Article 139 of the Criminal Code of the Russian Federation with Commentary 2021: latest changes and amendments, judicial practice

ST 139 of the Criminal Code of the Russian Federation.

1. Illegal entry into a home, committed against the will of the person living there, is punishable by a fine in the amount of up to forty thousand rubles or in the amount of the wages or other income of the convicted person for a period of up to three months, or by compulsory labor for a period of up to three hundred sixty hours, or correctional labor for up to one year, or arrest for up to three months.

2. The same act, committed with the use of violence or the threat of its use, is punishable by a fine in the amount of up to two hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to eighteen months, or by correctional labor for a term of up to two years, or forced labor for up to two years, or imprisonment for the same period.

3. Acts provided for in parts one or two of this article, committed by a person using his official position, are punishable by a fine in the amount of one hundred thousand to three hundred thousand rubles or in the amount of the wages or other income of the convicted person for a period of one to two years, or deprivation of the right to hold certain positions or engage in certain activities for a term of two to five years, or forced labor for a term of up to three years, or arrest for a term of up to four months, or imprisonment for a term of up to three years.

Note : Housing in this article, as well as in other articles of this Code, means an individual residential building with its residential and non-residential premises, residential premises, regardless of the form of ownership, included in the housing stock and suitable for permanent or temporary residence, as well as other premises or buildings that are not part of the housing stock, but are intended for temporary residence.

Commentary to Art. 139 Criminal Code

1. The objective side of the crime is characterized by illegal entry into a home, committed against the will of the person living in the latter, i.e. committed in violation of the order established by law by physical (personal) or technical (using special technical means intended for secretly obtaining information) intrusion into a home, either with open disregard for the will of the person living in it, or fraudulently or secretly. The concept of “dwelling” is explained in the notes to the article.

2. Theft, robbery or robbery committed with illegal entry into a home (clause "a" part 3 of article 158, clause "c" part 2 of article 161, part 3 of article 162 of the Criminal Code) are qualified according to corresponding articles of Ch. 21 of the Criminal Code and qualifications in conjunction with Art. 139 of the Criminal Code is not required. However, illegal entry into a home associated with the commission of other crimes (for example, murder, rape) is classified together with such crimes.

3. The crime is considered completed from the moment of gaining access or actual access to the premises, regardless of the duration of such access.

4. The qualified corpus delicti (Part 2) provides for liability for committing an act with the use of violence or the threat of its use. The commented article covers the threat of violence of any degree of severity, as well as violence consisting of beatings or resulting in the intentional infliction of minor harm to health.

Four scenarios

If the plot belongs to local government or SNT, you must provide an application for the allocation of this land plot for personal use to the applicant.
In the case where the plot belongs to the state, you will need to take part in the auction and, accordingly, emerge as the winner. The auction provides the potential to increase land area and formalize the squatting of public areas quickly and inexpensively. The cost per square meter in this case will be 15% of the cadastral valuation.
Perhaps the land already has an owner and in this situation there is only one way out - to enter into negotiations and insist on the alienation of property rights. In simple words - persuade them to sell and do it as cheaply as possible.
Another option is that the land is ownerless, which means it has no owner. Then you need to contact local authorities with an application for registering the land with cadastral registration. But this procedure is quite long, since after registration in the cadastre the plot will become the property of the municipality in a year. And only after a year can you become a contender for the right to use the land.

Second commentary to Art. 139 of the Criminal Code of the Russian Federation

1. The object of the crime is the constitutional right to the inviolability of the home (Article 25 of the Constitution of the Russian Federation), according to which no one has the right to enter a home against the will of the persons living in it except in cases established by federal law, or on the basis of a court decision.

2. The objective side of this crime is formed by actions expressed in illegal entry into a home (see the note to this article of the Criminal Code), committed against the will of the person living in it.

Any invasion in violation of what is specified in Art. 25 of the Constitution of the Russian Federation on the procedure for entering a home against the will of the persons living in it. So, for example, a search of a home can be carried out (according to the Constitution of the Russian Federation and criminal procedural legislation) only on the basis of an investigator’s order or a court decision. The conditions for limiting the inviolability of citizens’ homes are established in the Federal Law of the Russian Federation dated 02/07/2011 No. 3-FZ “On Police”, in the Law of the Russian Federation “On Operational-Investigative Activities”, and in other federal laws of the Russian Federation. Violation of these conditions makes these actions illegal.

3. Part 2 art. 139 of the Criminal Code provides for liability for violation of the inviolability of the home, committed with the use of violence or the threat of its use. Physical violence refers to the intentional infliction of minor harm to health, beatings or other violent actions (for example, tying up the victim). Causing death to the victim or serious or moderate harm to his health requires qualification in the aggregate.

4. The subject of crimes provided for in Parts 1 and 2 of Art. 139 of the Criminal Code, there can be any person who has reached the age of 16 years, and as provided for in Part 3 of Art. 139 of the Criminal Code, is a special subject, i.e. a civil servant, official or person performing managerial functions in a commercial or other organization.

5. The subjective side of the crime provided for in Art. 139 of the Criminal Code, is characterized by direct intent.

Fines

Illegal land users are subject to administrative liability - fines. The amount of the fine depends on whether the plot is registered in the cadastral register and whether the cadastral value of this land plot has been determined.

If there is one, then according to Article 7.1 of the Code of Administrative Offenses of the Russian Federation, the amount of fines will be:

for civilians - 1-1.5% of the cadastral value, but not less than 5 thousand rubles;
officials - 1-1.5% of the cadastral valuation, but not less than 20 thousand rubles;
legal entities - 2–3%; the minimum fine is not less than 100 thousand rubles.

