Is the time spent in a pre-trial detention center included in the total term of imprisonment? This question worries many who are faced with this preventive measure . Let's try to answer it taking into account the latest legislative changes.
Federal Law No. 186-FZ of July 3, 2022 “On Amendments to Article 72 of the Criminal Code of the Russian Federation” changes the rules for counting the time a person is in custody in the total term of serving a sentence, which are of great practical importance.
How is time spent in isolation calculated?
With the adoption of the Criminal Code of the Russian Federation (1996), all the time that the arrested person spent in the cell before the verdict was counted towards the term of the imposed punishment.
The “one to one” rule was in effect, which meant the following: if a person was sentenced to imprisonment for a period of 5 years and was in custody for 6 months, he would actually only have to serve 4 years and 6 months of imprisonment in a colony. The type of colony did not matter when counting the time spent in a pre-trial detention center. Now the period of arrest is also counted, but the rules for recounting have changed dramatically. The authors of the amendments took into account the undoubtedly more severe conditions of a person’s stay in pre-trial detention centers in Russia, compared to colonies. For example, in pre-trial detention centers the cells are more densely occupied, there are no working conditions and adequate rest, significantly limited rights to visits and to receive parcels, etc. In short, domestic insulators are still quite far from meeting international standards.
Taking these circumstances into account, the new law provides for the following amendments:
1. Credit the time spent in a pre-trial detention center for two days , provided that the person is assigned to a colony-settlement.
This type of correctional institution is assigned to persons who are brought to criminal responsibility for the first time for minor crimes. For example, a penal colony will be assigned to those responsible for a fatal traffic accident, petty thieves, or those who possessed a small amount of a drug (1-2 doses). In addition, a penal colony can be assigned for causing minor bodily harm, threatening to kill, damaging property or recklessly causing death.
Example . Petrov O.V. was convicted of committing theft in the amount of 6,000 rubles; during the investigation, a preventive measure was chosen for him in the form of detention. Petrova O.V. convicted under paragraph “c” of Part 2 of Art. 158 of the Criminal Code of the Russian Federation for the secret theft of someone else's property causing significant damage to a citizen, the sentence was 10 months of imprisonment in a penal colony. By the time the sentence entered into legal force, Petrov O.V. spent 4 months in a pre-trial detention center, so he will stay in a colony for only 2 months (4 months in a pre-trial detention center multiplied by 2 = 8 months, if this period is subtracted from the 10 months of the imposed sentence, then 2 months remain).
2. The calculation of the terms of detention for persons who are assigned imprisonment in a general regime correctional colony is made as one day to 1.5 days (that is, 1 day spent in a detention center will be equal to 1.5 days in a correctional institution ).
As a rule, men who are sentenced to imprisonment for committing serious crimes are placed in a general regime penal colony if they are charged for the first time (or repeatedly, but imprisonment has never been imposed before).
The legislator considers the following to be serious crimes:
- storage, acquisition, transportation of narcotic drugs in large quantities;
- causing grievous bodily harm without consequences in the form of death;
- theft with penetration into a home or causing damage in excess of 250,000 rubles;
- misappropriation or embezzlement using official position;
- robbery with the use of violence not dangerous to the life or health of the victim, etc.
Women who have committed crimes of a grave or especially grave nature are always assigned only to a general regime correctional facility; they cannot serve their sentences in more severe conditions.
Example . Vinogradova E.P. for committing deliberate embezzlement in the amount of 700,000 rubles, she was sentenced to 3 years in prison in a general regime penal colony. Taking into account the content of Vinogradova E.P. in a pre-trial detention center for 12 months and the new rule of recalculating a day for a year and a half will leave her to serve in a colony for a year and a half.
Article 72 of the Criminal Code of the Russian Federation. Calculation of sentence terms and offset of punishment (current version)
1. The terms of deprivation of the right to hold certain positions or engage in certain activities, correctional labor, restrictions on military service, restrictions on freedom, forced labor, arrest, detention in a disciplinary military unit, imprisonment are calculated in months and years, and for compulsory labor - in hours.
