Exemption from criminal liability for a crime under Art. 322.3 of the Criminal Code of the Russian Federation
Citizen S.L., having decided to help her friend, filled out and handed over to the MFC employees a notification of the arrival of a foreign citizen. At the same time, she knew that her friend would not stay at the address, since she did not actually intend to provide living space for living.
Until the initiation of a criminal case against S.L., she could not even imagine that she had committed a crime under Art. 322.3 of the Criminal Code of the Russian Federation.
Art. 322.3 of the Criminal Code of the Russian Federation provides for criminal liability for fictitious registration of a foreign citizen or stateless person at the place of stay in the Russian Federation.
During the trial, protection of the interests of the defendant S.L. carried out by lawyer Mysnik N.N.
As a result, the court decided to release S.L. from criminal liability for a crime under Art. 322.3 of the Criminal Code of the Russian Federation, and terminate the criminal case against her on this charge.
The text of the resolution is presented to your attention:
P O S T A N O V L E N I E
September 02, 2021 Khimki Moscow region
Magistrate of the judicial district No. 257 of the Khimki judicial district of the Moscow region Mayorova A.V.,
with:
- Senior Assistant to the Khimki City Prosecutor of the Moscow Region Salikova A.V.,
- defendant S.L.V.,
— with the participation of the translator of the Translation Bureau “TsON” Mikoyan V.S. ID <IMPERSONAL>
- defense lawyer - Mysnik N.N. who presented the certificate <NUMBER>, order <NUMBER> dated <DATE2>,
- under the secretary Dobrynskaya E.A.,
having considered in open court a criminal case in relation to:
S.L.V., <DATE3> of birth, native of <ADDRESS>, citizen <NONPERSONAL> registered and residing at the address: <ADDRESS>.
accused of committing a crime under Art. 322.3 of the Criminal Code of the Russian Federation,
U S T A N O V I L:
S.L.V. made a fictitious registration of a foreign citizen at the place of residence in a residential premises in the Russian Federation under the following circumstances: S.L.V., being a citizen of the Russian Federation, having the intent to fictitiously register foreign citizens at the place of her residence in a residential premises at address: <ADDRESS> having information about the need to register foreign citizens at the place of stay in a residential building in the Russian Federation, in order to comply with the established procedure for registration, movement and choice of place of residence, notify the migration control authorities about his place of stay, understanding that that without this notification his stay on the territory of the Russian Federation is illegal, in violation of clause 7, part 1, art. 2 of Federal Law No. 109-FZ “On migration registration of foreign citizens and stateless persons in the Russian Federation” dated July 18, 2006 (with subsequent amendments and additions), without actually being the receiving party, that is, according to clause 7, part 1, Art. 2 of the above Federal Law, a citizen of the Russian Federation, with whom a foreign citizen actually resides (stays) or carries out labor activities, in fact, without providing a place of residence to the foreign citizen, deliberately, realizing that her actions are illegal, being in the department of an autonomous institution of the city. Khimki, Moscow region "MFC", located at the address: Moscow region, g.o. Khimki, ***, 04/18/2019 carried out, by issuing a notice of arrival of foreign citizens at the place of stay, containing false information, fictitious registration in a residential apartment at the address, namely: <ADDRESS> gr. Republic of Moldova: <IMPERSONAL> At the same time, I personally filled out and handed over to the employees of the MFC, a notification of the arrival of a foreign citizen at the place of stay of the appropriate form established by the Federal Law of July 18, 2006 No. 109-FZ and approved by the Decree of the Government of the Russian Federation of January 15, 2007 No. 9 “On the procedure for carrying out migration registration of foreign citizens and stateless persons of the Russian Federation”, indicating her place of registration where she is permanently registered, knowing for certain that the specified citizen will not stay at this address, since she did not actually intend to provide residential premises for living. By his deliberate actions directly aimed at fictitious registration of foreign citizens at the place of residence in a residential area in the Russian Federation, S.L.V. deprived the possibility of OMV of the Ministry of Internal Affairs of Russia for the city. Khimki, Moscow Region, as well as bodies monitoring the implementation of legislative acts of the Russian Federation, monitor compliance by these citizens with migration registration rules and their movements on the territory of the Russian Federation, that is, S.L.V. committed a crime under Art. 322.3 of the Criminal Code of the Russian Federation.
Defendant S.L.V. guilty of committing a crime under Art. 322.3 of the Criminal Code of the Russian Federation fully admitted and repented of what she had done. At the court hearing, she confirmed the circumstances actually established in the case, set out in the indictment, explained that she had no selfish motives, the registered persons were her acquaintances, she had two dependent minor daughters, and a positive reference from her place of work.
The defendant’s lawyer asked for the termination of the criminal case against S.L.V., on the basis of the note to Art. 322.3 of the Criminal Code of the Russian Federation, asked to take into account mitigating circumstances and the financial situation of the defendant.
S.L.V. supported the position of her lawyer, while indicating that she fully admitted her guilt in what she had done, and explained that she had confessed from the very beginning. She repents of what she did and had no intent to commit a crime.
The state prosecutor objected to the termination of the case, as she believed that there were no grounds for termination.
Having examined the case materials and listened to the opinions of the participants in the court session, the magistrate came to the following conclusion.
According to Note 2 to Article 322.3 of the Criminal Code of the Russian Federation, Note to Art. 322.2 of the Criminal Code of the Russian Federation, a person who has committed crimes under these articles is exempt from criminal liability if he contributed to the disclosure of this crime, and if his actions do not contain another crime.
