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 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convicted of particularly dangerous recidivism of crimes; convicts for whom the death penalty by way of pardon has been replaced by life imprisonment or imprisonment for a term of twenty-five years; convicted for crimes provided for in Articles 205 - 205.5, parts three and four of Article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 an article of this Code, are counted according to the rules established by parts three and three .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.
- Article 71. The procedure for determining the terms of punishment when adding sentences
- Article 72.1. Imposing punishment on a person recognized as a drug addict
Commentary to Art. 72 of the Criminal Code of the Russian Federation
In a number of articles of the Criminal Code of the Russian Federation regulating the application of types of punishments indicating their terms (Articles 47, 50, 51, 53 - 56), these terms are calculated in months and years, and compulsory labor - in hours. In these cases, it should be borne in mind that the indication in the sanction of the article of a period of punishment of up to a certain number of years, for example, up to five years of imprisonment, gives the court the right to impose punishment both in whole years and in years with months (three years and six months; four years and three months, etc.). If the sanction of the article specifies a certain range of the type of punishment (Part 1 of Article 159 of the Criminal Code of the Russian Federation - correctional labor from six months to one year), then the punishment can be imposed in the form of six, seven, eight ... eleven months or in the form of one year of correctional labor works
Imposing a sentence in whole years presupposes the end of the sentence on the last day of the expiring year, and the year is not taken as a calendar year (from January 1 to December 31), but within the framework of the beginning and end of the term of serving the sentence. For example, a sentence of three years of imprisonment, which began serving on July 20, 2007, ends on July 19, 2008.
If the term of punishment is assigned in months, then the end of the term falls on the last day of the month based on the beginning and end of the sentence.
When calculating the terms of punishment in months, the number of days in a month does not matter (a punishment of two months of correctional labor, the beginning of which falls on February 1, 2008, will be considered served on March 31, 2008, and a punishment of three months - on April 30, 2008 .).
Calculation of sentence terms in days is allowed only in three cases:
a) when, in the case of a set of crimes or a set of sentences, the types of punishments specified in Part 1 of Art. 71 of the Criminal Code of the Russian Federation;
b) when the time of a person’s detention before trial is counted in accordance with Part 3 of the commented article;
c) when one type of punishment is replaced by another in the case of malicious evasion from serving a sentence imposed by the court (part 5 of article 46, part 3 of article 49, part 3 of article 50, part 4 of article 53, part 1 of article 54 of the Criminal Code of the Russian Federation).
The beginning of the term of serving the sentence is usually indicated in the operative part of the sentence (in case of imprisonment, arrest), but this is not always done. If the offender is sentenced to correctional labor, compulsory labor, deprivation of the right to hold certain positions or engage in certain activities, restrictions on military service, restrictions on freedom, then the term of serving the sentence is determined from the moment the actual serving of the sentence begins when control is exercised by specially created units under internal authorities affairs or self-government bodies.
For example, the beginning of the term of serving correctional labor is the day the convicted person goes to work (Part 2 of Article 42 of the Penal Code of the Russian Federation).
The time a person is held in custody shall be counted toward the term of serving the sentence.
The Constitutional Court of the Russian Federation in Resolution No. 1-P of February 27, 2003 in the case of verifying the constitutionality of Part 1 of Art. 130 of the Penal Code of the Russian Federation indicated that the Constitution of the Russian Federation, enshrining in Art. 22 the right of everyone to freedom and personal integrity, establishes uniform guarantees of this right during arrest, detention and detention. A similar approach is reflected in the Criminal Code of the Russian Federation, which uses a single time scale when calculating the term of imprisonment, regardless of whether it is used as a measure of restraint or punishment: the time a person is held in custody before trial is counted towards the term of imprisonment at the rate of one day per day. day. At the same time, the federal legislator does not (and is not obliged to) differentiate the procedure for counting periods of detention depending on the types of correctional institutions determined by the court when imposing a sentence of imprisonment.
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Determination of the Constitutional Court of the Russian Federation of October 16, 2007 N 709-О-О // Constitutional justice in the CIS and Baltic countries. 2007. N 28.
Excluding the power of the court to count the time spent in a pre-trial detention center against the term of imprisonment would conflict with the criminal law norm (Part 3 of Article 72 of the Criminal Code of the Russian Federation), on the basis of which the court has the right to count the time a person was held in custody before trial against the deadlines imprisonment, including in the case of the appointment of serving part of the sentence in prison. Essentially, this would also mean that the issue of calculating the term of the sentence to be served in prison, and, accordingly, of calculating the remaining term of the sentence in the form of imprisonment to be served in other correctional institutions (colonies), would actually be decided by the bodies executing the punishment, which would thereby have the opportunity to interfere with the basic elements of the sentence, which is unacceptable by virtue of Art. 49 of the Constitution of the Russian Federation and the provisions of the criminal legislation specifying it, according to which a person’s guilt in committing a crime and the resulting punishment can only be established by a court verdict (Article 43 and Part 3 of Article 58 of the Criminal Code of the Russian Federation).
