The procedure for transferring convicts from one correctional institution to another

The procedure for transferring convicts from one correctional institution to another

The grounds for transferring convicts from one correctional institution to another are determined by the Criminal Executive Code of the Russian Federation (PEC RF). Thus, in accordance with the requirements of Article 81 of the Penal Code of the Russian Federation, those sentenced to imprisonment must serve the entire sentence, as a rule, in one correctional facility. The principle of serving the entire term of a sentence by those sentenced to imprisonment in one correctional institution is essential from the point of view of achieving the goals of punishment. During the period of stay in a correctional institution, the convict gets used to the level of requirements, masters a working specialty, and can continue vocational and general education. The administration studies the personality of the convicted person, his social connections outside the place of imprisonment, and implements measures to facilitate his social adaptation after release from the correctional institution. Transferring a convicted person to another correctional institution of the same type interrupts this process and forces it to start again. This situation leads to significant losses of a psychological, pedagogical, material, financial and organizational nature.

The transfer of a convicted person to further serve his sentence from one colony to another of the same type is an exception to the general rules and is permitted:

1. In case of illness of a convicted person (transfer for inpatient treatment and specialized medical care to medical institutions of the penal system, located, as a rule, in a different climatic zone).

2. To ensure the personal safety of convicts (in the event of a real threat to the life of the convict emanating from other convicts).

3. During the reorganization or liquidation of the correctional institution in which the convicted person is serving his sentence.

4. In other exceptional circumstances that prevent the convict from continuing to stay in this correctional facility (natural disasters, man-made disasters, mass riots, group disobedience of convicts to the administration of the institution, epidemics).

It should be taken into account that circumstances such as the difficult financial situation of relatives, the serious health condition of relatives and friends, as well as other social, everyday and family problems of convicts are not “exceptional circumstances” and cannot be considered as a basis for transferring a convict to another correctional institution.

The procedure for transferring convicts to further serve their sentence from one correctional institution to another of the same type is determined by the Ministry of Justice of the Russian Federation. The initiative for transfer may come from the convict himself, the administration of the correctional institution, the prosecutor overseeing the legality of the execution of the sentence, a deputy, the Commissioner for Human Rights in the Russian Federation, or relatives of the convict. If the initiators of the transfer are relatives of the convicted person, deputies or the Commissioner for Human Rights in the Russian Federation, the transfer can only be carried out with the written consent of the convicted person.

Each time a request for transfer is made, its validity is checked, after which authorized employees of the territorial body of the penal system draw up the necessary package of documents with conclusions about the feasibility (inexpediency) of transferring the convicted person. The transfer of a convicted person to a correctional institution located within one subject of the Russian Federation (for example, within the Murmansk region) is carried out on the instructions of the head of the territorial management body of the penal system (for example, the head of the Federal Penitentiary Service of Russia for the Murmansk region). The transfer of a convicted person to a correctional institution located in another subject of the Russian Federation (for example, outside the Murmansk region) is carried out at the direction of the leadership of the Federal Penitentiary Service of Russia (Moscow) on the basis of a reasoned conclusion.

How to get a transfer to a colony closer to home

Family support is very important for everyone who is deprived of liberty: calls, short and long visits provide a break from the routine of prison life, receive much-needed support and maintain family ties. However, the imprisonment of one of the family members certainly entails difficulties in maintaining communication. The number and duration of visits and telephone calls are strictly regulated by the Criminal Executive Code (PEC). At the same time, unfortunately, the Federal Penitentiary Service of Russia still often does not allow people to serve their sentences in the regions where they lived before their conviction and where their relatives continue to live. The problem of maintaining normal communication in the case of Russia is aggravated by the huge distances between many regions, as well as the poor transport accessibility of the colonies and the high cost of travel. Some families simply do not have the financial ability to purchase tickets or take additional time off from work.

Why is there a problem of serving a sentence far from home?

