Some problems of the application of norms establishing liability for fictitious registration and fictitious registration of foreign citizens and stateless persons

Laikova Elena Aleksandrovna 664009, Russia, Ul. yadrintseva 29/9-22 oblast', g. Irkutsk, ul. Yadrintseva, 29/9, kv. 22 elena-lajkova@yandex.ru

Rogova Evgeniya Viktorovna Doctor of Law 664009, Russia, Irkutskaya oblast', g. Irkutsk, ul. Mik-N krylatvi, 24, kv. 20 rev-80@yandex.ru

The appearance in the criminal legislation of Russia of norms establishing criminal liability for crimes in the field of registration and migration registration certainly raises questions of their correct qualification, as well as their differentiation from related crimes, as well as qualification in combination with other crimes. Attention should also be paid to the blank nature of the criminal law norms under consideration, which determines the law enforcement officer's appeal to the legislation regulating the rules of registration, as well as the rules of migration registration of foreign citizens of the countries.

The analysis of judicial and investigative practice has revealed a number of problems faced by law enforcement agencies in the qualification of crimes under Articles 3222 and 3223 of the Criminal Code of the Russian Federation. Among them, it should be noted such as the qualification of several facts of the commission of a crime as a single ongoing or a set of crimes, their differentiation among themselves, with related elements of crimes, etc.

The first of the questions raised concerns the qualification of several episodes of crimes provided for in Articles 3222 and 3223 of the Criminal Code of the Russian Federation as a single ongoing crime or as a set of crimes. Thus, the study showed that sometimes acts that are similar in their characteristics receive a different assessment from the judicial and investigative authorities.

So, Ms. O. was convicted by the court for committing a single crime under Article 3223 of the Criminal Code of the Russian Federation. On different days from January 12 to July 5, 2013, gr. O. fictitiously registered eleven foreign citizens at the place of residence. At the same time, she had no intention of providing them with living quarters. The court, applying the provisions of Article 64 of the Criminal Code of the Russian Federation, imposed a fine^[1]. Let's consider the opposite case of Mr. G. on different days in the period from December 8, 2015 to May 16, 2016, he fictitiously (fictitiously) registered three foreign citizens at the place of residence. The court qualified the defendant's action according to the totality of three crimes, namely under Article 3223 of the Criminal Code of the Russian Federation, Article 3223 of the Criminal Code of the Russian Federation, Article 3223 of the Criminal Code of the Russian Federation, since, as the court established, he committed three facts of such registration of a foreign citizen at the place of residence in the Russian Federation, and sentenced him for each crime in the form of a fine in the amount of 100 thousand rubles^[2]. In the first example, when convicting Mr. O. for fictitious registration of ten foreign citizens, the court limited itself to indicating in the verdict only "the execution of criminal intent aimed at extracting profit from foreign citizens." From this, it can be remotely concluded that the convict has a single criminal intent and a single criminal goal, consisting in making a profit, which are signs of a single ongoing crime. In the second sentence, given in relation to gr. G., each fact of committing illegal actions is described separately, the court concludes that there is a set of crimes in his actions, since it was not established and recorded in the sentence the presence of a single intent, a common goal, which the offender sought to achieve.

Thus, a single ongoing crime can be seen in the actions of a person if there are certain signs. These signs include a number of identical actions carried out with a short period of time, a common goal, and the presence of a single intent. In this regard, N. G. Kadnikov and G. S. Shkabin express the point of view that the intention to commit these crimes is broken when committing a socially dangerous act against different persons. Consequently, the commission of acts against two or more persons, even if united by a single intent, constitutes a multiplicity of crimes^[3].

At the same time, it seems that in each specific case it is necessary to resolve the issue of the existence of a single ongoing crime or a set of crimes, depending on the circumstances of the committed act, the presence of a single intent and a single goal.

Turning to the consideration of the issues of qualification according to the totality of the studied crimes with other illegal acts, it should be said that the totality of crimes is a very common phenomenon. In each specific case, during the qualification of the committed act, it is important to determine the presence of legal signs of totality, to separate from other forms of multiplicity of crimes and from complex single crimes.

As the conducted research has shown, the crimes in question can be committed in conjunction with such crimes as the illegal issuance of a passport of a citizen of the Russian Federation, as well as the introduction of deliberately false information into documents that entailed the illegal acquisition of citizenship of the Russian Federation (Article 2921 of the Criminal Code of the Russian Federation), the introduction by an official, as well as a civil servant or municipal employee who is not by an official, in official documents knowingly false information (Article 292 of the Criminal Code of the Russian Federation), forgery, manufacture, sale of forged documents, state awards, stamps and seals (Article 327 of the Criminal Code of the Russian Federation).

For example, in the period from 01.10.2019 to 12.10.2019, Mr. Sidorova S.A., who is an official, asked Mr. K. to register his acquaintance Mr. M., at the place of stay, realizing that he would never live in this locality, promising at the same time a monetary reward. Ms. Sidorova S.A., having produced a forged application document in form No. 1, after which, she registered a citizen of the Russian Federation at the place of residence, without the consent of the owner of the residential premises^[5]. The act provided for in Article 327 of the Criminal Code of the Russian Federation may accompany the commission of the crimes in question. At the same time, there is an opinion according to which, as a set of Articles 3222 of the Criminal Code of the Russian Federation and Part 3 of Article 327 of the Criminal Code of the Russian Federation, registration (accounting) performed using a forged official document granting rights or relieving of duties should be qualified^[6]. This position is reflected in judicial practice.