2. When replacing punishment or adding punishments provided for in part one of this article, as well as when counting off punishment, the terms of punishment may be calculated in days. Moreover, taking into account the provisions of part one of Article 71 of this Code, two hundred and forty hours of compulsory labor correspond to one month of imprisonment or forced labor, two months of restriction of freedom, three months of correctional labor or restrictions on military service.
3. The time a person is held in custody before the court verdict enters into legal force is counted towards the terms of detention in a disciplinary military unit at the rate of one day for one and a half days, restriction of freedom, forced labor and arrest - one day for two days, correctional labor and military restrictions service - one day for three days, and during the period of compulsory work - at the rate of one day of detention for eight hours of compulsory work.
3.1. The time a person is in custody is counted towards the term of imprisonment, except for the cases provided for in parts three.2 and three.3 of this article, at the rate of one day per:
a) one day of serving a sentence in a prison or correctional colony of strict or special regime;
b) one and a half days of serving the sentence in an educational colony or a general regime correctional colony;
c) two days of serving the sentence in a colony settlement.
3.2. The time a person is held in custody is counted towards the term of imprisonment at the rate of one day per day in relation to those convicted of particularly dangerous recidivism of crimes; convicts for whom the death penalty by way of pardon has been replaced by life imprisonment or imprisonment for a term of twenty-five years; convicted for crimes provided for in Articles 205 - 205.5, parts three and four of Article 206, articles 208, 209, part four of Article 211, parts two and three of Article 228, articles 228.1, 229, 275, 276, 361 of this Code, and associated with carrying out terrorist activities are crimes provided for in Articles 277 - 279 and 360 of this Code.
3.3. The time a person is in custody is counted towards the term of imprisonment at the rate of one day for one day in relation to the period of stay of a convicted person serving a sentence under strict conditions in an educational colony or a general regime correctional colony, in a penal or disciplinary isolator, a cell-type premises or a single cell-type premises type, in the case of applying penalties to a convicted person in accordance with the penal legislation of the Russian Federation.
3.4. The time a person is under house arrest is counted towards the period of detention pending trial and the period of imprisonment at the rate of two days under house arrest for one day of detention or imprisonment.
4. The time of holding a person in custody before the court verdict enters into legal force and the time of serving imprisonment imposed by a court verdict for a crime committed outside the Russian Federation, in the case of extradition of a person on the basis of Article 13 of this Code, are counted according to the rules established by parts three and third.1 of this article.
5. When assigning a fine or deprivation of the right to hold certain positions or engage in certain activities as the main type of punishment to a convicted person held in custody before trial, the court, taking into account the period of detention, mitigates the imposed punishment or completely exempts him from serving this sentence.
Who will not be affected by the amendments?
It should be noted that convicted male repeat offenders, as well as those who have committed especially serious crimes for the first time, are assigned to a high-security correctional colony. The changes will not affect such convicted persons, since 1 day of stay in a pre-trial detention center will be counted as 1 day of serving the sentence.
That is, if a court sentences a maximum security colony, the old rule applies - a one-to-one ratio . The same applies to the most dangerous criminals who are assigned a special regime or prison (for example, if a person is sentenced to death). The conditions for serving imprisonment in such institutions are much harsher even compared to pre-trial detention centers.
Let us add that the law provides for exceptions to the general offset rule. Thus, part 3.2 was introduced into Article 72 of the Criminal Code of the Russian Federation, according to which a recount is not carried out for those convicted of committing the following crimes:
- terrorist attack;
- facilitating terrorist activities;
- public calls for terrorism;
- organization of a terrorist society, participation in it;
- hostage taking with consequences in the form of death;
- hijacking of vehicles for terrorist purposes;
- possession of drugs on a large or especially large scale;
- sale of drugs in any quantity;
- high treason, espionage.
