Criminal Code of the Russian Federation in the latest edition:
Article 322.3 of the Criminal Code of the Russian Federation. Fictitious registration of a foreign citizen or stateless person at the place of stay in the Russian Federation
Fictitious registration of a foreign citizen or stateless person at the place of stay in the Russian Federation -
shall be punishable by a fine in the amount of one hundred thousand to five hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to three years, or by forced labor for a period of up to three years, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years, or without it, or imprisonment for a term of up to three years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years, or without it.
Notes. 1. Fictitious registration of foreign citizens or stateless persons at the place of stay in the Russian Federation means their registration at the place of stay in the Russian Federation on the basis of the submission of knowingly unreliable (false) information or documents, or the registration of foreign citizens or stateless persons registration at the place of stay in the Russian Federation in premises without their intention to actually reside (stay) in this premises or without the intention of the receiving party to provide them with this premises for actual residence (stay), or registration of foreign citizens or stateless persons at the place of stay at the address of the organization in which they do not, in accordance with the established procedure, carry out labor or other activities not prohibited by the legislation of the Russian Federation.
2. A person who has committed a crime under this article is exempt from criminal liability if he contributed to the disclosure of this crime and if his actions do not contain another crime.
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Comments on Article 322.3 of the Criminal Code of the Russian Federation
The social danger of the crime is that it violates the procedure for migration registration of foreign citizens or stateless persons, the regime of legal stay at the place of their stay in residential premises in the Russian Federation.
Most of the elements of a crime under Art. 322.3 of the Criminal Code of the Russian Federation, coincide with the corresponding features of the composition provided for in Art. 322.2 of the Criminal Code of the Russian Federation.
The object of the crime is the established procedure for carrying out migration registration of foreign citizens and stateless persons in the Russian Federation. Such accounting is one of the forms of state regulation of migration processes.
Registration of a foreign citizen at the place of stay is the recording in the prescribed manner by migration registration authorities of information about the presence of a foreign citizen at the place of stay.
The basis for registration at the place of residence is the temporary actual presence of a foreign citizen in a place that is not his place of residence, or the specified foreign citizen does not have a place of residence.
The objective side of the crime is the fictitious registration of these citizens at their place of residence in a residential building in the Russian Federation. A detailed description of this act is contained in paragraph 1 of the note to Article 322.3 of the Criminal Code of the Russian Federation, which states that fictitious registration of foreign citizens or stateless persons at the place of stay in the Russian Federation means their registration at the place of stay in the Russian Federation:
- a) based on the submission of knowingly unreliable (false) information or documents;
- b) without their intention to actually reside (stay) in this premises;
- c) without the intention of the receiving party to provide them with this premises for actual residence (stay);
- d) at the address of the organization in which they do not, in accordance with the established procedure, carry out labor or other activities not prohibited by the legislation of the Russian Federation.
All four of the above forms indicate misleading of an official of the territorial body of the Ministry of Internal Affairs of Russia (migration registration authorities) by persons participating in the commission of the act, i.e. it's about deception. Deception consists of deliberately communicating false information that does not correspond to reality, or keeping silent about true facts, or deliberate actions aimed at misleading people.
The crime has a formal composition. “Acts provided for in Article 322.3 of the Criminal Code of the Russian Federation are qualified as completed crimes from the moment the migration registration authorities record these facts” (clause 13 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 07/09/2020 N 18 “On judicial practice in cases of illegal crossing of the State Border of the Russian Federation and crimes related to illegal migration").
Fictitious registration of two or more persons
If the single intention of the guilty person included the registration at the same place of stay of two or more foreign citizens or stateless persons at the same time, what he did constitutes one crime provided for in Article 322.3 of the Criminal Code of the Russian Federation (clause 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 09.07 .2020 N 18).
The subjective side is characterized by direct intent. The person is aware that he is making a fictitious registration and wants to do it. There will be no corpus delicti, for example, in cases where a person was inattentive when working with documents or made technical errors.
“Taking into account that the crimes provided for in Articles 322.2 and 322.3 of the Criminal Code of the Russian Federation can only be committed with direct intent, the employee of the registration (migration) registration authority who registered (registered) a citizen of the Russian Federation, a foreign citizen or a stateless person shall bear criminal liability for the committed act in the event that he realized the unreliability (falsity) of the information or documents submitted for registration or registration or the presence of other circumstances preventing registration (registration)” (clause 14 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 09.07 .2020 N 18).
