One of the stages of the investigation is placing the suspect in a pre-trial detention center. People who themselves are under investigation, or their relatives, quite naturally have a question: how long can they be kept in a pre-trial detention center. Determining the period of detention in a pre-trial detention center depends on a number of factors, so it is almost impossible to provide accurate data on how long they will be kept in a pre-trial detention center.
The length of time an accused can be held in a pre-trial detention center is regulated.
There are various reasons for using this preventive measure:
- the investigator is afraid of the prisoner escaping;
- the offender may pose a threat to victims;
- the person under investigation may pose a threat to society;
- the accused tries to obstruct the progress of the investigation;
- It is more convenient for the investigator to conduct interrogations when he can talk with the offender at any time.
Provisions of the legislation of the Russian Federation on the terms of detention
The duration of detention before trial in general under Art. 109 of the Code of Criminal Procedure of the Russian Federation cannot exceed more than 2 months. These deadlines are valid in cases where the investigator has managed to conduct a thorough investigation, interview all eyewitnesses and analyze the facts in order to fully understand the picture of what happened. In fact, periods of detention in pre-trial detention centers are repeatedly extended as new facts are discovered, since there is a need to clarify witness testimony and more carefully analyze the evidence and circumstances of the crime.
The period of an offender's imprisonment includes 3 stages:
- before trial;
- trial;
- before the sentence takes effect.
The period of imprisonment of an offender before trial, according to the law, can last up to 6 months for offenders under investigation in cases of any category. If an investigation is underway for a crime classified as particularly serious or serious, the period of imprisonment in a pre-trial detention center can be extended to a year. In 109 Art. it is indicated that the period may be increased, provided that special difficulties arose during the investigation. It should be noted that law enforcement officials usually do not have difficulty finding arguments to increase the term of detention. If a particularly serious crime is committed or special circumstances arise during the investigation, the accused may be kept in custody for up to one and a half years.
There have been cases where defendants remained in custody for two years or more. Justice workers motivated this by the fact that:
- During the investigation, circumstances arose requiring the offender to be placed in a pretrial detention center;
- appealing a court verdict also requires time, which the offender would better spend under the control of law enforcement agencies.
As a result, the time of confinement of people in a pre-trial detention center was extended as long as it was beneficial or convenient for the investigator. The only way to combat illegal detention is the services of an experienced lawyer who will deal with the investigation and will strictly control the actions of law enforcement officers.
According to the legislation, the maximum period for keeping a person in a pre-trial detention center before trial is one and a half years. Before the investigative file is sent to the court, the accused must familiarize himself with it no later than a month before the end of the period of stay in the detention center. This implies the need to extend the offender's time in custody until he has carefully considered all the information.
VKS is suitable for arrest, but not for release
Suddenly Alexey Avanesyan changed the topic:
– Does videoconferencing provide a secure method of data transmission?
After some confusion, an employee of the Judiciary stated that the Supreme Court provides the opportunity for meeting participants to exchange opinions - but transmitting a copy of the verdict in this way is still impossible. The lawyer, not satisfied, repeated the question. And I heard in response that internal departmental instructions “duplicate laws without a broad interpretation,” which means that it will be possible to transfer copies of protocols via videoconferencing only after the laws change. Avanesyan did not give up:
- Well, now we are talking to you via videoconferencing. Is this channel secure?
The defendant asked the judge to allow her not to answer such a question.
“If a person is released in the courtroom, he immediately goes home,” the lawyer continued. – And if with the help of videoconferencing, which your department came up with, then a person will go home only after the piece of paper with a blue stamp has passed halfway across Russia. Do you think this does not worsen a person’s situation?
– I cannot answer this question.
The representative of the Federal Penitentiary Service quietly and in some places unintelligibly read the department’s position from a sheet of paper - sometimes he, like a first grader, ran his finger along the lines. He said that the issue of releasing a person is decided by the head of the institution after receiving properly executed documents from the court or other officials.
Then Avanesyan asked whether the FSIN interacts via secure communication channels with other government agencies. Looking up from his papers, the defendant confirmed that pre-trial detention centers and correctional institutions have channels of operational communication with the Ministry of Internal Affairs, the Supreme Court and some other departments. But there is no such secure connection with courts of general jurisdiction. He did not explain whether such a connection would be established - or whether it would be possible to transfer release documents through it.
The lawyer tried to find out how the concept of “immediately” is understood in the FSIN - but again was unsuccessful. The defendant reported that release occurs immediately after receiving the necessary papers from the court. But he could not explain how long it might take to deliver documents and verify their authenticity.
