Terms of detention, procedure for their calculation and extension

“Unlimited” period?

In relation to those accused of committing serious or especially serious crimes at the stage of preliminary investigation, a preventive measure in the form of detention is often applied, the general deadlines for which are established in Parts 2 and 3 of Art. 109 of the Code of Criminal Procedure of the Russian Federation. Meanwhile, defining in paragraph 55 of Art. 5 of the Code of Criminal Procedure of the Russian Federation, criminal prosecution as a procedural activity carried out by the prosecution in order to expose a suspect accused of committing a crime; the legislator allows this prosecution in the form of two or more criminal cases investigated against one person.

Moreover, part 2 of Art. 154 of the Code of Criminal Procedure of the Russian Federation provides for the possibility of separating a criminal case for individual - already investigated - episodes of crimes to ensure a partial trial by the court of the charged charge, and Art. 155 – isolating from the criminal case materials indicating a new crime in order to resolve the issue of initiating a new criminal case. At the same time, in the Code in Part 6 of Art. 154 on the rules for calculating the period of preliminary investigation, as well as in Art. 109 on the rules for calculating the period of detention in relation to situations with a separate criminal case or a case initiated on the basis of materials separated from a case in which the accused is already in custody, it is stated that the period of detention in a pre-trial detention center is counted towards the total period of detention only for the allocated case (part 12 of article 109 of the Code of Criminal Procedure of the Russian Federation).

What sometimes happens in practice when the prosecution considers a period of custody of 12 or 18 months insufficient? In relation to the accused for a long time, before the expiration of the specified deadlines, criminal prosecution for other episodes or a criminal case already initiated against unidentified persons may not be carried out in order to avoid the application of the rules of paragraph 2 of part 1 of Art. 153 and part 12 of Art. 109 of the Code of Criminal Procedure of the Russian Federation. Proceedings in such a criminal case (let's call it “parallel”) can be suspended, then resumed and suspended again. We emphasize that even based on materials isolated from the criminal case in accordance with Art. 155 of the Code of Criminal Procedure of the Russian Federation, the period for resolving issues related to the consideration of a report of a crime (Articles 144–145 of the Code) is formally limited to three days, but the established practice of pre-investigation checks actually makes it unlimited.

Since Art. 109 of the Code of Criminal Procedure of the Russian Federation provides guarantees of compliance with the norms of Part 3 of Art. 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the Convention) for a reasonable period of detention only in Part 12 and only in relation to separate or combined criminal cases, investigative authorities and the prosecutor’s office can “bypass” the legally established maximum periods of detention , exceeding them many times over, using a gap in the law.

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

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.

What does the Criminal Code of the Russian Federation say about counting time in a pre-trial detention center?

According to Part 31 of Art. 72 of the Criminal Code of the Russian Federation, the time a person is held in custody is counted towards the term of imprisonment at the rate of one day in a pre-trial detention center for:

• one day of serving a sentence in a prison or colony of strict or especially strict regime;
• one and a half days in an educational colony or a general regime colony;
• two days in a colony settlement

For example, for a person held in custody for 60 days before the sentence enters into legal force, this period will be counted as 90 days of serving the sentence in a general regime colony, and for 120 days in a settlement colony, that is, at the rate of one day in a pre-trial detention center for one and a half days a general regime colony and two days in a colony-settlement, respectively.

When do these rules not apply?

• to those convicted of particularly dangerous recidivism;
• to convicts for whom the death penalty has been replaced by imprisonment;
• to those convicted of crimes of a terrorist nature, hostage-taking, organization of an illegal armed group or participation in it, banditry, high treason, espionage, as well as crimes related to illegal drug trafficking (Part 32 of Article 72 of the Criminal Code of the Russian Federation).

The time of detention in a pre-trial detention center in such cases: one day of stay in a pre-trial detention center will be counted only as one day of serving a sentence in an educational colony, a general regime colony or a colony-settlement.

If you are under house arrest

The changes also affected persons who were under house arrest during criminal proceedings.

The time a person is kept under house arrest is counted towards the term of imprisonment at the rate of two days of being under house arrest for one day of imprisonment (Part 34 of Article 72 of the Criminal Code of the Russian Federation)

How is house arrest elected?

House arrest is ordered only by the court based on the results of consideration of the petition of the investigator or interrogator investigating the crime.

Moreover, the issue of its application can be considered at any stage of criminal proceedings, that is, both during the investigation and during the consideration of a criminal case by the court.

