Penetration into private territory: article of the Criminal Code of the Russian Federation in 2021, liability

Private territory is a territory that belongs to a specific individual or legal entity.

In Art. 35 of the Constitution of the Russian Federation states that the right to private property is protected by law.

If a person decides to violate this rule, that is, wants to enter someone else's territory, then he may face criminal liability.

Which article of the Criminal Code of the Russian Federation describes liability for entering private territory?

Illegal entry into private property: what does the offender face?

If a person illegally entered the home of a person, and the owner was against it, then the person may be punished as follows:

pay a fine of up to 40 thousand rubles or in the amount of salary for a certain period;
may be involved in socially useful work on a free basis for up to 360 hours;
involved in correctional labor served at the main place of work for a period of up to 12 months. If the convicted person does not have a job, then he is involved in correctional work as determined by local government bodies together with the criminal-executive inspection;
he could be arrested for up to 90 days.

If a person entered the territory of someone else’s house (apartment) and began to threaten the person living there, or committed some kind of violent act (for example, beat the owner of the apartment, raped him, etc.), then the punishment becomes more severe.

Sanction Art. 139 of the Criminal Code of the Russian Federation provides for the following punishment for such an act:

fine up to 200 thousand rubles;
correctional labor for up to 24 months;
forced labor for up to 24 months;
imprisonment for up to 2 years.

Other liability is assigned to persons during execution who unauthorizedly entered private territory.

If the court finds that a person took advantage of his official position, then he will face one of the following penalties:

fine from 100 to 300 thousand rubles;
deprivation of the right to hold a certain position for a period of 2-5 years;
forced labor for up to 3 years;
arrest for up to 4 months;
imprisonment for up to 4 months.

Housing concept

Article 139 of the Criminal Code regulates what type of real estate can be considered a home.

Article 139 of the Criminal Code of the Russian Federation

Important ! It is also advisable to include in this term premises that are not part of the housing stock, but are suitable for a person to live there.

In simple terms, any room where a person lives, while storing his property and documents there, can be considered his home. The room itself and the things in it have value, therefore, another person cannot just walk in and take it all away without consequences.

Housing is a room where a person lives and stores his property.

What can be considered a home:	What a home is not:
apartment;	cellar;
individual residential construction project;	garage;
dorm room;	barn;
a room in a hotel;	outbuilding;
change house;	places on a train or ship (they can’t even be called temporary housing).
garden house;
prefabricated house;
various buildings for housing within the boundaries of construction sites.

Situations in which criminal liability does not arise under Art. 139 of the Criminal Code of the Russian Federation

A violation of the inviolability of the home is not formed in the following cases:

if police officers or law enforcement officers who carry out their direct duties enter private territory (for example, they participate in the capture of a criminal). At the same time, police officers have the right to enter private territory without the consent of its owner if they have a corresponding prosecutor’s resolution in their hands, or without such a resolution, if they suspect signs of a crime being committed in an apartment (house), signs of a threat to state security, or they will contain information about persons hiding from investigative authorities;
the goal of a person who entered someone else's territory was to save people's lives or their property (for example, a neighbor broke down the door when none of the owners of the apartment was at home to put out the fire);
if the bailiffs came;
a person who entered private territory helped stop a crime (for example, he caught a burglar in a neighbor’s apartment).

When Art. 139 of the Criminal Code of Russia?

Responsibility for entering private territory occurs only if the person intending to enter someone else's house carries out his plan for some purpose, for example, to rape, rob, or kill.

What is illegal home entry? This is when intruders break down a door, break into a living space, enter through a window, or enter a home in any way, while the entry itself occurs without the consent of the people living in it.

If a person allowed a stranger to enter (opened the door and invited him), then this will not be considered illegal entry.

Answers on questions

Question: Is the act of trespassing into someone else's yard a criminal offense?
Answer: The legislation of the Russian Federation does not provide for liability for intrusion into territory, even a plot of land without any purpose, for example, to commit a crime (theft, robbery, hooliganism, etc.). The maximum punishment is a warning from the local police officer.

