The Constitution of the Russian Federation provides for the inviolability of the home (Article 25). No one has the right to enter a home against the will of the persons living there. Exception is possible only in cases established by federal law or by court decision. Housing is understood as both a place of permanent or temporary residence, and the place of residence of a citizen.
The Criminal Procedure Code of the Russian Federation (Article 12) establishes that inspection of a home by law enforcement officers can only be carried out with the consent of the persons living there or on the basis of a court decision, and searches and seizures only on the basis of a court decision. But even here there are exceptions provided for in Part 5 of Article 165 of the Code of Criminal Procedure of the Russian Federation. In exceptional cases, when investigative actions involving entry into a home cannot be delayed, they can be carried out on the basis of a decision of the investigator or inquiry officer without obtaining a court decision.
That is, no one has the right to invade the premises where you live; even law enforcement officers need good reasons for this. Otherwise, illegal entry into your home may result in criminal liability under Article 139 of the Criminal Code of the Russian Federation.
Peculiarities
It is possible to enter someone else's residential premises (Article 25 of the Constitution of the Russian Federation) only under the following conditions:
- Permission from the owner or resident.
- In the case where this is established by federal law.
- When a court decision is made.
Immunity to housing extends only to those categories of citizens who can document their belonging to this home. This right applies to the following citizens:
- Owner.
- Citizens living under a lease, sublease or rental agreement.
- Persons living temporarily in an apartment or house at the will of the owner legally.
Read also: Blacklist of landlords and tenants of apartments in Moscow.
According to Article 139 of the Criminal Code of Russia, the following real estate belongs to housing:
- Apartment.
- A room in a hostel or hotel.
- Individual residential construction project.
- Garden house or change house.
- Prefabricated houses.
- Residential buildings intended for housing workers at construction sites.
In other words, this is a living space where a person lives and stores his belongings, property or documents. The exception will be outbuildings in the form of a cellar, barn, as well as structures erected without permission from authorized bodies.
Arbitrage practice
Judicial practice shows that the victim in criminal cases of illegal entry into a home can be both the owner of the residential premises and his family members, permanently or temporarily living in this residential premises, as well as other persons who are not the owners, but permanently or temporarily living with the consent of the owner or on some other legal basis.
Illegal entry into a residential premises can be carried out by free access, breaking a door or windows, by selecting a key or stealing it.
The purposes of illegal entry are completely different. There have been cases when, by breaking the locking device, criminals entered garden houses to spend the winter. As a rule, while intoxicated, a criminal can enter a home “to talk,” spend the night, or drink alcohol or drugs.
Illegal entry accompanies other types of crimes, such as theft, robbery, assault, rape, etc.
An important point in establishing the corpus delicti is the lack of permission from the victim to enter his home.
Forced entry
The law provides for a number of situations when breaking into an apartment or other living space is a necessary measure. Such circumstances include the elimination of danger that may pose a threat not only to the interests of the individual and society, but also to the state.
In extreme situations, the following have this right:
- Firefighters extinguishing fires.
- Employees of the Ministry of Emergency Situations and law enforcement agencies.
- Representatives of management companies that ensure the operation of house communications.
What will be the procedure if an emergency situation arises that requires entry into a home when there are no residents living there for a long time?
Housing legislation considers this situation in this way: it is possible to enter someone else’s territory of an apartment or household, provided that other methods do not bring the required effect.
ATTENTION! According to criminal law, burglary is permitted only to the extent of causing damage that will not exceed the damage from the accident.
According to the Russian Housing Code (Article 3), invasion of a home without the permission of living citizens can only occur in those situations prescribed by federal law, and only in cases where it is necessary to save citizens and their property.
Home invasion is also permitted against citizens who are suspected of committing illegal actions that entail criminal liability.
It is worth noting that the management company will not be responsible for breaking the lock mechanism in the situations described above, provided that the situation endangered neighboring property.
Police officers, if they have a special warrant, have the right to freely enter an apartment or house, since they are responsible for maintaining order and detecting crimes. They are allowed to enter the territory for the purpose of carrying out operational search activities, including searching for citizens who have committed illegal actions.
The bailiff can also enter the residential area without inviting the residents, provided the appropriate documentation is available . However, the time frame for them is from 6 a.m. to 10 p.m.
Watch the video: Article 139 of the Criminal Code of the Russian Federation. Violation of the inviolability of the home
ATTENTION! In case of entry into an apartment or house without legal grounds by police officers, judicial authorities or representatives of the management company, it is envisaged to apply to the judicial authorities with a statement.
Characteristics of crime and punishment
Housing means a residential house, apartment or room, any residential premises, building, regardless of the form of ownership, whether or not included in the housing stock, suitable for permanent or temporary residence.
Illegal entry into a home, committed against the will of the person living there, may entail a fine of up to 40,000 rubles or in the amount of wages (other income of the convicted person) for a period of up to 3 months, or compulsory work for a period of up to 360 hours, or correctional labor for up to 1 year, or arrest for up to 3 months.
