A bill to reset the period of detention in a pre-trial detention center was introduced to the State Duma in June 2008. One of its authors was Tatyana Moskalkova, who now holds the post of Commissioner for Human Rights. “In accordance with the legislation of the Russian Federation, the conditions of detention of suspects and accused of committing crimes correspond to the strictest in terms of isolation, approximately the same as in prisons,” says the explanatory note to the bill. The authors of the document even cited decisions of the European Court of Human Rights, which indicated that conditions of detention should not be stricter than the conditions of the punishment imposed by the court. Therefore, it was proposed to change the existing procedure, when a day in a pre-trial detention center is equivalent to a day in a colony.
“What does this mean: that a person, while in a pre-trial detention center, endured more difficult conditions of detention than he should have endured, taking into account what the court handed down to him. Long visits are not allowed in a pre-trial detention center, a person is not allowed to work, and, of course, the difference between being in a pre-trial detention center and in a colony-settlement, where relatives can come, where a person can earn money, pay off debt, alimony, is completely different,” Moskalkova explained to Mediazone » the need to adopt a bill.
Why is this law needed?
Conditions of detention should not be more severe than the punishment that the court can impose - this is the position of the European Court of Human Rights.
Back in 2008, this was indicated in the explanatory note to the bill. The conditions in a pre-trial detention center are more stringent than in a general regime colony or a colony-settlement. In a colony, a person spends a lot of time in the fresh air, he can work and study. In a pre-trial detention center, apart from a short walk in a small courtyard, a person is in a confined space.
In accordance with the law, the preliminary investigation must take place within two months, but there are many opportunities to extend it - up to a year or more. When the investigation is completed and the prosecutor's office has approved the charges, the case is sent to court - which can also take months. All this time the arrested person can be kept in a pre-trial detention center.
The explanatory note also speaks of the “current lack of opportunity” to bring conditions in the pre-trial detention center in line with international standards. This problem is still relevant today, so the “preferential” credit for time spent in a pre-trial detention center is also a form of compensation for people for being kept in inappropriate conditions.
Time of detention
The conditions of detention in the detention centers influenced the course of the investigation. Bad food, overcrowding, short walks - all this forced a person to agree to anything just to leave the place of detention.
In particular, the above affected citizens under investigation for economic crimes or road accidents - people far from the criminal environment. Although the conditions of detention have not changed, the investigators have lost the motive to delay the process.
Initially, the legislation limits the pre-trial period of detention to 2 months. This is stated in Article 109. Code of Criminal Procedure. In practice, the terms are extended due to the discovery of new circumstances when a person spent a year or a year and a half in a pre-trial detention center.
What will the new law lead to?
Only practice will tell. The FSIN hopes that it will help relieve the congestion in pre-trial detention centers, many of which are “over-limited” - that is, they hold more prisoners than normal. Human rights activists hope that investigators will keep fewer people behind bars before trial. But there is an opinion among security officials that, on the contrary, many will try to stay in a pre-trial detention center for as long as possible: they will have to spend less time there than in a general regime colony or a colony-settlement. In any case, it is expected that, thanks to the new law, approximately one hundred thousand prisoners will have their sentences reduced. This is the main reason for his support from human rights activists.
What to do if a person spent time in a pre-trial detention center and was given a fine?
If the court has imposed a fine as a punishment, then it has the right to mitigate the punishment taking into account the time spent in the pre-trial detention center . But the fine cannot be replaced by days served in a pre-trial detention center: punishments are not interchangeable. The same approach applies to the right to hold certain positions or carry out certain types of activities.
For example, the subject was charged with abuse of power for selfish gain. The investigation lasted for 2 months, during which time the subject was in a pre-trial detention center.
After this, the court considered the case and imposed a punishment in the form of deprivation of the right to hold certain positions for 3 years. In such a situation, the court can either mitigate this punishment or release the offender from serving it.