In accordance with paragraph 16 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated April 29, 1996 No. 1 “On the Judicial Sentence,” it is explained that when circumstances are established at a court hearing that entail the release of a person from criminal liability in cases provided for in the notes to the relevant articles of the Special Part Criminal Code, the case is terminated on the basis of a note to a particular article of the criminal law.
From the case materials it follows that S.L.V. admitted guilt, while she fully realized what she had done and actively cooperated with the investigation. This crime was committed by her for the first time, belongs to the category of minor gravity and does not pose a great danger to society.
It should also be noted that, according to Note 1 to Article 322.3 of the Criminal Code of the Russian Federation, fictitious registration of foreign citizens at the place of stay in residential premises in the Russian Federation means their registration at the place of stay in residential premises without the intention of staying (residing) in these premises or without the intention of the receiving party to provide them with these premises for their stay (residence). And it is possible to find out these intentions only from these persons themselves or from the persons to whom they informed about it. Note 2 to Article 322.3 of the Criminal Code of the Russian Federation, note to Art. 322.2 of the Criminal Code of the Russian Federation does not require active assistance in solving a crime. According to these notes, the basis for exemption from criminal liability under Article 322.3 of the Criminal Code of the Russian Federation, 322.2 of the Criminal Code of the Russian Federation is any contribution to the disclosure of this crime, which was the case in this case. This basis is a mandatory norm, that is, its application is mandatory and does not depend on the discretion of the inquirer, investigator, prosecutor and court. It also does not require taking into account information about the identity of the accused and other circumstances other than those expressly provided for therein. Composition of other crimes in the relevant actions of S.L.V. not contained.
It is also necessary to take into account that in accordance with Part 2 of Art. 75 of the Criminal Code of the Russian Federation, a person who has committed a crime is released from criminal liability only in cases specifically provided for by the relevant articles of the Special Part of the Criminal Code of the Russian Federation.
Within the meaning of paragraph 7 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated June 27, 2013 No. 19 “On the application by courts of legislation regulating the grounds and procedure for exemption from criminal liability”, exemption from criminal liability for a crime of minor or medium gravity in cases specifically provided for by the notes to the relevant articles of the Special parts of the Criminal Code of the Russian Federation, is carried out according to the rules established by such notes. At the same time, the fulfillment of the general conditions provided for in Part 1 of Art. 75 of the Criminal Code of the Russian Federation, not required.
Thus, the basis for termination of criminal prosecution under Art. 322.3 of the Criminal Code of the Russian Federation in relation to a person who contributed to the detection of a crime is part 2 of Art. 28 Code of Criminal Procedure of the Russian Federation.
Guided by Note 2 to Article 322.3 of the Criminal Code of the Russian Federation, the magistrate
DECIDED:
Release S.L.V. from criminal liability for a crime under Article 322.3 of the Criminal Code of the Russian Federation, and terminate the criminal case against her on this charge on the basis of Note 2 to Article 322.3 of the Criminal Code of the Russian Federation, in view of contributing to the disclosure of this crime.
Preventive measure S.L.V. in the form of a written undertaking not to leave the place and proper behavior - cancel after the resolution enters into legal force.
A copy of the decision should be sent to the defendant, defense attorney, and prosecutor.
The resolution can be appealed to the Khimki City Court through a magistrate within 10 days from the date of its proclamation.
Magistrate A.V. Mayorova
Age of criminal responsibility
1. A person who has reached the age of sixteen at the time of committing a crime is subject to criminal liability.
2. Persons who have reached the age of fourteen at the time of committing a crime are subject to criminal liability for murder (Article 105), intentional infliction of grievous bodily harm (Article 111), intentional infliction of moderate harm to health (Article 112), kidnapping (Article 126), rape (Article 131), sexual assault (Article 132), theft (Article 158), robbery (Article 161), robbery (Article 162), extortion (Article 163), unlawful taking of a car or other vehicle without the purpose of theft ( Article 166), intentional destruction or damage to property under aggravating circumstances (Part two of Article 167), terrorist act (Article 205), undergoing training for the purpose of carrying out terrorist activities (Article 205.3), participation in a terrorist community (Part two of Article 205.4), participation in the activities of a terrorist organization (Part two of Article 205.5), failure to report a crime (Article 205.6), hostage taking (Article 206), knowingly false report of an act of terrorism (Article 207), participation in an illegal armed group (Part two of Article 208), hijacking aircraft or water transport or railway rolling stock (Article 211), participation in mass riots (part two of Article 212), aggravated hooliganism (parts two and three of Article 213), vandalism (Article 214), illegal acquisition, transfer, sale , storage, transportation or carrying of explosives or explosive devices (Article 222.1), illegal production of explosives or explosive devices (Article 223.1), theft or extortion of weapons, ammunition, explosives and explosive devices (Article 226), theft or extortion of narcotic drugs or psychotropic substances (Article 229), disabling means of transport or means of communication (Article 267), encroachment on the life of a state or public figure (Article 277), attack on persons or institutions that enjoy international protection (Article 360), an act of international terrorism (Article 361).
3. If a minor has reached the age specified in parts one or two of this article, but due to mental retardation not associated with a mental disorder, during the commission of a socially dangerous act he could not fully understand the actual nature and social danger of his actions (inaction) or manage them, he is not subject to criminal liability.
