The government began talking about the legislative norm under consideration in 2008, and in 2021 it was finally adopted. Today everything is still working. The law is devoted to issues related to the counting of the time of detention of citizens until the court verdict takes legal force. Throughout the existence of the document, changes have been made to it several times. Some experts believe that it still requires improvements and revisions.
History of the bill's adoption
The idea was actively put forward to the masses in 2008-2009 by representatives of the Federal Penitentiary Service. As a result, she managed to obtain approval from the government and the RF Armed Forces. Subsequently, the issue became controversial again: critics were convinced that there would be no final solution to the issue due to ignoring the principle of equality. There were several reasons for this, in their opinion.
- Ignoring equality positions. If we consider an example from judicial practice, we can imagine two people committing a murder and receiving identical punishment. But for some reason, the case of one of them required more time for consideration. It turns out that, due to the new calculation scheme, he will serve a shorter sentence than his accomplice. This is, at the very least, unfair.
- Risk of local corruption. Critics argued that if the bill were passed, there would be an incentive to stay in pre-trial detention for as long as possible in order to reduce the sentence. This, in turn, will provoke corruption.
- Resistance from law enforcement agencies. Their representatives have already spoken out about the implementation of the new legislative norm, and in a negative way.
There is one more practical example worth taking into account. So, the citizen committed a criminal act, and in the process he was taken into custody. It took representatives of law enforcement agencies a year to investigate the details, during which the culprit spent time in a pre-trial detention center. The court decided to imprison the offender for a year in a colony. According to the new rules, his sentence includes “an extra six months.” What to do in this situation remained a question for critics!
Application for credit for time in custody
The convicted person himself can submit a corresponding petition to the court that passed the sentence, or to the court at the place where the sentence is served.
When a person has already served a sentence with credit for terms according to the old rules, it is advisable to take advantage of the opportunity to file a petition to recalculate the term of the sentence taking into account the new rules; for some time after serving the sentence, the citizen will have an outstanding criminal record. In accordance with paragraphs c, d, part 2 of Article 86 of the Criminal Code of the Russian Federation, it is extinguished after three and eight years from the date of serving the sentence in relation to persons imprisoned for crimes of moderate gravity and serious crimes, respectively. Reducing the term of serving a sentence affects the reduction in the period of expungement of a criminal record.
Note! To submit a petition, the prisoner must submit it as a regular letter through the administration of the colony, which will independently forward it to the jurisdiction.
The convicted person does not need to appear at the court hearing - a video conference will be established with the colony.
The application may be refused. Such a decision can be appealed within ten days from the date of receipt of a copy of the decision.
What changes were implemented as part of the “year and a half” project?
They are spelled out in Art. 72 of the Criminal Code of the Russian Federation. The fact is that it is this standard that contains information about settlement actions. Following the principles of mathematics, you can make the following calculations:
1 day in a pre-trial detention center is the equivalent of the following indicators:
- 1 day of arrest or detention in a military unit with a disciplinary bias (in the previous legislation everything was exactly the same);
- 1.5 days spent in a general regime colony or in an educational colony;
— 2 days of restriction of freedom while staying in a settlement (similar);
— 3 days of performing work of a corrective nature, restrictions on service (in fact, as in the norms of Article 72 of the Criminal Code of the Russian Federation);
— 8 hours of mandatory work.
The current legislation provides for the fact that a day in a pre-trial detention center is defined as 1.5 days only in situations where a convicted person receives a suspended sentence, or a measure of restriction of freedom is taken against him.
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.
The importance of adopting amendments for the legislative framework and those responsible
There are several points that explain why the amendments are significant for many parties to the litigation.
- The law has nothing to do with persons whom the court sends to a general or strict regime colony.
- In May 2021, the State Duma, or rather the committee, received recommendations to the “autumn” deputies to adopt this law as part of the second reading. We are talking about civil, procedural, criminal, and arbitration legislation.
- The parole mechanism was terminated, so human rights activists were unable to work normally and demanded amendments.
- The Committee of Ministers of the European Council has also made recommendations to move away from the “coefficient 1” to ensure greater protection of human rights.
- Representatives of the fairer sex require more humane conditions to serve their sentences.
