Answers to questions received from the courts regarding the application of the provisions of Article 72 of the Criminal Code of the Russian Federation

It is necessary to distinguish between arrest and detention. Only judicial authorities have the right to impose arrest, either as a preventive measure (only in home form) or as a final punishment. Reasons for restricting freedom in the form of a preventive measure may be suspicions of law enforcement officers that a person:

• may destroy evidence;
• will threaten witnesses or interfere with the fair and thorough examination of the case;
• will continue to commit crimes;
• will escape justice.

Arrest as a final punishment is imposed for crimes of minor gravity. The main differences between detention and arrest as a preventive measure and as a punishment:

It happens that for some unfounded reason, police restrict a person’s freedom for more than 2 days without providing a court decision.

Similarly, the preventive measure or type of punishment in the form of arrest chosen by the court may be unfair. Especially if the person is innocent or has not committed serious offenses. In this case, it makes sense to seek help from a lawyer specializing in criminal cases and revocation of arrest.

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Rules of conduct during arrest

If a person has been arrested, he should follow the following rules of conduct when interacting with law enforcement officials:

• remain silent - all authorized persons need to know is their full name. the detainee and his residence address, passport details, and other testimony should be given only in the presence of a lawyer in order to avoid pressure from interrogators or distortion of information;
• do not resist law enforcement officers, do not try to escape or fight off the police - they are trained to resist criminals, and even the slightest disobedience can lead to both harsher future punishment and harm to the moral and physical well-being of the prisoner;
• do not insult authorized persons in order to avoid the imposition of additional fines;
• do not try to joke or appeal to the conscience of those restricting the freedom; they fulfill their duties and will not perceive the emotional outbursts of the detained or arrested person;
• check the pockets of your clothes and bag to make sure that there are no prohibited items in them (pocket knives, lighters, drugs, etc.), try to get rid of these items unnoticed;
• check whether law enforcement officers have planted anything in your pockets or in your apartment; if you find suspicious things, you should also try to get rid of them quietly without bringing charges against the arresting persons;
• do not sign any protocols before reading them, and do not sign documents containing your alleged confession of committing a crime.

Important! In accordance with Art. 54 of the Criminal Code of the Russian Federation, arrest is unacceptable in relation to mothers with children under 14 years of age, pregnant women and minor children.

On bail, over arrest

According to the Federal Penitentiary Service as of June 1, there were 98.8 thousand prisoners in pre-trial detention centers. At the end of last year, for the first time, the number of prisoners in pre-trial detention centers fell below 100 thousand and is still below the line. But, frankly speaking, at the moment, the coronavirus has helped us maintain our achievement. In April, at the height of self-isolation, the number of prisoners in pre-trial detention centers decreased by almost 900 people.

A return to the previous regime of life does not mean that the prison doors can be thrown wide open. It's not about the virus: arrest should be an exceptional measure.

Now, as the Supreme Court strictly pointed out, people in robes, considering applications for arrest, must think about whether a different measure could be applied. Even if the defense itself does not dare to utter the cherished words “house arrest” or “bail” out loud, the court is obliged to remember these measures. If, in the opinion of the court, in this particular case they are inappropriate, this will need to be justified.

“The clarifications of the plenum of the Supreme Court of Russia guide the courts toward the wider use of alternative preventive measures: house arrest, bail, prohibition of certain actions,” emphasized Vladimir Gruzdev, Chairman of the Board of the Russian Lawyers Association. — The last measure is relatively new: the article “Prohibition of certain actions” appeared in the Criminal Procedure Code in the spring of 2022. It gives the court the authority to impose a certain set of prohibitions on the defendant.”

According to him, the law has made the system of preventive measures more flexible and effective. Prohibitions in different variations can be applied both separately and as an addition to other measures - bail and house arrest.

As the plenum clarifies, if a person is accused of a crime of minor gravity, the court has the right to take him into custody not only in exceptional cases, but also on the condition that, along with the usual grounds provided for by the Code of Criminal Procedure, there are additional circumstances. For example: the suspect or accused does not have a permanent place of residence in our country, his identity has not been established, he was hiding from the preliminary investigation authorities or from the court, etc.