Conditions of use

In order for house arrest to be applied, under Art. 97 of the Code of Criminal Procedure of the Russian Federation it is necessary:

1. A criminal case where a person has the status of a suspect or accused.
2. Availability of data giving grounds to conclude that the accused or suspect:
   will influence witnesses and eyewitnesses, may get rid of evidence or in some other way interfere with the proceedings;
3. will continue to commit crimes;
4. may hide.

In addition to those indicated, it is mandatory under Art. 99 of the Code of Criminal Procedure of the Russian Federation, other circumstances are taken into account:

1. The severity of the crime committed.
2. Information about the identity, age of the suspect/accused.
3. His state of health, whether he has a family, what he does.
4. Other circumstances, for example, behavior, attitude towards the crime, etc.

Court statement

Based on the results of consideration of the petition for house arrest, the court makes a decision. It must describe the conditions of execution, among them:

• residential premises in which the suspect/accused will stay;
• length of stay in custody;

• options for how to contact the investigator, interrogating officer and investigator;
• prohibitions imposed on the arrested person.

What is house arrest

House arrest is a coercive measure in criminal proceedings designed to prevent possible interference in finding out the truth in a criminal case. This is one of the most severe preventive measures. Her choice is due to the impossibility of using a more humane measure, for example, bail or recognizance not to leave.

House arrest is isolation from society of the suspect/accused in a home where he remains permanently on any legal basis (in his own, rented home, etc.).

Provided that he needs hospital treatment, he can be isolated in a medical facility. The arrested person is also subject to a number of prohibitions.

Cancellation and modification of house arrest

General rules for canceling or changing the chosen preventive measure are prescribed in Art. 110 Code of Criminal Procedure of the Russian Federation. The main ones are:

• cancellation if there is no further need;
• change to a more strict or more lenient one - under the circumstances described in the above-mentioned Articles 97, 99 of the Code of Criminal Procedure of the Russian Federation.

House arrest is canceled on the basis of the relevant decision of the investigator, inquiry officer or court, which is handling the criminal case.

A more severe preventive measure in relation to house arrest is only detention.

A change to this measure can also occur exclusively by court order at the request of the investigator or inquiry officer (during the investigation) or the Criminal Investigation Department (during the judicial review). Such a decision may be made in the following circumstances:

1. Failure to comply with the conditions of house arrest.
2. Disagreement with the use of technology. means of control.
3. Intentional damage, destruction, or violation of integrity.
4. Performing actions that lead to disruption of the normal operation of equipment.

Challenging the extension of arrest for an accused person

This publication is a continuation of the article devoted to the issues of appealing court decisions related to the arrest of accused and suspected persons at the stage of preliminary investigation. Before reading the presented material, we recommend that you read the relevant publication.

Let's consider the question of what facts can serve as the basis for a lawyer or an accused to appeal a court decision to extend the period of detention. When considering a petition to extend the period of detention, the court is obliged to check the existence of circumstances precluding the use of a preventive measure in the form of detention or extension of its validity.

For example, if during the investigation it is established that the alleged fraud was committed in the field of business activity, the court is obliged to refuse to extend the detention due to the presence of a prohibition established by law. The court's refusal should follow if the investigation attempts to extend the period of detention in relation to a person accused of committing a crime of minor or medium gravity, since this fact is a violation of the provisions of Article 109 of the Code of Criminal Procedure of the Russian Federation.

When extending the period of detention at any stage of the criminal proceedings, the court is obliged to check the existence of the grounds provided for in Article 97 of the Code of Criminal Procedure of the Russian Federation at the time of consideration of the investigation's petition. In this case, the circumstances must be confirmed by reliable information and evidence .

It should be borne in mind that the circumstances on the basis of which a person was taken into custody are not always sufficient to extend the period of his detention. The court must establish whether, over time, the likelihood of the accused committing the actions that previously served as the basis for his detention remains, and whether such a likelihood is confirmed by the case materials. The presence of a reasonable suspicion that a person has committed a crime of a certain category is a necessary condition for the legality of his initial detention, but after the lapse of time it ceases to be sufficient. The court must establish specific circumstances indicating the need for further detention of the accused in custody, the absence of which is grounds for challenging the court decision.

Doubts about the validity of a court decision naturally arise when it has been established that the circumstances since the person was taken into custody have changed in the direction of mitigation, for example, a pre-trial agreement on cooperation has been concluded with the accused, accomplices in the crime have been identified, all investigative actions to collect evidence have been carried out, and damages caused by the crime have been compensated. damage, the person actively contributed to the disclosure and investigation of the crime, the exposure and prosecution of other accomplices in the crime who were detained. If the court does not assess these circumstances in the decision to extend the period of detention, then this fact should be the subject of consideration by the appellate court.

