Illegal penetration into the dwelling (Article 139 of the Criminal Code of the Russian Federation)
Illegal penetration into the home isa criminal offense. It is committed against the will of a person who is in such a room. The article of the Criminal Code "Illegal penetration into the dwelling" contains three parts. Let us consider them in detail.
Criminal Code: "Illegal penetration into the home"
For the specified act committed against the will of the subject who is in the room, the penalty is provided in the form:
- Monetary collection up to 40 tons. or an equal amount of salary / income for 3 months.
- Corrective labor up to a year.
- Arrest up to 3 months.
- Mandatory work for 120-180 hours.
It is provided for in part two. Illegal penetration can be committed with the use of violent actions or under the threat of violence. For such an act a punishment is established in the form of:
- Cash collection up to 200 thousand rubles. or in the amount of income / salary for a period of up to one and a half years.
- Imprisonment up to 2 liters.
Illegal penetration, committed against the will of a person in a room with the use of violence or under threat and with the use of official position, is punished:
- The monetary recovery in the amount of 100 to 300 tons of river. or equal to the wage / income of the perpetrator for 1-2 g.
- Prohibition on staying in certain positions and engaging in specific activities for a period of 2 to 5 liters.
- Arrest for 2-4 months.
- Imprisonment up to 3 liters.
As a dwelling in this articleis a residential house, which includes all premises, non-residential ones as well. When qualifying an action, the property of the structure does not matter. The building may or may not enter the housing stock. The object can be any other room or structure suitable for temporary residence.
Commentary to art. "Illegal penetration"
The acts considered in the article in the first placeviolate the Constitution. In Art. 25 of the Basic Law states that no one can enter the dwelling against the will of persons living in it, except in cases stipulated by federal legislation or by a court decision. As a guarantee of the implementation of this requirement, the criminal-legal protection is provided, which is provided in the norm being commented on. In the previous Code there were specific bans. In particular, illegal searches, evictions and other unlawful actions were made, which violated the inviolability of the premises. Provided in the modern Criminal Code art. "Illegal penetration" contains a broader wording. It also covers cases that were mentioned in the previous code.
The objective part
As an object of encroachmentpublic relations concerning the enforcement of the right established by Article 25 of the Constitution. The objective part of the crime under consideration is formed by an action - illegal penetration. The note to the article explains the key concept - the subject of encroachment. This can be a private (individual) house, a room in a hotel, an apartment, a cottage, a garden house, etc. The actions directed at the structural parts of the said objects will also be illegal if they are used to store property, rest or satisfy other economic or personal needs. In particular, we mean balconies, storerooms, verandas, etc. A dormitory is also a room in a hostel. The resolution of the Plenum of the Supreme Council establishes exceptions. In particular, the premises are not recognized as premises that are not adapted and are not intended for temporary or permanent residence. For example, such are isolated barns, cellars, garages and other economic areas.
Specificity of the act
Illegal infiltration is aintrusion into the premises. It can be carried out both secretly and openly. Thus the malefactor can overcome any obstacles or resistance of the people who are in a premise. According to the Criminal Code of the Russian Federation, illegal penetration can be unimpeded. The perpetrator can commit a crime by using any means or objects. Illegal penetration will be considered to enter the dwelling, control the premises from the inside with the help of special technical devices.
Illegal penetration of the Criminal Code is identified withthe notion of "unauthorized intrusion in accordance with the law". It is also illegal to enter the premises without the consent, consent of the victim, use of the area in his absence, unlawful search, eviction and other similar actions that violate the inviolability of space. Illegal penetration into the dwelling (Article 139) by its design refers to formal compositions. Accordingly, the deed will be considered completed at the time of intrusion into the premises.
Limits and grounds for limiting the constitutionalthe rights of persons are established art. 11 paras. 18 and 24 of the Law on the Militia (adopted in the period of the RSFSR), as amended by the Federal Law of 1993, as well as art. 6, 7 and 9 of the Federal Law, regulating the operational-search measures, the Criminal Procedure Code, paragraph "e" FZ, regulating the activities of federal security agencies with the additions and changes introduced by the Law of July 1, 1993. The last normative document has lost its effect due to adoption FZ No. 40.