The subject of the crime is an official of the migration registration authority who has the right to register foreign citizens and stateless persons at the place of their stay in residential premises in the Russian Federation.
“The owner or tenant of the relevant residential premises, a person authorized by them, a manager or other authorized employee (member) of an organization in which a foreign citizen or stateless person does not, in accordance with the established procedure, carry out labor or other activities not prohibited by the legislation of the Russian Federation, or other persons acting on their behalf, may be subjects of a crime provided for in Article 322.2 or Article 322.3 of the Criminal Code of the Russian Federation, if they submitted knowingly unreliable (false) information or documents to the registration (migration) authorities for registration (registration), or when submitting information or documents they were aware the presence of other circumstances that impede registration (registration)” (clause 14 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 07/09/2020 No. 18).
Who needs registration and why?
A foreigner may have several legal grounds for staying on the soil of our state for a long time:
- if he received permanent citizenship and became a full citizen of the Russian Federation;
- when temporary registration has been issued for him in connection with obtaining a residence permit;
- if temporary registration was received in connection with a temporary residence permit;
- registered with migration authorities.
In this case, it is necessary to distinguish between the concepts of “registration” and “registration”. The latter is necessary for all citizens of the Russian Federation and requires that the person be registered in the residential premises.
Registration does not require registration in a residential premises; it is enough to inform the relevant authorities to make a note in which place a guest from another state will be registered and receive a special coupon. When registering, a migrant does not bear the burden of utility bills, but also does not have any legal rights to the premises in which he is registered.
An important point is also that when registering a person, government authorities know where to look for him in order to fulfill his obligations and fulfill obligations to him.
When registering, responsibility for the item placed lies with the person in whose premises it is registered. It is the one who owns the premises who will, if necessary, answer to the law where the foreign citizen is located.
Paragraph 2 of the note to Article 322.3 of the Criminal Code of the Russian Federation
Paragraph 2 of the note to Article 322.3 of the Criminal Code of the Russian Federation, as well as the note to Article 322.2 of the Criminal Code of the Russian Federation, provides for the possibility of exemption from criminal liability of a person who fictitiously registered a foreign citizen or a stateless person if he contributed to the disclosure of this crime and there is no other element in his actions crimes.
“ In the note to Article 322.2 of the Criminal Code of the Russian Federation and in paragraph 2 of the notes to Article 322.3 of the Criminal Code of the Russian Federation, one should understand the actions of a person committed both before the initiation of a criminal case and after the institution of a criminal case against a specific person or upon the commission of a crime and aimed at assisting the preliminary investigation authorities in establishing the time, place, method and other circumstances of the commission of the crime, the participation of the person himself in it, as well as in exposing accomplices to the crime. The question of the presence or absence of grounds for releasing a person from criminal liability in accordance with the note to Article 322.2 of the Criminal Code of the Russian Federation or paragraph 2 of the notes to Article 322.3 of the Criminal Code of the Russian Federation in each criminal case is decided by the court depending on the nature, content and scope of the actions committed by the person, and also their significance for establishing the circumstances of the crime and exposing the persons who committed it, with the reasons for the decision being given in the court decision” (clause 17 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 07/09/2020 N 18).
The release of a person from criminal liability for committing a crime under Article 322.2 or Article 322.3 of the Criminal Code of the Russian Federation, on the basis of notes to these articles, does not prevent the prosecution of this person for other illegal actions committed by him, if they are subject to independent qualification (for example, for organizing illegal migration, falsification of a citizen’s passport for the purpose of using it).
What is the essence of the crime and how is it detected?
In a note to Article 323 of the Criminal Code, the legislator explained what is considered fictitious registration of subjects not with Russian citizenship. This is a situation when foreigners are registered at their place of residence (stay), although they do not live there and do not intend to stay there. Or the registration was carried out as a result of the fact that false information was provided.
The crime is that conditions were created for registering a person with foreign citizenship at a time when such registration had no legal basis.
The criminal act punishable under Article 323.3 can be detected in various ways:
- A visiting commission was held to check whether the stay of individual citizens on Russian territory was legal.
- Special authorities received an appeal from citizens concerned about the presence of foreigners in apartments and houses, whose permanent place of residence is unknown.
- The interacting authorities received information about the illegal stay of subjects with foreign citizenship on the territory of the Russian Federation.
As a result, law enforcement agencies begin a detailed verification of the information received.
During this check, the investigator:
- Conducts checks against existing relevant databases.
