Article 128 of the Code of Criminal Procedure of the Russian Federation. Calculation of the term (current edition)
1. A procedural period is a period of time established by the Code of Criminal Procedure during which procedural actions must be performed or during which one must refrain from performing these actions. Compliance with the deadline ensures the fulfillment of the tasks of the criminal process. “The right to a trial within a reasonable time” has the meaning of an international legal principle (Articles 9, 14 of the Covenant on Civil and Political Rights and Articles 5, 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms). Failure to comply with the deadline significantly violates the constitutional right of citizens to judicial protection (Article 46 of the Constitution of the Russian Federation) and may entail a sanction of nullity (recognition of decisions made as invalid, and the evidence obtained as having no legal force - Part 3 of Article 7 of the Code of Criminal Procedure), as well as those established by law responsibility of the participants in the process. Thus, for a gross or systematic violation of the procedural law by a judge, resulting in an unjustified violation of the deadlines for resolving the case and significantly infringing on the rights and legitimate interests of participants in the trial, taking into account specific circumstances, a disciplinary sanction may be imposed, up to and including termination of the judge’s powers.
———————————
See: paragraph 2 of the Resolution of the RF Supreme Court of December 27, 2007 No. 52 “On the time limits for consideration by the courts of the Russian Federation of criminal, civil cases and cases of administrative offenses” // BVS. 2008. N 2.
2. Procedural periods are calculated in hours, days and months. If the law specifies years (part 3 of article 326, part 2 of article 398, part 5 of article 400, part 3 of article 414 of the Code of Criminal Procedure), then the rules on calculating time periods in months apply. If the law specifies a period such as “day,” then the period from 6 a.m. to 10 p.m. local time is taken into account (Clause 21, Article 5). In some cases, the deadline - the period of time for performing (abstaining from performing) procedural actions - is established by indicating a certain event that must occur (for example, the preliminary investigation is suspended until the accused recovers - Article 211).
3. According to Part 1 of the commented article, the hour and day at which the period calculated in months begins is not included in this period. It seems that this rule does not apply to periods of detention, house arrest, or forced stay in a medical hospital. When calculating the period of detention, its beginning is considered to be “the moment of detention” (Part 9 of Article 109), i.e. the moment of actual deprivation of freedom of movement of the accused (suspect) - clause 15 of Art. 5.
4. The current criminal procedure law, in contrast to the Code of Criminal Procedure of the RSFSR, has changed the order in which the term begins to be calculated. “When calculating the period in MONTHS (emphasis mine - K.K.), the hour and day at which the period begins is not taken into account,” defines part 1 of the commented article. At first glance, this norm contains an unfortunate inaccuracy. There is a great temptation to simply not notice this difference and continue to do it the old way - not to take into account the current hour and the current day when calculating any deadlines. However, a broad interpretation of the new procedural norm (extending, by analogy, the rules for calculating time limits in months to calculating time limits in hours and days) can worsen the position of the individual and therefore is not always desirable when determining the actual procedural time limits. It seems that this problem should be solved as follows:
a) when calculating the period in hours, it is calculated from the beginning of the moment (minute) at which the legal fact occurred, entailing the passage of the period. For example, the moment of actual detention of the suspect took place at 12:45 p.m. Taking into account these 45 minutes, the period of detention should be calculated. “In case of detention, the period is calculated from the moment of actual detention,” the procedural law additionally emphasizes (Part 3 of Article 128). Judicial practice follows exactly this path (see the Cassation ruling of the Investigative Committee according to the Criminal Code of the Armed Forces of the Russian Federation of December 22, 2005 in case No. 67-o05-90);
b) when calculating the period in days, the part of the day that follows the legal fact entailing the beginning of the period is taken into account. However, in this case, the law does not clearly resolve the issue of the end of the period, since according to Part 2 of Art. 128 of the Code of Criminal Procedure it expires at 24 hours of the last day. For example, in relation to a suspect under Art. 100 of the Criminal Procedure Code, the preventive measure was applied at 11 a.m. on July 15... In this case, within 10 days from the moment the preventive measure was applied, he must be charged. Within the meaning of Art. 128 the remaining part of the day, in which the period begins from the moment of detention, is taken into account, i.e. The 10-day period begins precisely at 11 a.m. on July 15... In other words, the day (July 15...) should not be rounded to 24 hours. Then the 10-day period expires on July 25... at 11, not 24 hours. However, if you follow the instructions of Part 2 of Art. 128, the period, on the contrary, must expire on July 25, but not at 11, but at 24 hours (“a period calculated in days expires at 24 hours of the last day”). In practice, this means that those days during which the period begins are not taken into account and rounded to whole days. However, the legislator provided the said rule for the beginning of the day only for calculating the period in months (Part 1 of Article 128), and not in days. Therefore, there is a conflict between the two norms of this article. According to the well-known rule of interpretation of legal norms, in case of such doubts, the law is given a softer meaning (benignius leges interpretendae sunt, quo voluntas earum conservetur - lat.). It seems that if the end of a period calculated in days at 24 hours of the last day of this period is favorable to the protection of the interests of the individual in criminal proceedings, this particular procedure is applied. For example, the beginning of the 10-day period for filing a cassation or appeal for a convicted person in custody can be considered 0 hours 00 minutes of the next day after the day when he was handed a copy of the verdict (Article 356). If the actual extension of the period to 24 hours of the last day derogates from individual rights, then the period must end at the corresponding astronomical hour. Thus, the 10-day period for bringing charges mentioned in the above example should be considered to have expired not at 24 hours on July 25, but at 11 o’clock on the same day.
