Comments on the article on the length of detention of suspects and accused

Article 109 of the Code of Criminal Procedure of the Russian Federation establishes a clear prescription for the use of one of the procedural measures. Imprisonment can be used not only as a punishment, but also as an interim measure. The procedural area has guidelines for the procedure for assigning such a measure and the timing of its election for those involved in the case. Arrest implies restriction of freedom of movement and location for a short time. Custody can be applied to a person with the status of a suspect, as well as an accused. This measure is applied only to those who can flee from justice.

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Article 109 (terms of detention)

Temporary restriction of freedom of movement acts as a kind of guarantee that the principle of the law enforcement system - the punishability of the act - will be implemented.

The Criminal Procedure Code allows for several options for being in custody, differing in time period:

1. Part 1 of the article states that during the investigation, the maximum allowable time for arrest is 2 months. At the same time, Part 2 clarifies that objective reasons preventing the completion of the investigation are a clear reason to extend the action of the measure taken to 6 months. There is also a caveat that six months is not the limit. If a serious or especially serious crime is being investigated, it is possible to extend the imposed restriction on a person for a longer time.
2. Part 3 clarifies that there are exceptions to the established rules. They relate to the disclosure of particularly serious acts. Here the judge can impose a measure of arrest for up to 12 months. To obtain such a decision, a number of special factors must be present in the circumstances of the investigation.
3. Part 4 prescribes that in other categories of cases it will be impossible to extend the period of a person’s stay in custody.

Detention in custody according to the Code of Criminal Procedure of the Russian Federation is carried out according to a clear procedure, as well as release and extension.
The Code prohibits extending the duration of this measure beyond 12 months in total (except in exceptional cases). The accused must be released if the legally permitted period of arrest has expired.

The judge's decision on this type of petition may be:

• about extension ─ in the absence of violations and there are grounds;
• about refusal of the application.

The total amount of time a suspect will be arrested will be determined by two dates: the day the arrest decision was made and the day the conviction was issued.

Changes are allowed in the final date, since the investigation of a case does not always end with the accusation of the person who was originally suspected. Here, the end of the prison term may be determined by the date the charges are dropped or the person is released. Accordingly, the period from the date of arrest until the completion of the investigation cannot exceed the period of detention established by law.

The legal provision makes it clear that in special cases the period runs continuously.

We are talking about situations:

1. The person was temporarily detained and a little later a preventive measure was prescribed - being under arrest. The first days of arrest will be counted towards the total period of detention.
2. Initially, a mild measure was assigned, and then it was changed to imprisonment. The period of a mild measure in the form of arrest at home will be included during the term in the temporary detention facility (temporary detention center).
3. The suspect was sent for treatment to a psychiatric institution from the KPZ (pre-trial detention cell) or temporary detention facility. By analogy with previous cases, the time spent on compulsory treatment will be included in the overall calculation of the period of detention.
4. A similar rule is used for initial detention on the territory of a foreign state, carried out as the provision of international assistance and execution of agreements. An arrest by law enforcement agencies of a foreign state can be made at the request of the Russian Federation. The time in custody and for transporting the prisoner will be counted towards the total period of pre-trial detention.

The legislator establishes clear actions for calculating the time of detention, including repeated arrests. Such arrests may be made at different times as part of one or more overlapping criminal cases.

The time period here will be perceived as the general course of the period with a break when the person was released from custody.

Here the general course of the period is established. When deciding whether to re-arrest, the judge will be required to take into account the initial time spent by the accused in custody. This provision affects arrests and detentions carried out in the framework of one or more related criminal cases. If an individual is involved in different criminal cases, then the period of arrest for them will be considered separately.

Art. 109 of the Code of Criminal Procedure of the Russian Federation regulates the specifics of consideration of this issue. It is prohibited to consider this issue in court, at which the suspect or accused himself is not present. The only exception is when the main person for whom the measure of restriction is chosen is being treated in a psychiatric institution and, according to specialist forecasts, will remain there for a long time. If a person involved in the case is put on the wanted list, the issue of his detention will be resolved when he is found and brought to court.

The choice of a preventive measure and the establishment of its period of validity is permitted only by the court.

The petition must include not only a request, but also an indication of the specific type of suppression, as well as a clear time period. The judge examines the validity and justification of such a requirement, and then announces his decision.

Article 109. “Criminal Procedure Code of the Russian Federation” dated December 18, 2001 N 174-FZ (as amended on July 1, 2021)

1. For the most severe preventive measure - detention - a special period of application has been established in order to limit as much as possible the deprivation of liberty of a person considered innocent. For the general duration of the preventive measure, see the commentary. to Art. Art. 97, 100.

The commented article determines the period of detention during the preliminary investigation. The period of detention during the investigation is regulated by Art. 224. In judicial proceedings, the period of detention is established in Art. 255 Code of Criminal Procedure. Detention also occurs when a suspect is detained (Clause 42, Article 5 of the Code of Criminal Procedure), but the period of detention is regulated by Art. 94.

The period of detention should be distinguished from the periods of preliminary investigation and inquiry (Articles 162, 223 of the Code of Criminal Procedure).

2. As a general rule, in accordance with the presumption of innocence and the rule on the interpretation of doubt in favor of the accused (Article 49 of the Constitution of the Russian Federation, Article 14 of the Code of Criminal Procedure), the period of pre-trial detention should not exceed the minimum term of imprisonment as a potential criminal punishment that could be imposed by the court. Pre-trial detention should not precede punishment in the form of imprisonment, the European Court of Human Rights points out (decision in the Kemmash case of November 27, 1991). See comment about this. to Part 2 Art. 97 Code of Criminal Procedure.

Conditions for extending the period of detention during the preliminary investigation to 6 months in the manner prescribed by Part 3 of Art. 108 of the Code of Criminal Procedure are the impossibility of: a) completing the preliminary investigation within a 2-month period, due to the characteristics of the case (a large number of episodes, accomplices, etc.), and not the characteristics of the investigator (vacation, illness, employment with other matters); b) choose a different, milder measure of restraint. The investigator must prove this circumstance, and not unfoundedly refer to the lack of grounds for choosing another preventive measure. The specified conditions must be observed during subsequent extensions of detention. As the Constitutional Court of the Russian Federation emphasizes, with each extension of the period of detention, it is necessary to have general conditions, grounds and motives for choosing a preventive measure in the form of detention (Definition of December 25, 1998 N 167-O; Resolution of June 13, 1996 N 14-P). See comment about this. to Art. 108.

3. Further extension of the period of detention is allowed up to 12 months in the manner prescribed by Part 3 of Art. 108 of the Code of Criminal Procedure, subject to the following additional conditions: a) at the request of the investigator with the consent of the head of the relevant investigation department, as well as the investigator with the consent of the prosecutor; b) the person in custody has been substantiatedly charged with committing an intentional crime, for which he faces a real punishment of more than 5 years in prison (Part 4 of Article 15 of the Criminal Code); c) this criminal case is particularly complex (due to the need to carry out a significant number of investigative actions, travel to another locality, send a request for legal assistance from a foreign state, place the accused in a medical hospital for examination, etc.).