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See: Resolution of the Constitutional Court of the Russian Federation of February 27, 2003 N 1-P // Bulletin of the Constitutional Court of the Russian Federation. 2003. N 3.
In the Resolution of February 27, 2003 in the case of verifying the constitutionality of the provision of Part 1 of Art. 130 of the Penal Code of the Russian Federation, the Constitutional Court of the Russian Federation came to the conclusion that the time of detention as a preventive measure, in any case, is subject to offset when determining the total term of the sentence imposed by the court, as well as when calculating the term of the sentence served, which allows the application of conditional early release from punishment . This approach, as indicated by the Constitutional Court of the Russian Federation, corresponds with international standards, according to which pre-trial detention should not be used if the alleged offense does not correspond to a sentence of imprisonment, and when sentencing, the period spent in pre-trial detention should either be counted towards the established sentence term of punishment, or taken into account in order to reduce the term of punishment.
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Determination of the Constitutional Court of the Russian Federation of December 21, 2004 N 466-O // Bulletin of the Constitutional Court of the Russian Federation. 2005. N 3.
The time of detention and the time of serving imprisonment in cases provided for in Part 2 of Art. 13 of the Criminal Code of the Russian Federation.
In the CIS countries, this issue is resolved in accordance with the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Cases, adopted in Minsk on January 22, 1993 and which came into force for the Russian Federation on December 10, 1994; in foreign countries - on the basis of international treaties and agreements.
In these cases, the counting of the time of detention and the time of serving imprisonment imposed by a court verdict for a crime committed outside the Russian Federation is carried out on the basis of one day for one day.
If the imposed sentence corresponds to the time of detention when imposing a sentence of imprisonment or the time of detention corresponds to the assigned punishment not related to imprisonment (for example, a person was held in custody for three months, and he was sentenced to correctional labor for term of nine months), then such a person is considered to have served his sentence.
In cases where a person is detained pending trial, and, for example, due to the reclassification of an act to a less serious crime, he is given a fine or deprivation of the right to hold certain positions or engage in certain activities as the main punishment, the court, taking into account the period of detention, mitigates the imposed punishment or completely exempts him from serving this sentence. This approach is due to the fact that, in accordance with Art. 71 of the Criminal Code of the Russian Federation, these types of punishment cannot be correlated with punishment in the form of imprisonment.
Self-executed punishments
Only those types of basic punishments in respect of which in Part 1 of Art. 71 of the Criminal Code of the Russian Federation provides for the procedure for determining the terms of punishments when they are added.
If, when imposing punishment for a set of crimes and a set of sentences for one crime included in the set, a fine or deprivation of the right to hold certain positions or engage in certain activities, deprivation of a special, military or honorary title, class rank and state awards is imposed, and for another crime - restriction of freedom, arrest, detention in a disciplinary military unit, deprivation of liberty, then when they are added, they are executed independently . Moreover, the operative part of the sentence in such cases should indicate the application of Art. Art. 69 or 70 of the Criminal Code of the Russian Federation, as well as for their independent execution.
In other words, a fine imposed under one sentence and imprisonment under another sentence are executed independently; fines and restrictions of freedom imposed for crimes included in a set of crimes are executed independently; deprivation of the right to hold certain positions or engage in certain activities and deprivation of liberty are executed independently, etc.
