Commentary to article 145. Violation of the inviolability of the home of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. Illegal entry into a dwelling against the will of a person living in it —      

is punishable by a fine in the amount of two hundred to five hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of up to one month, or by community service for a period of one hundred and twenty to one hundred and eighty 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 with the threat of its use, or by a group of persons, or at night, or accompanied by an illegal search, as well as illegal eviction from a home —      

are punishable by a fine in the amount of five hundred to eight hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of two to five months, or by arrest for a term of two to four months, or by imprisonment for a term of up to two years.      

3. The acts provided for in the first or second parts of this Article committed by a person using his official position, —      

are punishable by a fine in the amount of eight hundred to one thousand monthly calculation indices or in the amount of the convicted person's salary or other income for a period of five to eight months, or by deprivation of the right to hold certain positions or engage in certain activities for a term of two to five years, or by arrest for a term of four to six months, or by imprisonment for a period of up to three years.

     Part 1 of Article 25 of the Constitution of the Republic of Kazakhstan states: "Housing is inviolable. The deprivation of housing is not allowed, except by a court decision. Entry into a dwelling, its inspection and search are allowed only in cases and in accordance with the procedure established by law."     

The current legislation of the Republic of Kazakhstan provides for the possibility of lawful entry into the home of citizens against their will:

1) in case of unforeseen emergencies;

2) in the protection of law and order.      

Lawful entry into a dwelling under unforeseen emergency circumstances in order to prevent or eliminate a spontaneous real threat to the safety of citizens or the constitutional order of the republic is allowed in case of earthquakes, avalanches, mudslides, floods, fires, epidemics and epizootics, explosions, accidents of electric power and communication systems of life support, sewage treatment plants and other similar cases.      

While protecting law and order, penetration will be recognized as legitimate in the following cases: detection, prevention, suppression, disclosure of crimes and administrative offenses; detection of a person hiding from investigation and trial, missing citizens and other persons in cases provided for by law; execution of sentences and other court decisions.      

In all other cases, entry into a dwelling against the will of the persons living in it is considered illegal and is a crime infringing on the right to inviolability of the dwelling (Article 145 of the Criminal Code).      The public danger of the act in question lies in the fact that it violates the constitutional right of every person and citizen to the inviolability of his home from unlawful intrusions.      

The immediate object is the constitutional right to inviolability of the home.    

  The objective side of the violation of the inviolability of the home is an active action, expressed in an illegal invasion of the home against the will of the person living in it. Illegal entry into a dwelling should be understood as the entry into it by any means of an unauthorized person who has no legal basis for it, committed without the knowledge or against the will of the persons living in it.      

145 of the Criminal Code of the Republic of Kazakhstan, housing should be understood as any room (stationary or "migrating") intended, adapted or used for permanent or temporary residence of people.      

A prerequisite for criminal liability for unlawful intrusion into a home is its commission against the will and consent of the person living there. In this case, a person living in a dwelling is recognized as a person who permanently or temporarily lives in it and possesses it by right, for example, the owner of the dwelling or the tenant, the tenant and temporary tenants living in the dwelling under a lease, sublease, lease or on the basis of other civil law agreements.     

In cases where the lawful owner of a dwelling invades a dwelling belonging to him occupied by other persons by virtue of a lease, sublease, lease or other civil law agreement in force and not terminated between them, his actions constitute a violation of the inviolability of the dwelling provided for in art. 145 of the Criminal Code, because in this case not subject to protection the right to own a particular dwelling, and the private nature of living in it.      

If the person entered the dwelling on a legitimate basis, there is no sign of an invasion. For the correct qualification of the deed, it is essential to clarify the issue of the legality of the perpetrator's presence in the dwelling, that is, whether the access of the guilty person to the dwelling was prohibited or allowed. In cases where an invasion of a dwelling is committed by a person who has access to it due to certain circumstances (for example, he lives in it, is invited to visit, carries out repairs, conducts operational search activities, and so on), the very fact of such a person's presence in the dwelling is legitimate. Consequently, the illegal actions committed by such a person cannot be considered under Article 145 of the Criminal Code as an illegal invasion of a home.      

For a legal assessment of the actions of the perpetrator under Part 1 of Article 145 of the Criminal Code, it is sufficient, as explicitly stated in the law, to unlawfully enter a home against the will of a person living in it. At the same time, the legislator does not specify the method of invasion. At the same time, an invasion of a home can be carried out both openly and secretly, both with or without overcoming obstacles or resistance from people. For example, such actions of the perpetrator as entering an unlocked dwelling (through an open door, window, window pane, etc.) or using the temporary absence of persons living in it, etc., should be considered as an invasion, but certainly with the intention of using this convenient circumstance to enter the dwelling without the knowledge and consent of the latter.    

