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3LEGAL ASPECTS OF VIOLATION OF THE INVIOLABILITY OF THE HOME IN MODERN RUSSIAN CRIMINAL LAW
Abstract
The present study povedano legal analysis of the legal aspects of violation of the inviolability of the home in modern Russian criminal law, which is currently, despite the urgency of the problem, little studied in the direction from the point of view of the theory and from the practical point of view.
Keywords
human rights, criminal law, trespassing in the modern Russian criminal law
AUTHORS
Andrey Andreevich Tumanov
PhD, Associate Professor, Murmansk State University of the Arctic, Murmansk, Russia.
E-mail: sir.tumanov2015@yandex.ru
Tatyana Vitalyevna Kapelko
PhD, Associate Professor, Murmansk State University of the Arctic", Murmansk, Russia.
E-mail: kapelko@yandex.ru
Introduction
The urgency of the problem. During the research, we focused on the theoretical and practical challenge: to interpret and to make recommendations on the application of standards of the Russian criminal law in the protection of the inviolability of the home, which now often have a declarative character and is hardly used in practice due to lack of proper attention to this issue from the officials, authorised to interpretation of the law.
Materials and Methods.
The main methods of the research was the analysis and synthesis undertaken with the consideration of norms of different branches of Russian law with the aim of solving problems.
Results.
In the study, were obtained the following results. The object of the crime are public relations, established by the law concerning the protection of personal homes of citizens against unauthorized penetration, in the absence of violation of other rights (ownership, integrity, etc.).
In article 25 of the Constitution of the Russian Federation [1] established the norm that defines what a dwelling aprikos-novena. No one has the right to enter a dwelling against the will of the persons living in it, except in the conditions established Federal law or based on imposed in accordance with judicial decisions. This provision is duplicated and more fully described in the norms of the housing code [2] and administrative code [3], CCP [4] and a number of Federal laws and other normative legal acts [5].
According to the Note to this article, under the housing refers to the residential house with its residential and non-residential premises, living premises regardless of form of ownership, part of the housing and suitable for permanent or temporary residence, and equally other premises or a structure not included in housing, but are intended to be temporary, the rate.
It can be flat, individual house, Villa, garden house, prefab house, shed or other temporary structure, specifically adapted and used as housing for the construction of Railways, power lines and other structures in survey parties, hunting fields, a room in an apartment, hotel or hostel, etc.
The dwelling does not include outbuildings, garages, barns, cellars, and other buildings separate from residential buildings and not used for human habitation. So, to lived-SCHU, even temporarily, may not be assigned train compartment and cabin of the ship, as the train and boat are the means of transport.
The right to inviolability of the home have a person with a right of use or ownership right on occupied premises as a place of residence or place of stay, which are confirmed by legal documents (lease, sub-lease, rent, sublease, warrant, certificate of ownership, etc.) or officers and title holders and persons universes in a residential premise (including time) by the will of the individuals living in it on legal grounds.
From the objective party the considered crime is characterised by action in the form of non-legitimate entry into a dwelling against the will of the occupants of the entity (or entities).
Method of entry into a dwelling to qualify the basic structure of the crime does not matter. It can be open or secret, committed in the presence of occupants or other persons, or in their absence, with obstacles or without.
Under unlawful entry into a dwelling should be understood not only in direct penetration into dwelling unauthorized persons, but also controlling homes from the inside out using special technical means (including using of Internet resources). If it does not matter whether or not these technical tools indoors.
However, the use of deception or abuse of confidence when breaking into a home, the composition of the crime does not form, as in these cases, the person penetrating is not in the dwelling against the will of the person living in it, even though it is in error regarding the circumstances of the case.
Part 2 provides for aggravating circumstance - committing the same act with application of violence or with threat of its application. In this case, the obligatory sign of a crime is a way of committing it. Violence can be understood in any action, chinesee or able to cause physical pain or limit physical possibility of individuals resisting the penetration, and also causing of a little harm to health of the victim. In cases of inflicting more grievous bodily harm, threat of such injury or death threats, the actions of the guilty person should be qualified on set of this article and articles 111, 112 or 119 of the criminal code.
Part 3 provides for a particularly aggravating circumstance - the act envisaged in parts-mi the first or second of this article committed by a person using his official position. For the presence of this composition required a special subject, which is any person disturbing the sanctity of the home, with use of his official position.
It should be noted that violation of the inviolability of the home, although against the will contained therein concerning such person or persons, but is based on the provisions of the Law "On police", the norms of the criminal procedure code, Federal law "On operative-search activity", etc., does not constitute this crime.