We remind you once again that while the bill has passed the 1st reading in the State Duma, it has no legal force. In 2022, parliament must finally decide its fate.
How will time spent in custody be counted?
The law provides for a complex but clear system for recording time. We are talking about recounting the time spent not only in a pre-trial detention center, but also, for example, in a temporary detention center before being placed in a pre-trial detention center.
One day in custody will be equal to:
- 3 days of correctional labor and restrictions on military service;
- 2 days in a colony-settlement, restriction of freedom, forced labor and arrest;
- 1.5 days in a disciplinary military unit, educational colony and general regime colony;
- 1 day in prison, a special or strict regime colony;
- 8 hours of compulsory work.
Those convicted of repeat offenses, serious and especially serious crimes, with a maximum punishment of ten years, are kept in maximum security colonies and prisons. In special regime colonies - those sentenced to life imprisonment. True, for exemplary behavior, prisoners even on particularly serious charges have the opportunity to end up in a colony settlement.
Why did it take so long for the law to be adopted?
The consideration of various variations of the law on counting days in a pre-trial detention center according to a certain coefficient lasted more than 10 years. Lawmakers debated many important aspects of these changes, including:
- Supporters of the law relied on the facts of poor conditions of detention for prisoners in pre-trial detention centers. They noted that the conditions are worse than in the penal colony, since prisoners are kept in closed cells all the time and have the right only to a one-hour walk outside the cell. They cannot work or engage in any other activities. The cells contain many people, they are often overcrowded, and the sanitary and hygienic conditions of their detention leave much to be desired.
- Also in favor of the law, an allegation was made about the deliberate delay in the investigation of criminal cases by investigators who are trying to keep the accused in pre-trial detention for the maximum possible period - one year.
Based on numerous facts proving these circumstances of keeping prisoners in a pre-trial detention center, legal scholars argued for the need to change the rule of detention in a pre-trial detention center on the “day for day” principle to a rule where different types of punishment in comparison with the term in a pre-trial detention center were correlated according to a number of special coefficients.
Legislators listened to these arguments, but took into account the list of exceptions for prisoners who committed serious and especially serious crimes. They can only receive credit for their time in a pre-trial detention center in equal proportions to their time in a colony - day by day.
Who won't get their deadlines recalculated?
- Convicted of repeat crime;
- Those sentenced to death - if the exceptional measure was replaced by life imprisonment or 25 years of imprisonment. Since 1996, Russia has had a moratorium on the death penalty.
Convicted under articles:
- About terrorism, promoting terrorism, calls for terrorism, undergoing training to commit terrorist attacks, participation in a terrorist community or organization, an act of international terrorism;
- About the taking of a hostage by an organized group, or resulting in the death of a person, as well as about the hijacking of an aircraft associated with terrorist activities.
- On the illegal production, sale or transfer of drugs, as well as the acquisition, storage, transportation, manufacture, processing of drugs on a large and especially large scale.
- About drug theft or extortion
- About high treason and espionage, an attack on the life of a statesman and public figure, violent seizure of power, armed rebellion, as well as attacks on persons and institutions enjoying international protection.
For which categories of convicts a day and a half is not counted?
The innovations do not affect malicious violators of the law serving their sentences in strict, special and prison conditions.
A strict regime is assigned to repeat offenders and men who have committed serious crimes for the first time. A similar format of serving is not provided for women.
The worst and most dangerous criminals are kept in a special regime. We are talking about committing crimes of special gravity:
- forms of terrorism - participation, complicity, presence in an organization;
- crimes related to hostage taking, aircraft hijacking;
- high treason and espionage. This category also includes armed rebellion, assassination attempts on state and public officials, attacks on diplomatic institutions;
- crimes related to large quantities of drugs, theft and extortion.
A day and a half does not count towards the time spent in a punishment cell.
Who will sit longer because of the new law?
The new law worsened the situation of some convicts. Firstly, he equated two days under house arrest to a day in custody and imprisonment. Previously, a day in custody was considered a day locked up at home.