And if a person is already in a pre-trial detention center, the arrest cannot be automatically extended. An investigator who wants to keep the accused in a state house for some more time is obliged to report in detail to the court: what was done while the citizen was sitting in the cell. If the investigation repeatedly asks to extend the arrest, citing the need to carry out some investigative actions, for example, confrontations, the court must figure out what prevented it from being done earlier? Moreover, the need to conduct new interrogations in itself cannot be a sufficient basis for extending the arrest.

“So far, in practice, such a preventive measure as bail is used quite rarely,” noted Vladimir Gruzdev, Chairman of the Board of the Law Firm. — According to the Judicial Department of the Supreme Court of Russia, during the year more than 104 thousand petitions for choosing a preventive measure in the form of detention were considered, and 86 times the courts, having rejected the investigation’s request for arrest, set bail. At the same time, house arrest, instead of sending a person to a pre-trial detention center, was chosen by the court 3.5 thousand times.”

Now, the clarifications of the Supreme Court directly direct the lower authorities to the fact that the courts, when considering petitions for the selection of preventive measures in the form of house arrest and detention, as well as for the extension of the period of application of these measures, should discuss the possibility of applying bail to the suspect or accused if there is a need for that grounds. At the same time, the court is not limited in its right to bring this issue up for discussion between the parties and on its own initiative.

If the court concludes that the assignment of bail in itself is not sufficient to achieve the purpose of applying a preventive measure, it, as the plenum of the Supreme Court recalls, has the right to additionally impose obligations on the suspect or accused to comply with one or more prohibitions. If, after discussing the possibility of applying bail to the suspect or accused, the court found it necessary to choose a more severe preventive measure, then the court decision must provide the reasons why the court considered the application of bail impossible. At the same time, it is unacceptable to tie the amount of bail to the amount of damage charged to the accused.

“Such legal positions are expected to expand the use of humane measures of restraint and reduce the number of arrests,” concluded Vladimir Gruzdev.

Separately, the resolution spells out protective measures for entrepreneurs. When investigators ask to arrest an entrepreneur on charges of fraud, the courts must especially check that the alleged crime is not directly related to business activities. If we are talking about a possible economic crime, then arrest is not required.

Courts, when deciding whether to arrest, will have to examine whether the accused could instead be given house arrest or bail.

The plenum also protected employees, including assistants and close assistants of senior managers, from criminal liability for carrying out orders from their superiors. But a person will not be punished only if he acted in good faith, without realizing that he was participating in criminal schemes. These clarifications already apply to the consideration of criminal cases.

Let's say an assistant manager sent some document by e-mail, or, on instructions from his superiors, agreed on a time for negotiations with the managers of another company. And during the negotiations, it was precisely criminal schemes that were discussed. If the subordinate was not aware of what was happening, he should not respond.

Arrest in a criminal case

The expression “criminal arrest” can actually mean completely different concepts. Criminal legislation contains many rules related to restriction of freedom, and they are regulated by different documents: Criminal, Criminal Procedure, Criminal Executive Codes, as well as individual laws. Therefore, ordinary citizens, when using the terms: article, arrest, most often have no idea about such concepts as detention, detention, deprivation, restriction of freedom, arrest. After all, virtually all of them deprive a person of freedom. Meanwhile, their legal grounds and deadlines are different.

When they say “arrest of the accused,” they most often mean the application of a preventive measure to him in the form of detention. This measure is appointed by the court at the request of the investigation, which must be filed within the period of detention (48 hours). When it is satisfied and the measure is applied to the person, a situation occurs that is most often referred to as “arrest pending trial.” To detain a person and transfer him to a special institution, a court decision must be presented, which is usually referred to as an “arrest warrant.” All of the above actions have no relation to the concept of arrest, which is disclosed by law.