In the 2nd part of Article 139 of the Criminal Code of the Russian Federation, the same act, committed with the use of violence or with the threat of its use, is punishable by a fine of up to 200,000 rubles or in the amount of wages (other income) for a period of up to 18 months, or by correctional labor for a period of up to 2 years, or forced labor for up to 2 years, or imprisonment for the same period.
According to the 3rd part of Article 139 of the Criminal Code of the Russian Federation, acts provided for in parts one or two of this article, committed by a person using his official position, are punishable by a fine in the amount of 100,000 to 300,000 rubles or in the amount of wages or other income of the convicted person for the period from 1 year to 2 years. Either deprivation of the right to hold certain positions and engage in certain activities for a period of 2 to 5 years, or forced labor for a term of up to 3 years, or arrest for a term of up to 4 months, or imprisonment for a term of up to 3 years.
Punishment for illegal entry into someone else's home under Article 139 of the Criminal Code of the Russian Federation begins at the age of 16.
Types of liability
Violation of the inviolability of a residential property is subject to criminal penalties. Such
The actions are not considered a serious crime, but committing one can result in imprisonment. Entry is considered a criminal offense if certain conditions are met, namely if it occurred in the following ways:
- Picking the lock on the door.
- Free penetration.
- Intrusion through a window opening.
- Using coercive actions against living citizens.
- By deception, as well as by taking advantage of his official position.
At the moment, based on the norms of the Russian Criminal Procedure Code, a case of breaking and entering can only be initiated if the victim has filed a statement.
VS: Illegal entry into a home is a basis for seeking compensation for moral damage
The Judicial Collegium for Civil Cases of the Supreme Court issued Ruling No. 18-KG20-120-K4 in a dispute over the recovery of compensation for moral damage from a citizen who knocked down the door to a disabled woman’s apartment.
On July 11, 2021, Roman Brynza knocked down the front door of the apartment belonging to group II disabled Valentina Vikentyeva, threatening to stab the woman and her daughter. Subsequently, the magistrate found Roman Brynza guilty of committing an offense under Art. 7.17 (deliberate destruction or damage to someone else’s property, if these actions did not cause significant damage) of the Code of Administrative Offenses of the Russian Federation and fined 300 rubles. At the same time, the magistrate collected more than 10 thousand rubles from the offender. towards compensation for damage to the door.
Next, law enforcement officers opened a criminal case against Brynza for threatening to kill using a knife, recognizing Vikentyeva and her daughter as victims. In October 2021, the prosecutor's office approved the indictment.
Subsequently, Valentina Vikentyeva filed a lawsuit to recover compensation for moral damage from Roman Brynza in the amount of 400 thousand rubles. According to the plaintiff, the defendant’s illegal entry into her home with a knife and threats of murder violated her right to the inviolability of her home, deprived her of sleep and peace, and also caused severe fear and moral suffering.
However, the court refused to satisfy the stated demands, citing the fact that the plaintiff had already exercised her right to compensation for material damage. As the court explained, the legal relationship that arose between the plaintiff and the defendant does not provide for compensation for moral damage, since there is no encroachment on the intangible benefits belonging to the plaintiff, and her personal non-property rights are also not violated. In addition, the court decision indicated the lack of evidence confirming the plaintiff’s health disorder due to the defendant’s actions. The appeal and cassation supported the decision of the first instance.
Valentina Vikentyeva appealed to the Supreme Court with a cassation appeal to cancel these judicial acts. The judge of the Supreme Court restored the deadline for filing a cassation appeal, but refused to submit it to the Judicial Collegium for Civil Cases. The case was transferred to the Collegium only after the Deputy Chairman of the Supreme Court, Yuri Glazov, made a corresponding determination.
Having studied the materials of the case, the Supreme Court recalled that moral harm consists not only of physical suffering, which can objectively be expressed in disorder or damage to health, but also in moral suffering, which may not have an external manifestation and does not lead to damage or disorder of health. “In the event of a violation of a citizen’s personal non-property rights by illegal actions or an encroachment on the intangible benefits belonging to him, the presence of moral suffering is assumed. In this case, the absence of illness or other damage to health in itself is not a basis for refusing a claim for compensation for moral suffering. Compensation for moral damage is carried out independently of compensation for material damage, and therefore, compensation for material damage does not relieve the harm-doer from compensation for moral suffering,” the definition emphasizes.
As the Court explained, given in the Civil Code of the Russian Federation and Resolution of the Plenum of the Supreme Court of December 20, 1994 No. 10 “Some issues of application of legislation on compensation for moral damage,” the list of non-property rights and intangible benefits is not exhaustive. So, in Art. 25 of the Constitution of the Russian Federation enshrines the right of everyone to the inviolability of their home - no one has the right to enter a home against the will of the persons living in it except in cases established by law or on the basis of a court decision.