Question: Can a person who enters the territory of an abandoned or unfinished private house be punished?
Answer: If no one lives in the house, and the house itself is uninhabitable, then the person will not bear any responsibility. If he entered such a house for some purpose, for example, to steal something, break something, etc., then liability may arise, but not under Article 139 of the Criminal Code of the Russian Federation, but under another, for example, Art. 158 “Theft”, Art. 167 “Deliberate destruction or damage to property”, etc.

Question: Can a minor citizen who trespassed onto private property be punished?
Answer: No, they cannot, if the person did not have malicious intent, and yes, they can, if he entered private territory for some purpose. However, in the latter case, his parents (guardians) will be responsible for the actions of the minor.

Question: An intruder entered the territory of my house, broke the windshield of the car, and also broke 2 windows in the house. What threatens the villain?
Answer: Criminal liability in this case arises, but not under Art. 139, and under other articles of the Criminal Code, namely, under Art. 167 “Deliberate destruction or damage to property.”

Question: What does a person face for attempting to enter private territory?
Answer: An attempt to enter is equivalent to entering private territory, therefore such an offense is subject to criminal liability under Art. 139 of the Criminal Code of the Russian Federation. What does it mean to attempt to invade someone else's territory? For example, an offender decided to break the door of someone else's apartment, being sure that no one was there. However, at that moment there were people at home. The attacker managed to break into the lock, but was met at the door by the owner, who called the police. The offender's actions were recorded on a video camera, so the owner did not have to collect evidence for the trial for long. The intruder did not get into the house, but there was an attempt to break in.

Question: Will a child who entered someone else’s house, but without malicious intent, but just for the sake of interest, be punished?
Answer: If the owner of the apartment (house) writes a statement to the police about this child, then during court proceedings the judge may decide to register the child with a psychoneurological dispensary, and a fine may be imposed on the parents.

Unscrupulous neighbors and common property in non-residential buildings: how to protect your rights

It often happens that a part of a building that previously belonged to one owner acquires a separate owner. In this case, the previous owner is not always ready to accept the neighbor and stop treating the building “as if it were his own.” Legal difficulties may arise with such a position. My colleague Ilshat Galimov, Deputy General Director of the First Legal Network, and I decided to look into the legal side of this issue.

Paragraph 2 of paragraph 2 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 23, 2009 No. 64 “On some issues of the practice of considering disputes about the rights of the owner of premises to the common property of a building” will help to clarify the situation. According to the document, from the moment at least one of the premises located in the building becomes the property of another person, the right of common shared ownership of the common property of the building arises. Ownership of the building as a whole is terminated, and a corresponding entry is made in the register. However, in practice, the owner of newly acquired premises continues to constantly face violations of his rights.

For example, the previous owner of the entire building independently places advertisements on the walls, and antennas of cellular operators on the roof, receiving money for this only in his own pocket. Or, from time to time, some innovations appear on the walls of buildings, roofs or foundations, and engineering communications are constantly undergoing changes. And so - in the summer the rooms are cold, and in the winter - hot (or vice versa). There are cases when, on the initiative of the previous owner of the entire building, the supply of energy resources is stopped, including to premises that no longer belong to him.

According to the position of the Supreme Court of the Russian Federation, the right of the owners of premises - participants in common shared ownership to own, use and dispose of common property cannot be interpreted as allowing one owner to violate the same rights of other owners, opposing them to their interests. The sole use of common property by one owner without the consent of others is contrary to the requirements of the law, since, by virtue of clause 4 of Art. 1 of the Civil Code of the Russian Federation, no one has the right to take advantage of their illegal or dishonest behavior.

There are tools to protect the interests of the new owner through substantive law. The new owner of the premises and the former sole owner legally jointly own the common property. The former “owner of the building” can be pointed out that he is derogating the ownership rights of the new owner of the premises (Article 301 of the Civil Code of the Russian Federation, paragraph 3, paragraph 9 of Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 64), and these are grounds for filing a claim. However, going to court with a negative claim for each fact of “innovations” by the previous owner of the building is also not an option. Another option is to go to court with a request to recognize the right of common shared ownership of common premises and equipment in the building.

As stated in paragraph 9 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 23, 2009 No. 64, such an application can be submitted by the new owner of individual premises in the building, including in cases where an entry is made in the register about the individual property rights of the previous owner of the building to common areas. The court considers such a requirement as similar to the owner’s demand to eliminate any violations of his rights that are not associated with deprivation of possession. Thus, such a statement is the same as the “classical requirement” under Art. 304 of the Civil Code of the Russian Federation is a negative requirement. Negative claims do not have a value assessment.