According to the decision of the plenum of the Supreme Council, in whichclarify some issues related to the application of Art. 23 and 25 of the Constitution, the courts should consider materials proving the need for penetration into a dwelling, and take an appropriate decision. In Art. 165 of the Code of Criminal Procedure provides for the right of the investigator to conduct a search immediately in case such necessity is caused by the circumstances of the case. At the same time, he is obliged to notify the judge after carrying out such actions. The search carried out in such situations can not be qualified as illegal. This is due primarily to the fact that the Code of Criminal Procedure acts as a federal normative document. Secondly, a search carried out in extreme circumstances, not previously agreed with the judge, but confirmed subsequently, can not be considered unlawful.
Violence or threats
These signs are present in various articles of the Criminal Code. Illegal penetration into the home can be done with causing damage to health in an easy degree. Such harm is damage, which resulted in an insignificant, short-lived effect lasting no more than six days. Violence can be manifested in the form of beatings (repeated strikes), restrictions on the freedom of the victim (linkage, for example). In these cases, the act is not qualified additionally under art. 115 and art. 116.
If the violent actions were accompanied bycausing harm of moderate severity, as well as serious damage to health, as well as the death of the victim, the act is further covered by Art. 111, st.112 or 105. A threat is a warning about the intention to cause damage, bodily injury, beating, killing. With this additional qualification under Art. 119 is not required. As an additional object of encroachment on the part of the second commented article, public relations act that ensure the inviolability of the person and health, as well as individual freedom of the citizen. Subjects of crimes established in part 1 and part 2 of Art. 139, can be any sane person from 16 years of age. The perpetrator realizes that his behavioral acts violate the constitutional right to the inviolability of housing, understands the public danger of the act and wants the occurrence of corresponding consequences.
It is set in part three. As a qualifying feature is the use of the guilty of his official position. Accordingly, the subject of the crime here is special. They may be, for example, an employee of the municipal service, law enforcement agencies, etc. Illegal penetration with the use of official position contrary to the will of a person living in a dwelling place takes place in cases when the perpetrator does not have any powers concerning the lawful restriction of the right fixed in art. . 25 of the Constitution. It will be illegal to enter the premises and if they are available, but the employee has no grounds for their implementation.
If illegal infiltration was carried outwith the breaking of the lock or other locking device, accompanied by damage to the floor, walls, damage to property, the crime should be considered in conjunction with Art. 139 and art. 168. If after the unlawful entry into the premises the theft of the material values of the victim took place, then the act falls under item "c" of Part 2 of Art. 158. At the same time, no additional qualification is required for the article being commented. The unlawful invasion is not covered by the rule under consideration if it acted as a means of committing theft, robbery or robbery. In such cases, the deed should be qualified under item "c" of Part 2 of Art. 158, item "in" part 2 of Art. 161 or item "in" part 2 of Art. 162.
Illegal penetration of a person's living quarterswithout his consent, thus, in itself appears as a violation of the constitutional right of a citizen. However, this action can be justified by circumstances, extreme necessity. As a rule, this restriction is valid when state servants exercise their powers. However, in this case, the need for penetration into the living quarters should be justified and sanctioned. The rule of law allows an uncoordinated intrusion by law enforcement officials. But in this case, after the necessary actions have been taken, employees are required to notify the court of the measures taken. Otherwise, their behavior will be deemed illegal. In the commission of a crime, there is a direct intent. A person entering the room clearly understands the harm that he does, the consequences of his actions. Responsible persons may be held accountable. For the first and second parts they can be citizens from 16 years. Part three establishes responsibility for employees. When considering an act, it is necessary to distinguish it from other crimes that contain the main composition in qualifying signs. Separately, it is necessary to investigate violent actions or the threat of their use in case of illegal penetration into a dwelling.