Violation of the inviolability of the home - Commentary...

Violation of the inviolability of the home

1. Illegal penetration into the home, committed against the will of the person residing in it -

is punishable by a fine of up to forty thousand rubles or in the amount of the salary or other income of the convicted person for a period of up to three months, or by compulsory labor for up to three hundred and sixty hours, or by correctional labor for up to one year, or by arrest for a period of up to three months (as amended by Federal Law No. 162-FZ of 08.12.2003, No. 420-FZ of December 7, 2011).

2. The same act committed with the use of violence or with the threat of its use -

is punishable by a fine of up to two hundred thousand rubles or in the amount of the wage or other income of the convicted person for a period of up to eighteen months, or by correctional labor for up to two years, or by forced labor for up to two years, or by imprisonment for the same period (as amended by Federal Law No. 162-FZ of 08.12.2003, No. 26-FZ of 07.03.2011, as of 07.12.2011 the same as 420-FZ).

3. Acts stipulated by parts one or two of this article, committed by a person using his official position, -

is punishable by a fine in the amount of one hundred thousand to three hundred thousand rubles or in the amount of the wage 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 forced labor for up to three years, or by arrest for up to four months, or by deprivation of liberty for up to three years (as amended by Federal Law No. 162-FZ of 08.12.2003, from 07/07/2011 № 26-FZ, from 07.12.2011 № 420-FZ).

Note. Under the dwelling in this article, as well as in other articles of this Code, we mean an individual dwelling house with residential and non-residential premises included in it, a dwelling regardless of ownership, 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 intended for temporary residence (note introduced by Federal Law No. 26-FZ of March 20, 2001).

1. The Constitution (Article 25) determines that the home is inviolable. No one has the right to penetrate the dwelling against the will of the persons residing in it except in cases stipulated by federal law or on the basis of a judicial decision made in accordance with it.

By dwelling means an individual dwelling house with residential and non-residential premises included in it, a dwelling 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 fund, but intended for temporary residence.

This could be an individual house, an apartment, a room in a hotel or a hostel, a cottage, a garden house, a prefab house, a cabins or other temporary structure specially adapted and used as housing for the construction of railways, power lines and other structures in survey parties, in hunting, etc.

The dwelling does not include outbuildings, cellars, barns, garages and other premises, separated from residential buildings and not used for people living. To the dwelling, even temporary, can not be attributed to the train compartment, the cabin of the ship, since the train and the ship are vehicles.

The right to the inviolability of the home is enjoyed by both persons entitled to use or to the right of ownership of the occupied dwelling as a place of residence or residence, which is confirmed by title documents (leases, hiring, sublease, sublease, warrant, certificate of ownership and etc.) or officials, as well as titular bearers, as well as persons who are settled in a dwelling (including temporarily) at the will of those residing there legally.

2. From the objective side the crime in question is characterized by an active form of behavior in the form of illegal penetration into the home against the will of the person residing in it.

The way of penetration into the dwelling for the qualification of the basic composition of the crime in question does not matter. It can be open or secret, committed in the presence of people living there or other people in the dwelling, or in their absence, include both direct penetration of a person into the dwelling and control of the dwelling from the inside with the help of special technical means.

At the same time, the use of deception, the abuse of confidence to enter a home does not constitute the crime in question, because in these cases a person enters the home at the will of the person residing in it, although it was in error about certain circumstances.

3. The offense is formal. The crime is over since penetration into the home.

4. From the subjective side the crime is characterized by guilt in the form of direct intent.

5. The subject of the crimes provided for in Parts 1 and 2 of the commented article is general. It is any sane individual who has reached the age of 16, and the subject the crime provided for in part 3 of this article, - special - a person who uses his official position to enter his home.

6. The qualified composition of the crime in question (Part 2 of the commented article) provides as its obligatory sign the method of illegal penetration into the home - the use of violence or the threat of its use.

Violation of the inviolability of the home, although against the will of the person residing in it, but based on the provisions of the Police Act, the provisions of the Criminal Procedure Code, the Federal Law "On Operative-Search Activity" , etc., does not constitute the crime in question.

So, in accordance with Art. 15 of the Police Act does not constitute a violation of the inviolability of the home, the use of the right of police officers to enter residential premises, other premises and land plots owned by citizens into premises, land plots and territories occupied by organizations (except for premises, land and territories of diplomatic representative offices and consular offices of foreign states, representations of international organizations), in cases provided for by US law, as well as: 1) for saving I am the life of citizens and (or) their property, ensuring the safety of citizens or public safety during mass riots and emergency situations; 2) to detain persons suspected of committing a crime; 3) to suppress the crime; 4) to establish the circumstances of the accident (see paragraph 15 of the Police Act).

It is not a violation of the inviolability of the home to carry out operational search activities associated with entering into it with the consent of at least one of the people residing in it, or in their absence, but with the permission and in the presence of the hotel administration, sanatorium, holiday home, boarding house, camping, tourist base, other similar institution, if such measures are not connected with the search, inspection of things, property belonging to persons permanently or temporarily living in them, and provided that entry into the premises in their absence s administration representatives provided the rules of stay (residence of the house) or the terms of the contract (cleaning, repairing plumbing, etc.).

If penetration into a dwelling is a way of committing another crime and is its qualifying sign, for example, theft, robbery, robbery (Article 158, 161, 162 of the Criminal Code), then such an act does not form a set of crimes and does not require additional qualification for the article.

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