A day and a half in a pre-trial detention center: recalculation of the terms of detention according to the law in 2021

Time spent in a pre-trial detention center: is it included in the total term of imprisonment or not?

Federal Law No. 186-FZ of July 3, 2021 “On Amendments to Article 72 of the Criminal Code of the Russian Federation” has changed the rules for counting the time a person is in custody in the total term of serving a sentence, which have important practical significance.

Explanation of the Supreme Court of the Russian Federation

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.

Article 72 of the Criminal Code of the Russian Federation. Calculation of sentence terms and offset of punishment (current version)

1. The terms of deprivation of the right to hold certain positions or engage in certain activities, correctional labor, restrictions on military service, restrictions on freedom, forced labor, arrest, detention in a disciplinary military unit, imprisonment are calculated in months and years, and for compulsory labor - in hours.

2. When replacing punishment or adding punishments provided for in part one of this article, as well as when counting off punishment, the terms of punishment may be calculated in days. Moreover, taking into account the provisions of part one of Article 71 of this Code, two hundred and forty hours of compulsory labor correspond to one month of imprisonment or forced labor, two months of restriction of freedom, three months of correctional labor or restrictions on military service.

3. The time a person is held in custody before the court verdict enters into legal force is counted towards the terms of detention in a disciplinary military unit at the rate of one day for one and a half days, restriction of freedom, forced labor and arrest - one day for two days, correctional labor and military restrictions service - one day for three days, and during the period of compulsory work - at the rate of one day of detention for eight hours of compulsory work.

3.1. The time a person is in custody is counted towards the term of imprisonment, except for the cases provided for in parts three.2 and three.3 of this article, at the rate of one day per:

a) one day of serving a sentence in a prison or correctional colony of strict or special regime;

b) one and a half days of serving the sentence in an educational colony or a general regime correctional colony;

c) two days of serving the sentence in a colony settlement.

3.2. The time a person is held in custody is counted towards the term of imprisonment at the rate of one day per day in relation to those convicted of particularly dangerous recidivism of crimes; convicts for whom the death penalty by way of pardon has been replaced by life imprisonment or imprisonment for a term of twenty-five years; convicted for crimes provided for in Articles 205 - 205.5, parts three and four of Article 206, articles 208, 209, part four of Article 211, parts two and three of Article 228, articles 228.1, 229, 275, 276, 361 of this Code, and associated with carrying out terrorist activities are crimes provided for in Articles 277 - 279 and 360 of this Code.

3.3. The time a person is in custody is counted towards the term of imprisonment at the rate of one day for one day in relation to the period of stay of a convicted person serving a sentence under strict conditions in an educational colony or a general regime correctional colony, in a penal or disciplinary isolator, a cell-type premises or a single cell-type premises type, in the case of applying penalties to a convicted person in accordance with the penal legislation of the Russian Federation.

3.4. The time a person is under house arrest is counted towards the period of detention pending trial and the period of imprisonment at the rate of two days under house arrest for one day of detention or imprisonment.

4. The time of holding a person in custody before the court verdict enters into legal force and the time of serving imprisonment imposed by a court verdict for a crime committed outside the Russian Federation, in the case of extradition of a person on the basis of Article 13 of this Code, are counted according to the rules established by parts three and third.1 of this article.

5. When assigning a fine or deprivation of the right to hold certain positions or engage in certain activities as the main type of punishment to a convicted person held in custody before trial, the court, taking into account the period of detention, mitigates the imposed punishment or completely exempts him from serving this sentence.

Who will not be affected by the amendments?

It should be noted that convicted male repeat offenders, as well as those who have committed especially serious crimes for the first time, are assigned to a high-security correctional colony. The changes will not affect such convicted persons, since 1 day of stay in a pre-trial detention center will be counted as 1 day of serving the sentence.

That is, if a court sentences a maximum security colony, the old rule applies - a one-to-one ratio . The same applies to the most dangerous criminals who are assigned a special regime or prison (for example, if a person is sentenced to death). The conditions for serving imprisonment in such institutions are much harsher even compared to pre-trial detention centers.