Judicial practice under Article 72 of the Criminal Code of the Russian Federation
Determination of the Constitutional Court of the Russian Federation dated March 13, 2018 N 578-O
As follows from the presented materials, by the verdict of the Nazarovsky City Court of the Krasnoyarsk Territory dated July 24, 2015 I.S. Sukhorukov was found guilty of committing a crime under part six of Article 290 of the Criminal Code of the Russian Federation (receiving a bribe on an especially large scale), and he was sentenced to a fine in the amount of twice the amount of the bribe (RUB 3,600,000) with deprivation of the right to hold office, related to the exercise of functions of a government representative, as well as the performance of organizational, administrative and economic functions in state bodies, local governments, state and municipal institutions and state corporations, for a period of 3 years. By virtue of part five of Article of the Criminal Code of the Russian Federation, taking into account the time of the applicant’s detention in custody, the fine was reduced to 3,000,000 rubles. The same verdict preserved the seizure previously imposed on the applicant’s property (a Ford Focus car and money in the amount of 58,351.07 rubles, located on a special card account opened with OJSC Asia-Pacific Bank) until the fine was fully paid.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated June 20, 2018 N 81-APU18-8
The time the convicts were kept in custody was correctly counted towards the term of serving the sentence at the rate of one day of detention for one day of imprisonment, in accordance with the requirements of Part 3 of Art. Criminal Code of the Russian Federation. Guided by Art. Art. 389.13, 389.20, 389.28, 389.33 Code of Criminal Procedure of the Russian Federation, Judicial Collegium
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated July 26, 2018 N 47-APU18-7
At the same time, Federal Law No. 186-FZ of July 3, 2022 introduced amendments to the article of the Criminal Code of the Russian Federation regarding the procedure and conditions for counting the time of detention of accused persons in custody during the investigation period until the sentence enters into legal force, if the sentence is ordered to be served in a correctional facility. general regime colonies. In accordance with Part 3 and paragraph “b” of Part 3.1 of Art. The Criminal Code of the Russian Federation as amended on July 3, 2018, the time a person is held in custody before the sentence enters into legal force is counted towards the term of imprisonment at the rate of one day for one and a half days of serving the sentence in a general regime correctional colony.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated 08/09/2018 N 41-APU18-11
According to the arrest report, Mansuryan K.S. was detained in accordance with Art. Art. 91, 92 of the Code of Criminal Procedure of the Russian Federation on April 25, 2022 at 2 hours 20 minutes (vol. 1, pp. 108 - 111). Thus, the court correctly, in accordance with the requirements of Part 4 of Art. The Criminal Code of the Russian Federation counted the time of his detention in the term of imprisonment from the moment of detention.
Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated July 26, 2018 N 127-UD18-9
In addition, the Judicial Panel believes that, in accordance with the provisions provided for in Part 5 of Art. of the Criminal Code of the Russian Federation, and taking into account that Kovach has been serving his sentence in a penal colony since August 12, 2022, he should be released from the main punishment in the form of a fine in the amount of 100,000 rubles imposed by the verdict.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated July 26, 2018 N 44-APU18-9SP
At the same time, the Judicial Collegium sees grounds for changing the sentence in connection with the entry into force (after the verdict), from July 14, 2022, Federal Law of the Russian Federation dated July 3, 2018 N 186-FZ, which introduced changes to the article of the Criminal Code of the Russian Federation that improve the situation convicted, in connection with which, on the basis of Art. of the Criminal Code of the Russian Federation, this criminal law has retroactive effect and is subject to application in the Morozova case.
Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated August 28, 2018 N 46-UD18-37
In accordance with Part 3.1 of Art. of the Criminal Code of the Russian Federation as amended by Federal Law No. 186-FZ of July 3, 2022, the time a person is held in custody before the court verdict enters into legal force is counted towards the term of imprisonment, with the exception of cases provided for in Parts 3.2 and 3.3 of this norm, based on one day for one and a half days of serving a sentence in a general regime correctional colony.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated 09/05/2018 N 82-APU18-6
So, according to Art. According to the Criminal Code of the Russian Federation, a criminal law that mitigates punishment or otherwise improves the situation of a person who has committed a crime has retroactive effect, that is, it applies to persons who committed the relevant acts before the entry into force of such a law. Therefore, the provisions of Part 3.1 of Art. The Criminal Code of the Russian Federation as amended by Federal Law dated 07/03/2018 N 186-FZ stating that the time a person is held in custody is counted towards the term of imprisonment at the rate of one day for one and a half days of serving a sentence in a general regime correctional colony and is subject to application in relation to convicted Yakovleva V .N.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated August 28, 2018 N 78-APU18-15
The request of the convicted persons, set out in their appeals, to count one day of detention as two days of imprisonment cannot be satisfied, since it is not based on the law. According to Art. According to the Criminal Code of the Russian Federation (as amended by Federal Law No. 186-FZ of July 3, 2018), the time a person is held in custody is counted toward the term of imprisonment at the rate of one day for one day of serving the sentence in a prison or a strict or special regime correctional colony.
Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated September 25, 2018 N 127-UD18-13
After the verdict against Prudnichenko, Federal Law No. 186 of July 3, 2022 came into force, which amended Art. Criminal Code of the Russian Federation. In accordance with the changes, the time a person is held in custody before the sentence enters into legal force is counted towards the term of imprisonment at the rate of one day for one and a half days of serving the sentence in a general regime correctional colony.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated September 11, 2018 N 55-APU18-3sp
change the verdict of the Supreme Court of the Republic of Khakassia with the participation of jurors dated July 5, 2022 in relation to Marina Viktorovna Brykalina, in accordance with clause “b”, part 3.1 of Art. The Criminal Code of the Russian Federation includes the time of detention of M.V. Brykalina against the term of imprisonment. in custody from February 7, 2022 to September 11, 2022 (inclusive) at the rate of one day of detention for one and a half days of serving a sentence in a general regime colony.