Part 2 comments. articles in ed. Federal Law No. 87-FZ of June 5, 2007 provides that the period of detention may be extended to 12 months at the request of the investigator in cases provided for in Part 5 of Art. 223 of the Code of Criminal Procedure, with the consent of the prosecutor of the constituent entity of the Russian Federation or a military prosecutor equivalent to him. When applying this norm, it should be taken into account that, within the meaning of Part 2 of the comment. Article extension of the period of detention beyond 12 months is allowed only in relation to persons accused of committing grave and especially grave crimes. According to Part 3 of Art. 150 of the Code of Criminal Procedure does not include serious crimes under investigative jurisdiction. Also, comment. the norm contradicts Part 4 of Art. 224 (introduced by Federal Law No. 214-FZ of July 24, 2007), which specifically regulates the terms of detention during an inquiry and defines them within 6 months. This contradiction of legal norms, at first glance, can be interpreted as follows: it must be assumed that the condition in the form of proceedings for a serious crime (Part 2 of Article 109) does not apply to the inquiry, then the period of detention during the inquiry can be extended further for 6 months (i.e. up to 12 months), if the six-month period of detention has expired in connection with the execution of the extradition request (see paragraph 15 of the Order of the Prosecutor General of the Russian Federation of September 6, 2007 N 137 “On the organization of prosecutorial supervision over the procedural activities of the bodies of inquiry"). However, such an interpretation contradicts the meaning of Art. 22 of the Constitution of the Russian Federation, which gives priority to the human right to freedom. As the Constitutional Court of the Russian Federation points out, the inadmissibility of excessive duration of detention also follows from clause 3 of Art. 14 of the International Covenant on Civil and Political Rights, according to which everyone has the right to have any charge brought against him or her examined without undue delay, which primarily applies to persons deprived of liberty at the pre-trial stages of criminal proceedings (Resolution of the Constitutional Court of the Russian Federation of June 13, 1996 N 14-P).

4. Extension of the period from 12 to 18 months is allowed in a special manner if the following conditions are met: a) in exceptional cases; b) upon justified accusation of committing an intentional crime, for which a real penalty of more than 10 years of imprisonment is threatened (Part 5 of Article 15 of the Criminal Code); c) with the consent, in accordance with the jurisdiction of the chairman of the Investigative Committee at the Prosecutor's Office of the Russian Federation or the head of the investigative department of the relevant federal executive body; d) the decision is made by a judge of the court at the level of a constituent entity of the Russian Federation.

The decision to extend the period is made in the manner provided for in Art. 108 Code of Criminal Procedure. In accordance with Part 8 of this article, a copy of the court decision is sent to the head of the place of detention.

5. Further extension of the period of detention is allowed only to familiarize the accused with the materials of the completed preliminary investigation.

The expiration of the period of detention is grounds for the release of the accused. To cancel the preventive measure in the form of detention, a resolution (ruling) of the court, investigator or interrogating officer must be issued (Part 2 of Article 110 of the Code of Criminal Procedure). The prosecutor is also obliged to release a person held in custody beyond the established period (Part 2 of Article 10; Part 2 of Article 221 of the Code of Criminal Procedure). However, even without such a decision, the accused is subject to release due to the expiration of the period for applying this preventive measure. The release mechanism is provided for in Part 3 of Art. 94 Code of Criminal Procedure and part 2 - 3 art. 50 of the Federal Law “On the detention of suspects and accused of committing crimes” and is as follows. No later than 24 hours before the expiration of the period of detention, the head of the place of detention is obliged to notify the body leading the process, as well as the prosecutor, who are ordered to release anyone held in custody beyond the established period (Part 2 of Article 10 of the Code of Criminal Procedure). If, after the expiration of the period of detention, a decision on release or extension of the period (notification of this decision) has not been received, then the head of the place of detention releases the accused by his decision. The head of the place of detention shall notify the body in charge of the case about the release of the accused.

6. No later than 30 days before the end of the maximum period of detention established by parts two and three of this article (i.e., according to the literal meaning of the law, 6-, 12- or 18-month period of detention, respectively), the materials of the completed investigation are presented to the accused in custody and his defense attorney in accordance with Art. 217 Code of Criminal Procedure. If this was done later, then a further extension of the maximum period of detention is not possible. After this period, the accused is released. However, his right to familiarize himself with the case is not limited.

It seems, however, that the 6- and 12-month periods specified in part 2 and named in part 5 of the comment. articles are limiting, can be considered as such only locally, i.e. in the event that there are no legal conditions for their “normal” extension or do not arise. For example, a 6-month period of detention cannot be extended if the person is not accused of committing a serious crime or the case is not particularly complex - due to the full and comprehensive clarification of all the necessary circumstances of the case, etc. On the contrary, if part 1 of Art. 219 of the Code of Criminal Procedure, at the request of certain participants in the process, the investigator must significantly supplement the materials of the criminal case, having completed a large volume of investigative actions, re-file charges of committing a grave or especially grave crime, the necessary conditions arise for extending the period of detention of the accused for more than 6 months (particular difficulty cases, accusation of committing a grave or especially grave crime), i.e. this period ceases to be considered a “limit”. In such cases, in our opinion, the extension of the period of detention for more than 6 (and, if appropriate conditions are met, 12) months in order to familiarize the accused and the defense attorney with the case materials for more than 30 days may not be carried out in accordance with Part 7 of the comment. article, but in the “usual” manner established by its part 2 or 3.

7. Parts 7 - 8 art. 109 of the Criminal Procedure Code provide for a special procedure for extending the maximum period of detention in order to familiarize the accused with the materials of the completed preliminary investigation and, as it seems, of the inquiry. This procedure applies if the following conditions are met: a) familiarization with the case began no later than 30 days before the expiration of the deadline; b) the accused and his defense attorney have not been given enough time (30 days) to familiarize themselves with the case. At the same time, the investigator’s employment, illness or vacation (due to which he himself limited the opportunity to familiarize himself with the case, for example, to one hour a day) cannot serve as a basis for extending the period. At the same time, it is possible to extend the period of detention due to the need to become familiar with the case of other accused; c) the presence of grounds, conditions and motives for continuing to apply a preventive measure in the form of detention if it is impossible to choose another preventive measure (parts 1, 2 of article 108, parts 2, 3 of article 109, art. art. 97, 99 Code of Criminal Procedure). See Determination of the Constitutional Court of the Russian Federation of December 25, 1998 N 167-O; Resolution of the Constitutional Court of the Russian Federation of June 13, 1996 N 14-P.

Violation of the seven-day deadline for sending the petition provided for in Part 8 of the commentary. article may lead to refusal to satisfy it or cancellation of the court decision to extend the period. Thus, the Supreme Court of the Russian Federation, in one of its decisions, overturned the lower court’s decision to extend the period of detention, citing, among other things, a violation of the seven-day deadline for the investigator to submit a corresponding petition to the court.

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Cassation ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated December 22, 2005 in case No. 67-o05-90.

The court, when extending the period of detention, is obliged to set a specific end date by analogy with the rules provided for in Part 3 of Art. 217 Code of Criminal Procedure. This date must be indicated within the limits of the corresponding request of the investigator (Determination of the Investigative Committee according to the Criminal Code of the Armed Forces of the Russian Federation No. 87-003-2 in the case of Zhernov and Smirnov).

8. Parts 13 and 14 of the commented article provide for exceptions to the “prohibition of arrest in absentia” (see the commentary on it to Parts 4 - 5 of Article 108), when the court has the right to consider the issue of extending the term of detention in the absence of the accused .

