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12.2. CRIMES ENCROACHING ON THE AUTHORITY OF GOVERNMENT AND INVIOLABILITY OF THE STATE BORDER OF THE RUSSIAN FEDERATION
Aghayev Isfandiyar, Dr of law, Professor. Place of employment: Baku State University. Department: Criminal law chair.
Annotation: The State power in the Russian Federation shall be exercised on the basis of its division into legislative, executive and judicial powers. According to article 12 of the Constitution of the Russian Federation, in addition to these branches of government, in the Russian Federation local self-government shall be recognized and guaranteed. When performing duties, officials shall be provided with strengthened security guaranteed by the norms of the Chapter 32 of the Criminal Code, which stipulates liability for the violation of normal activities of authorities and local self-government. The legislator establishes severe penalties for encroachments on the procedure of governance, and thereby seeks to ensure the most favorable conditions for normal realization of power relations between administering (officials, administrative bodies) and administered (citizens and organizations) subjects.
Keywords: procedure of governance, State Border, checkpoint, migration, migrant, immigrant, fictitious registration, National Emblem, State Flag, outrages.
ПРЕСТУПЛЕНИЯ, ПОСЯГАЮЩИЕ НА АВТОРИТЕТ ГОСУДАРСТВЕННОЙ ВЛАСТИ И НЕПРИКОСНОВЕННОСТЬ ГОСУДАРСТВЕННОЙ ГРАНИЦЫ РОССИЙСКОЙ ФЕДЕРАЦИИ
Агаев Исфандияр, д-р юрид. наук, профессор. Место работы: Бакинский Государственный Университет. Подразделение: Кафедра уголовного права.
Аннотация: Государственная власть в Российской Федерации осуществляется на основе разделения на законодательную, исполнительную и судебную. Согласно ст. 12 Конституции Российской Федерации, кроме этих ветвей власти, признается и гарантируется местное самоуправление. При выполнении должностными лицами своих служебных обязанностей они обеспечиваются усиленной охраной, в том числе гарантированной нормами гл. 32 Уголовного Кодекса, в котором предусматривается ответственность за нарушение нормальной деятельности органов власти и местного самоуправления. Устанавливая суровые меры ответственности за посягательства на порядок управления, законодатель тем самым стремится обеспечить властным отношениям, складывающимся между управляющими субъектами (должностными лицами, органами управления) и управляемыми (гражданами и организациями), режим наибольшего благоприятствования в целях их нормальной реализации.
Ключевые слова: порядок управления, Государственная граница, контрольно-пропускной пункт, миграция, мигрант, эмигрант, фиктивная регистрация, Государственный герб, Государственный флаг, надругательство.
Crimes encroaching on the authority of government and inviolability of the State Border of the Russian Federation is a group of crimes entering the system of crimes against
the procedure of governance. Crimes against the procedure of governance involve deeds counteracting administrative activities of State authorities and local self-governments, as well as normal functioning thereof, which lead often to violation of citizens' rights. Typical object of these crimes is the order of State and local administration. Additional objects may include life, health, honor and dignity of the person.
From objective aspect, crimes against the procedure of governance are characterized by active form of behavior, which is evidenced by the character of terms used by the legislator, such as the use of violence, disclosure of information, forgery, stealing, destruction, etc. Some corpus delictis indicate the place of committing a crime as an obligatory sign, for example, the State Border of the the Russian Federation. Subjective aspects of crimes are characterized by intentional guilt (direct or indirect form). Crime committers assume sane individuals, who have reached age of sixteen (general committer) and, in some cases, special committers.
Illegal crossing of the State Border of the Russian Federation (art.322 of the Criminal Code) provides commitment of such actions without valid documents or out of a checkpoint of the State border.
Direct object of the crime is the order of crossing the State border of the Russian Federation. The concept of the State border of the Russian Federation is defined in article 1 of the Law of the Russian Federation of April 1, 1993, No.4730-1 "On the State Border of the Russian Federation" (as revised by the Federal Law of May 31, 2010). State border of the Russian Federation is a line and vertical surface passing through this line, which determines the limits of the State territory (land, subsoil and air space) of the Russian Federation, i.e. a spatial limit of operation of the State sovereignty of the Russian Federation. The State Border of the Russian Federation is established and changed by international treaties of the Russian Federation and Federal laws.1
Objective aspect of the crime consists in actions connected with crossing of the State Border of the Russian Federation without valid documents for the right of entry into and exit from the Russian Federation or without a permit obtained in the procedure established by Russian legislation. A method of crossing the border doesn't matter.
The crime shall be considered to be completed since crossing the protected border without relevant documents or out of checkpoint of the State border. Subjective aspect of the crime is characterized by direct intention. Negligent crossing of the borders doesn't create this corpus delicti. The crime committer is a sane individual, who has reached the age of sixteen.
Part 2, article 322 of the Criminal Code establishes liability for crossing the State border of the Russian Federation when entering the Russian Federation by a foreign national or a stateless person, whose entry into the Russian Federation knowingly for the perpetrator is forbidden on the grounds stipulated by Russian legislation.