Until recently, neither the PEC nor the by-laws regulated the procedure for the geographic distribution of convicts among colonies, leaving the determination of a specific correctional institution to the discretion of the Federal Penitentiary Service of Russia. The department simply did not take into account the region of residence before the conviction and the place of residence of the family. The transfer of convicts to a correctional institution located in the region of residence of their close relatives was also not regulated.

The only opportunity to achieve such a transfer was formally provided by Part 1 of Article 73 of the Penal Code, which “in exceptional cases” allowed the transfer of convicts to another correctional institution. However, the Department of Regime and Supervision of the Federal Penitentiary Service of Russia, where the convicts submitted requests for transfer, did not consider the impossibility of maintaining family ties to be such an “exceptional case” requiring transfer. Courts at various levels recognized the refusals of the Russian Federal Penitentiary Service to satisfy such requests as legal. They usually indicated that the inability to maintain family ties was not a reason for transfer, or that the distance of the correctional institution from the place of residence of close relatives did not create insurmountable obstacles to maintaining family ties.

This approach of the courts did not in any way solve the problem of convicts maintaining family ties with relatives living several thousand kilometers from the place where they were serving their sentences. The prisoners specified in Part 4 of Article 73 of the Penal Code (convicted under “extremist” and “terrorist” articles, life sentences, etc.) suffered especially greatly from this state of affairs, who were especially often sent to serve their sentences away from home.

Amendments to the Penal Code under the influence of the ECHR

Over the past few years, the ECtHR has adopted a number of decisions on complaints from convicts and their relatives who were faced with the inability to maintain family ties due to the extreme remoteness of correctional institutions from the region of residence of their relatives. The key findings of the ECtHR on this issue can be found in the judgment in the case of Polyakova and others v. Russia, issued in 2022. In this ruling, the ECHR found a violation of the right of convicts and their relatives to respect for family life in connection with their sending to colonies located far from the place of residence of the convicts’ families. He pointed out the systemic problem of regulating this issue in the PEC - in particular, that:

• the norms of parts 2 and 4 of article 73 and part 1 of article 81 of the Penal Code did not require the Federal Penitentiary Service of Russia to consider the possible consequences for the family life of convicts before choosing a specific colony;
• These rules of the penal code did not provide for the real possibility of transferring a prisoner to another correctional institution for reasons of maintaining communication with his family.

In April 2022, amendments to these articles of the Criminal Code were adopted, and in September 2022 they came into force. New regulation:

• obliges the Federal Penitentiary Service of Russia to send all convicts to a correctional institution located in the region of residence of their close relatives,
• allows, at the request of the convicted person or his close relatives, transfer from a remote correctional institution if possible.

The changes did not formally affect the convicts specified in Part 4 of Article 73 of the Penal Code (convicted of certain types of crimes, especially dangerous recidivism, etc.), but this gap was corrected by the Supreme Court of the Russian Federation.

Supreme Court: All prisoners have the right to transfer

After the amendments to Article 73 of the Penal Code came into force, the judicial practice in cases related to appealing the refusals of the Federal Penitentiary Service of Russia to transfer convicts to serve their sentences closer to the place of residence of their relatives has radically changed. The main role in changing this practice was played by the Supreme Court, which began to recognize such refusals by the Federal Penitentiary Service of Russia as illegal. For example, in the Ruling of July 26, 2022 in case No. 5-KA20-45-K2, the Supreme Court overturned court decisions that recognized as legal the routine refusal of the Federal Penitentiary Service of Russia to transfer a convicted person to serve a sentence closer to the place of residence of their relatives. The Supreme Court stated that:

• Courts must apply the legal position of the ECtHR in the case of Polyakova and others v. Russia.
• Courts need to take into account the circumstances and arguments related to the impossibility of maintaining family ties by convicts serving sentences in remote correctional institutions.
• Despite the fact that changes to Article 73 of the Penal Code do not formally apply to convicts specified in Part 4 of this article, they still have the right to be transferred to another correctional institution. The inability to maintain family ties is an “exceptional case” in accordance with Part 1 of Article 73 of the Penal Code and serves as the basis for transferring the convicted person to a correctional facility that is located near the place of residence of his close relatives.