9. According to the practice of the European Court of Human Rights, the exercise of a person’s right to a trial within a reasonable time is determined by such factors as the “materiality and sufficiency” of the grounds for arrest, the exercise by national authorities of “due diligence” during the preliminary investigation and during the judicial hearing of the case, taking into account their possibility application of alternative preventive measures. The presence of a reasonable suspicion that the detained person has committed a crime is a prerequisite for the legality of extending the period of his detention, and after the expiration of a certain period it ceases to be sufficient. In such cases, the Court must establish whether the other grounds relied upon by the judicial authorities justified the extension of the person's detention. At the same time, the arguments for and against the release of a person from custody cannot be “general and abstract” (see the Judgment of the European Court in the case of Smirnova v. Russia, complaints No. 46133/99 and 48183/99 ECHR 2003-IX (§ 63)). It is necessary to convincingly demonstrate the existence of specific facts that outweigh the rule of respect for individual freedom (see Ilijkov v. Bulgaria, 26 July 2001, no. 33977/96 (§ 84)). If there were other facts which might have justified the courts' finding that the applicant was a flight risk, but they were not mentioned in the judgments, the Court does not consider itself competent to establish such facts and to assume the functions of the national authority making the decision on the issue of keeping a person in custody (see the Judgment of the European Court in the case of Korchuganova v. Russia of 8 June 2006, application No. 75039/01, § 72). In such cases, he usually concludes that no risk of the accused absconding from justice has been established. Thus, in the case of Stasaitis v. Lithuania, the European Court (see Stasaitis v. Lithuania, 21 March 2002, application no. 47679/99, § 67). But even if such grounds are found to be substantial and sufficient, it must also be ensured that the competent national authorities exercised “special diligence” in carrying out the proceedings (see Labita v. Italy), § 153). However, as the European Court believes, as the preliminary investigation and trial progress, these grounds become less and less significant. Therefore, when extending the period of arrest, the courts are obliged to analyze the circumstances of the case in more detail and give special reasons for extending the period of detention of the accused. The European Court has repeatedly pointed out that the gravity of the charge itself cannot serve as a basis for justifying long periods of detention of a person as part of the selected preventive measure (see the Judgment of the European Court in the case of Panchenko v. Russia dated 8 February 2005, no. 45100/98, § 102. Goral v. Poland, 30 October 2003, no. 38654/97, § 68, and the judgment cited above European Court in the case of Ilijkov v. Bulgaria, § 81).

SMIRNOV A.V., KALINOVSKY K.B.

Ed. A.V. Smirnova “COMMENTARY ON THE CRIMINAL PROCEDURE CODE OF THE RUSSIAN FEDERATION” (ARTICLE BY ARTICLE), 5th edition

year 2009

Legal commentary on Article 109 of the Code of Criminal Procedure of the Russian Federation

Art.
109 of the Code of Criminal Procedure of the Russian Federation with legal comments ─ these are clarifications on the main provisions of the norm. The most used and frequently used period is 2 months. If this period is not enough to issue an indictment, you can file a petition to increase the originally assigned period to 6 months. The total time of detention cannot exceed six months. Exceptional cases of restriction of freedom are allowed for up to 1 year. They affect the area of ​​especially serious crimes. After all, the punishment for this category of acts is the harshest: the death penalty or life imprisonment. The legislative norm has its own limits of what is permissible. In complex investigations, the maximum time a suspect can stay in custody is 18 months. This is the limit allowed by the legislator. If it is not possible to prove the guilt of the person in custody, all suspicions are removed, and the investigation will have to look for another criminal. The crime being investigated must be particularly complex. There must be good reason to believe that the person involved will definitely try to escape.

Petitions of this type must be drawn up and signed on behalf of the head of the regional prosecutor's office.

The legislation allows only district courts or similar military departments to consider requests for a preventive measure.

Leading legal consultants say that extending the time spent under arrest by more than 18 months is impossible and should not be allowed by investigative authorities. Even if a person spends one day beyond the legal period in a temporary detention facility, the lawyer already has the right to demand his urgent release and write a complaint.

Comments to the article clarify that the current Code of Criminal Procedure establishes periods of detention of suspects and accused persons exclusively for the investigation stage. The procedure for arrest during a trial does not apply to this legal norm, because we are talking about different procedural stages.

The timing of the use of restrictive measures at the stages of inquiry and legal proceedings is regulated by other legal norms. It is noteworthy that the period of consideration of a completed case does not have a time frame for detention.

When ordering the suppression of a criminal's hiding, a time setting is used - days and months. The passage of time will begin from the day the person was actually taken into custody.

The entire list of grounds for granting a request is set out in Article 97:

• the emergence of new circumstances, due to which the documents were sent for further investigation;
• return of the case from the court with a requirement to eliminate deficiencies or obstacles;
• the lawyer and the defendant did not have enough time to study the collected materials on the case.

The commentary to the article notes that the immediate release of a person after the expiration of the established period is a mandatory requirement of the criminal process.

Challenging the decision to arrest an accused person

This material, prepared by lawyer Pavel Domkin, is devoted to the issues of the defense challenging court orders to arrest accused persons based on a review of the provisions of the current law and judicial practice. The publication uses the results of the lawyer’s personal practice, the provisions of the resolution of the Supreme Court of the Russian Federation No. dated December 19, 2013, and a review of judicial practice approved by the Presidium of the Supreme Court of the Russian Federation on January 18, 2017.

When considering the issue of appealing a court decision to select a preventive measure in the form of detention (arrest) of the accused person, the first and significant point that is important to pay attention to is the court’s observance, when making a decision, of the obligation to consider the issue of the accused person’s involvement in the crime under investigation. A necessary condition for the legality of the detention of an accused person is the existence of a reasonable suspicion of having committed a crime. A similar requirement is contained in subsection. "c" clause 1 art. 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms of November 4, 1950; in the ruling of the Constitutional Court of the Russian Federation of July 12, 2005 No. 330-O, of June 19, 2007 No. 592-O-O and in paragraph 2 of the resolution of the Plenum of December 19, 2013 No. 41.

The choice of detention as a preventive measure is allowed only after the court has verified the validity of the suspicion of a person’s involvement in the crime committed. Suspicion will be considered justified if:

• the accused is caught in the act of committing a crime or immediately after its commission;
• the victim or eyewitnesses pointed to this person as having committed the crime;
• obvious traces of a crime were found on this person or his clothing, on him or in his home, or there are some other similar circumstances.

Evidence confirming the crime itself cannot as such data For example, the accused cannot be found involved in the commission of negligence (Article 293 of the Criminal Code of the Russian Federation) if the investigative body did not provide evidence of his official duties, the failure of which resulted in criminal consequences.

In the absence of sufficient data provided by the investigator indicating the validity of the person’s suspicion, the court is obliged to refuse the investigation’s request to arrest the accused. If the court ignored this provision of the law and issued an order to arrest the accused person, then this fact is an unconditional basis for appealing it.

It is also fair to note that, when checking the validity of the suspicion of a person’s involvement in a crime committed, the court does not have the right to discuss the issue of the person’s guilt, that is, to examine the question of the sufficiency of the evidence collected by the investigation to confirm the person’s guilt.

Let us touch upon the question of what circumstances may serve as the basis for making a decision to arrest. Detention may be chosen as a preventive measure only if there is information provided for in Article 97 of the Code of Criminal Procedure of the Russian Federation that the suspect or accused can:

• hide from inquiry, preliminary investigation or trial;
• continue to engage in criminal activity;
• threaten a witness, other participants in criminal proceedings,
• destroy evidence or otherwise interfere with criminal proceedings.

Of course, the question arises about the proper procedural justification for the existence of such data, that is, how the court verifies its existence. When petitioning the court for the arrest of the accused, the investigative body is obliged to specify its conclusions, that is, indicate from which documents and evidence in the criminal case it follows that the accused can interfere with the progress of the investigation, hide from it, or continue to engage in criminal activity. At the same time, by virtue of the law, the data provided by the investigation must be checked by the court for its reliability directly at the court hearing.