Citizen D., in order to enroll his minor child in the first grade, met an unidentified person on the Internet to purchase a forged certificate of registration at the place of stay for the purpose of its subsequent use. Illegal actions of a citizen D. to acquire another official document were qualified only under Part 3 of Article 327 of the Criminal Code of the Russian Federation^[7].

However, there is a fairly well-founded opinion according to which, when using a forged document for the purpose of committing a crime, there is no totality in the actions of a person. R. A. Sabitov and E. Y. Sabitova write the following: "The use of ... a deliberately forged document is a kind of deception. Therefore, in cases where deception is a way of committing a certain crime and a sign of the composition, the use of a forged document does not require additional qualification under Part 3 of Article 327 of the Criminal Code of the Russian Federation^[8]. If the guilty persons provided a forged official document made by another person to the registration authority, then the deed is covered by the composition of Art. 3222 or 3223 of the Criminal Code of the Russian Federation and does not require additional qualification under art. 327 of the Criminal Code of the Russian Federation"^[9]. And if a person has produced a fake document himself, then his actions must be qualified under Part 3 of Article 327 of the Criminal Code of the Russian Federation.

Thus, agreeing with the second point of view, we note that the use of a forged document in order to carry out imaginary registration and accounting is a way of committing these crimes and does not require additional qualification according to the rules of qualification of crimes when the method is part of their objective side^[10]. Analysis of the legal regulations contained in the Law of the Russian Federation "On the Right of Citizens of the Russian Federation to freedom of movement, choice of place of stay and residence within the Russian Federation"^[11] and in a note to Article. 3223 of the Criminal Code of the Russian Federation, revealing the concept of fictitious registration and fictitious registration, forming the objective side of the incriminated compounds, allowed us to conclude that the acts in question can be performed by both a general subject and a special subject. A special entity is recognized in the part in which authorized persons make a decision on registration or migration registration, and a general one – in the part where it provides forged documents on the basis of which registration and migration registration are carried out.

Therefore, the provision of forged documents by a common entity covers the use of a forged document and does not require its additional qualification. In terms of the action of a special subject, the use of forged documents is not carried out by him. Consequently, the commission of actions by him that form the objective side of the composition in question is not connected with the use of a forged document. This is the specificity of the implementation of the objective side of these compositions by different subjects and the lack of grounds for additional qualification under Part 3 of Article 327 of the Criminal Code of the Russian Federation. Additional qualification under Article 327 of the Criminal Code of the Russian Federation is required only if the person produced the official document himself. In this situation, qualification is necessary according to the totality of crimes provided for in Part 1 of Article 327 of the Criminal Code of the Russian Federation and, depending on the circumstances of a particular case, Article 3222 of the Criminal Code of the Russian Federation or Article 3223 of the Criminal Code of the Russian Federation.

Next, let's pay attention to the cases of qualification of the considered compounds in conjunction with the crime provided for in Article 285 of the Criminal Code of the Russian Federation.

So, gr. S., being an official, was found guilty for a monetary reward of carrying out fictitious registration of two foreign citizens, as well as registration of a Russian citizen, knowing for sure that these citizens would not stay at this address.

The court qualified her actions under Article 3223, Part 1 of Article 290, part 1 of Article 285 of the Criminal Code of the Russian Federation^[12]. An analysis of the prescriptions contained in Articles 285 of the Criminal Code of the Russian Federation and Articles 3222 and 3223 of the Criminal Code of the Russian Federation allows us to conclude that the crimes in question contain a special type of abuse of official authority, which is expressed in the performance by a special subject of actions aimed at fictitious registration and fictitious registration. In other words, Articles 3222 and 3223 of the Criminal Code of the Russian Federation are special in relation to Article 285 of the Criminal Code of the Russian Federation, and according to the rules of Part 3 of Article 17 of the Criminal Code, qualification is carried out according to a special norm. In our case, according to Articles 3222 and 3223 of the Criminal Code of the Russian Federation, depending on the circumstances of the case. Based on this, we believe that in the above case, Article 285 of the Criminal Code of the Russian Federation was unnecessarily imputed.

In judicial and investigative practice, there are cases when two or more persons involved in the commission of the crimes in question are brought to criminal responsibility. However, such cases are quite rare. At the same time, interviewing migration service employees revealed that there are often intermediaries between migrants and those who register or register them. These intermediaries help them find those people who will fictitiously register or register them. At the same time, they remain outside the legal framework, and only in some cases are brought to criminal responsibility as intermediaries.

For example, gr. I. offered gr. B. for a monetary reward to fictitiously register them at the place of stay in the apartment at the place of their registration of foreign citizens, while it was stipulated that these persons would not live in the apartment. Persuading by persuasion and bribery to commit a crime, gr. I. promised gr. B a monetary reward. Then, acting jointly and in concert, by a group of persons by prior agreement, according to the agreed conditions, during the daytime, Mr. I. and Mr. B. met with an unidentified person in the room, after processing all documents, Mr. B. carried out registration of foreign citizens at the place of stay. For what she did, Ms. I. was convicted under Part 4 of Article 33 of the Criminal Code of the Russian Federation, Article 3223 of the Criminal Code of the Russian Federation^[13].

Taking into account the above, it should be noted that when qualifying crimes against the registration and migration registration procedure, it is necessary to give a correct assessment of fictitious registration (registration) several persons as a single ongoing crime or a combination, taking into account the specific circumstances of the committed act, the presence of a single intent and a single purpose of the person guilty of committing the crime. They are distinguished from related crimes by the direct object, the signs of the objective side and the signs of the subject. When committing the crimes in question by officials, state or municipal employees, their qualification is also possible in combination with other elements of crimes if there are appropriate signs of such elements of crimes, such as, for example, forgery, petty bribery, etc.