In particular, such grounds are provided by article 27 of the Federal Law of August 15, 1996, No.114-FZ "On the Procedure for Entry into and Exit from the Russian Federation". For example, paragraph 2 of the article forbids entry into the Russian Federation of foreign nationals or stateless persons, if during their previous stay in the Rus-
1 Bulletin of the Congress of People's Deputies of the Russian Federation and the Supreme Council of the Russian Federation (in Russian). 1993, No.17, art.594.
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Пробелы в российском законодательстве
sian Federation they has been subjected to administrative deportation from the Russian Federation, or transferred by the Russian Federation to a foreign State under the international treaty of the Russian Federation on readmission (within five years from the day of deportation or transfer).
The prerequisite for corpus delicti under the second part of this article involves the perpetrator's knowledge of the ban on the entry into the Russian Federation.
The crime committer of the qualified corpus delicti is special: a foreign national or a stateless person, whose entry into the Russian Federation is forbidden under Russian legislation.
The especially qualified corpus delicti (p.3, art.322 of the Criminal Code) implies the deeds provided in parts 1 and 2 of the considered article, committed:
- by a group of persons upon prior conspiracy;
- by an organized group;
- with the use of violence or with the threat of its use.
Organization of illegal migration (art.3221 of the Criminal
Code). Migration is a set of territorial population movements, accompanied by a change of residence. Migrant is a person who moves to a new place of residence (temporarily or permanently). Migrants entering the territory of a State for new place of residence shall be recognized to be immigrant. Migrants leaving from the territory of a State of residence are emigrants.
Among the main effective normative regulations defining the legal bases of migration in the Russian Federation and governing relations with regard to migration it is necessary to call the Chapter 18 of the Code of Administrative Offences; the Federal Law of August 15, 1996, No.114-FZ "On the Procedure for Entry into and Exit from the Russian Federation"; the Federal Law of July 25, 2002, No.115-FZ "On the Legal Status of Foreign Nationals in the Russian Federation" (as revised by the Law of December 30, 2015); the Decree of the President of the Russian Federation of July 19, 2004, No.928 "On Issues of the Federal Migration Service" (as revised by the Decree of May 20, 2009), etc.
In Russia, the Federal Law of July 12, 2000, No.97-FZ "On Ratification of the Cooperation Agreement between State-Parties of the Commonwealth of Independent States in the Fight Against Illegal Immigration" operates. This Agreement was signed in March 6, 1998 in Moscow. However, at present the sector of multilateral cooperation of State-Parties of the Commonwealth of Independent States becomes narrower, and bilateral cooperation in this sphere is intensifying.2
Objective aspect of the crime in question involves the organization of illegal entry to the Russian Federation of foreign nationals or stateless persons, their illegal stay in the Russian Federation or illegal transit through the territory of the Russian Federation. In order to determine illegality of the acts listed in the considered norm, it should refer to the contents of other legislative acts.
Article 3221 of the Criminal Code establishes liability for the most dangerous manifestation of illegal migration, i.e. its organization. The organization of illegal migration can be carried out only through actions, which may consist in:
creation of a group engaging in provision of illegal migration;
development of methods and routes of illegal entry to the Russian Federation;
finding persons who desire to migrate illegally, providing them with the relevant documents;
2 Collection of the Statutes of the Russian Federation (in Russian). 2000, No.29, art.3006.
making illegal contacts with persons exercising control over the entry into the the territory of the country, as well as with persons responsible for issuing visas;
illegal entry to the Russian Federation of foreign nationals or stateless persons, their illegal stay in the Russian Federation or illegal transit through its territory.
The subjective aspect is characterized by direct intention. Motivation of behavior doesn't affect the existence of corpus delicti. Most often, the considered crime is committed by a mercenary motive. The crime committer is general: a sane individual, who has reached the age of sixteen.
Fictitious registration of a citizen of the Russian Federation on a residence in the Russian Federation (art.3222 of the Criminal Code). The object of this crime is the established procedure for registration of citizens at their place of residence. Registration record is established in order to ensure the necessary conditions for citizens to exercise their rights and freedoms, as well as to perform obligations towards other citizens, State and society.
The procedure for registration is determined by the Decree of the Government of the Russian Federation of July 17, 1995, No.713 "On Approval of the Regulations for Registration of Citizens of the Russian Federation on a Residence within the Russian Federation and the List of Officials Responsible for the Registration". According to the rules for registration, registration of citizens enrolled in educational institutions of secondary and higher vocational education (in full-time education) on a residence in dormitories shall be carried out by relevant authorities on the basis of application on registration certified by officials of educational institutions and an applicant's identity document. While realizing the registration, a person carries out it without necessary certification of the official of educational institution.
Thus, fictitious registration shall be defined as registration performed on the basis of deliberately submitted false information or documents for such registration, as well as the residence registration without an intent to reside in relevant residential area, or the residence registration without the owner's intention to provide the relevant dwelling premises.