As the Constitutional Court of the Russian Federation has repeatedly pointed out, it is the court that makes a decision on the selection of a preventive measure that is entrusted with the responsibility to assess the sufficiency of the materials available in the case confirming its legality and validity, the existence of grounds and conditions for its selection, as well as the proportionality of the imposed restrictions to the punishment which may be assigned by sentence, keeping in mind, however, that the decision to apply a specific preventive measure does not predetermine the conclusion on the main issue of the criminal case - the guilt of the defendant and his punishment (resolutions of July 2, 1998 No. 20-P and from March 22, 2005 N 4-P; definitions dated July 12, 2005 N 330-O, dated April 26, 2021 N 713-O, etc.).

If the court, in justifying its decision, did not provide the above data in the decision, did not check and did not give a proper assessment of the operational information provided by the investigator, then such inaction, at a minimum, is a sufficient basis for an appeal and cassation challenge of the decision.

As grounds for choosing a preventive measure in the form of detention, may be recognized that indicate the real possibility of the accused or suspect committing the actions specified in Article 97 of the Code of Criminal Procedure of the Russian Federation, and the impossibility of unimpeded implementation of criminal proceedings by applying another preventive measure against the person. at the initial stages of criminal proceedings the following may indicate that a person may hide

• the severity of the charge and the possibility of imposing a sentence of imprisonment for a long term;
• violation by a person of a previously chosen measure of restraint against him, not related to deprivation of liberty;
• confirmed facts of the sale of property owned by the accused on the territory of the Russian Federation;
• availability of a source of income, financial (property) resources abroad;
• presence of citizenship (nationality) of a foreign state;
• such a person does not have a permanent place of residence, work, or family in the Russian Federation.

The court's conclusion that the accused can continue to engage in criminal activity can be made taking into account his conviction for a previously committed intentional crime, the conviction for which has not been expunged or expunged.

The following may indicate that the accused/suspect may threaten a witness, other participants in criminal proceedings, destroy evidence, or otherwise obstruct the criminal proceedings:

• the presence of threats from the accused, suspect, his relatives, or other persons;
• offering specified persons, witnesses, victims, specialists, experts, and other participants in criminal proceedings benefits of a material and non-material nature for the purpose of falsifying evidence in the case;
• bringing charges against a person for committing a crime as part of an organized group or criminal community.

In addition, when considering a petition to select detention as a preventive measure, the defense party (lawyer) must appeal to circumstances characterizing the personality of the accused person, such as: age, health status, marital status, occupation, the presence of stable social connections, behavior persons after the commission of a crime (in particular, surrender), actively contributing to the detection and investigation of the crime, making amends for the harm caused as a result of the crime, the nature of the crime committed.

Separately, please note that in accordance with the provisions of Article 99 of the Code of Criminal Procedure of the Russian Federation, the number of circumstances that the court must take into account when choosing a preventive measure includes the state of health of the suspect or accused. In this regard, the courts must find out whether the suspect or accused has any serious illness, including in cases where there is no such data in the materials presented to the court.

An unconditional procedural obstacle to making a decision on choosing a preventive measure in the form of detention is the presence of a disease on the accused person that is included in the List of serious diseases that prevent the detention of suspects or accused of committing crimes, approved by Decree of the Government of the Russian Federation No. 3 of January 14, 2011.

Ignoring the stated requirements of the law on the part of the court is a legal basis for a lawyer or the person himself to file a complaint against the decision.

Court ruling refusing to arrest the accused

The question of the possibility of using detention for committing a crime of minor gravity . In relation to a suspect or accused of committing a crime, for which a penalty of imprisonment for a term of up to three years is provided, the court has the right to choose a preventive measure in the form of detention only in exceptional cases:

• The suspect/accused does not have a permanent place of residence on the territory of the Russian Federation.

This basis in itself cannot be the only and sufficient reason for choosing a preventive measure in the form of detention. A person’s lack of registration on the territory of the Russian Federation may be only one piece of evidence that he does not have a permanent place of residence, but in itself is not a circumstance giving rise to a preventive measure in the form of detention.

• The identity of the accused has not been established.

The absence of identification documents from a suspect or accused does not in itself indicate that his identity has not been established.

• The accused violated the previously chosen preventive measure.
• The accused fled from the preliminary investigation authorities or from the court.

The existence of “exceptional circumstances” must be verified and assessed by the court in accordance with the above requirements.

The current criminal procedure law establishes a ban on the use of a preventive measure in the form of detention in relation to a suspect or accused of committing crimes under Articles 171 - 174, 174.1, 176 - 178, 180 - 183, 185 - 185.4, 190 - 199.2 of the Criminal Code of the Russian Federation . In addition, in relation to a suspect or accused of committing crimes under Articles 159 - 159.6, 160 and 165 of the Criminal Code of the Russian Federation, this prohibition applies provided that these crimes were committed in the field of business activity. When deciding whether to choose a preventive measure, the court finds out in what area of ​​activity the crime was committed. These include crimes if they are committed by a person carrying out business activities independently or participating in business activities carried out by a legal entity, and these crimes are directly related to these activities.

In all cases of consideration of a petition for arrest, the court is obliged to find out whether these crimes were committed in the field of business activity. If this issue was not clarified by the court after the defense party (lawyer) stated that the crime was committed in the field of business activity, then the court decision is subject to cancellation. You can find out more about the principles of procedural recognition of an economic crime committed in the field of business activity in our specialized publication.

Detention as a preventive measure can be chosen in relation to a minor only if he is suspected or accused of committing a grave or especially grave crime. In exceptional cases, as the only thing possible in specific conditions, taking into account the circumstances of the crime committed and personal data, detention may be chosen in relation to a minor suspected or accused of committing a crime of average gravity. When charged with a minor crime, a minor cannot be arrested under any circumstances.

Let's consider the question of the possibility of choosing a preventive measure in absentia . According to the law, the court has the right, in the absence of a suspect/accused person:

• decide on choosing a preventive measure in the form of detention in relation to the accused who has been put on the international wanted list;
• choose this preventive measure in relation to an accused who is not in custody, who has fled from court, provided that this fact has been reliably established by the court;
• consider the issue of extending the period of detention in relation to an accused who is undergoing an inpatient forensic psychiatric examination, whose mental state excludes his personal participation in the court hearing, or in the presence of other documented circumstances that exclude the possibility of bringing the accused to court;
• choose this preventive measure when considering a criminal case in a higher court, when the convicted person, duly notified of the date, time and place of the court hearing, refused to participate in the court hearing that chooses this preventive measure.

When appealing a court decision to place a person in custody, one should also pay attention to compliance with the requirements of the law on territorial jurisdiction , violation of which may be grounds for filing an appeal/cassation complaint. The decision to select a preventive measure in the form of detention is made by the court at the place of the preliminary investigation or at the place of detention of the suspect, and on the extension of the period of detention - by the court at the place of the preliminary investigation or at the place of detention of the accused. Consideration of applications for the selection of detention as a preventive measure is carried out in an open court session.

Lawyer Pavel Domkin

If you have any questions about appealing the choice of a preventive measure in the form of detention, you can contact the Domkiny and Partners Law Office.

Examples of practice: court decisions and sentences under Article 109 of the Code of Criminal Procedure of the Russian Federation

The court does not limit the time a person can be held in custody.
He will remain there until the end of the trial. However, the Constitutional Court of the Russian Federation in its clarifications indicated a requirement for Russian courts: every 3 months to consider the issue of the objectivity of the current measure before passing a verdict. The length of stay of citizens of the Russian Federation in custody during criminal proceedings, at all stages of the process, has a strictly established period. But the Constitutional Court of the Russian Federation in its Determinations dated June 6, 2003 N 184-O, dated July 15, 2003 N 308-O, dated April 23, 2013 N 548-O and dated April 22, 2014, drew attention to the fact that there is a law without clear terms of permissible detention, and its application cannot be regarded as a constitutional violation of the rights of a citizen.