Secondly, “time flows” according to the one-to-one formula for convicts who end up in penal colonies in a punishment cell or a cell-type room. Practice shows that it is virtually impossible to challenge the imposition of disciplinary sanctions on prisoners - who are brought to isolation wards.
There are many examples when prisoners, through the courts, on the initiative of jailers, have their conditions of detention tightened: for example, from a settlement to a general regime or from general to strict. Such measures were applied to anti-fascist Alexei Sutuga, nationalist Igor Stenin and other political prisoners.
And this, too, is virtually impossible to dispute. If previously this led to a deterioration in the conditions of imprisonment, now it will lead to the fact that “undesirable” prisoners will serve even longer than they could.
What terms are taken into account when calculating?
The period of detention of a subject until the time of trial is understood to mean:
- Time of administrative detention and administrative arrest . This issue is regulated at the level of administrative legislation and arises when there are difficulties with criminal legal qualifications. For example, a person was detained for hooliganism (there are articles for hooliganism in both administrative and criminal legislation; it all depends on the severity of the act). Therefore, at first a person is detained as for an administrative offense, but then their qualifications are changed.
- Time of detention of a person suspected of committing a crime. This issue is already regulated by criminal procedure legislation.
- Time of detention of the subject as a preventive measure. The procedure and features of the conclusion are regulated by the norms of criminal procedure legislation.
- Time of application of compulsory medical measures to a person . For example, the period of detention of a subject is understood as the period of compulsory treatment in a psychiatric hospital.
- The time of disciplinary arrest is a measure that is used against a military personnel (it is regulated by military disciplinary legislation). This situation arises again with the complexities of criminal legal qualifications. For example, a person violated the rules of performing border service. At first, this act is considered as a disciplinary offense, but then it is reclassified as a crime against military service.
The man had a written undertaking not to leave the place. Is it a countable period? A recognizance not to leave is a measure that does not fall under the category of “detention.” It does not count towards the term of imprisonment. A corresponding court decision is required for placement in a pre-trial detention center.
What is the maximum and minimum period?
How long can a person stay in a pre-trial detention center? If the authorities pass the bill on recalculation under Art. 72 of the Criminal Code, then they will have to consider the length of time a person will remain in a pre-trial detention center . Otherwise, there will be “too great a temptation” to prolong the preliminary investigation in order to later “cut off” the term of serving the sentence.
- The minimum period of stay in a pre-trial detention center is not specified. Everything depends on the interests of the investigation (which is why a serious corruption loophole can arise here). If the suspect has nothing to hide, and the investigation has no serious reasons to keep him in a pre-trial detention center, release is possible literally within 1 day.
- The maximum period of stay in a pre-trial detention center is not specified. It all depends on the type of crime, the specifics of the investigation and other nuances.
The features of the maximum period of detention in a pre-trial detention center are as follows:
- the standard period of stay should not be more than 2 months (requirements of paragraph 1 of Article 109 of the Code of Criminal Procedure of the Russian Federation);
- if the investigation does not have time, and 2 months is too short a period, then the preventive measure can be extended to 6 months (and this norm is in paragraph 2 of Article 109 of the Code of Criminal Procedure of the Russian Federation). But here it is important to keep in mind one nuance: there must be a risk that the suspect, after leaving the pre-trial detention center, will be able to hide traces of the crime or commit other socially dangerous acts;
- if the circumstances of the case are complex, or grave or especially grave acts are to be investigated, then the investigator/head of the investigative body writes a petition. You can extend the period of stay in a pre-trial detention center to 1.5 years. Of course, all this time will be subject to recalculation in accordance with the prescribed rules and requirements.
There is formally a ban on longer stays in pre-trial detention centers. But it can also be circumvented by isolating the prisoner for a period of 2 or 3 years. To do this, you only need to provide the prisoner with 10 volumes of case materials for subsequent review.