When filing a claim in court for recognition of the right to common property, not related to the deprivation of its possession, the applicant is faced with the first and seemingly obvious and legal requirement of the court - the need to pay the state fee as a property claim. In practice, such requirements of courts of general jurisdiction, which they enshrine in rulings on leaving a statement of claim without progress, unfortunately, occur very often. However, they are illegal and have no legal basis.

In accordance with the explanations contained in the joint letter of the Ministry of Finance of the Russian Federation and the Federal Tax Service of the Russian Federation dated August 1, 2012, when filing statements of claim with the courts of general jurisdiction with demands for recognition of ownership of real estate, which are associated with the subsequent registration of this right, must be paid National tax. The amount of the fee is determined depending on the value of the property, as when filing a claim of a property nature subject to assessment.

However, in the circumstances under consideration, the plaintiff’s demand for recognition of the right to common property is not aimed at obtaining:

“additional” powers of the plaintiff to own, use and dispose of common premises and equipment in the building, which he already has by force of law;
subsequent entry into the Unified State Register of Information about the plaintiff’s additional rights to own, use and dispose of common premises in the building (or new objects of ownership)

The request is aimed at canceling the record in the Unified State Register of Individual Ownership of the defendant for the common premises in the building. Accordingly, the stated claim is not of a property nature and is not subject to assessment.

This claim is not aimed at recognition of the plaintiff’s rights, but at the annulment of the defendant’s individual right of ownership of common property, which creates conditions or a threat for violation of the plaintiff’s rights and is a restorative claim.

The above legal position is confirmed by the ruling of the Supreme Court of the Russian Federation of August 28, 2021 N 83-KG18-13, which in its judicial act noted that in accordance with Article 304 of the Civil Code of the Russian Federation, the owner may demand elimination of violations of his rights, although these violations were not associated with deprivation of possession. One of the ways to protect a violated right is to restore the situation that existed before the violation of the right and to suppress actions that violate the right or create a threat of its violation.

Here it is useful to refer to paragraph 38 of the Review of the practice of resolving disputes by courts arising in connection with the participation of citizens in the shared construction of apartment buildings and other real estate. According to the document, in the described case, the requirements for recognition of the right of common ownership are aimed specifically at eliminating the violation of rights through challenging the right of individual ownership.

You can also refer to paragraph 52 of the resolution of the Plenum of the RF Armed Forces and the Plenum of the Supreme Arbitration Court of the Russian Federation dated April 29, 2010 No. 10/22 “On some issues arising in judicial practice when resolving disputes related to the protection of property rights and other property rights.” The document explains that challenging the registered right to real estate is carried out by filing claims, decisions on which are the basis for making an entry in the Unified State Register. In particular, if the operative part of the judicial act resolves the issue of the presence or absence of law, which is assumed in the present case.

Thus, satisfaction of the requirements for the recognition and establishment in a judicial act of certain premises currently registered in the Unified State Register on the right of individual ownership of the defendant, the legal regime of common property in the building, will at the same time be the basis for the entry by the territorial bodies of Rosreestr at the location of the real estate corresponding entry in the Unified State Register.

Resolution of the Supreme Arbitration Court of the Russian Federation dated July 27, 2011 N 1457/11 establishes the conclusion that the court’s decision to recognize the right of common shared ownership is the basis for changing the information in the Unified State Register about the cancellation of the record of the defendant’s individual ownership of the disputed premises. A similar conclusion was confirmed in the decision of the Second Arbitration Court of Appeal dated January 16, 2014 in case No. A29-2992/2013.

In this case, the appellate court indicated that recognition of the right of common shared ownership excludes the existence of individual ownership of the municipality in the disputed property and there is no need to submit an independent demand to cancel the record of individual ownership of the municipality for common premises.

The decision of the Twentieth Arbitration Court of Appeal dated April 28, 2021 in case No. A54-3934/2013 noted the legitimacy of the conclusion that the requirement for partial cancellation of the record of registration of the defendant’s ownership of non-residential premises is not an independent requirement, but is a consequence of the requirement for recognition of the plaintiff's right to common shared ownership. In addition, in the said decision, the court recognized the legality of classifying this claim as a non-property claim.