Naturally, law enforcement, investigative and judicial authorities are required to know the current legal provisions on periods of detention. When considering complex cases, the court may take advantage of exceptions to this rule and make a strict decision on restriction of freedom. However, infringement of human rights, even if he is a suspect or accused, is not allowed.

Based on the current practice of making decisions on preventive measures, the following conclusions can be drawn:

1. For categories of light severity of acts, detention is not assigned.
2. Strict measures are applied in 100% of cases for serious and especially serious crimes.
3. For an average offense, the choice of this type of measure is 50% to 50%, depending on the identity of the suspect and other circumstances of the case.
4. When considering the issue of a preventive measure, the court is obliged to take into account the objectivity and necessity of such a decision in each individual case.

The listed factors indicate that not in all situations such a measure of detaining a suspect is used.
Now the court has begun to actively use house arrest as a guarantee that the person will remain under investigation until the end of the trial. Just remember that in order to call a person, the investigative authorities send a notice in advance.

If a person fails to appear at least once in response to such a notification, the investigator has every right to raise the issue of changing the assigned measure to a more stringent one - detention.

Objections to the investigator's petition

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Objections to the investigator's petition

To the Moscow City Court of Moscow

from Lawyer Chernov S.V.

– defense lawyer XXXXXXXXX, who is in custody in pre-trial detention center No. 2 of the Federal Penitentiary Service in Moscow

Objections to the request of the preliminary investigation to extend the period of detention of XXXXXXX and the need to change the preventive measure in the form of detention to a more lenient one

The Department for Investigation of Particularly Important Cases of the Main Investigative Directorate of the Investigative Committee of Russia for Moscow is investigating criminal case No. XXXX, initiated on December 21, 2012 under part 3 of article 30, part 4 of article 159 of the Criminal Code of the Russian Federation in relation to my client XXXX and a number of persons. On the same day, XXXXXXX was detained and subsequently a preventive measure was chosen against him in the form of detention. On February 20, 2013, the Presnensky District Court of Moscow extended the period of detention of ХХХХХ until June 21, 2013. On June 18, 2013, the Presnensky District Court of Moscow extended the period of detention of ХХХХХ until October 21, 2013. October 18, 2013 The Presnensky District Court of Moscow extended the period of detention of XXXXXXX until December 21, 2013. Currently, XXXXX has been in custody for 12 months, minus several days.

According to the investigation, the grounds for EXTENDING THE TERM OF DETENTION ARE the following circumstances:

• XXXXXXX is accused of committing a serious crime as part of a group of persons;

• for more than one year, XXXXX held the position of director of XXXXXXX LLC, so he “acquired extensive connections among representatives of various government bodies and government structures;

• is aware of the forms and methods of activity of law enforcement agencies regarding the detection, collection, recording and consolidation of evidence;

• has information about the personal data of the victim and witnesses, therefore XXXXXXX.

• may interfere with criminal proceedings, hide from investigation and court, put pressure on witnesses and other participants in criminal proceedings,

• continue to engage in criminal activity, or otherwise interfere with criminal proceedings,

• including destroying evidence, interfering with the collection of evidence, and also interfering directly with investigative and procedural actions in a criminal case with his participation.

The preliminary investigation indicated these circumstances in each petition for arrest and, accordingly, its extension XXXXXXX.
The grounds for the initial arrest and initial detention of XXXXXXX, if there were any, have now disappeared due to the following. As stated in the Resolution of the Presidium of the Supreme Court of the Russian Federation dated October 29, 2009 No. 22 “On the practice of courts using preventive measures in the form of detention, bail and house arrest, paragraph 3 ... data that the accused can hide from the preliminary investigation authorities and the court , continue to engage in criminal activity, threaten a witness, other participants in criminal proceedings, destroy evidence or otherwise interfere with the proceedings of a criminal case - must be REAL, REASONABLE, that is, supported by reliable information.

Throughout the entire investigation, the investigative body did not prove the reality of the circumstances indicated by it, and did not PRESENT ANY EVIDENCE TO SUPPORT ITS ARGUMENTS.

The application of a preventive measure in the form of imprisonment to my client XXXXXXX violates Article
5 of the Convention for the Protection of Human Rights and Fundamental Freedoms,
paragraph 1, paragraph s, of Article 5 of the Convention - “... when there are sufficient grounds to believe that it is necessary to prevent him from committing an offense or to prevent him from escaping after its commission”, paragraph 3 “... Every person detained or taken into custody in accordance with paragraphs. "c" clause 1 present. Articles...have the right to trial within a reasonable time or to release pending trial.

Release may be conditional on the provision of guarantees of appearance in court.

A similar article is also available in the draft Resolution of the Plenum of the Supreme Court of the Russian Federation “On the practice of courts’ application of legislation on preventive measures in the form of detention, house arrest and bail,” which shows the direction of the position of the Supreme Court of the Russian Federation on these issues.

At present, the investigation of the criminal case has been completed, the collection of evidence has been completed, and accordingly, the circumstances of the arrest and detention that were not proven by the prosecution have objectively disappeared.

A sample appeal against the verdict can be found here

A sample appeal against the use of a preventive measure in the form of detention (arrest) can be found here

As an argument for its position, the defense side, in addition to national law (criminal and criminal procedural codes), Resolution of the Plenum of the Supreme Court of the Russian Federation of October 29, 2009 No. 22 and the Draft Resolution of the Plenum of the Supreme Court of the Russian Federation on the issues set forth in Resolution No. 22 of October 29. 2009; Resolution of the Plenum of the Supreme Court of the Russian Federation dated October 10, 2003 No. 5 “On the application by courts of general jurisdiction of generally recognized principles and norms of international law and international treaties of the Russian Federation” cites the Resolutions of the European Court of Human Rights against the Russian Federation, since the Russian Federation with 1998 is a party to the Convention for the Protection of Human Rights and Fundamental Freedoms.

In the Resolution of the Plenum of the Supreme Court of the Russian Federation of June 27, 2013 N 21 “On the application by courts of general jurisdiction of the Convention for the Protection of Human Rights and Fundamental Freedoms of November 4, 1950 and the Protocols thereto,” Fr.

In paragraph 117 of the Judgment of the European Court of Human Rights of 15 July 2002 “Kalashnikov v. Russian Federation”, the Court emphasized that the European Court accepts the argument that fears of obstruction of the investigation, coupled with suspicions that the applicant committed the crimes of which he was accused , could initially have been a sufficient basis for authorizing the applicant's detention. However, as the proceedings progressed and the collection of evidence was completed, such grounds for pre-trial detention lost their significance. Paragraph 118 of the Decree on.

A similar position is set out in paragraph 2 of paragraph 2 of the Project. It is practically incorporated into the Draft of the Supreme Court of the Russian Federation from the said Resolution of the European Court. It is also stated that “... In the event that such grounds exist, it should be taken into account that the circumstances that were sufficient to take the suspect or accused into custody do not always indicate the need to extend the period of detention.” I repeat, the investigation has been completed, so the circumstances pointed out by the investigation have changed.

I).

1st Ground of investigation for the arrest and extension of the arrest: for more than one year, XXXX held the position of director of XXXXX LLC, so he “acquired extensive connections among representatives of various government bodies and government structures.

XXXX held a position in a commercial structure formed in 2012, which was designed to provide services to companies operating in the alcohol business, including facilitating the acquisition of licenses. He was the only one on staff. This company practically never began to engage in commercial activities and did not enter into any significant transactions. In such a situation, XXXXX actually “met” the tax officials who accepted documents and financial documents for registration. Unfortunately, he did not have time to meet other “representatives of power structures.” It is unclear what the investigation meant by pointing out Averkov’s acquaintance with officials, and why, in the event of acquaintance with some officials, a person becomes dangerous to society and should be taken into custody. Therefore, this basis is clearly far-fetched.