In the Ruling of October 21, 2022 in case No. 70-CAD20-3-K7, the Supreme Court, in a similar situation, overturned the decisions of the lower courts and gave the same arguments. It is important that these legal positions of the Supreme Court also apply to “special” categories of convicts listed in Part 4 of Article 73 of the Penal Code, for which the new legal regulation is not formally in effect.

What should relatives and the convicted person do?

As noted above, based on changes to Article 73 of the Penal Code and judicial practice, any convicted person has the right to be transferred to a correctional institution located in the region of residence of his close relatives, if otherwise he cannot maintain stable family ties with them. In order to achieve a transfer, you must adhere to the following procedure:

• Send a request for transfer either to the Department of Sentence Execution and Special Accounting or to the Department of Regime and Supervision of the Federal Penitentiary Service of Russia. The petition can be sent either by mail or using the Internet reception of the Federal Penitentiary Service of Russia. The petition must be sent either by the convicted person himself or by close relatives with his consent. The form of such “consent” is not established. Formally, it can be received, for example, in a letter from a convicted person in their colony, or during a visit from a lawyer, and attached to the petition of relatives.
• The petition should refer to parts 2 and 2.1 of Article 73 of the Penal Code and indicate that these norms provide for transfer to a correctional institution located near the place of residence of close relatives of the convicted person if he cannot maintain stable family ties.
• If we are talking about a convicted person whose situation falls under the regulation of Part 4 of Article 73 of the Penal Code, then it is worth separately pointing out that the inability to maintain family ties is an “exceptional case” and serves as the basis for transfer to another correctional institution on the basis of Part 1 of Article 73 of the Penal Code. We can separately note the position of the Supreme Court on this issue (see above).
• In the petition, if possible, it is worth listing the correctional institutions that are located closest to the place of residence of close relatives of the convicted person and correspond to the conditions for serving the sentence for a specific convicted person (the type of correctional institution and the type of regime in it must be taken into account).

The Federal Penitentiary Service of Russia is obliged to respond to the petition within 30 days from the date of receipt. If the Federal Penitentiary Service of Russia refuses to satisfy the request, then it is possible to appeal such refusal to the court through administrative proceedings.

Sample form of a request for transfer to another correctional institution

Lawyer of the Sitting Rus' Foundation Arthur Dzedzinsky

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Temporary detention center and pre-trial detention center

IVS and pre-trial detention centers.

“Stole, drank, went to jail!”, so goes the phrase from one popular Soviet feature film. However, this phrase should actually be a little longer.

Indeed, before going to prison, a criminal, i.e. A person who has committed a criminal offense may end up in a temporary detention center (IVS) or in a pre-trial detention center (SIZO) before trial. These two concepts will be the focus of this article. By the way, it would be correct if, when describing these two concepts, we do not use such a term as “criminal”, because in Russia there is a presumption of innocence, i.e. a person can only be called a criminal after a court finds him guilty of committing a specific crime. So, it would be appropriate to use such concepts as “detained”, “suspect”, “accused”.

And so, let’s move on to the first concept – “temporary detention center”. Some may be more familiar with the concept of “pretrial detention cell”. They mean the same thing. But it is more correct to use the first concept.

Temporary detention centers, unlike pre-trial detention centers, are subordinated not to the Federal Penitentiary Service, but to the Ministry of Internal Affairs and are an integral part of the public security police. Temporary detention centers for suspects and accused persons of the internal affairs bodies and border agencies of the federal security service are intended for the detention of detainees on suspicion of committing crimes.

The body of inquiry, the inquiry officer, the investigator has the right to detain a person on suspicion of committing a crime for which a sentence of imprisonment may be imposed, if one of the following grounds exists:

1) when this person is caught committing a crime or immediately after its commission;

2) when victims or eyewitnesses point to this person as having committed a crime;

3) when obvious traces of a crime are found on this person or his clothing, on him or in his home.