- In a pre-trial detention center, conditions are considered more severe in contrast to colonies, because there a person is in a cell under lock and key and can only count on an hour’s walk a day. In the colony, in turn, the prisoner can study, work, and see his family.
Thus, if we evaluate the degree of severity of a pre-trial detention center by the severity of serving the sentence, this “organization” is considered the most strict, i.e., it is equated to a prison.
What to do if you are in a pre-trial detention center and are given a fine?
If the court has imposed a fine on the guilty party as the main punishment, it may ultimately be mitigated by taking into account the time spent in the pre-trial detention center. However, the fine cannot be replaced by days that have been served, since punishments are not interchangeable. The same approach is extended to the right to occupy specific positions or conduct certain activities.
For example, a person was accused of abuse of power. It took the authorities 2 months to investigate this case. During this entire period, the accused party was in pre-trial detention. After this, the court conducted a full review of the case and imposed punishment in the form of deprivation of the right to occupy specific positions for 3 years. In this case, the perpetrator may be released from punishment, or he may be commuted.
Checking the registration of the company SKKK Alfa-Resurs
The organization has been officially registered in the Unified State Register of Legal Entities since November 2008, the scope of its activities corresponds to the stated ones:
- The company is included in the register of Agricultural Credit Consumer Cooperatives of the Central Bank of the Russian Federation;
- Member of SRO Unity;
- Chairman Irina Sergeevna Timofeeva, and executive director Stanislav Vladimirovich Timofeev;
- Legal address in the city of Slobodskaya, Kirov region in the Urals.
Since 2015, she has had zero profit, and has repeatedly participated in legal proceedings as a defendant. There is indeed another organization - Microcredit Company Alfa-Resource LLC, with the same director and founder Stanislav Vladimirovich Timofeev, from which the Central Bank took away its license in November last year for numerous violations. He is also the head of three more organizations.
What time frames are taken into account during the calculation process?
There are several options by which we mean the time the subject is directly in custody.
- Duration of administrative detention and arrest. This issue is regulated at the level of administrative legislative norms. There is a risk of difficulties with criminal law qualifications. For example, a person was detained for hooliganism (an administrative crime), and then his criminal acts came to light, so he has to change his qualifications.
- The time at which the person suspected of committing a criminal act was detained. Regulation of this issue is ensured by the norms of criminal procedure legislation.
- The period of detention as a preventive measure. The procedure for this process is regulated by the provisions of criminal procedure legislation.
- The moment of application of medical measures in relation to the accused party, for example, treatment in a mental hospital, undergoing a medical examination.
- The duration of arrest in disciplinary terms, this measure is applied to a military personnel and is regulated by relevant norms. This situation occurs when there are difficulties in the qualification process. Let’s say a person violated the rights of serving at the border. At first, this offense was considered disciplinary, and then became a crime against service, i.e., reclassification occurred.
Another case is related to the undertaking not to leave, namely, whether it acts as a period subject to offset. In fact, this measure has nothing to do with the category of “detention”, therefore it is not “enrolled” in the term of imprisonment.
Recalculation rules for those serving sentences
For those already in correctional institutions, the sentence will not be increased (due to a reduction factor of 0.5 when counting the sentence of house arrest towards the sentence), since the current Criminal Code of the Russian Federation does not allow the conditions of citizens to worsen when new laws are adopted; the law has retroactive effect only if it improves their positions.
Recalculation of sentences towards reduction for those already serving sentences should be made in the near future. Three months from the date of entry into force of the law are given to recalculate the terms of prisoners in educational colonies and settlement colonies, six months - for all other categories of convicts.
Nuances of determining the length of stay in a pre-trial detention center
It is immediately worth noting that this period includes absolutely all the days in which the person was under investigation until the day when the court decision enters into legal force. The deadline also runs after the meeting, i.e., the time when it is possible to appeal the decision.
To understand the situation, it is worth considering a practical example. The man was convicted in accordance with Art. 163 for 1.3 years, placed in a general regime colony. He served his sentence for 8 months and was transferred to another place - a pre-trial detention center. How to calculate this period, i.e. what period of time is one day equal to?