  Home invasion can also be committed by deception. Deceptive intrusion into a home is the deception of a person living in it through various techniques, tricks, and tricks on the part of the perpetrator, and thus gaining access to the home (for example, by presenting a forged document, disguised as a postman, nurse, telephone technician, and the like). In addition, an invasion of a home is possible by abusing the trust of people living in it (for example, friendship, dating, and the like), as well as using the helpless state of these people (for example, illness, sleep, and the like). The use of deception and abuse of trust should be considered as a means to facilitate the intrusion of perpetrators into the home. It would be a mistake to classify such actions as fraud. In such cases, it is necessary to take into account the subjective side of the act, namely, what purpose the perpetrator was pursuing.      

The crime should be considered over from the moment of the illegal home invasion.     

If, as a result of an unlawful intrusion into a home, the perpetrator, violating the integrity of the premises, causes significant damage to other people's property, then his actions should be classified as a violation of the inviolability of the home and intentional destruction or damage to other people's property (Articles 145 of the Criminal Code and Part 1 of Article 187 of the Criminal Code).    

On the subjective side, the act is characterized by guilt in the form of direct intent. The intention of the perpetrator in the case of an illegal home invasion is expressed in his awareness of the public danger of his illegal home invasion and in his desire to violate the inviolability of this home.   

  The motives and goals of an illegal home invasion can be diverse. They do not affect the qualification of the deed, but are taken into account by the court when imposing punishment as mitigating or aggravating criminal liability circumstances (Articles 53, 54UK).      

If the guilty person intrudes into a home for the purpose of stealing someone else's property, then his actions are subject to qualification under paragraph "c" of part 2 of Article 175 of the Criminal Code or paragraph "d" of part 2 of Article 178 of the Criminal Code, or according to paragraph "c" of part 2 of Article 179 of the Criminal Code and do not require additional qualifications under Article 145 of the Criminal Code, since are fully covered by the composition of these acts.      

The subject of violation of the inviolability of the home is a sane individual who has reached the age of sixteen.     

 Part 2 of Article 145 of the Criminal Code defines as qualifying signs of an illegal invasion of a dwelling:

a) the use of violence or the threat of its use;

b) a group of persons;

c) at night;

d) accompanied by an illegal search;

e) illegal eviction from a dwelling.     

 Violence in relation to the violation of the inviolability of the home should be understood as a physical impact on the body of another person, and the threat of violence should be understood as a mental impact. When committing a violation of the inviolability of the home, these types of violence can be used both simultaneously and separately.      The use of physical violence during an illegal invasion of a home is aimed at suppressing possible resistance or opposition from the victim, at depriving him of the opportunity to resort to the help of others. At the same time, the use of such violence is possible not only against persons directly residing or staying in a dwelling, it can also be applied to other persons.  

The methods of causing physical violence during an illegal invasion of a home can be very diverse: pushing away, pushing out, striking individual or multiple blows with hands, feet or using any objects, scratches, abrasions, binding of limbs, etc.      

The infliction of beatings or minor harm to health, resulting in a short-term disorder or minor permanent loss of general ability to work, is fully covered by the composition of the act in question and does not require additional qualifications under art. 105 of the Criminal Code. If, as a result of an illegal invasion of a dwelling, moderate harm is caused to health (Article 104 of the Criminal Code), serious harm (Article 103 of the Criminal Code) or death (Article 96 of the Criminal Code), then the actions of the perpetrators should be classified as an illegal invasion of a dwelling (Article 145 of the Criminal Code) and Article 104 of the Criminal Code, Article 103 The Criminal Code, art. 96 of the Criminal Code.    

 The basis for qualifying an illegal invasion of a home, coupled with the threat of violence, is the perpetrator's awareness that the victim perceives the threat as real and, as a result, does not resist him. For qualification, it does not matter whether the perpetrator had a real intention to carry out his threat or used it only for the purpose of intimidating the victim.  

  If, during an illegal invasion of a home, the perpetrator threatens the victim with murder, grievous bodily harm, other grave violence, or destruction of property by arson, explosion, or other generally dangerous method (Article 112 of the Criminal Code), the actions of such a person are subject to qualification according to the totality of crimes involving responsibility for violating the inviolability of the home and threat (Articles 145 of the Criminal Code and 112 of the Criminal Code CC).  

  An illegal home invasion committed by a group of persons should be understood as an association of two or more persons who are obviously together, although without prior agreement, performing actions that form the objective side of the violation of the inviolability of the home.    

According to paragraph 43 of Article 7 of the CPC of the Republic of Kazakhstan, night time should be understood as the time interval from 22.00 p.m. to 06.00 a.m. local time.    

  An illegal search should be understood as a search carried out in the absence of a legitimate reason or in violation of the procedure established by the criminal procedure legislation.    