- Interviews foreign citizens who are suspected of being in the country illegally. It is mandatory to draw up a written protocol indicating where, when and by whom the survey was conducted.
- In the territorial migration registration authorities of foreign subjects, he conducts an inspection and seizes documents that prove that the subject has been registered for migration.
- Inspects the place that is named as the place of residence of a foreign citizen to determine whether there are conditions for his residence there (availability of space, sleeping places, etc.).
- Finds out who owns the residential premises and on what basis.
All data is recorded in a general file. Based on the information received, the investigator draws a conclusion about the elements of the crime and the need to initiate a criminal case in order for the court to pronounce an appropriate sentence.
Who is being punished?
The comments to the article in question provide an answer to the question often asked on forums: “Who is the subject of the crime when registering fictitiously?” The question is quite legitimate, because in this situation there are three actors: a foreigner, a Russian citizen and an official. Law enforcement agencies must find out who is to blame. Jurisdiction of the crime under Art. 322.3 applies to investigators.
It turns out that during fictitious registration, three subjects are involved in the crime:
- who is registered;
- who registers (migration service, migration registration authorities);
- with the help of whom they register (who provided the premises).
If the crime is proven, the guilt of these subjects is not considered the same and the punishment will be different.
An entity that is fictitiously registered on the territory of the Russian Federation is punished in accordance with Article 18 of the Administrative Code. Jurisdiction under this article is the consideration of the case by a magistrate. He faces only administrative punishment and deportation from the country.
In other cases, criminal liability occurs in accordance with Art. 322 approx. 3 of the Criminal Code of the Russian Federation. It should be remembered that officials are not always prosecuted under this article.
It all depends on:
- whether the crime was committed intentionally or out of ignorance of all the circumstances;
- whether this was criminal connivance or whether the law enforcement officer was misinformed.
As a rule, in most cases, indictments against officials in this case are rarely issued.
Most often, the punishment is directed towards the one who provided his premises for registering a foreigner. In this case, fictitious registration of a foreigner for migration by someone is punishable in accordance with the Criminal Code.
An acquittal is very rarely given, since by such an act the subject acts against the interests of his country and its citizens. The jurisdiction of this case is already district courts and higher.
Court and case. Blog of lawyer Irina Krasnova
Our respected police have such a concept - running crimes. These are some crimes of minor gravity and low social danger that are committed in society en masse. Since ordinary people sometimes don’t even understand that by their actions they are committing something criminally punishable, and if they do understand, then they commit a crime at random, in order to avoid bureaucratic hell or just make a little money, our respected police successfully cut down on these cases “sticks”, which allows them to continue to engage in fraud and write joyful reports to their superiors. The bully still needs to be caught, but here the prey goes into his hands and at the same time selflessly repents and admits everything.
At one time, the popular article was 200 of the Criminal Code of the Russian Federation, which provided for criminal liability for deceiving consumers. The hunt by employees, then still police, for trade workers was carried out on a huge scale, using operational ingenuity, that is, with obvious deception and setups of poor saleswomen by the police themselves. But this is already in the past, since Art. 200 of the Criminal Code of the Russian Federation was repealed many years ago. And thank God!
Then Article 327 Part 3 of the Criminal Code of the Russian Federation came into fashion - that is, the use of a deliberately forged document. This fashion existed until the end of the 10s and mainly foreigners suffered from it. Since it was practically impossible for a foreigner to obtain registration and a work permit through official means, they en masse used various counterfeits, which were almost openly sold on every corner. Moreover, no one was going to catch the sellers, since their existence suited everyone. And the police, because the counterfeiters indirectly contributed to the implementation of the plan, and the foreigners themselves, since they could not be legalized legally. The police officers themselves supplied foreigners with counterfeits, and then caught them... Well, this is completely beyond good and evil.
Now, this problem is mostly a thing of the past. It has become much easier to obtain the necessary documents, prosecutors no longer give their consent to initiate such cases en masse, and the plan of the now police began to burn with a blue flame.
But, at the beginning of 2013, such a norm as Art. 322.2 and 322.3 of the Criminal Code of the Russian Federation, which reads as: “Fictitious registration of a citizen of the Russian Federation at the place of stay or at the place of residence in a residential premises in the Russian Federation and fictitious registration of a foreign citizen or stateless person at the place of residence in a residential premises in the Russian Federation” and, accordingly, “Fictitious registration of a foreign citizen or stateless person at the place of stay in a residential premises in the Russian Federation.”