Avanesyan asked whether the Federal Penitentiary Service is changing the conditions of detention of those actually released: “They transfer him to other conditions, provide him with a waiting room while he receives documents from the court?”
“Only the head of the detention center makes decisions,” answered the FSIN representative. – Even if the release was announced in the presence of an employee, the conditions of detention do not change.
Representatives of all departments stated that the contested norms did not violate Beshtoeva’s rights and freedoms and do not contradict higher laws - and asked the court to dismiss the claim.
Determination of length of stay
Prisoners do not have to calculate on their own how long they will have to spend in a pre-trial detention center, since this is within the competence of the court. The order according to which an offender under investigation is placed in a pre-trial detention center must include:
- indication of the time within which the preventive measure is in effect (days, months);
- the date on which the time period ends.
The accused must be kept in custody until the last day designated by the court, inclusive. At the specified time the following is counted:
- House arrest;
- being in the status of a suspect, etc.
After the prosecutor has referred the case to the court, Art. 255, according to which, if a person is sitting in a pre-trial detention center, judges do not change the measure of restraint. During the trial, the accused's stay can be up to six months, plus three months if the crime is particularly serious or serious. The court indicates the measure of restraint in the verdict. When appealing a verdict, the defendant's stay in a pre-trial detention center may be extended until the preventive measure is changed or until a final verdict is pronounced.
When rendering a guilty verdict, only the days during which the person was detained before the start of the trial are taken into account. In part three of Art. 72 of the Criminal Code states that days after the start of the trial are not taken into account.
Archaic instructions
It is symbolic that Beshtoeva’s defenders participated in the meeting of the Supreme Court on the High Court of Justice - from Krasnodar. Representatives of the defendant departments and the Prosecutor General's Office were present in the hall in person. At the beginning of the meeting, Supreme Court Judge Alla Nazarova explained Beshtoeva’s demands. The plaintiff called the rules of the Federal Penitentiary Service and the Judicial Department illegal, according to which the head of the detention center can release a person only after receiving a certified copy of the relevant court decision. These instructions, according to the plaintiff, contradict the Detention Law and the Code of Criminal Procedure, which refer to “immediate” release. The plaintiff proposed introducing a rule on electronic document management - this way there would be no need to wait for the delivery of “liberating” decisions.
The provisions of the following documents were challenged in the Supreme Court:
- Instructions on the work of departments (groups) of special registration of pre-trial detention centers and prisons of the Federal Penitentiary Service of Russia, approved by order of the Ministry of Justice of the Russian Federation dated June 23, 2005 N 94-dsp;
- Order of the Judicial Department at the Supreme Court of the Russian Federation dated December 15, 2004 No. 161 (as amended on October 28, 2019) “On approval of the Instructions for judicial records management in the supreme courts of the republics, regional and regional courts, courts of federal cities, courts of the autonomous region and autonomous districts” .
The representative of the plaintiff, Yulia Fedotova, emphasized that the main complaint about the contested instructions is their archaic nature. The lawyer recalled that the rules were written in 2004 and 2005, when meetings on the HQS had not yet been held - and that is why they do not take into account the possibility of remote release:
“Behind all our arguments there is one simple thought: if a person participates in a court hearing [from a pre-trial detention center under the HQS] and is released from custody, then he must be released immediately. The same as if it participated in person.
Otherwise, Fedotova believes, the human right to freedom and personal integrity is violated. Thus, the ECHR does not allow a delay in release even for several hours. The lawyer noted that the problem is not difficult to solve:
– The introduction of electronic document management via secure communication channels will allow people to be released immediately.
Timing system
When imposing a sentence, the court uses a system of counting days in accordance with Art. 72 of the Criminal Code, according to which days are counted during the period of imprisonment:
- 1/1 in case of arrest, detention in a disciplinary military unit, during forced labor;
- 1/2 in case of restriction of freedom;
- 1/3 with restrictions on military service and correctional labor;
- 1/8 hours for mandatory work.
At this stage, the possibility of counting 1 day in a pre-trial detention center for 2 days in a penal colony or 1.5 days in a general regime colony is being considered.
Recalculation of punishment in pre-trial detention center
According to Part 3.1 of Art. 72 of the Criminal Code of the Russian Federation, the day of detention is equivalent to:
- to one day of the convict’s stay in prison, a strict or special regime colony;
- to one and a half days of punishment in an educational or correctional colony of general detention;
- to two days of punishment in a penal colony.