At the initial stages of criminal proceedings, the severity of the charge and the possibility of imposing a sentence of imprisonment for a long term may serve as a basis for taking the suspect or accused into custody due to the fact that he can hide from the inquiry or preliminary investigation. However, in the future, these circumstances alone cannot be considered sufficient to extend the validity of this preventive measure.

The ability of a person to obstruct the proceedings of a criminal case at the initial stages of the preliminary investigation may serve as the basis for a decision to keep the accused in custody. However, subsequently the court must analyze other significant circumstances, such as the results of the investigation or trial, the identity of the suspect, the accused, his behavior before and after arrest, and other specific data substantiating the argument that the person may commit actions aimed at falsification or destruction of evidence, or to put pressure on participants in criminal proceedings or otherwise interfere with the investigation of a crime or the consideration of a case in court.

The court should not consider the investigation's request to be justified if the assertion that the accused will abscond from the preliminary investigation is justified only by the gravity of the charge and other circumstances are not taken into account, or no data is provided that the person tried to escape. The argument that the accused may threaten a witness or other participants in criminal proceedings cannot be considered justified if this is just an assumption that does not find documentary evidence that he has such an intention and an attempt to implement it.

When considering petitions to extend the period of detention of the accused in custody, the court is obliged to check the validity of the arguments of the preliminary investigation authorities about the impossibility of completing the investigation in a timely manner and take into account that the need for further investigative actions in itself cannot act as the only and sufficient basis for extending the period of detention . In the event that a petition to extend the period of detention is brought before the court repeatedly and on the basis of the need to carry out investigative actions specified in previous petitions, the court clarifies the reasons why they were not carried out. If the reason is the ineffective organization of the investigation, in the absence of the legal and factual complexity of the investigation of the criminal case, this may be one of the circumstances leading to the refusal to satisfy the petition, to which the defense should draw the attention of the court. If the assessment of the effectiveness of the investigation of a criminal case is ignored by the court, then this is an essential prerequisite for appealing the court decision.

Court ruling refusing to extend the preventive measure in the form of detention

When the defense attorney challenges the decision to extend the period of detention for a period of more than 6 months, it is necessary to pay attention to whether the court, when considering the investigation’s petition, checked whether there was a reference to the fact that the crime being investigated is particularly complex and whether the justification for this was given in the petition (Part 2 of Art. 109 of the Code of Criminal Procedure of the Russian Federation). It should be noted that in judicial practice there are decisions where the courts took the position that the criminal legal characteristics of the crimes being investigated in a criminal case, their number, as well as the number of accused in themselves do not indicate the particular complexity of the case.

The court does not have the right to extend the period of detention of the accused if he has been diagnosed with a disease that prevents detention, which is certified by a medical report based on the results of a medical examination conducted in the prescribed manner. (“The list of serious diseases that prevent the detention of suspects or accused of committing crimes” was approved by Decree of the Government of the Russian Federation No. 3 of January 14, 2011).

We also note that if a petition is refused, the court has the legal opportunity to choose not only a preventive measure, which can only be applied by a court decision (house arrest, bail), but also a written undertaking not to leave and proper behavior.

Lawyer Pavel Domkin

Will prosecutors be given the right to extend periods of detention without trial?

Today, in the second reading, amendments to the Criminal Procedure Code were adopted in terms of regulating the limits of the period of detention at the pre-trial stage of criminal proceedings (Bill No. 40165-7). According to the proposed changes, the period of detention during the preliminary investigation will be calculated from the moment the suspect or accused is taken into custody until the criminal case is sent to the prosecutor. According to some media outlets, the amendments actually give prosecutors the right to extend arrest without trial.

In the explanatory note to the bill, the need for its adoption is justified by the fact that currently, due to the inconsistency of the rules governing the terms of the preliminary investigation and detention, the investigator or inquiry officer is forced to extend the period of the preliminary investigation or inquiry. The authors of the initiative explained that such an extension is carried out solely for the purpose of keeping the accused in custody during the period of consideration of the criminal case by the prosecutor, that is, when further investigative actions are no longer required, and the investigation is actually completed.