2nd Grounds of investigation for arrest and extension of arrest: aware of the forms and methods of activity of law enforcement agencies regarding the detection, collection, recording and securing of evidence. XXXXX is a certified lawyer, graduated from a civilian university, which does not teach subjects of an “operational nature.” His subsequent activities were also related only to the provision of legal services to organizations and employees in civil (commercial law). The investigative body did not provide evidence of such knowledge from XXXXX, and even if he had it, then given the end of the investigation of the case, this knowledge has lost its “value.”

3rd Ground of investigation for arrest and extension of arrest: has information about the personal data of the victim and witnesses, and therefore can put pressure on witnesses and other participants. The investigation also failed to present the reality of this evidence.

For this criterion, the arguments of the ECtHR in cases against the Russian Federation seem reasonable. So, for example, in the case of Sokurenko v. RF, the Court o. (Clause 88 of the Resolution dated January 10, 2012).

In the Draft, the Supreme Court “went” even further, indicating (clause 5) that the basis for believing that a person may threaten a witness may be evidenced by the presence of established threats of violence on the part of the accused, an offer to witnesses, victims, specialists, experts, and other participants in criminal proceedings of benefits material and non-material nature for the purpose of falsifying evidence in the case. This same position is indicated in the ECHR Ruling of February 5, 2013 Mkhitaryan v. RF.

4th Ground of investigation for arrest and extension of arrest: to continue to engage in criminal activity, or otherwise interfere with the proceedings in a criminal case. The investigative body is also unfounded in pointing out this circumstance. As stated in the Draft in paragraph 5, “The basis for believing that the accused may continue to engage in criminal activity is, in particular, the commission of a previously intentional crime. As is known, Averkov has not previously been prosecuted. And what kind of criminal activity my client will engage in is just speculation, not confirmed by any facts. A similar position is set out in a number of ECHR Rulings, for example, the ECHR Ruling of June 24, 2010 “Veliev v. RF” (paragraph 154).

5th Grounds of investigation for arrest and extension of arrest:

may interfere with criminal proceedings, hide from investigation and trial. The proceedings in the case have been completed and the materials of the case are being reviewed. Therefore, he cannot prevent him in any way; in case of a “delay” in familiarizing himself with the case, the court can limit him in time, regardless of whether he is at large or in custody. Justification: to hide from investigation and trial. XXXXX is accused of committing an unfinished crime, that is, attempted murder. As is known according to Art. 66 of the Criminal Code of the Russian Federation, the term for attempted crime cannot exceed three quarters of the maximum term. The sanction of Part 4 of Article 159 of the Criminal Code of the Russian Federation provides for punishment in the form of imprisonment for a term of up to 10 years. Therefore, the maximum sentence that my client may face is no more than 6.5 years, taking into account the time served in a pre-trial detention center.

Additionally, the presence of XXXXXXX two young children, lack of criminal record, and positive characteristics are taken into account, which, according to Article 61 of the Criminal Code of the Russian Federation, is a mitigating circumstance. If he is found guilty and taking into account the established judicial practice, the sentence will be clearly lower than what I noted.

In this matter, what is important is his “strong connection with his family - wife, children, elderly parents.” Lack of assets, relatives abroad, source of his existence, lack of citizenship of a foreign state. He made no attempt to escape. Indicative is the ECHR Resolution of October 9, 2012 in the case of Kolunov v. RF (clause 51), Miminolishvili v. RF - Resolution of 06.28.2011 (clause 91) and other ECHR rulings substantiating the main legal positions on this issue. Therefore, the possibility indicated by the investigation is abstract and unsupported.

6th Grounds of investigation for arrest and extension of arrest: and also to interfere with the direct conduct of investigative and procedural actions in a criminal case with his participation. Since the collection of evidence, its consolidation has been completed and the case has been provided to the participants in criminal proceedings for review, this circumstance has disappeared. Familiarization of the accused Averkov V.M. can also be organized while he is at large.

II).

I believe that there are no grounds for further detention of XXXXXXX, since in violation of paragraph 2 of Article 109 of the Code of Criminal Procedure of the Russian Federation, a period of detention in excess of six months is possible only in relation to those accused of committing serious and especially serious crimes, only in the case of a particularly complex criminal case and if there are grounds for choosing this preventive measure by the judge, a period of more than 12 months, according to paragraph 3, can be extended only in exceptional cases in relation to persons accused of committing particularly serious crimes.

This criminal case does not present any particular complexity, since the defendants in the case were detained on the same day, December 21, 2012, the operational units of the Ministry of Internal Affairs of the Russian Federation, almost from the very beginning of legal relations with the representative of the company - the recognized victim XXXXXXX, conducted secret audio and video recording of meetings XXXXXXX and other persons with XXXXX, Telephone conversations of all the defendants in the criminal case were wiretapped, therefore, from the very beginning of the investigation of the criminal case, all persons were known, and the evidence was recorded.

During the preliminary investigation, investigators interrogated all four accused and conducted confrontations between them. Several witnesses were questioned. They seized documents from XXXXXXX LLC and from the Federal Service for Regulation of the Alcohol Market. After more than 6 months of investigation into the criminal case, on May 25, 2013, the investigative body ordered a forensic phonoscopic examination. That is, there is a “dragging out” of the criminal case, and as a result, a violation of the rights of my client.

III). The preliminary investigation authorities did not pay due attention to the fact that my client XXXXXXX has been registered as an entrepreneur since July 17, 2009. The legal support activities he performs for the purpose of obtaining a license from XXXXXXXXX LLC are not licensed and were carried out by him as part of his professional activities. In order to carry out this work, an Agreement dated July 2, 2012 on legal advice and legal assistance was drawn up.

As follows from the REVIEW of judicial practice on the application of the Federal Law of November 29, 2012 No. 207-FZ “On amendments to the Criminal Code of the Russian Federation and certain legislative acts of the Russian Federation and resolutions of the State Duma of the Federal Assembly of the Russian Federation of July 2, 2013 No. 2559- 6 of the State Duma “On declaring an amnesty.” In paragraph 2 of paragraph 1.3.4 it is stated that when determining the scope of business activity, courts must take into account that the crimes provided for in Art. 159 of the Criminal Code of the Russian Federation should be considered committed in the field of entrepreneurial activity if they are committed by persons engaged in entrepreneurial activity or participating in entrepreneurial activity, and these crimes are directly related to this activity. In this case, it does not matter how the convicted person dealt with the stolen property (for example, he appropriated it for himself or used it for business activities).

Draw the attention of the courts to the fact that the basis for classifying the offense under Art. 159.4 of the Criminal Code of the Russian Federation is not only the commission of fraud in the field of business activity, but also its connection with the deliberate failure to fulfill contractual obligations. The concept and terms of the contract, obligations arising from the contract are regulated by the provisions of civil legislation (Chapter 9, Section III, IV of the Civil Code of the Russian Federation). To qualify the offense under Art. 159.4 of the Criminal Code of the Russian Federation, it does not matter who the other party to the agreement is (commercial organization, entrepreneur or individual).

The lack of information in the sentence about contractual obligations between the convicted person and the victim serves as a basis for refusing to satisfy the petition to bring the sentence into compliance with the new criminal law. – and an Agreement was concluded between my client XXXXX and the representative of the Company XXXXX, therefore this paragraph of the Review is not applicable to my client.

The legislation does not prohibit having the status of an individual entrepreneur and the head of an organization (XXXXX was the general director of XXXXX LLC). Therefore, there is no reason to keep XXXXX in custody. The so-called victim company received a license precisely on the basis of the work of XXXXXXX.