Let us add that the law provides for exceptions to the general offset rule. Thus, part 3.2 was introduced into Article 72 of the Criminal Code of the Russian Federation, according to which a recount is not carried out for those convicted of committing the following crimes:

terrorist attack;
facilitating terrorist activities;
public calls for terrorism;
organization of a terrorist society, participation in it;
hostage taking with consequences in the form of death;
hijacking of vehicles for terrorist purposes;
possession of drugs on a large or especially large scale;
sale of drugs in any quantity;
high treason, espionage.

In addition, Part 3.3 of Article 72 of the Criminal Code of the Russian Federation does not allow the use of a recount in relation to those convicts who are kept in a penal colony or cell-type premises as a result of a disciplinary sanction.

Official website of the Supreme Court of the Russian Federation

The Presidium of the Supreme Court of the Russian Federation answered questions from the courts on the application of the provisions of Article 72 of the Criminal Code (as amended by Federal Law No. 186-FZ of July 3, 2021 and Federal Law No. 569-FZ of December 27, 2021), arising both in the decision the sentence and during its execution. A total of 17 questions were considered (answers to questions received from the courts regarding the application of the provisions of Article 72 of the Criminal Code of the Russian Federation).

In particular, the Presidium of the RF Armed Forces explained that when rendering a sentence:

the period of detention is counted towards the term of imprisonment from the date of actual detention until the day the sentence enters into legal force;
if the time of detention, counted on the basis of Part 3.1 of Article 72 of the Criminal Code of the Russian Federation, absorbs the term of the imposed punishment, then the court pronounces a sentence with the imposition of a sentence and exemption from serving it, and the convicted person is subject to immediate release in the courtroom;
When assigning suspended imprisonment, the sentence should not indicate the application of Art. 72 of the Criminal Code of the Russian Federation, however, it is necessary to count both the time in custody and being under house arrest in the event of a suspended sentence being revoked.

Also considered are the issues of counting the time of detention when imposing punishment for the totality of crimes and for the totality of sentences; application of the provisions of Part 3.1 and Part 3.4 of Art. 72 of the Criminal Code of the Russian Federation for crimes committed before July 14, 2021; counting the time spent under house arrest when imposing punishment in the form of detention in a disciplinary military unit, restriction of freedom, forced labor, correctional labor, restrictions on military service or compulsory labor; on counting into the term of imprisonment the time of forced stay in a medical organization providing medical or psychiatric care in an inpatient setting, by a court decision.

Answering questions arising during the execution of the sentence, the RF Armed Forces indicated that:

multiplicity factors provided for in paragraph “b” and paragraph “c” of Part 3.1 of Art. 72 of the Criminal Code of the Russian Federation, are not subject to application when resolving issues of counting periods of detention in custody during the execution of the sentence into the term of serving a sentence;
change in the multiplicity factor when the convicted person changes the type of correctional institution on the basis of Art. 78 of the Criminal Executive Code is impossible.

The Presidium also answered a number of questions related to the review of sentences in connection with the entry into force of Federal Law No. 186-FZ of July 3, 2021.

House arrest will be counted as imprisonment in a new way

In addition to the two main amendments regarding the recalculation of the time spent in a pretrial detention center, the new law provides for changes in relation to persons held under house arrest before a verdict. Previously, 1 day of home arrest corresponded to one day of imprisonment in a colony of any type.

Currently, taking into account the innovations, 2 days of stay under house arrest will correspond to one day in prison. Thus, the situation of the accused at home, whose right of movement is limited, has somewhat worsened.

Watch the lawyer's comments on the changes in the law in the video:

Recent and planned changes

No amendments after Federal Law-186 of 07/03/2018, which became bill 73983-5, in Art. 72 of the Criminal Code of the Russian Federation has not been introduced, and legislators do not yet plan to return to this issue. Thus, there is no reason to think that a “day and a half” system will be introduced for a strict regime in 2021; the latest news on this topic does not indicate the development of relevant bills.

However, the results of the Federal Law No. 186 are already impressive: the Federal Penitentiary Service reported that, as a result of its implementation, over the period elapsed since its adoption, the terms of imprisonment were reduced for 96,000 prisoners.

Will there be a criminal amnesty in 2021 and under what articles?

Review of sentences

Many people are concerned: will there be a recalculation of the time spent in the detention center for those who have been serving imprisonment for a long time?

When answering this question, one should take into account the provisions of Article 10 of the Criminal Code of the Russian Federation, according to which any improvement has a retroactive effect. This means that those serving imprisonment in a settlement colony or a general regime colony can count on a reduction in their sentence, even if the sentence came into force long before the amendments.