The considered corpus delicti takes place, if the fictitious registration is carried out on a residence in the Russian Federation. The act shall be deemed to be completed since implementing a fictitious registration.
The subjective aspect is characterized by direct intention. Therefore, the corpus delicti lacks, for example, if a person makes a technical mistake as a result of inattentive handling with documents. The crime committer is general.
Note to this article contains a provision, under which the perpetrator of the crime in question shall be exempted from criminal liability if he/she has facilitated the revelation of the crime, and if his/her actions doesn't contain other corpus delicti.
Fictitious registration of a foreign national or stateless person on a residence in the Russian Federation (art.3223 of the Criminal Code). The object of this crime involves the established procedure for the migration registration of foreign nationals and stateless persons in the Russian Federation.
The procedure for carrying out migration registration is provided by the Federal Law of July 18, 2006, No.109-FZ "On Migration Registration of Foreign Nationals and Stateless Persons in the Russian Federation" and the Decree of the Government of the Russian Federation of January 15, 2007, No.9 "On the Procedure of Migration Registration of
Foreign Nationals and Stateless Persons in the Russian Federation".
Objective aspect of the crime consists in fictitious registration of a foreign national or stateless person on a residence in the Russian Federation.
The registration of a foreign national or stateless person on a residence represents the fixing by the authorized bodies of data on placing of a foreign national or stateless person on a residence. Fictitious registration of such persons on a residence in the Russian Federation takes place when the registration is based on deliberately submitted false information, as well as is carried out without a person's intent to reside in respective residential area or without the owner's intention to provide the relevant dwelling premises. The act shall be deemed to be completed from the moment of faking a registration.
The subjective aspect is characterized by direct intention. The crime committer is general: a sane individual, who has reached the age of sixteen.
Unlawful alteration of the State Border of the Russian Federation (art.323 of the Criminal Code) implies withdrawal, shifting or destruction of boundaries for the purpose of unlawful changing the State Border of the Russian Federation.
Direct object of the crime involves the regime of State border and its invariability. Border marks, i.e. clearly visible special items intended for the exact designation of the State border on the ground are subject-matters of this crime. Description and installation of border marks are determined by Decrees of the Government and international treaties of the Russian Federation. According to the rules for the maintenance of the State Border, boundary marks must be preserved and maintained in good condition.
Article 6 of the Law of the Russian Federation of April 1, 1993, No.4730-1 "On the State Border of the Russian Federation" (as revised by the Federal Law of May 31, 2010), the State Border of the Russian Federation is established by international treaties of the Russian Federation and by Federal laws.
Objective aspect of the crime consists in one of the following illegal actions with respect to the subject-matters listed in the norm:
- withdrawal;
- shifting;
- destruction.
Withdrawal means the removal (extraction, pulling) of a frontier mark from its location without the intent of setting it at a different location. Shifting is related to the change of the spatial location of a frontier mark and installing it elsewhere. Extension or decrease of the territory don't matter. The destruction of a border mark is associated with the termination of its existence, i.e. with its extermination. Methods of destruction aren't essential for the qualification under art.232 of the Criminal Code. Crime is considered to be completed since committing any of the indicated actions.
The subjective aspect is characterized by direct intention and special purpose: the purpose of unlawful changing the State Border of the Russian Federation. Crime committer is a sane individual, who has reached the age of sixteen.
Qualified feature of this crime involves its commitment with causing grave consequences. It deals with judicial assessment and determination of material or other damages caused to the State interests, which have entailed grave consequences.
Outrages upon the National Emblem of the Russian Federation, or the State Flag of the Russian Federation (art.329 of the Criminal Code) provides the carrying out
public insulting actions with respect to National symbols of the Russian Federation.
Direct object of the crime involves an authority and significance of National symbols of the Russian Federation. National Emblem and State Flag of the Russian Federation are subject-matters of this crime. In accordance with article 1 of the Federal Constitutional Law of December 25, 2000, No.2-FKZ "On the National Emblem of the Russian Federation" (as revised by the Law of November 10, 2009), the National Emblem of the Russian Federation is an official State symbol of the Russian Federation. Its description is made in the said norm. The concept of the State Flag of the Russian Federation is given in article 1 of the Federal Constitutional Law of December 25, 2000, No.1-FKZ "On the State Flag of the Russian Federation" 2 (as revised by the Law of November 8, 2008). In accordance with this article, the State Flag of the Russian Federation is an official State symbol of the Russian Federation and represents a rectangular banner with three equigraphic horizontal stripes: top — white, middle — blue, lower — red.3
Objective aspect of the crime is expressed in overt outrages upon the National Emblem of the Russian Federation, or the State Flag of the Russian Federation through the following actions: burning, damage and other forms of destroying or outrage. The crime shall be considered to be completed since committing any of these actions.
Subjective aspect of the crime is characterized by direct intention. The crime committer is a sane individual, who has reached age of sixteen.
3 Collection of the Statutes of the Russian Federation (in Russian). 2000, No.52, art.5021.
