Commentary on Article 149. Violation of the Inviolability of the Home of the Criminal Code of the Republic of Kazakhstan

1. Unlawful entry into a home against the will of the person residing therein —

shall be punishable by a fine in an amount of up to two hundred monthly calculation indices, or correctional labour in the same amount, or community service for a period of up to two hundred hours, or arrest for a period of up to fifty days.

2. The same act committed with the use of violence or the threat of its use, or by a group of persons, or at night, or accompanied by an unlawful search, as well as unlawful eviction from a home —

shall be punishable by a fine in an amount of up to two thousand monthly calculation indices, or correctional labour in the same amount, or community service for a period of up to six hundred hours, or restriction of liberty for a period of up to two years, or deprivation of liberty for the same period.

3. Acts provided for in Parts One or Two of this Article, committed by a person through the use of their official position —

shall be punishable by a fine in an amount of up to three thousand monthly calculation indices, or correctional labour in the same amount, or community service for a period of up to eight hundred hours, or restriction of liberty for a period of up to three years, or deprivation of liberty for the same period, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to five years.

The public danger of the criminal offence under consideration (Part 1 constitutes a criminal misdemeanour, Parts 2 and 3 constitute crimes) lies in the fact that it violates the constitutional right of every person and citizen to the inviolability of their home against unlawful intrusions.

Paragraph 1 of Article 25 of the Constitution of the Republic of Kazakhstan states: “The home shall be inviolable. Deprivation of a home shall not be permitted except by a court decision. Entry into a home, its inspection and search shall be permitted only in cases and in the manner established by law.”

Current legislation provides for the possibility of lawful entry into citizens' homes against their will: 1) in unforeseen emergency circumstances; 2) for the protection of public order.

Lawful entry into a home in unforeseen emergency circumstances for the purpose of preventing or eliminating a spontaneously arising real threat to the safety of citizens or the constitutional order of the Republic is permitted in the event of earthquakes, avalanches, mudflows, floods, fires, epidemics and epizootics, explosions, accidents involving electric power and life-support communication systems, treatment facilities, and other similar circumstances.

For the protection of public order, entry shall be deemed lawful when carried out for: identifying, preventing, suppressing and solving criminal and administrative offences; locating a person evading investigation and trial, missing citizens and other persons in cases provided for by law; enforcing sentences and other court decisions.

In all other cases, entry into a home against the will of the persons residing therein shall be deemed unlawful and shall constitute a criminal offence infringing upon the right to the inviolability of the home (Article 149 of the Criminal Code).

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

The objective element of the violation of the inviolability of the home consists of an active act expressed in unlawful entry into a home against the will of the person residing therein. Unlawful entry into a home shall be understood as the entry into it, by any means, of an outsider who has no legal grounds for doing so, without the knowledge of or against the will of the persons residing therein.

In accordance with subparagraph 28) of Article 2 of the Law of the Republic of Kazakhstan dated 16 April 1997 “On Housing Relations”, a home is a separate residential unit (an individual residential house, an apartment, a room in a dormitory) intended and used for permanent residence and meeting the established technical, sanitary and other mandatory requirements.

According to subparagraph 49) of Article 7 of the Criminal Procedure Code, a home is premises or a structure intended for the temporary or permanent residence of one or more persons, including: an owned or rented apartment, house, garden house, hotel room, cabin, railway compartment; verandas, terraces, galleries, balconies, attic structures, the basement and attic of a residential building directly adjoining them, except for an apartment building, as well as a river or sea vessel and others.

For the purposes of Article 149 of the Criminal Code, a home shall be understood as any premises (stationary or “mobile”) intended, adapted or used for the permanent or temporary residence of people. These may include an individual house, apartment, hotel or dormitory room, summer house, garden house, prefabricated cabin, etc.

Outbuildings, cellars, garages and other premises separated from residential buildings and not used for people's residence shall not be considered homes.

A necessary condition for criminal liability for unlawful entry into a home is that it be committed contrary to the will and consent of the person residing there. In this regard, a person residing in a home shall be understood as a person who lives there permanently or temporarily and occupies it on a legal basis, for example, the owner of the home or a tenant, subtenant and temporary residents living in the home under a tenancy, subtenancy, lease agreement or on the basis of other civil-law agreements.

In cases where the lawful owner of a home enters a home belonging to them but occupied by other persons under a valid and unterminated tenancy, subtenancy, lease or other civil-law agreement between them, their actions constitute the offence of violation of the inviolability of the home provided for in Article 149 of the Criminal Code, because in this case what is protected is not the right to possession of a particular home, but the private nature of residence therein.

If a person enters a home on lawful grounds, the element of intrusion is absent. For the correct legal classification of the act committed, it is essential to establish whether the perpetrator's presence in the home was lawful, that is, whether access to the home was prohibited or permitted to that person. In cases where entry into a home is committed by a person who has access to it by virtue of certain circumstances (for example, resides there, has been invited as a guest, carries out repair work, conducts operational-search activities, and so on), the very fact of such person's presence in the home is lawful. Consequently, unlawful acts committed by such a person cannot be regarded under Article 149 of the Criminal Code as unlawful entry into a home.