This part of Article 72 of the Criminal Code was introduced by Part 2 of Art. 1 Federal Law No. 186, signed by the President of Russia on July 3, 2018.
The point of this article is to equalize the conditions of punishment throughout its entire term - from arrest to release. If the conditions of stay in a pre-trial detention center are significantly worse than the conditions of punishment provided for by a court decision, then the total time of serving the sentence should be reduced. Otherwise, it turns out that a citizen who has committed a crime is punished more severely than provided for by the relevant article of the Criminal Code.
Starting from July 2022, it became possible to recalculate the total sentence for convicted persons and reduce the time they spent in custody.
In court decisions after July 2022, this norm should be reflected in the effective part of the sentence, but due to various circumstances that did not allow the court to apply this norm when passing a sentence, the convicted person, with the help of a lawyer, can go to court at the place of serving the sentence. The same opportunity is provided to all citizens convicted before July 3, 2022.
Attempts to change the Criminal Code in a similar way were made by human rights activists back in 2008, when a corresponding draft was submitted to the State Duma. The experts explained their position by the harsh conditions of detention of citizens in pre-trial detention centers, which are equivalent to the conditions of prisoners in high-security colonies. Such punishment was not always equivalent to the citizen’s guilt.
It was quite difficult to change the conditions of stay in the pre-trial detention center due to the obsolescence of Russian prisons and the increasing flow of people placed in custody. It was not possible to solve the problem, which simultaneously required significant funds, in a short time, so the state decided to introduce a standard for reducing the total sentence.
When recalculation of punishment does not apply
Recalculation of the sentence does not apply to citizens:
- serving a sentence in a correctional or educational colony of general regime, if disciplinary measures have been applied to them in the form of being in a disciplinary, punishment cell or in cell-type premises;
- who have committed a serious crime and were previously sentenced to a real term of imprisonment two or more times for committing an intentional crime of moderate gravity;
- who have committed a serious crime and were previously sentenced to a real term of imprisonment for committing a serious or especially serious crime;
- sentenced to death, but received a pardon in the form of a life sentence or a prison term of 25 years;
- who committed a crime and were convicted in accordance with the articles of the Criminal Code: for espionage and high treason, for the production and trafficking of drugs, for attacks on government officials, seizure and retention of power by force, rebellion with the use of weapons, for the seizure and hijacking of water, air or railway vehicle, terrorism and international terrorism, for hostage-taking and attacks on buildings and people under international protection.
By legislatively introducing a rule that reduces the total sentence for those convicted of crimes of minor gravity, the state took another step towards creating a humane system of execution of punishments.
Who will not be affected by the amendments?
The amendments will not affect those placed in maximum security colonies. But parts 3.2 and 3.3 of the article in question contain separate comments that the one-to-one formula is applied to convicts:
- in case of particularly dangerous recidivism of crimes;
- for whom the death penalty has been replaced by imprisonment;
- for a terrorist act, assistance in terrorist activities, public calls for terrorism, organization of a terrorist society, as well as participation in it, hostage-taking resulting in the death of someone, theft of a vehicle for the purpose of terrorism, possession of drugs on a large or especially large scale, sale of drugs, state treason, espionage;
- who are kept in a punishment cell or cell-type premises as a result of disciplinary action.
Such clarifications are made taking into account the fact that women cannot be placed in strict and special regime institutions and from this point of view there are no restrictions on the effect of the amendments for them. But if a woman was convicted under one of the above circumstances, restrictions will also apply to her.
Review of sentences
From the contents of Art. 10 of the Criminal Code of the Russian Federation it follows that a norm that worsens a person’s situation does not have retroactive effect, unlike one that improves this situation. The norm, the application of which entails a reduction in the term of serving the sentence, certainly belongs to the second group. This means that persons sent to serve a sentence in a settlement colony or a general regime colony can apply for a reduction in the term imposed by a sentence that entered into legal force before the date of the amendments.
The changes date back to July 14, 2022, so for persons who were placed under house arrest prior to a sentence that came into force earlier than that date, the offset will be made using the one-to-one formula. Such sentences will not be reviewed.
A procedural procedure that is necessary before a convicted person is credited with being in a pre-trial detention center.
The issue of crediting one's stay in a pre-trial detention center while serving a sentence is decided by the administration of the colony. Settlement colonies were given three months to do this, general regime colonies six months, from the moment the new law came into force.
Employees identify persons in respect of whom a recount is possible and send a reasoned submission to the court.