Arrest in the Criminal Code (Article 54) is one of the types of punishment associated with deprivation of liberty, along with restriction of liberty, imprisonment, and house arrest. Punishment is imposed by a court decision because a person is found guilty of a crime. Unlike administrative proceedings, where this is a fairly frequently used type of punishment, it is practically not used in criminal cases. The provisions of the modern Criminal Procedure Code strictly regulate the period of detention of the accused (suspect) and the period of house arrest. At the pre-trial stage, it cannot be more than 30 days.

Arrest in enforcement proceedings

Arrest in enforcement proceedings involves drawing up an act of seizure, which is more often known in everyday life as an inventory of property. This procedural action is carried out by bailiffs. Grounds for seizure of property: judicial acts, executive documents of other authorized bodies, which are specified in the law on enforcement proceedings (No. 229-FZ). This procedure is strictly regulated. So, for example, if there are no witnesses during the inventory, then this will be an illegal seizure of property. The imposed enforcement measures and restrictions will be lifted only when the bailiff issues a decision to lift the arrest.

Protection of rights when freedom is restricted

Protection during criminal prosecution is guaranteed to a citizen by the Constitution and the Code of Criminal Procedure of the Russian Federation from the moment any action is taken against him. limiting his freedom. And the role of a defense lawyer is especially important at the pre-trial stage of the investigation, since it is at this moment that rights are violated during arrest in most cases. During the delivery of the suspect to the investigator and during the arrest, only a lawyer is able to correctly assess the circumstances and the legality of all actions in relation to the client. Since the detainee has the right to a confidential meeting with a lawyer before the first interrogation, this opportunity should be used to the fullest. For example, the arrest of a minor requires immediate notification of his parents, and his interrogation cannot be carried out without a lawyer.

The lawyer can add his comments to the investigator’s petition and suggest to the suspect or accused what grounds should be given in the explanation so that they are taken into account by the court when choosing a preventive measure. The defense attorney is taking such measures as appealing the arrest as an overly harsh preventive measure, and raising the question of changing it to a lighter one: bail, house arrest, and others. The established period for appeal is only three days. The periods of detention are specified in Article 109 of the Code of Criminal Procedure; extension of arrest is possible at the request of the investigator and the decision of the district court - up to 6 months. When investigating serious crimes, the period can be extended to 12 months, but the decision on this is made by the regional, regional, and Supreme courts.

Arrest houses - what are they?

The arrest house is a place where the accused are sent in order to isolate them from society.

In what case is the offender placed in a place of strict isolation? This can happen if:

1. The accused does not have his own place of residence.
2. The judicial authorities doubt that the punishment will achieve its goal by leaving the prisoner at home.
3. During the serving of previous sentences, the offender violated the conditions of serving.
4. The offender tried to hide from the investigation.

As a rule, a prisoner is not allowed to change houses of arrest while serving his sentence, but in some cases this is possible:

1. If the criminal is sick.
2. Force majeure circumstances have occurred, for example, a natural disaster, etc.
3. The prisoner is in any danger in this place.
4. Transfer is permitted by order of higher authorities.

Another condition for arrest houses is that they are not located within a subject of the Russian Federation, but within the prisoner’s place of residence (city, district).

The conditions of a prisoner's stay in the arrest house are extremely harsh. A prisoner has no right:

1. Seeing relatives and friends;
2. Receive and send parcels. The exception is things of extreme necessity.
3. Spend more money on groceries than one-fifth of the minimum wage.
4. Use any means of communication.
5. Travel without escort.
6. Continue working or studying.

Thus, being in a detention center is indeed a stressful experience for a criminal.

Administrative arrest

Administrative arrest, as one of the types of punishment, is provided for by the Code of Administrative Violations. It can only be appointed by a court and only in the cases provided for in this document. The Code of Administrative Offenses includes 29 types of offenses for which arrest is used as the main or additional punishment. The serving of administrative arrest is regulated by a special law (No. 67-FZ). It sets out the serving procedure, conditions, rights and obligations of those arrested. The period of administrative arrest cannot exceed 15 days. Only in case of violation of counter-terrorism or emergency situations, it can be extended to 30 days. If there was administrative detention before the trial, then its term is counted towards the term of serving the arrest.