These circumstances taken together indicate that my client’s activities are related to entrepreneurial activity, and therefore it is necessary to change the preventive measure in the form of arrest to another, more lenient preventive measure. When satisfying this Petition, it is necessary to take into account the personality of XXXXXXX., who has a permanent place of residence in Moscow, and is dependent on two young children and elderly disabled parents. Based on the foregoing,

I ask the court:

Refuse to satisfy the Petition to extend the period of detention of accused XXXXX. guarded.

Application:

1. Copy of Federal Tax Service certificate No. 46 on state registration in the name of XXXXX dated July 10, 2009. 2. Copy of the Agreement dated July 2, 2012 on legal advice and legal assistance. 3. A copy of the letter from the Federal Service for Regulation of the Alcohol Market dated XXXX on the issuance of a license to XXXXXXXXX LLC.

Lawyer S.V. Chernov

Seizure of property in a criminal case

Currently, such a measure of procedural coercion as the seizure of property is widely used (Article 11 of the Code of Criminal Procedure of the Russian Federation). Unfortunately, it is also one of the most problematic, giving rise to numerous abuses by investigative bodies. The application of such a measure may entail an unjustified restriction of the constitutional rights to the inviolability of private property and the free use of one’s property for business and other economic activities. And it happens that this measure is, in fact, used as a “method of pressure” in criminal proceedings, which, naturally, does not meet its purpose.

Within the framework of this article, it is impossible to describe all the legal subtleties and problems of applying seizure of property, but let me draw the reader’s attention to a number of circumstances.

The Code of Criminal Procedure of the Russian Federation requires that the court decision on arrest (on its extension) indicate “specific, factual circumstances on the basis of which the court made such a decision.” But this can be understood as the need to argue that there are grounds to believe that this property was obtained as a result of a crime or was used as an instrument of crime, to finance criminal activities, etc. Russian law enforcement practice followed the path of precisely this interpretation. As a result, orders to seize property are very stingy in providing specific justification for the need for its imposition.

A typical example. The court arrested the bank accounts of a number of legal entities on the basis of the following documents: decisions to initiate a criminal case and to conduct a preliminary investigation by the investigative team, a decision to conduct a search and its protocol, “reports, certificates of examination of documents... requests and answers of an informational nature, in particular about numbers of current accounts opened by legal entities.” It is clear that all these documents were of a formal nature, and none of them specifically confirmed the investigation’s version that funds obtained through illegal banking activities were credited to the seized accounts (on the basis of which the seizure was imposed). However, this did not prevent the court of first instance from granting the request for seizure, and although the appellate court overturned this decision, pointing out an unreasonable and excessive restriction of property rights and freedom of entrepreneurial and other economic activity, such an outcome of the case is the exception rather than the rule.

As for the specification of the seized property , it can be carried out both in the court ruling itself and later, in the protocol drawn up by the investigator or interrogating officer. The court may limit itself to indicating whose property is being seized and for what amount.

In the same way, at the discretion of the inquiry officer or investigator, the issue of storage of seized property is decided: whether it will be left in the custody of the owner or possessor, transferred to another person, or seized for storage in a criminal case (Part 6 of Article 11 of the Code of Criminal Procedure of the Russian Federation). Thus, the law does not in any way limit the discretion of the law enforcement officer in this matter. Meanwhile, this or that decision may be of no small importance for the property owner. And this uncertainty remains despite the fact that the European Court of Human Rights drew attention to the importance of this issue of the possibility of leaving seized property with the owner, for example, in the case “Borzhonov v. Russia” (paragraph 61 of the Resolution of January 22, 2009; complaint No. 18274/04).

The law provided for the need to indicate in the decree on the seizure of property the specific restrictions imposed . However, in practice, they are often formulated as broadly as possible, or the registering authorities often ignore this list, making only a general entry about the seizure of property. Thus, in one of the cases, the Federal Registration Service for the Moscow Region reflected the imposed pursuant to Art. 11 of the Code of Criminal Procedure of the Russian Federation “arrest in the form of a prohibition on the owner to carry out transactions the subject of which is a sale or other alienation” simply as an arrest, as a result of which the owner was deprived of the opportunity to register lease agreements in relation to his property. It is noteworthy that in this case, the Federal Registration Service made a request to the preliminary investigation authorities, to which they received a response that any registration actions in relation to the object were inadmissible.

One of the latest innovations in the practice of the Constitutional Court of the Russian Federation is Resolution No. 18-P of April 17, 2021, by which the court assessed the constitutionality of Part One of Article, Part One of Article 299 and Article 307 of the Criminal Procedure Code of the Russian Federation.

The contested provisions regulate the circumstances to be proven in criminal proceedings, issues resolved by the court when rendering a verdict, as well as the content of the descriptive and motivational part of the guilty verdict.

These provisions were the subject of consideration insofar as on their basis the court verdict decides the issue of preserving, after the verdict enters into legal force, a seizure imposed in the framework of criminal proceedings on the property of a person who is not the accused or a person legally liable for his actions. , in order to secure a civil claim.

The Constitutional Court recognized the challenged provisions as inconsistent with the Constitution of the Russian Federation. In pursuance of this Resolution of the Constitutional Court of the Russian Federation, on December 17, 2019, the State Duma of the Federal Assembly of the Russian Federation adopted in the first reading a bill on the period for arresting the property of a third party in a criminal case.

For legal assistance, please contact:

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Email address for correspondence: [email protected]

Being under arrest

When officially taken into custody, by decision of the local district court, a citizen of the Russian Federation is deprived of liberty for a certain period.
Detailed information about such a preventive measure is reflected in Federal Law No. 103. According to Art. 5 Federal Law No. 103, people are sent to jail on the basis of the following documents:

• protocol of detention of persons under investigation;
• court decision to send him to a temporary detention facility.

According to Art. 91 of the Code of Criminal Procedure of the Russian Federation, if there is reliable information about the commission of a specific crime by a citizen of the Russian Federation and after receiving consent from an employee of the Prosecutor's Office, a petition is sent to the local district court to send the suspect under arrest.

In accordance with Art. 4 Federal Law No. 103, interaction with the person under investigation is carried out on the principles of humanism, equality before the law, presumption of innocence, etc. In this situation, no torture or other actions involving the use of physical or other violence are acceptable against the accused.

Russian Federation legislation

The procedure and list of conditions for keeping persons under investigation behind bars are specified in the following legal acts:

1. Federal Law No. 103-FZ of July 15, 1995 on the detention and official periods of detention of one or more accused and suspected persons (hereinafter referred to as Federal Law No. 103).
2. . , 47 Code of Criminal Procedure of the Russian Federation.
3. Order of the Ministry of Internal Affairs No. 950 of November 22, 2005

On a note! According to Art. 2 Federal Law No. 103, suspects (accused) are persons under investigation who are sent to jail or detained on official charges of committing one or more crimes.

A little about Article 95 of the Code of Criminal Procedure of the Russian Federation

According to Part 1 of Art.
95 of the Code of Criminal Procedure of the Russian Federation, detailed information about the terms and various conditions of being under arrest is given in Federal Law No. 103. Part 2 of this article states that, if necessary, the accused is invited to participate in various operational activities. This is done only with the written consent (permission) of the investigator who is conducting the official investigation into a specific criminal case. Conditions of detention in a temporary detention facility (pre-trial detention center), rules for the provision of medical services and other nuances are established in separate decrees of the Government of the Russian Federation. Below are the main ones.

Where are they kept?

Persons under investigation are sent to a temporary detention center (IVS). Unlike pre-trial detention centers, these government institutions are under the control and support of the Ministry of Internal Affairs, and not the Federal Penitentiary Service.