In this regard, the terms of the preliminary investigation are unreasonably increased by the period necessary for the prosecutor to exercise his powers in the received criminal case. At the same time, the procedure for extending the period of preliminary investigation also requires significant time costs, including those associated with the need to transfer the criminal case to the head of a higher investigative body located at a location other than the place where the investigation was conducted.

At the same time, the bill proposes to establish that if a criminal case is sent to the prosecutor, the period of detention can be extended for the period necessary to make a decision on the received criminal case, by the prosecutor himself, as well as by the court. According to the authors, this will prevent the prosecutor from being distracted by initiating and maintaining petitions in court to extend the period of detention.

At the stage of introducing the bill to the State Duma, AG experts pointed out that it is aimed only at formally bringing the norms of the criminal procedure law into line with each other and from a practical point of view does not have any fundamental significance.

Lawyer of the Sverdlovsk Regional Guild of Lawyers Sergei Kolosovsky noted that the Resolution of the Constitutional Court of the Russian Federation of March 22, 2005 No. 4-P more than 10 years ago fundamentally resolved the problem under discussion: when extending the period of detention, the court must lay down the “reserve” necessary for approval by the prosecutor of the indictment and the adoption by the court to which the case is submitted of an independent decision on this issue. “The “prosecutor's” term is determined by Part 1 of Art. 221 Code of Criminal Procedure of the Russian Federation – 10 days. In relation to the court, the Constitutional Court in the said decision noted that a 2-week period seems reasonable. Thus, upon completion of the investigation, the investigators went to court with a petition to extend the period of detention for a period that was 25 days longer than the investigation period. And more often than not, the courts granted such a request from the investigator,” he explained.

However, the lawyer noted that in practice a conflict did arise, indicated in the explanatory note. “Some cunning lawyers, driven by the desire to “fish in troubled waters” and, taking advantage of this conflict, to release the accused from custody, began to object to extending the period of detention beyond the investigation period,” explained Sergei Kolosovsky.

He said that this position is sometimes accepted with understanding by the court. As a result, the investigation is forced to extend the period of the preliminary investigation with a reserve, but this can be problematic due to the provisions of Art. 162 of the Code of Criminal Procedure of the Russian Federation, especially when this period approaches the one-year mark, after which an extension in Moscow is required. As a result of the described conflicts, sometimes the investigation actually reaches a dead end and the accused is released.

“However, this phenomenon is non-systemic in nature and does not make any difference, therefore the bill is not revolutionary in nature and will not entail any significant changes in the practice of extending the preventive measure,” the lawyer concluded.

Managing partner of AB "AVEX YUST" Igor Bushmanov agreed with the insignificance of the proposed amendments. However, he noted that it is necessary to solve another pressing problem - the excessive use by investigative authorities of the powers to repeatedly initiate the extension of not only the period of preliminary investigation, but also the detention of citizens.

“For the courts, satisfying such requests has long turned into a formality that distracts from the main purpose of the proceedings. The court does not delve into the essence of the accusation (suspicion) and usually proceeds from the “presumption of trust” in the investigation,” he noted. At the same time, control over this kind of procedural decisions on the part of the prosecutor’s office, which ultimately is entrusted with the most important functions of criminal proceedings to approve the indictment and support the state prosecution, has actually been lost.

Igor Bushmanov considers it expedient for the legislator to return to the prosecutor's office the powers to resolve issues of extending the period of detention of accused persons in custody (house arrest) at the entire pre-trial stage of criminal proceedings, which were taken away from them in the early 2000s. “The prosecutor will more effectively control the progress of the investigation in “arrest” cases, initially delving into the essence of the accusation and bearing the full burden of responsibility for restricting the freedom of those under investigation if it is unfounded,” he is sure. “It is enough for the courts to leave only the resolution of issues regarding the initial selection of a preventive measure and its extension exclusively at the stages of the trial.”

At the same time, Pen & Paper lawyer Alena Grishkova called the initiative hasty: “The developers of the bill did not take into account the provisions of Art. 158 of the Code of Criminal Procedure of the Russian Federation, which determined that the preliminary investigation ends in the manner prescribed by Ch. 29–32 of the Code of Criminal Procedure of the Russian Federation, that is, at the time the criminal case is sent to court,” she explained. – In addition, the statement that the investigator or inquiry officer is forced to extend the period of investigation of a criminal case and detention for the period of consideration of the criminal case by the prosecutor in order to approve the indictment or indictment is erroneous, since the period of investigation or inquiry in accordance with Art. 162 of the Code of Criminal Procedure of the Russian Federation is extended exclusively for investigative and procedural actions.”