Problems of application of the norm setting liability for illegal crossing of the state border

The definition of the crime under Article 322 of the Criminal Code of the Russian Federation “Illegal Crossing of the State Border of the Russian Federation” is considered a legal means of countering illegal migration, designed to ensure the struggle with illegal entry of foreign citizens and stateless persons into the territory of the Russian Federation. Based on the analysis of doctrinal sources and precedents, the author proposes measures to improve the construction of the norm by including alternative signs of illegality of the crossing the state border of the Russian Federation in the disposition of the norm. The author also formulates the following recommendations on the application of the rule: 1. responsibility for the commission of the crime under Article 322 of the Criminal Code of the Russian Federation shall be imposed on persons regardless of their civilian nationality who illegally cross the state border of the Russian Federation in various directions, including foreign citizens and stateless persons who illegally enter the territory of the Russian Federation for the purposes of migration; 2. to apply Part 1 of Article 322 of the Criminal Code of the Russian Federation, illegal crossing of the state border of the Russian Federation should be understood as its crossing in the designated place of pass with invalid documents or without proper authorisation - the corresponding visa received in accordance with the procedure established by the current legislation of the Russian Federation. Crossing the state border of the Russian Federation with another person's passport is also considered illegal. 3. to apply Part 2 of Article 322 of the Criminal Code of the Russian Federation, illegal crossing of the state border of the Russian Federation should be understood as its crossing at the entrance to the Russian Federation by a foreign citizen or stateless person whose entry into the Russian Federation is not permitted on the grounds provided by Federal Law No. 114-FZ of August 15, 1996, “On the procedure for exit from the Russian Federation and entry into the Russian Federation” both at the designated point of entry and not at it, with or without invalid documents, and which fact should be known to the perpetrator. 4. Documents with traces of forgery (corrections, erasures, pasting of photographs, etc.) as well as forged documents containing information that is not correlated with reality including those made on the basis of altered personal data should be considered void. Documents with expired validity are also invalid. 5. If a person forges a document granting the right to enter or exit, and subsequently uses it when crossing the state border, their actions should be qualified according to the relevant part of Article 322 and Part 1 of Article 327 of the Criminal Code of the Russian Federation. 6. Illegal crossing of the state border of the Russian Federation committed with the use of a counterfeit document made by another person and granting the right to enter or exit, is fully covered by the corresponding part of Article 322 of the Criminal Code of the Russian Federation and does not additional qualification under Part 3 of Article 327 of the Criminal Code of the Russian Federation.

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