At the same time, people serving sentences for whom a preventive measure in the form of house arrest was chosen, provided the sentence enters into legal force before July 14, 2021, will not be affected by the amendments. Based on Article 10 of the Criminal Code of the Russian Federation, deterioration of the situation of those sentenced to the point of innovation is not allowed under any circumstances.

Let's consider the procedural procedure that is necessary before a convicted person is credited with being in a pre-trial detention center.

The law stipulates that the administrations of settlement colonies must resolve issues of recounting within 3 months from the date of adoption of the law, and the administrations of general regime colonies - within 6 months.

Thus, correctional officers are required to identify persons subject to review and then, in relation to each of them, send a reasoned submission to the court.

Currently, courts of general jurisdiction are already quite actively making decisions on re-counting the time spent in custody. The convicted person himself has the right to submit a petition to the court, but the law does not impose such an obligation on him - a person serving a sentence can take advantage of the opportunity to reduce the sentence or voluntarily refuse to exercise his right.

Analysts believe that more than 100,000 convicts will have to have their prison sentences reduced. In addition, there is an opinion that many defendants will deliberately delay trials with numerous petitions so that the period of “serving” is significantly reduced.

A day and a half in a pre-trial detention center - how the changes to Article 72 of the Criminal Code of the Russian Federation work

In July 2021, changes to Article 72 of the Criminal Code of the Russian Federation came into force, according to which many persons who were under preventive custody in the form of detention during the investigation (held in a pre-trial detention center) received the right to credit each day spent in prison, for one and a half or two days in prison.

Adopted changes that improve the situation of already convicted citizens, in accordance with the general provisions of the Criminal Law, have a retroactive effect. This means that anyone who was in prison and sentenced before the changes in question has the right to have their sentence re-credited under the new rules.

How does this rule work in practice?

Like many legislative changes in our country, this rule will not work unless the citizen himself puts it into effect. This means the following.

Firstly, the convict must find out that he has such a right (no one from the colony management is obliged to bring to his attention the existence of this right).

Secondly, the convicted person must independently (or through his lawyer) apply to the court with an appropriate petition to apply to him the provisions of Article 72 of the Criminal Code of the Russian Federation.

In addition, the new rules will not affect the bulk of convicts.

In particular, the changes do not apply to those serving a sentence in a maximum security colony, as well as to certain categories of crimes.

For example, the changes will not affect those convicted of all types of crimes related to drug trafficking, with the exception of Part 1 of Article 228 of the Criminal Code of the Russian Federation.

How to draw up a petition for credit for time served in a pre-trial detention center, and where to submit it?

If the convicted person is not a lawyer and does not have practical experience in preparing various types of procedural documents, it is advisable for him to seek help from a lawyer. The latter, by the way, can independently send such a petition to the court instead of the convicted person and, if necessary, represent his interests in court.

The administration of the colony can also help in drawing up and submitting a petition, if the convict has formed normal relations with him.

The petition must indicate the period of the person’s detention and confirm this period with relevant documents (for example, a copy of the detention protocol, copies of decisions on the election of detention, on the extension of the period of detention).

Your request to re-offset the terms must be justified by reference to the norms of criminal and criminal procedural laws.

As for the place of filing the petition, it is usually submitted to the court located at the location of the colony in which the convicted person is serving his sentence. Courts of appeal and cassation may also consider this issue in the process of considering an appeal against a court verdict.

It is important to understand that if there are legal grounds, the court is obliged to grant the request for credit for a day and a half or a day for two in a pre-trial detention center!

The court may refuse to satisfy a request for parole (parole) if it considers that the convicted person has not yet sufficiently improved. But the court has no right to refuse to recalculate the time served in a pre-trial detention center. If such a refusal is issued, it is illegal and must be appealed to a higher court.

If you need help in drawing up a petition to count the terms of detention against the term of imprisonment and (or) defense in court on this petition, as well as on issues of parole and replacing the punishment with a more lenient one in accordance with Art. 80 of the Criminal Code of the Russian Federation, follow this link

History of the bill's adoption

The bill was submitted to the State Duma in June 2008. State Duma functionaries Ivan Melnikov and Pavel Krasheninnikov, who carried out work on analyzing bills remaining from previous convocations of the State Duma, began to actively promote the document in 2021. At that time, the bill was adopted in the first reading in 2015. Meanwhile, human rights activists and other interested parties did not forget about this document and they constantly promoted the issue.