In addition, Part 3.3 of Article 72 of the Criminal Code of the Russian Federation does not allow the use of a recount in relation to those convicts who are kept in a penal colony or cell-type premises as a result of a disciplinary sanction.
What does the Criminal Code of the Russian Federation say about counting time in a pre-trial detention center?
According to Part 31 of Art. 72 of the Criminal Code of the Russian Federation, the time a person is held in custody is counted towards the term of imprisonment at the rate of one day in a pre-trial detention center for:
- one day of serving a sentence in a prison or colony of strict or especially strict regime;
- one and a half days in an educational colony or a general regime colony;
- two days in a colony settlement
For example, for a person held in custody for 60 days before the sentence enters into legal force, this period will be counted as 90 days of serving the sentence in a general regime colony, and for 120 days in a settlement colony, that is, at the rate of one day in a pre-trial detention center for one and a half days a general regime colony and two days in a colony-settlement, respectively.
When do these rules not apply?
- to those convicted of particularly dangerous recidivism;
- to convicts for whom the death penalty has been replaced by imprisonment;
- to those convicted of crimes of a terrorist nature, hostage-taking, organization of an illegal armed group or participation in it, banditry, high treason, espionage, as well as crimes related to illegal drug trafficking (Part 32 of Article 72 of the Criminal Code of the Russian Federation).
The time of detention in a pre-trial detention center in such cases: one day of stay in a pre-trial detention center will be counted only as one day of serving a sentence in an educational colony, a general regime colony or a colony-settlement.
If you are under house arrest
The changes also affected persons who were under house arrest during criminal proceedings.
The time a person is kept under house arrest is counted towards the term of imprisonment at the rate of two days of being under house arrest for one day of imprisonment (Part 34 of Article 72 of the Criminal Code of the Russian Federation)
House arrest will be counted as imprisonment in a new way
In addition to the two main amendments regarding the recalculation of the time spent in a pretrial detention center, the new law provides for changes in relation to persons held under house arrest before a verdict. Previously, 1 day of home arrest corresponded to one day of imprisonment in a colony of any type.
Currently, taking into account the innovations, 2 days of stay under house arrest will correspond to one day in prison. Thus, the situation of the accused at home, whose right of movement is limited, has somewhat worsened.
Watch the lawyer's comments on the changes in the law in the video:
Review of sentences
Many people are concerned: will there be a recalculation of the time spent in the detention center for those who have been serving imprisonment for a long time?
When answering this question, one should take into account the provisions of Article 10 of the Criminal Code of the Russian Federation, according to which any improvement has a retroactive effect. This means that those serving imprisonment in a settlement colony or a general regime colony can count on a reduction in their sentence, even if the sentence came into force long before the amendments.
At the same time, people serving sentences for whom a preventive measure in the form of house arrest was chosen, provided the sentence enters into legal force before July 14, 2022, will not be affected by the amendments. Based on Article 10 of the Criminal Code of the Russian Federation, deterioration of the situation of those sentenced to the point of innovation is not allowed under any circumstances.
Let's consider the procedural procedure that is necessary before a convicted person is credited with being in a pre-trial detention center.
The law stipulates that the administrations of settlement colonies must resolve issues of recounting within 3 months from the date of adoption of the law, and the administrations of general regime colonies - within 6 months.
Thus, correctional officers are required to identify persons subject to review and then, in relation to each of them, send a reasoned submission to the court.
Currently, courts of general jurisdiction are already quite actively making decisions on re-counting the time spent in custody. The convicted person himself has the right to submit a petition to the court, but the law does not impose such an obligation on him - a person serving a sentence can take advantage of the opportunity to reduce the sentence or voluntarily refuse to exercise his right.
Analysts believe that more than 100,000 convicts will have to have their prison sentences reduced. In addition, there is an opinion that many defendants will deliberately delay trials with numerous petitions so that the period of “serving” is significantly reduced.