“The right to inviolability of home is expressly stated in Art. 150 of the Civil Code of the Russian Federation as an intangible benefit protected by law. The circumstances indicated by the plaintiff of the violation of her right to the inviolability of her home, as well as the infliction of moral suffering on her by threats, were not refuted or called into question by the court. In addition, the fact of knocking down the door in the plaintiff’s apartment was established by the decision of the magistrate in the case of an administrative offense that entered into force and the decision of the magistrate on compensation for material damage. The court's argument in support of the denial of the claim for Valentina Vikentyeva's right to compensation for material damage directly contradicts the law, since moral damage is compensated regardless of compensation for material damage. We also cannot agree with the court’s argument given in support of the refusal of the claim that Valentina Vikentyeva filed a claim in a criminal case,” the Supreme Court noted.
In addition, as stated in the definition, the presence of a previously filed similar claim is not a basis for refusing the claim, but for leaving the application without consideration, provided that the case regarding the previously filed claim is being processed by the same or another court, and the existence of a criminal case, before the consideration of which it is not possible to consider a civil case may be grounds for suspending the proceedings, but not for refusing the claim. In the dispute under consideration, the Supreme Court emphasized, there is no information about the progress of the criminal case after the prosecutor has approved the indictment (including whether it is in court, whether any court decisions have been made on it). At the same time, refusal to satisfy a claim in a civil case is an obstacle not only to satisfaction, but also to subsequent consideration of a similar claim brought by the same plaintiff against the same defendant and on the same grounds. As a result, the Supreme Court overturned the acts of the lower courts and returned the case to the first instance.
The Chairman of the Minushkina and Partners Agency, Anna Minushkina, noted in a commentary to “AG” that the Supreme Court provided several important reminders rather than clarifications on the application of substantive and procedural law. “Violation of the right to inviolability of home is a violation of personal non-property rights, and therefore moral damage is subject to compensation. To confirm the presence of moral damage in this case, it is not at all necessary to confirm the presence of harm to health. The absence of a health disorder cannot be a basis for refusing a claim for compensation for moral suffering,” she emphasized.
The lawyer added that the filing of a claim by a person in a criminal case cannot be a basis for refusing to satisfy the claim, but can only serve as a basis for leaving the statement of claim without consideration or for suspending the proceedings. “I believe that in the case under consideration, the lower courts made an error in applying the rules of substantive and procedural law, which was successfully corrected by the Supreme Court,” summarized Anna Minushkina.
According to the lawyer of the Nizhny Novgorod Regional Bar Association, Alexander Nemov, in the ruling under consideration, the Supreme Court indicated that the lower authorities did not even understand the subject of the dispute. “They should have accepted as grounds for compensation for moral damage not only the fact of damage to the apartment door, but also death threats, as well as the fact of illegal entry into the home,” he emphasized.
In particular, Alexander Nemov explained, the lower courts did not clarify the fate of the criminal case against the defendant and refused to satisfy the claims, while the proceedings should have been terminated or suspended. “Thus, the lower courts also violated the plaintiff’s right to access to justice, because the plaintiff (by refusing to satisfy the claim) was deprived of the opportunity to re-apply with the same demands and grounds. It’s surprising why the lower authorities were unable to sort out this dispute,” the lawyer concluded.
What to do if you entered private territory
Entering someone else's territory contradicts the provisions of the Constitution regarding the right to inviolability of home and privacy, and, accordingly, is criminal. The entry into the territory itself is rarely committed as a separate violation; it is carried out for a specific purpose - to rob, kill, rape, that is, it has a double prevention. One violation of the law in this case creates favorable conditions for the commission of a second, more serious act. In this regard, the state gives every person the right to defend himself and protect his property.
The first step, of course, is to call the police, but law enforcement officers do not always have time to get to the crime scene in a timely manner. If you have a registered weapon, the law allows you to use it, but only in certain cases.
The use of weapons is considered justified in the event of an attack or at the beginning of penetration into a house, that is, when the intruder begins to break glass or break down the door. In this case, the time of the beginning and end of the encroachment will be taken into account. If you shoot before any damage has been caused to you, or the attacker simply crosses the gate and stands at the window without attempting to break in, then the issue will be moot.
It is quite logical to assume that the “criminal” may not have intended to harm you, but wanted to get closer to say something or approached your house because he got lost and wanted to ask for the night. The same applies to the case when you shoot a criminal in the back who inflicted minor injuries on you and was about to leave. You also cannot shoot at an intruder who is trying to leave the premises after realizing that he has been noticed.
It is best to prove your case using civilized methods: wait for the police and tell them about the incident. Try to remember as much as possible about the criminal, he will definitely be brought to justice and punished according to the law. You should not carry out arbitrariness and lynching, you will only lose from this, and you yourself can turn from a victim into a subject of criminal proceedings.
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