Attention! The suspect is released after all charges are dropped. Otherwise, he will be transferred to a pre-trial detention center.

Conditions of detention in the temporary detention center

The conditions of detention in temporary detention facilities are reflected in the order of the Ministry of Justice of the Russian Federation No. 189 of October 14, 2005. According to this document, prisoners are sent to dry, ventilated living quarters with a living space of at least 2.5 square meters.
m for 1 person. Persons under investigation are provided with free nutritious food and the following means:

• a bed, various bedding items, as well as a towel, a separate mug, spoon and bowl;
• various personal hygiene products;
• clothes for the current season (if you don’t have your own);
• magazines from the local IVS library, etc.

On a note! Persons under investigation take a shower at least once a day and go to the bathhouse every week. Allow at least 15 minutes for 1 wash.

Persons under investigation are provided with medical assistance. These citizens are kept in solitary confinement or various general cells. To carry out round-the-clock surveillance, these places are equipped with audio equipment and hidden video cameras.

Decree of the Government of the Russian Federation No. 3 of January 14, 2011 provides a list of diseases, if detected, a suspect is released from detention. Such diseases, in particular, include tuberculosis, stage 3 liver failure, various malignant tumors, etc.

How is time spent in isolation calculated?

With the adoption of the Criminal Code of the Russian Federation (1996), all the time that the arrested person spent in the cell before the verdict was counted towards the term of the imposed punishment.
The “one to one” rule was in effect, which meant the following: if a person was sentenced to imprisonment for a period of 5 years and was in custody for 6 months, he would actually only have to serve 4 years and 6 months of imprisonment in a colony. The type of colony did not matter when counting the time spent in a pre-trial detention center. Now the period of arrest is also counted, but the rules for recounting have changed dramatically. The authors of the amendments took into account the undoubtedly more severe conditions of a person’s stay in pre-trial detention centers in Russia, compared to colonies. For example, in pre-trial detention centers the cells are more densely occupied, there are no working conditions and adequate rest, significantly limited rights to visits and to receive parcels, etc. In short, domestic insulators are still quite far from meeting international standards.

Taking these circumstances into account, the new law provides for the following amendments:

1. Credit the time spent in a pre-trial detention center for two days , provided that the person is assigned to a colony-settlement.

This type of correctional institution is assigned to persons who are brought to criminal responsibility for the first time for minor crimes. For example, a penal colony will be assigned to those responsible for a fatal traffic accident, petty thieves, or those who possessed a small amount of a drug (1-2 doses). In addition, a penal colony can be assigned for causing minor bodily harm, threatening to kill, damaging property or recklessly causing death.

Example . Petrov O.V. was convicted of committing theft in the amount of 6,000 rubles; during the investigation, a preventive measure was chosen for him in the form of detention. Petrova O.V. convicted under paragraph “c” of Part 2 of Art. 158 of the Criminal Code of the Russian Federation for the secret theft of someone else's property causing significant damage to a citizen, the sentence was 10 months of imprisonment in a penal colony. By the time the sentence entered into legal force, Petrov O.V. spent 4 months in a pre-trial detention center, so he will stay in a colony for only 2 months (4 months in a pre-trial detention center multiplied by 2 = 8 months, if this period is subtracted from the 10 months of the imposed sentence, then 2 months remain).

2. The calculation of the terms of detention for persons who are assigned imprisonment in a general regime correctional colony is made as one day to 1.5 days (that is, 1 day spent in a detention center will be equal to 1.5 days in a correctional institution ).

As a rule, men who are sentenced to imprisonment for committing serious crimes are placed in a general regime penal colony if they are charged for the first time (or repeatedly, but imprisonment has never been imposed before).

The legislator considers the following to be serious crimes:

• storage, acquisition, transportation of narcotic drugs in large quantities;
• causing grievous bodily harm without consequences in the form of death;
• theft with penetration into a home or causing damage in excess of 250,000 rubles;
• misappropriation or embezzlement using official position;
• robbery with the use of violence not dangerous to the life or health of the victim, etc.

Women who have committed crimes of a grave or especially grave nature are always assigned only to a general regime correctional facility; they cannot serve their sentences in more severe conditions.

Example . Vinogradova E.P. for committing deliberate embezzlement in the amount of 700,000 rubles, she was sentenced to 3 years in prison in a general regime penal colony. Taking into account the content of Vinogradova E.P. in a pre-trial detention center for 12 months and the new rule of recalculating a day for a year and a half will leave her to serve in a colony for a year and a half.

Terms of arrest

According to Art. 109 of the Code of Criminal Procedure of the Russian Federation, they are sent to a temporary detention facility for the following maximum period:

• 2 months - after the district local court has chosen as an official preventive measure such punishment as keeping the person under investigation in custody;
• 6 months - in the event of an official court decision to increase the previous period of arrest. This is done under the condition that it is impossible to complete the investigation within 2 months;
• 12 months - upon repeated extension of the time spent in custody. This is done in relation to persons under investigation for one or more grave (especially grave) various crimes;
• 18 months - if the current term of this preventive measure is increased by the regional court. This is possible only if a citizen of the Russian Federation is likely to commit particularly serious crimes and subject to obtaining official consent from the Chairman of the Investigative Committee of the Russian Federation, the head of the investigative department of the Ministry of Internal Affairs of the Russian Federation, etc.

Important! If there is disagreement, after each increase in the period of arrest, an appeal is filed with the court against the actions of law enforcement officials.

What is included during the period of arrest

The period of arrest will include the entire period during which the person under investigation is restricted in freedom or put behind bars. The following periods are considered such a period:

1. The period of detention of the alleged criminal in accordance with Art. 91 of the Code of Criminal Procedure of the Russian Federation (maximum - 48 hours, if the district court extends one period of detention - 72 hours).
2. The period of validity of a specific court ban on leaving the apartment or other living space. In this case, 2 days of serving such a sentence are counted as one day of being under official arrest.
3. Time spent under house arrest.
4. The period of compulsory hospital stay.
5. Time of arrest abroad.

On a note! The period of arrest also includes the period of previous imprisonment in the current criminal case. This time is taken into account when re-arrested and sent to prison.

Extension of arrest period

Extension of time under arrest is carried out according to the following established procedure:

• up to 6 months - when the investigation continues after a 2-month period after the opening of the case. Then, after receiving consent from the leadership of the Investigative Committee of the Russian Federation, a separate resolution is sent to the court and they receive an official court decision to increase the term of arrest. This is done by the investigator in a specific criminal case;
• up to 18 months - when the defendant commits one or more particularly serious various crimes. In this situation, as in the first situation, they obtain permission from their superiors in advance, and then go to court.

Important! The resolution is accompanied by materials from the current case, which confirm the existence of various legal grounds for increasing the period of stay in the temporary detention facility. Such documentation is provided to the court at least a week before the expiration of the time of arrest of the person under investigation.

In the district local court (military - in cases subordinate to these courts), the final decision is made within 5 days from the date of receipt of the application to extend the period. Based on the results of the meeting, an official court decision is adopted, according to which the previous term is extended to a new date or the demands of the RF IC officer are refused, and the suspect is released.

Upon reviewing the case in detail

The person under investigation and the investigator are given a maximum of 30 days before the expiration of the arrest period to officially familiarize themselves with the materials of a specific criminal case.
However, this time is not always enough. If the deadline for familiarization with the current case increases, a petition is submitted to a specific regional court in the form of a separate resolution. This document is accompanied by investigative materials, which confirm the existence of various legal grounds for such an extension of time.

Attention! The arrest period is extended one week before completion and a maximum of 3 months. The second and each subsequent extension is also completed within 3 months.