Violation of the inviolability of housing: problems of law enforcement, qualification and liability under martial law in Ukraine

The right to inviolability of the home is a fundamental human right guaranteed by both the Constitution of Ukraine (Article 30) and international instruments (Article 8 of the European Convention on Human Rights). Unlawful entry into a person’s home or other possessions is a criminal offense under Article 162 of the Criminal Code of Ukraine (Violation of the Inviolability of the Home). However, in law enforcement practice, a number of problems arise related to the qualification of this crime and bringing the perpetrators to justice. The article notes that violation of the inviolability of housing is not just a criminal act, but an encroachment on the fundamental value of personal freedom. Effective qualification and fair liability for such crimes are key to ensuring the rule of law. Ukrainian legislation has potential, but needs improvement and clear law enforcement. It was determined that the problematic issues of qualification are the definition of “housing” and “other possessions”. Housing is a room that is permanently or temporarily used for a person’s residence (apartment, house, room in a dormitory, etc.). Other possessions are garages, summer cottages, outbuildings, etc., which have the characteristics of private space. There are cases when law enforcement officers incorrectly determine the object of the encroachment, qualifying the actions as “intrusion into premises” (Article 185 of the Criminal Code of Ukraine) instead of Article 162 of the Criminal Code of Ukraine. It is noted that the concept of «unlawful entry» occurs when entry into a dwelling occurs without the permission of the owner or occupant and without lawful grounds. The difficulty is that if a person entered with the consent of one party (for example, one of the occupants), but without the knowledge of the other, a dispute arises as to legality. The crime involves direct intent, i.e. awareness of the illegality of the entry and the desire to commit it. The complication arises when the suspect believes that he has the right to be in the residence (property dispute, conflicts between spouses).It was found that the problems of liability are the limitations of the powers of the police. Police officers can enter a home only in exceptional cases (for example, pursuing a criminal, saving a life). If a law enforcement officer exceeds these powers, criminal liability arises under Art. 365 of the Criminal Code or Art. 162 of the Criminal Code of Ukraine. In addition, the insufficient practice of bringing to justice was emphasized. In practice, such cases are often closed due to the «lack of elements of a crime» or do not reach the court. This raises doubts about the real protection of constitutional rights. Problems of judicial practice are noted, in particular, Ukrainian courts sometimes incorrectly interpret «housing» or mitigate punishment due to minor damage.