Article 322.2 of the Criminal Code of the Russian Federation has not gained popularity in the internal affairs bodies. The reasons for this may vary, but that is not the point.
I wanted to consider here the composition and practice of application of Art. 322.3 of the Criminal Code of the Russian Federation, to put it simply, is a fictitious registration at the place of residence of a foreigner or stateless person, since the initiation of such criminal cases has become widespread.
With the introduction of Federal Law No. 109-FZ of July 18, 2006 “On Migration Registration of Foreign Citizens and Stateless Persons in the Russian Federation,” registration of foreigners - citizens of countries with which a visa-free regime has been established, acquired a notification nature. That is, any Russian (host party), to whom foreigners - citizens of countries with which a visa-free regime has been established, came for various needs, without asking anyone for permission, with his passport and passports of foreigners, must come to the Federal Migration Service and submit to the official FMS forms for “notifications of the arrival of a foreign citizen and stateless person at the place of stay.” These forms can also be sent to the FMS by mail, by registered mail. The detachable part of the notification form with the stamp of the Federal Migration Service or post office is returned to the applicant and is the basis for the foreigner to legally reside in the territory of the Russian Federation for as long as 90 days. At the same time, no one will check the actual state of affairs and the very possibility of foreigners living at your address at the time of registration at the place of residence (let’s further call this registration).
The consequences of this administrative procedure for the receiving party is that foreigners must reside at the place of registration, otherwise its entire meaning is lost. Well, if immediately after the Federal Migration Service, without even stopping by your home, happy foreigners went to hang out at nearby construction sites, this will be regarded as fictitious registration of a foreigner at the place of stay, that is, as a crime under Art. 322.3 of the Criminal Code of the Russian Federation.
After the introduction of Law 109, our citizens, for various reasons, began to register anyone at home and be held criminally liable for this. Of course, I would like to urge those who have not yet managed to reach the Federal Migration Service with such goals not to do this, and to give those who have already done this some advice on how not to face a significant fine.
- The norm prescribed in Article 322.3 of the Criminal Code of the Russian Federation, which reads “A person who has committed a crime under this article is exempt from criminal liability if he contributed to the disclosure of this crime and if his actions do not contain another corpus delicti” - this is most likely not about you . This is interpreted that the person in advance, before the facts of criminal activity were revealed, reported foreigners fictitiously registered with him and submitted an application to remove them from the registration register. So, if it's not too late, do it. Of course, no one will deregister foreigners. The FMS inspector simply cannot do this without a court decision. Such is the legal-bureaucratic paradox. But write a statement - it will save you. Naturally, you should have a second copy of this application in your hands with a mark indicating its acceptance.
- The first thing you should do when the local police officer begins to be interested in registered foreigners is to refuse to give explanations and not give your consent to inspect your apartment. This means not just sending the police officer to hell, but documenting these refusals. At the same time, remain tactful with him. So that he doesn’t tell you about the “movement of the planets”, don’t listen to him and stand your ground. Listen to me.
Most likely, he will leave you behind, because in order to get permission to inspect your home, he needs to go to court. It is likely that he will find another victim.
- Most likely, the cunning district police officer has prepared for the meeting with you and has already interviewed your neighbors or even members of your family, and none of them have seen any foreigners.
Remember that everything that is said and recorded before the initiation of a criminal case has no procedural significance. The testimony of your neighbors cannot be sufficiently reliable in this case, since they do not live with you and cannot keep track of everyone who comes to you. Well, with your relatives, resolve the issue so that when they are interrogated, they say that there were “Some foreigners. We slept on the floor, on our own mattresses, I don’t remember anything else.”
- If you still have the contacts of the foreigners themselves, you don’t need to ask them to come to the police and say that they lived with you. The police will most likely “split” them and this will no longer be a killable argument on the part of the prosecution. The police themselves will look sluggishly for foreigners. Unless they accidentally trip over them somewhere.
- You are not obliged to chain registered foreigners, and if you were nevertheless examined by court order and no extra beds were found, give similar testimony to your family members.
- If your struggle begins to become protracted, enter into an agreement with a lawyer you trust, since I have run out of universal advice. Then everything will depend on the specific case and even on the specific law enforcement agency. Good luck to you. Then I’ll tell you about Art. 322.1 of the Criminal Code of the Russian Federation. The composition is very interesting.
The essay does not constitute legal advice.
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