Types of criminal penalties
Imprisonment is the main type of criminal punishment, which consists of isolating the offender in special-purpose institutions with a certain regime for serving the sentence.
The restriction consists in the establishment by the court of a set of restrictive measures in relation to the convicted person, which may consist of the following:
- do not change your place of permanent residence or stay for a certain period of time;
- do not visit designated places;
- do not travel outside the established territory;
- do not participate in or attend public events;
- do not change your place of work without the consent of a specialized government agency.
In accordance with Part 2 of Art. 53 of the Criminal Code of the Russian Federation:
the restriction is imposed from two months to four years as the main type of punishment for crimes of minor gravity and crimes of medium gravity, as well as from six months to two years as an additional type to forced labor or imprisonment in cases provided for by the relevant articles of the Special Part of this Code .
Correctional labor is the labor activity of a convicted person for a period of 2 months to 2 years at the main place of work, accompanied by the withholding of 5 to 20% of earnings to the state. Article 50 of the Criminal Code of the Russian Federation. Compulsory work is characterized by the convicted person performing socially significant and useful actions in his free time. According to Part 2 of Art. 49 of the Criminal Code of the Russian Federation:
Compulsory work is set from sixty to four hundred and eighty hours and is served no more than four hours a day.
How is the length of stay in a pre-trial detention center calculated? Which days are counted?
The period of serving the sentence includes ALL days when the person was under investigation until the court decision entered into legal force. Please note that the deadline continues after the court hearing (all the time when a person has a chance to appeal the verdict).
The person was convicted under Part 1 of Art. 163 for 1 year and 3 months (general regime colony). He served his sentence for 8 months, and is now being transferred to another prison. Chelok is in a pre-trial detention center. How is time in a pre-trial detention center calculated correctly: 1 day or 1.5 days or 2 days?
Here it is important to keep in mind the different status of people: arrested and convicted . Article 72 of the Criminal Code of the Russian Federation applies only until the sentence enters into legal force. But in this case, the sentence came into force long ago, and the convict served part of the sentence.
A completely different rule applies here - Part 7 of Art. 76 Criminal Executive Code.
It provides for the detention of convicts in so-called transit and transit points (TPP).
Placement in the Chamber of Commerce and Industry is carried out under the same conditions as the conditions for serving a sentence.
This means that in transit the convicted person serves his sentence under the general regime . Here the mathematics follows the principle of “one day at a time.”
The person is under investigation under Part 2 of Article 159. How to count days? Is there a recount? Staying in a pre-trial detention center under investigation is calculated using the formula “1 day = 1 day” . The formula “a day in two is possible only when punished in the form of restriction of freedom or when imposing other punishments not related to imprisonment.
A person is serving a sentence in a pre-trial detention center under Article Part 2 of Art. 111. The punishment imposed by the court is 3 years of general imprisonment. How will the term be counted? In this case, the “day by day” rule applies again .
Before sentencing, the man spent 6 months in a pre-trial detention center. He was sentenced to 1.5 years, but then it turned out that the period of stay in the pre-trial detention center was not counted towards the total term. Why did it happen? What to do?
In Part 3 of Art. 72 of the Criminal Code clearly states that the period of stay in a pre-trial detention center is counted towards the term of imprisonment . If this was not taken into account and calculated in the verdict, you will have to file a complaint.
When a person was brought to criminal liability, he had to be “given” a lawyer. Check the issue of recount with the lawyer who is participating in the court hearing to dispel any questions.
How to deal with recalculation? Will a day and a half in pre-trial detention be the law in 2022?
Many people are concerned about how days in pre-trial detention centers will be recalculated if the amendments come into force. By a court verdict or by the detention regime at the time the edit was published?
Let's consider an example from judicial practice.
The court's verdict imposed a strict regime for serving the sentence, but now the person is in a penal colony.
The 1:2 recount will still affect him. But only if the amendments are adopted and receive the status of law.