For example, the penetration of the police in residential and other premises and land plots belonging to citizens, shall be allowed in the cases stipulated by the legislation of the Russian Federation, as well as: 1) to save the lives of citizens and (or) their property, safety of citizens or public safety at mass riots and emergency situations; 2) to detain persons suspected of committing a crime; 3) to prevent crimes; 4) to establish the circumstances of the accident (see article 15 of the Law "On police").
It is also not considered as a violation of the inviolability of the home conducting Opera-tive search activities, combined with the entry into it, with the consent of at least one of about these there, or in their absence, but with the permission and in the presence of administration of hotel, sanatorium, boarding house, holiday homes, camping, tourist centers, Motel, and other similar institutions, if such measures are not associated with a finding, inspection of things, of property, belonging to future persons, constantly or temporarily living in them, and provided if entry to the premises in their absence, representatives of the administration provided by the rules of the stay (accommodation, internal regulations) or the terms of the contract (e.g. cleaning, repairs to plumbing, etc.).
If the penetration into the dwelling acts as a means of committing another crime and it is a qualifying characteristic, for example, theft, robbery, robbery (articles 158, 161, 162 of the criminal code), the act does not constitute the totality of the offences and additional qualification under this article is not required.
The offense formal. The offense is complete upon the unlawful entry into a dwelling.
From the subjective party the crime is characterised by fault in the form of direct intent.
The subject of the crimes provided p. 1 and 2 of this article is General. It is a VME-naeve person over the age of 16. For availability of the offense, contained part 3, as mentioned above, requires a special subject - the person, the IP is using to infiltrate the home of their position.
Discussions.
Previously, such problems in his works such researchers of the Russian criminal law, as Professor L. D. Gaukhman [6], Professor V. S. Komissarov [7] etc., however, in their studies, they betrayed little consideration of aspects such as a comprehensive analysis of the provisions of the criminal law, together with norms of other branches of Russian legislation, the emphasis in the research.
Conclusion.
In conclusion, I would like to note that, unfortunately, in the current judicial practice there are very few criminal cases in this category, is over the imposition of blame-tive sentence. This is largely due to fear and indecision of the authorities of the preliminary investigation and trial in the application in practice, the provisions of this article of the criminal code. With the purpose to make progress in this area was conducted presents a comparative study and indicated the results.
Recommendations.
As recommendations, I would like to draw the attention of representatives of Russian power structures and justice at the practical conclusions given in this study and recom-recommend to not be afraid to apply them in practice.
REFERENCES
1. The Constitution of the Russian Federation [Text] : [adopted by popular vote December 12. 1993 : as of 30 Dec. 2008] // collected legislation of the Russian Federation. - 2009. - No. 4. - St. 445.
2. Criminal procedure code of the Russian Federation [Text] : Feder. the law : [adopted by the State. Duma on 22 November 2001, No. 174-FZ dated 18.11.2001 G.] : as amended by Feder. law 13.07.2015 g. / / meeting of the legislation of the Russian Federation. - 2001. - No. 52. - St. 4921.
3. Housing code of the Russian Federation [Text] : Feder. the law : [adopted by the State. Duma on December 22, 2004, No. 188-FL from 29.12.2004 G.] : as amended by Feder. law dated 03.11. 2015 // Meeting of the legislation of the Russian Federation. - 2004. - No. 51. - St. 5780.
4. The Russian code of administrative offences [Text] : Feder. the law : [adopted by the State. The Duma on 20 December 2001, No. 195-FZ of 30.12.2001 g.]: ed Feder. law of 27.10.2015 G. // Collection of legislation of the Russian Federation. - 2004. - No. 51. - St. 5780.
5. For example, Federal law "On police" [Text] : [adopted by the State. Duma 28.01.2011, No. 3-FZ dated 07.02.2011,]: ed Feder. law 13.07.2015 g. / / meeting of the legislation of the Russian Federation. -2011. - No. 7. - St. 900; Resolution of the Government of the Russian Federation "On approval of Rules of content of common property in an apartment house and Rules of change of the amount of payment for the maintenance and repair of premises in case of rendering of services and execution of works management, maintenance and repair of common property in an apartment house not-good quality and (or) with the breaks exceeding established duration" [Text]: [No. 491 dated August 13, 2006]: 26.03.2014] / / collected legislation of the Russian Federation. - 2006. - No. 34. - St. 3680.
6. Criminal law. Special part : Textbook / Under the editorship of Professor L. D. Gauhman and Professor S. V. Maksimova. - 2nd edition, revised. and add. - M. : Izd-vo Eksmo, 2005. - 704 p.
7. Russian criminal law. Special part : Textbook / Under the editorship of Professor V. S. Komissarov. -SPb. : Peter Press, 2008. - 720 p.