The fact that the requirement for recognition of common shared ownership of common property in a building is a requirement of a non-property nature and is essentially aimed not at recognizing rights, but at suppressing actions that violate rights, is also reflected in the Cassation ruling of the Investigative Committee for civil cases of the Volgograd Regional Court dated 27 May 2011 in case No. 33-6626.

According to paragraph 53 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated April 29, 2010 No. 10/22, the defendant in a claim aimed at challenging a registered right is the person for whom the disputed right is registered. The state registrar is not a defendant in such claims, but may be involved in such cases as a third party who does not make independent claims regarding the subject of the dispute. At the same time, according to paragraph 4 of this paragraph of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation and the Supreme Court of the Russian Federation, the state registrar is obliged to make an entry in the Unified State Register on the basis of a judicial act, regardless of its participation in the case.

It is advisable to supplement the plaintiff’s first demand with another demand - “to determine the regime of ownership and use of common property in the building.” As a result of the first requirement, the court will determine the composition of the common property in the building - common premises and equipment, the main role of which is to ensure the life and functioning of the building as a whole. The second requirement helps determine the procedure for joint ownership and use of such property.

Since a future court decision must be enforceable, in order to satisfy the requirement arising from a negative claim to recognize the plaintiff’s right of common shared ownership of common property and equipment in the building, it must specifically define the common property, i.e. its individually defined characteristics must be indicated. The impossibility of obtaining such documents from the previous owner of the building is already a fact of violation of rights, which is not connected with deprivation of his possession. Accordingly, in such a situation, the new owner has the right to count on the protection of his interests.

Examples of situations from judicial practice involving home invasion

Example 1 . A certain citizen Skvortsov I.V. illegally entered a neighbor’s apartment through an open door and stayed there for 3 hours. The neighbor in her haste forgot to close the door, so her neighbor entered her home without hindrance. It happened like this: the man was walking home drunk, but he couldn’t get into his room - his wife wouldn’t let him in. Then he saw an open door in his neighbor’s apartment and entered it. In an unfamiliar apartment, the man continued the banquet: he drank alcohol, had a snack and went to bed. When the neighbor returned home, she found that the door to her apartment was locked from the inside. She called the police, they came and took the neighbor away. The woman sued him. The judge sentenced the unfortunate neighbor to a fine of 30 thousand rubles for illegal entry into the home against the will of the owner of the apartment.

Example 2 . Citizen Petrov V.K. was convicted of a crime under Art. 139 of the Criminal Code of the Russian Federation. Being intoxicated, this man decided to visit his neighbor and talk to her, but she refused to open up to him. Outraged by her inhospitality, he forcefully pulled the door handle, broke the bolt and the door opened. Petrov V.K. entered his neighbor’s apartment without her permission, thereby violating her right to the inviolability of private territory. The judge sentenced V.K. Petrov to compulsory labor for a period of 360 hours.

Example 3 . A certain investigator Pupkin A.A. secretly from the owner of the apartment entered it without a warrant. The purpose of his penetration was to search for evidence. The investigator was unlucky, because at the moment when he was in the house of the owner of the apartment, V.K. Mikhailov, he unexpectedly came home. The owner of the home immediately called the police and filed a report about trespassing on private property. Mikhailov V.K. filed a statement of claim against investigator Pupkin A.A. The judge granted his claim and punished the investigator with a ban on him engaging in his previous activities, and also imposed a fine on him in the amount of 100 thousand rubles.

Statute of limitations under Art. 139 of the Criminal Code of the Russian Federation

Trespassing onto private property is a minor crime. The statute of limitations for such a crime is 2 years.

Therefore, if an attacker entered a house (apartment), and the owner of the premises decided not to contact the police, but the actions of the criminal are repeated, then the owner has the right to contact the police or the prosecutor’s office and write a statement.

Unfortunately, in Russia as of 2021, legislation only protects housing for illegal entry into private territory.

But there is no penalty for entering another part of the house (for example, into the yard, veranda, etc.).

Home owners need to independently protect their homes from invasion by ill-wishers: put up fences, hire security guards, install an alarm system.

For entering someone else's house, the offender faces Art. 139 of the Criminal Code of the Russian Federation.