 In accordance with Part 2 of Article 230 of the Criminal Procedure Code of the Republic of Kazakhstan, the basis for conducting a search is the existence of sufficient evidence to believe that objects or documents relevant to the case may be in a certain room or other place, or in the possession of a specific person. A search may also be carried out to locate wanted persons and corpses (Part 3 of Article 230 of the Criminal Procedure Code of the Republic of Kazakhstan).  

   The procedure for conducting a search is regulated by Article 232 of the Criminal Procedure Code of the Republic of Kazakhstan, according to Part 1 of which the search is carried out by an investigator on a reasoned decision. The search order must be authorized by the prosecutor or his deputy.  

   In accordance with Part 3 of Article 232 of the Criminal Procedure Code of the Republic of Kazakhstan, in exceptional cases, when there is a real fear that the object being sought and subject to seizure may be lost, damaged or used for criminal purposes due to delay in its discovery, or the wanted person may escape, a search may be carried out without the approval of a prosecutor, but with subsequent referral to him within twenty-four hours of notification of the search. Upon receiving the specified notification, the prosecutor verifies the legality of the search and makes a decision on its legality or illegality.    

  In addition, locked rooms and storage facilities may be opened during a search if the owner refuses to open them voluntarily. At the same time, unnecessary damage to door locks and other objects should not be allowed (Part 9 of Article 232 of the Criminal Procedure Code of the Republic of Kazakhstan).    

  The subject of a crime on the basis in question can be either a private person who has reached the age of 16, or an official authorized or not authorized to conduct a search.

    If an official, while conducting an illegal search, abuses official authority or allows abuse of power or official authority, then his actions are also qualified as a combination of crimes as violation of the inviolability of the home and abuse of official authority or abuse of power or official authority (Part 2 of Article 145 of the Criminal Code and Article 307 of the Criminal Code or part 2 of Article 145 of the Criminal Code and Article 308 CC).

    A search should also be considered illegal when it is carried out by a civil servant who is not an official, but who has assumed the authority of an official (for example, through the use of forged documents, uniforms, and the like). In this case, the actions committed by a person who has appropriated the powers of an official are also subject to qualification according to the totality of crimes as appropriation of the powers of an official and violation of the inviolability of the home, accompanied by an illegal search (Articles 309 of the Criminal Code and Part 2 of Article 145 of the Criminal Code).  

  Illegal eviction should be understood as such eviction of a citizen from his legally occupied dwelling, which was carried out in violation of the order, conditions and legal grounds established by housing legislation. If an official, while carrying out an illegal eviction, abuses his official powers or allows abuse of power or official powers, then his actions should be classified as a violation of the inviolability of the home and abuse of official powers or abuse of power or official powers (Part 2 of art. 145 of the Criminal Code and art. 307 of the Criminal Code or part 2 of art. 145 of the Criminal Code and art. 308 of the Criminal Code).    

 In Part 3 of Article 145 of the Criminal Code, the legislator provides for a particularly qualified composition of the analyzed act — violation of the inviolability of the home committed by a person using his official position.

145 of the Criminal Code should be understood as such actions of an official that are performed by him within his official competence, within the framework of the rights and duties that he is endowed with by virtue of his position.    

 The subject of a crime under Part 3 of Article 145 of the Criminal Code is a person who uses his official position to illegally enter a home, a special entity. In cases where an official violates the inviolability of the home without using his official position, the act he committed cannot be qualified under Part 3 of Article 145 of the Criminal Code of the Republic of Kazakhstan as using his official position. Depending on the circumstances of the commission of this act, the actions of such a person should be qualified either under Part 1 of Article 145 of the Criminal Code, or under Part 2 of Article 145 of the Criminal Code.    

 If an official, using his official authority, influences another person in order to commit an illegal invasion of a dwelling by the latter, then the actions of such an official should be qualified as incitement to an illegal invasion of a dwelling (Part 4 of Article 28 of the Criminal Code, Part 1 or Part 2 of Article 145 of the Criminal Code).    

 The crimes provided for in Parts 1 and 2 of art. 145 of the Criminal Code of the Republic of Kazakhstan are minor crimes.      The crime provided for in Part 3 of Article 145 of the Criminal Code of the Republic of Kazakhstan refers to crimes of moderate severity.

Commentary from 2007 to the Criminal Code of the Republic of Kazakhstan from the Honored Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences BORCHASHVILI I.Sh.                  

Date of amendment of the act: 08/02/2007 Date of adoption of the act: 08/02/2007 Place of adoption: NO Body that adopted the act: 180000000000 Region of operation: 100000000000 Registration number of the NPA assigned by the normative body: 167 Status of the act: new Scope of legal relations: 028000000000 Form of the act: COMM Legal force: 1900 Language of the act: rus

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