The explanatory note to the project states that the conditions of detention in the pre-trial detention center are close to those in prison:

prisoners do not have the opportunity to engage in any type of activity;
they are in closed cells;
Only one walk per day for an hour is allowed.

It is clear that the conditions for serving a sentence in general regime colonies and settlement colonies are much more favorable, therefore the principle of fairness in sentencing required taking into account such circumstances.

Amendments to the draft were made only to expand the list of articles for which those convicted are not entitled to credit under the “day and a half” scheme, after which it was adopted in the final reading and signed by the president.

When the law came into force was not further determined, so it acquired full legal force 10 days after official publication, that is, July 13, 2021. Three months were given to correctly calculate the terms of punishment and set off the punishment.

Is the time in a pre-trial detention center counted on a preferential basis while the case is being considered on appeal?

Hello. Is the time in a pre-trial detention center counted on a preferential basis while the case is being considered on appeal?

Lawyer Antonov A.P.

Good afternoon According to Parts 3-3.3 of Article 72 of the Criminal Code of the Russian Federation, the time a person is held in custody before the court verdict enters into legal force is counted towards the terms of detention in a disciplinary military unit at the rate of one day per day and a half, restriction of freedom, forced labor and arrest - one day for two days, correctional labor and restrictions on military service - one day for three days, and during the period of compulsory work - at the rate of one day of detention for eight hours of compulsory work. The time a person is in custody is counted towards the term of imprisonment, except for the cases provided for in parts three.2 and three.3 of this article, at the rate of one day for: a) one day of serving a sentence in a prison or a correctional colony of strict or special regime; b) one and a half days of serving the sentence in an educational colony or a general regime correctional colony; c) two days of serving the sentence in a colony settlement. The time a person is held in custody is counted towards the term of imprisonment at the rate of one day per day in relation to those convicted of particularly dangerous recidivism of crimes; convicts for whom the death penalty by way of pardon has been replaced by life imprisonment or imprisonment for a term of twenty-five years; convicted for crimes provided for in Articles 205 - 205.5, parts three and four of Article 206, articles 208, 209, part four of Article 211, parts two and three of Article 228, articles 228.1, 229, 275, 276, 361 of this Code, and associated with carrying out terrorist activities are crimes provided for in Articles 277 - 279 and 360 of this Code. The time a person is in custody is counted towards the term of imprisonment at the rate of one day for one day in relation to the period of stay of a convicted person serving a sentence under strict conditions in an educational colony or a general regime correctional colony, in a penal or disciplinary isolator, a cell-type premises or a single cell-type premises type, in the case of applying penalties to a convicted person in accordance with the penal legislation of the Russian Federation. According to the Answers to questions received from the courts on the application of the provisions of Article 72 of the Criminal Code of the Russian Federation (approved by the Presidium of the Supreme Court of the Russian Federation on July 31, 2019), the specified multiplicity factors do not apply to the stage of execution of a sentence that has entered into legal force. In particular, they do not apply: a) to the period of sending a convicted person to serve a sentence in a correctional institution after the sentence enters into legal force; b) to the period of detention of the convicted person in connection with his arrest (up to 48 hours) on the grounds provided for in Part 2 of Article 30, Part 4 of Article 32, Part 4 of Article 46, Part 6 of Article 58, Part 4 of Article 60.2, Part 6 of Article 75.1 Penal Code of the Russian Federation; c) to the period of detention of convicted persons in the manner provided for in paragraphs 18 and 18.1 of Article 397 of the Code of Criminal Procedure of the Russian Federation, as well as when canceling a suspended sentence to imprisonment or parole; d) to the period of convicts’ stay in pre-trial detention centers in the manner prescribed by Article 77.1 of the Penal Code of the Russian Federation, if they did not choose a preventive measure in the form of detention. Thus, time in a pre-trial detention center is counted towards the term of imprisonment as 1 for 1.5 only before the sentence enters into legal force. If the court verdict states that the term of imprisonment is calculated from a certain date, then starting from that date, the term in the pre-trial detention center is no longer counted on a preferential basis.

Sincerely, lawyer Anatoly Antonov, managing partner of the law firm Antonov and Partners.

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