If there is other data giving grounds to suspect a person of committing a crime, he may be detained if this person tried to escape, or does not have a permanent place of residence, or his identity has not been established, or if the investigator, with the consent of the head of the investigative body, or the inquirer, with the consent of the prosecutor A petition was sent to the court to select a preventive measure in the form of detention in relation to the specified person.

Suspects and accused are held in general or solitary cells in temporary detention facilities, and separately:

1. men and women;

2. minors and adults;

3. suspects (accused) and convicted persons, sentences in respect of which have entered into legal force;

4. suspects and accused in one criminal case;

5. those brought to criminal responsibility for the first time and persons previously held in prison.

The period of detention before a court decision cannot exceed 48 hours. After this period, the suspect must be:

1. or arrested by the court and transferred to a pre-trial detention center;

2. either released;

3. or the period of detention is extended by the court for an additional period of up to 72 hours; in this case, the detainee remains in the temporary detention facility.

Now we smoothly move on to the second concept - “pre-trial detention center”. The pre-trial detention center of the penal system of the Ministry of Justice of the Russian Federation is intended for the detention of suspects and accused (defendants and convicts) of crimes in respect of which detention has been applied as a preventive measure, as well as for the execution of criminal punishment in the form of imprisonment in relation to convicted persons those left to perform housekeeping work, as well as in relation to those sentenced for a period of not more than six months, left in pre-trial detention centers with their written consent. The pre-trial detention center also houses convicts awaiting transfer. Suspects and defendants in respect of whom a court decision has been made to select a preventive measure against them such as detention, can also be transferred to a temporary detention facility in cases where this is necessary for carrying out investigative actions, judicial consideration of cases outside populated areas, where there are pre-trial detention centers from which daily delivery is not possible, for the duration of these actions and the trial, but for no more than ten days within a month. The basis for such a transfer is a decision of the investigator or the person conducting the inquiry, or a court decision. Detention in a pre-trial detention center cannot exceed 2 months. But this period can be extended to 6 months in cases where it is impossible to complete the preliminary investigation within 2 months. A further extension of the term can be carried out in relation to persons accused of committing serious and especially serious crimes, up to 12 months. The period of detention beyond 12 months can be extended only in exceptional cases in relation to persons accused of committing particularly serious crimes.

That's all the main thing I would like to tell you. All that remains is to wish not to commit a crime!

10.12.2008

Sergey Bondarev

Quarantine in a pre-trial detention center is not a reason to deprive the right to participate in a court hearing

In the spring of 2022, the coronavirus infection changed the judicial system, and lawyers were faced with previously unheard-of violations of the rights of their clients - people in custody were no longer taken to court.

The courts, despite the objections of the defense, extended the period of detention, citing other exceptional circumstances provided for in Part 13 of Art. 109 of the Code of Criminal Procedure of the Russian Federation. Exceptional circumstances, according to the courts, were confirmed by a certificate of quarantine in a pre-trial detention center. The absence of the defendant in the courtroom (including the failure to ensure his participation via video conferencing) threatened to become the norm. In Moscow, such violations were widespread.

So, in April, my client, accused of committing a crime under Art. 172 and 210 of the Criminal Code of the Russian Federation, extended the term of custody without her participation in the meeting. In the appeal, the defense pointed out a significant violation of the law and the right to defense. In particular, the accused was not able to:

• familiarize yourself with the investigator’s petition and copies of the criminal case materials presented in support of it;
• object to the submitted petition and express your arguments;
• present evidence.

In the Moscow City Court, the client confirmed that she did not participate in the hearing of the first instance, and learned about the fact of extending the period of detention only after receiving the corresponding resolution. However, the Moscow City Court dismissed the appeal, citing the appeal decision by the presence of defense attorneys by agreement, representing the interests of the accused who were not brought to participate in the hearing.