For the legal assessment of the perpetrator's actions under Part 1 of Article 149 of the Criminal Code, unlawful entry into a home against the will of the person residing therein is sufficient, as expressly stated in the law. At the same time, the legislator does not specify the method of entry. Nevertheless, entry into a home may be committed both openly and secretly, both by overcoming obstacles or resistance from people and without doing so. For example, the following actions of the perpetrator shall be regarded as entry: entering an unlocked home (through an open door, window, ventilation window, and the like), or taking advantage of the temporary absence of the persons residing therein, and so on, but necessarily with the intention of using this favourable circumstance to enter the home without the knowledge and consent of the latter.

Entry into a home may also be committed through deception. Entry into a home by deception involves misleading the person residing therein through various methods, devices and tricks employed by the perpetrator, thereby obtaining access to that home (for example, by presenting a forged document, posing as a postman, nurse, telephone repairman, and the like). Furthermore, entry into a home may be accomplished by abusing the trust of the persons residing therein (for example, by exploiting friendship, acquaintance and similar relationships), as well as by taking advantage of their helpless condition (for example, illness, sleep and the like). Deception and abuse of trust should be regarded as means of facilitating the perpetrators' entry into a home. In such cases, it is necessary to take into account the subjective element of the act, namely, the purpose pursued by the perpetrator. In this regard, one cannot agree with the position of certain scholars who believe that the use of deception and abuse of trust to enter a home do not constitute the elements of the criminal offence under consideration.

The structure of the corpus delicti is formal. The crime shall be deemed completed from the moment of unlawful entry into the home.

If, as a result of unlawful entry into a home, the perpetrator, while damaging the integrity of the premises, causes significant damage to another person's property, their actions shall be classified cumulatively as violation of the inviolability of the home and intentional destruction of or damage to another person's property (Articles 149 and 202 of the Criminal Code).

From the subjective standpoint, the act is characterised by guilt in the form of direct intent. The intent of the perpetrator in unlawfully entering a home is expressed in their awareness of the public danger of their unlawful entry into the home, their foresight of socially dangerous consequences and their desire to violate the inviolability of that home.

The motives and purposes of unlawful entry into a home may vary. They do not affect the legal classification of the act committed, but are taken into account by the court when imposing punishment as circumstances mitigating or aggravating criminal liability and punishment (Articles 53 and 54 of the Criminal Code).

If the perpetrator enters a home for the purpose of stealing another person's property, their actions shall be classified under subparagraph 3) of Part 3 of Article 188 of the Criminal Code, or under subparagraph 3) of Part 3 of Article 191 of the Criminal Code, or under subparagraph 4) of Part 3 of Article 192 of the Criminal Code, and do not require additional classification under Article 149 of the Criminal Code, since they are fully covered by the elements of these acts.

The subject of the violation of the inviolability of the home is a sane natural person who has reached the age of 16.

Part 2 of Article 149 of the Criminal Code defines the following qualifying elements of unlawful entry into a home: a) the use of violence or the threat of its use; b) commission by a group of persons; c) commission at night; d) being accompanied by an unlawful search; e) unlawful eviction from a home.

For the purposes of violation of the inviolability of the home, violence shall be understood as physical impact on another person's body, while the threat of violence shall be understood as psychological impact. When committing a violation of the inviolability of the home, these types of violence may be used both simultaneously and separately.

The use of physical violence during unlawful entry into a home is aimed at suppressing possible resistance or opposition on the part of the victim and depriving them of the opportunity to seek assistance from other persons. At the same time, such violence may be used not only against persons who directly reside in or are present in the home, but also against other persons.

The methods of inflicting physical violence during unlawful entry into a home may be extremely varied: pushing, forcing someone out, delivering single or repeated blows with hands or feet or using various objects, scratching, abrasions, tying up limbs, etc.

Battery and the infliction of minor and moderate bodily harm are covered by the elements of the act under consideration and do not require additional classification under Article 107 of the Criminal Code. If, as a result of unlawful entry into a home, grievous bodily harm (Article 106 of the Criminal Code) or death (Article 99 of the Criminal Code) is caused, the actions of the perpetrators shall be classified cumulatively as unlawful entry into a home (Article 149) and the offences under Articles 106 and 99 of the Criminal Code.

The basis for classifying unlawful entry into a home accompanied by a threat of violence is the perpetrator's awareness that the victim perceives the threat as real and, as a result, does not resist them. For the purposes of classification, it is irrelevant whether the perpetrator actually intended to carry out the threat or used it solely to intimidate the victim.

If, during unlawful entry into a home, the perpetrator threatens the victim with murder, the infliction of grievous bodily harm, other serious violence or the destruction of property by arson, explosion or another generally dangerous method, the actions of such a person should not be additionally classified under Article 115 of the Criminal Code, since they are covered by Part 2 of Article 149 of the Criminal Code.

Unlawful entry into a home committed by a group of persons shall be understood as such entry in which two or more perpetrators jointly participated without prior conspiracy.