5. Part 1 of this article contains the rule on counting non-working time. From the literal content of this norm, one could conclude that when calculating other terms not related to detention, house arrest and stay in a medical hospital, non-working time may not be taken into account (i.e. excluded from them). However, such a conclusion contradicts the continuity of the period, and therefore this rule requires a restrictive interpretation. It matters only for those non-working days that end the period: they, indeed, should be excluded from the procedural deadlines, for example, the deadline for filing a complaint, as follows from the content of Part 2 of the comment. articles.
In this case, non-working time should not be understood as rest time (as established by the Labor Code), but only generally accepted weekends and holidays. According to labor legislation, the general day off is Sunday (Part 2 of Article 111 of the Labor Code of the Russian Federation). Non-working holidays are: from January 1 to January 5 (inclusive) - New Year holidays, January 7 - Christmas, February 23 - Defender of the Fatherland Day, March 8 - International Women's Day, May 1 - Spring and Labor Holiday, May 9 - Victory Day , June 12 - Russia Day and November 4 - National Unity Day (Article 112 of the Labor Code of the Russian Federation). If a day off coincides with a non-working holiday, the day off is transferred to the next working day after the holiday. By decree of the Government of the Russian Federation, weekends can be transferred to other days (Article 112 of the Labor Code of the Russian Federation).
Comment source:
Ed. A.V. Smirnova “COMMENTARY ON THE CRIMINAL PROCEDURE CODE OF THE RUSSIAN FEDERATION” (ARTICLE BY ARTICLE), 5th edition
SMIRNOV A.V., KALINOVSKY K.B., 2009
Reasons for the procedure
A person who is considered a suspect may be detained on the following grounds:
- the suspect was found at the scene of the crime;
- there is evidence that the person has committed a criminal offense;
- evidence was found on the citizen’s belongings or in the living quarters that indicate that this particular person committed a criminal offense.
In addition to the grounds, the reasons for detention are also important. These include:
- Attempts to escape made by a citizen under suspicion.
- The identity of the suspect or place of residence (registration) has not been established.
- The investigator received the prosecutor's permission to conduct this event.
If one of the above reasons is present, the period of detention is calculated on the same basis.
The procedure for detention and notification of third parties
Since the restrictive period begins to run from the moment the protocol is drawn up, the subject of its determination is the official carrying out the process of applying the restrictive measure. The same subject draws up a protocol, investigates the case or transfers it to the investigator and subsequently requests an extension of the period of detention or an arrest against the guilty person.
The period of detention does not include the period of transportation of the detainee to the police department. Regardless of whether the person was caught near the police station or on the other side of the city, the period begins to run from the moment the person is brought to the police station.
When drawing up a report, the police officer is required to indicate not only the exact time of detention and information about the suspect, but also the motives for the action and its features (for example, resisting arrest, whether the detainee had injuries not related to the arrest, etc.). The specifics of the arrest must be indicated due to the fact that the unlawful behavior of the arrested person affects the sanctions applied to him, and the presence of undocumented injuries can be attributed to the police officer.
After drawing up a report and placing the suspect in a cell, the police officer must take the following actions:
- Notify the investigation officer of the arrest before twelve hours have passed.
- Give the detained person the opportunity to notify his next of kin about his whereabouts. If the detainee is a minor, the police officer himself notifies relatives, guardians or other legal representatives.
- Notify other persons, bodies or organizations (for example, the command of a military unit, if the detainee is a military serviceman; the secretary of the relevant Russian chamber, if we are talking about a member of a public monitoring commission; the embassy (consulate), if the detainee is a citizen of a foreign state).
In some cases, notifying anyone about a detention is strictly prohibited. For example, if the investigation and all actions within the case must be kept secret. For such cases, the concealment of information must be authorized by the prosecutor.
Grounds for releasing a person
Early release of a detainee occurs in the following cases:
- there is no guilt of the suspect in committing the crime or connection with it;
- during the arrest, police officers violated the procedure for conducting this procedural action;
- there are no grounds for depriving a citizen of his freedom.
Timely release of a detainee occurs in the following cases:
- the court refused to extend the period of detention;
- the court ruled to deprive the citizen of his liberty.
If the investigation officer sent a petition to the court about the need to extend the period of detention for another day due to the impossibility of making a final decision, the court issues a corresponding document (or refuses to extend the time).
After the end of the period of restriction of freedom, the released citizen receives a certificate about the time and period of detention and the reason for it.