In cases where the cadastral value is not determined, the fines will be:

for civilians from 5 to 10 thousand rubles;
officials from 20 to 50 thousand rubles;
for legal entities from 100 to 200 thousand rubles.

But the law is not intended only to punish for the use of someone else’s land; in some cases, squatting can be legalized. To do this you need to do the following:

Find the copyright holder of the site.
Carry out the land surveying procedure and establish the boundaries of the land plot in a new manner; obtain a cadastral passport.
Based on the collected package of documents, register ownership.

It is not difficult to identify the owner of the land; to do this, you need to make a request to Rosreestr or to the architectural/land department of self-government bodies. These organizations are required to provide an official response, which will collect the necessary information about the copyright holder of the site.

Violation of the inviolability of the home (Article 139)

The Constitution of the Russian Federation (Article 25) determines that housing is inviolable. No one has the right to enter a home against the will of the persons living there, except in cases established by federal law, or on the basis of a court decision made in accordance with it.

Object of the crime:

generic – social relations in the field of personal protection;
specific - social relations in the sphere of protection of constitutional rights and freedoms of man and citizen;
direct - guaranteed art. 25 of the Constitution of the Russian Federation, the human right to the inviolability of home; social relations arising in connection with the implementation of this constitutional right;
direct additional - social relations ensuring the safety of life and health of the victim (in qualified crimes - part 2 of article 139 of the Criminal Code of the Russian Federation).

The subject of the crime is housing, which is understood as an individual residential building with residential and non-residential premises included in it, residential premises, regardless of the form of ownership, included in the housing stock and suitable for permanent or temporary residence, as well as other premises or buildings not included in the residential premises fund, but intended for temporary residence. Dwellings do not include outbuildings, cellars, barns, garages and other premises separated from residential buildings and not used for human habitation. A train compartment or a ship's cabin cannot be classified as a dwelling, even a temporary one, since a train and a ship are vehicles.

Victim : as persons entitled to use or ownership of the occupied residential premises as a place of residence or place of stay, which is confirmed by title documents (lease, lease, sublease, sublease, warrant, certificate of ownership, etc.) or officials, as well as title holders, and persons moved into residential premises (including temporarily) at the will of those living in it on a legal basis. All of these persons can be considered victims of this crime. These should also include persons who were legally in the home and to whom violence or the threat of violence was used when entering the home.

The objective side is characterized by an active form of behavior in the form of illegal entry into a home against the will of the person living in it.

The method of entry into the home does not matter to qualify the main elements of the crime in question. It can be open or secret, committed in the presence of persons living there or other people in the home, or in their absence, and include both direct entry of a person into the home and control of the home from the inside using special technical means.

At the same time, the use of deception and abuse of trust to enter a home does not form the crime under consideration, since in these cases a person enters a home at the will of the person living in it, although he was misled regarding certain circumstances.

The subjective side is characterized by guilt in the form of direct intent. The perpetrator realizes that he is illegally entering a home without the consent of the persons living there, and wants to commit this entry. In a qualified personnel, in addition, the person is aware that his entry is associated with the use of violence or the threat of its use, or that illegal entry into the home is carried out using his official position, and wants to carry out these actions.

The general subject of the crime is a sane individual who has reached the age of 16, and the special subject of the crime provided for in Part 3 of this article is a person who uses his official position to enter a home.

The corpus delicti is formal, the crime is completed from the moment of penetration into the home.

The qualified elements of the crime in question (Part 2 of Article 139 of the Criminal Code of the Russian Federation) provide as its mandatory feature a method of illegal entry into a home - the use of violence or the threat of its use.

Particularly qualified offense - committed by a person using his official position.

Violence is understood as physical influence on the victim, expressed in the suppression and elimination of his resistance, striking, beating, and deliberately causing minor harm to health.

The threat of violence is understood as a mental impact on the victim, expressed in a demonstration of readiness to inflict blows, beatings, or intentionally cause harm to health.

Causing serious or moderate harm to the health of the victim when entering a residential premises is classified as a combination of crimes with crimes against health (Article 111 or 112 of the Criminal Code of the Russian Federation). Threat of murder or causing grievous harm to health (Article 119 of the Criminal Code of the Russian Federation), i.e. e. the threat of violence is covered by the crime under consideration and does not require additional qualifications.

Legal violation of the inviolability of the home

Violation of the inviolability of a home, although against the will of the person living in it, but based on the provisions of the Law “On the Police”, the norms of the Code of Criminal Procedure of the Russian Federation, the Federal Law “On Operational-Investigative Activities”, etc. does not form the crime under consideration. Thus, the use of the right to unhindered entry into it and its inspection when pursuing persons suspected of committing crimes, or if there are sufficient grounds to believe that a crime has been committed or is being committed, or an accident has occurred, does not constitute a violation of the inviolability of a home.

It is not a violation of the inviolability of a home to carry out operational search activities involving entry into it with the consent of at least one of the persons living in it or in their absence, but with the permission and in the presence of the administration of a hotel, sanatorium, holiday home, boarding house, camping, tourist base, other similar institution, if such activities are not related to the search, inspection of things, property belonging to persons permanently or temporarily residing in them, and provided that entry into the premises in their absence by representatives of the administration is provided for by the rules of stay (residence, internal regulations ) or the terms of the contract (cleaning the premises, repairing plumbing equipment, etc.).

If penetration into a home is a method of committing another crime and is its qualifying feature, for example, theft, robbery, robbery (Articles 158, 161, 162 of the Criminal Code of the Russian Federation), then such an act does not form a set of elements of a crime and additional qualifications under Art. 139 of the Criminal Code of the Russian Federation does not require it.