According to subparagraph 51) of Article 7 of the Criminal Procedure Code, night-time shall mean the period from 22:00 in the evening until 06:00 in the morning, local time.

A search is conducted for the purpose of discovering and seizing items relevant to the case, including the discovery of property subject to seizure (Part 1 of Article 252 of the Criminal Procedure Code).

An unlawful search shall be understood as a search conducted in the absence of lawful grounds for doing so or in violation of the procedure for conducting it established by criminal procedure legislation.

In accordance with Part 2 of Article 252 of the Criminal Procedure Code, the grounds for conducting a search are the existence of sufficient information to believe that items or documents relevant to the case may be located in certain premises or another place, or in the possession of a specific person. A search may also be conducted to locate wanted persons and corpses (Part 3 of Article 252 of the Criminal Procedure Code).

The procedure for conducting a search is governed by Article 254 of the Criminal Procedure Code, according to Part 1 of which a search is conducted by the person carrying out the pre-trial investigation pursuant to a reasoned resolution. The resolution to conduct a search must be authorised by the prosecutor or their deputy.

In accordance with Part 3 of Article 254 of the Criminal Procedure Code, in exceptional cases where there is a real concern that the object being sought and subject to seizure may be lost, damaged or used for criminal purposes due to a delay in its discovery, or that the person being sought may abscond, a search may be conducted without the prosecutor's authorisation, but a notification of the search conducted must subsequently be sent to the prosecutor within twenty-four hours. Upon receiving the said notification, the prosecutor verifies the legality of the search conducted and issues a resolution declaring it lawful or unlawful.

Furthermore, during a search, locked premises and storage facilities may be opened if the owner refuses to open them voluntarily. At the same time, damage to door locks and other objects that is not necessitated by the circumstances must not be allowed (Part 9 of Article 254 of the Criminal Procedure Code).

The subject of the crime under the element in question may be either a private individual who has reached the age of 16 or an official authorised or unauthorised to conduct a search.

If an official, while conducting an unlawful search, abuses their official powers or exceeds their authority or official powers, their actions shall also be classified cumulatively as violation of the inviolability of the home and abuse of official powers or excess of authority or official powers (Part 2 of Article 149 and Article 361 of the Criminal Code, or Part 2 of Article 149 and Article 362 of the Criminal Code). A search shall also be deemed unlawful when it is conducted by a civil servant who is not an official but has appropriated the powers of an official (for example, by using forged documents, a uniform, and the like). In this case, the actions committed by the person who has appropriated the powers of an official shall also be classified cumulatively as usurpation of the powers of an official and violation of the inviolability of the home accompanied by an unlawful search (Article 363 and Part 2 of Article 149 of the Criminal Code).

Unlawful eviction shall be understood as the eviction of a citizen from a home lawfully occupied by them, carried out in violation of the procedure, conditions and legal grounds established by housing legislation. If an official, while carrying out an unlawful eviction, abuses their official powers or exceeds their authority or official powers, their actions should be classified cumulatively as violation of the inviolability of the home and abuse of official powers or excess of authority or official powers (Part 2 of Article 149 and Article 361 of the Criminal Code, or Part 2 of Article 149 and Article 362 of the Criminal Code).

In Part 3 of Article 149 of the Criminal Code, the legislator provides for an especially qualified corpus delicti of the act under analysis — violation of the inviolability of the home committed by a person through the use of their official position. For the purposes of Article 149 of the Criminal Code, the use of one's official position shall be understood as actions performed by a person within the scope of their official competence and within the framework of the rights and duties vested in them by virtue of the position they hold.

The subject of the crime under Part 3 of Article 149 of the Criminal Code is a person who uses their official position to unlawfully enter a home — a special subject. In cases where an official violates the inviolability of a home without using their official position, the act committed by them cannot be classified under Part 3 of Article 149 of the Criminal Code as the use of their official position. Depending on the circumstances of the commission of the act, the actions of such a person should be classified either under Part 1 or Part 2 of Article 149 of the Criminal Code.

If an official, using their official authority, influences another person for the purpose of inducing the latter to commit unlawful entry into a home, the actions of such official should be classified as incitement to unlawful entry into a home (Part 4 of Article 28 of the Criminal Code, Part 1 or Part 2 of Article 149 of the Criminal Code).

The act provided for in Part 1 of Article 149 of the Criminal Code is classified as a criminal misdemeanour.

The act provided for in Part 2 of Article 149 of the Criminal Code is classified as a crime of minor gravity.

The act provided for in Part 3 of Article 149 of the Criminal Code is classified as a crime of medium gravity.

Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, member of the working group on reform of the law enforcement system under the Security Council of the Republic of Kazakhstan, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

Constitution Law Code Regulatory Decree Order Decision Resolution Lawyer Almaty Lawyer Legal service Legal Consultation Civil Criminal Administrative cases disputes Defence Arbitration Legal Company of Kazakhstan Law Office Court Cases Declaration Decree Order Resolution Decision Report Conclusion Application Conclusion Convention Contract Memorandum Methodology Norms Note Rules Programme Charter Charter Article Commentary Resolution Regulations Protocol Draft Programme Rules Messages