurred in order to rescue victims and prevent major consequences. The legality of such violations of the inviolability of the home is justified by a situation of extreme necessity. In addition, entry into a home against one’s will or even against it can be carried out and recognized as lawful in cases of preventing serious crimes, for example, the release of hostages.
The subjective side of the crime in question is characterized by intentional guilt. The intent is direct. The culprit is aware that he is committing illegal entry into a home and wants to commit these actions. The motives can be different, for example, falsely understood interests of the service, personal hostile relationships. If a person fraudulently enters the premises and the citizen has no idea about the real intentions of the culprit, and then the latter secretly takes possession of any property, then the act must be qualified only under paragraph “c” of Part 2 of Art. 158 of the Criminal Code - theft committed with penetration into the premises.
The subject of this crime can be a sane person who has reached the age of 16.
In Part 2 of Art. 139 of the Criminal Code provides for liability for a qualified type of violation of the inviolability of the home. The actions of the perpetrator should be qualified under Part 2 of Art. 139 of the Criminal Code as committed with the use of physical violence in cases where the victim is subjected to beatings or minor bodily injuries. If, in the process of using physical violence, more serious harm is caused to the health of the victim, then the act must be classified as a set of crimes: under Part 2 of Art. 139 of the Criminal Code and the corresponding article providing for liability for causing harm to human health. The threat of physical violence should be understood as an intention expressed in any form (verbally, gestures) to immediately apply physical violence to the victim in order to remove obstacles to entry into the home. The perpetrator may threaten to kill or inflict varying degrees of harm to health.
Violation of the inviolability of the home will be especially qualified if the actions referred to in Part 1 and Part 2 of this article were committed by a person using his official position (Part 3 of Article 139 of the Criminal Code).
The subject of the crime in such cases may be, for example, the manager of the housing maintenance site.
According to Art. 25 of the Constitution of the Russian Federation, citizens are guaranteed the right to inviolability of their home.
Unauthorized entry into the home of non-residents against the will of the owner is recognized as an unlawful act. The inviolability of the home is an important right and one of the conditions for freedom of private life of a person.
The object of this crime is the right of a private person to the inviolability of his home. All citizens living in the home should be considered victims of this crime.
The objective side of the crime is characterized by illegal entry into a home. Housing should be understood as any premises that is specifically designed or adapted for permanent or temporary residence. Dwelling is a living area with all auxiliary premises (toilet, bathroom, corridor, kitchen). The concept of “dwelling” includes a dacha, a dorm room, a sanatorium, etc.
Russian legislation does not provide a definition of the concept of “dwelling,” which leads to different interpretations. It would be appropriate to define the legal concept of “dwelling” in the Housing Code.
The elements of violation of the inviolability of the home will be evident if the culprit invades it without the consent of the citizen living in it. Penetration into a home will be criminal not only in cases where disagreement is openly ignored, but also if it is carried out by deception, for example, by presenting a false document for a search, etc. Penetration into a home should also be understood as the installation in the home of technical means for collecting information using, for example, ventilation ducts, etc.
Penetration into a home against the will of the citizens living in it may be recognized as lawful in exceptional cases. For example, entering a room where a fire occurred in order to rescue victims and prevent major consequences. The legality of such violations of the inviolability of the home is justified by a situation of extreme necessity. In addition, entry into a home against one’s will or even against it can be carried out and recognized as lawful in cases of preventing serious crimes, for example, the release of hostages.
The subjective side of the crime in question is characterized by intentional guilt. The intent is direct. The culprit is aware that he is committing illegal entry into a home and wants to commit these actions. The motives can be different, for example, falsely understood interests of the service, personal hostile relationships. If a person fraudulently enters the premises and the citizen has no idea about the real intentions of the culprit, and then the latter secretly takes possession of any property, then the act must be qualified only under paragraph “c” of Part 2 of Art. 158 of the Criminal Code - theft committed with penetration into the premises.
The subject of this crime can be a sane person who has reached the age of 16.
In Part 2 of Art. 139 of the Criminal Code provides for liability for a qualified type of violation of the inviolability of the home. The actions of the perpetrator should be qualified under Part 2 of Art. 139 of the Criminal Code as committed with the use of physical violence in cases where the victim is subjected to beatings or minor bodily injuries. If, in the process of using physical violence, more serious harm is caused to the health of the victim, then the act must be classified as a set of crimes: under Part 2 of Art. 139 of the Criminal Code and the corresponding article providing for liability for causing harm to human health. The threat of physical violence should be understood as an intention expressed in any form (verbally, gestures) to immediately apply physical violence to the victim in order to remove obstacles to entry into the home. The perpetrator may threaten to kill or inflict varying degrees of harm to health.
Violation of the inviolability of the home will be especially qualified if the actions referred to in Part 1 and Part 2 of this article were committed by a person using his official position (Part 3 of Article 139 of the Criminal Code).
The subject of the crime in such cases may be, for example, the manager of the housing maintenance site.