Practice shows that taking into account different statuses – arrested and convicted – plays an important role. Rules of Art. 72 continue to apply until the court decision comes into force. In this case, it is valid, and part of the punishment has already been served. So in this situation, a different norm is considered, namely, Part 7 of Art. 76 PEC. It provides for the procedures for detention in the Chamber of Commerce and Industry; placement in these points occurs on general terms, i.e. the period is defined as “day by day”.
If the sentence is served under Part 2 of Art. 159, the days are counted in a slightly different order. Staying in a pre-trial detention center is “day after day.” The use of the formula “a day in two” is permissible only if the punishment is a restriction of freedom, that is, not associated with imprisonment. If the basis for placement in a pre-trial detention center is Part 2 of Art. 111, the punishment is 3 years, the term is calculated as 1 to 1.
If the offender spent six months in a pre-trial detention center before the sentencing, and then he was sentenced to 1.5 years of punishment, and the first term was not counted in the general parameter, the procedure will be different. In Part 3 of Art. 72 of the Criminal Code of the Russian Federation states that this period refers to the total term of imprisonment. If this clause is not taken into account in the contract, all that remains is to file a complaint.
The reason is inattention
According to lawyer Maxim Ageev, from a legal point of view, all agreements on the transaction were drawn up correctly and there seemed to be no fraud. But in fact, Natalya was told one thing, but on paper they were given something completely different. “If Natalya does not prove to the court that the real circumstances differ from the legal ones, then the chance of returning the money becomes minimal. Therefore, now our task is to find people who have suffered in the same way from the actions of the credit institution. The pension fund knows that this case is not an isolated one,” notes Maxim Vladimirovich. “The company’s employees said that they would freeze the interest, but due to her legal illiteracy, Maltseva did not demand to sign a paper that this would indeed be the case. As a result, the consideration of the complaint by the prosecutor’s office lasted three months, and the debt accumulated interest.”
According to the lawyer, again out of ignorance, clients of certain organizations often confuse the loan agreement and the provision of services, where it would be stated that the company undertakes obligations to prepare all documents. In fact, they only promised this verbally, which means they do not bear any legal responsibility for the mistakes made. “Our task now is to find more victims. We will demand termination of the contract and raise the issue of initiating a criminal case under the article “fraud.”
Minimum and maximum period value
The law does not specify the minimum period of time spent in a pre-trial detention center; everything is determined by the individuality of the situation and the interests of the facility. That is, if the suspect has no hidden facts, and the investigation, in turn, has no grounds for keeping the prisoner in a pre-trial detention center, release can occur within 24 hours. The maximum term is also not specified; it is determined in accordance with the type of crime and the nuances of the investigation.
However, the maximum period has some features:
- the standard indicator should not be more than two months;
- if the investigation does not have enough time, it can be extended to six months;
- the previous paragraph can only apply if there is a risk that the suspect will be able to hide traces of his actions after leaving the pre-trial detention center;
- in case of complex circumstances of the case, the period may be extended to one and a half years.
Formally, there is a ban on longer stays in pre-trial detention centers. However, in some situations it can be bypassed.
How to correctly calculate the period of stay?
The defendants in the case are spared the need to independently calculate the length of their stay in a pre-trial detention center. The court does this for them.
The court order, in accordance with which a person is placed in a pre-trial detention center, must indicate the period of validity of the preventive measure in days or months, as well as the exact end date of this time period. The time spent in custody expires on the last day of the term appointed by the court.
For example, by court decision a person was taken into custody for 2 months on March 1. This means that on May 1 at 24:00 the citizen’s time in the detention center will expire.
The period under review includes the time spent under house arrest, the time of detention as a suspect, and so on.
It should be remembered that the deadlines listed in paragraph 1 of this material refer to the time before the prosecutor transfers the case to court . After this, Article 255 of the Criminal Procedure Code comes into force.
If the accused is already in custody, then the judge will probably not change the measure of restraint. In this case, the risk of the defendant not appearing at the hearing completely disappears. The accused can stay in a pre-trial detention center for up to six months. And for serious and especially serious crimes, the period can be extended for another three months.
In the verdict, the court must indicate the preventive measure, if it considers it appropriate to establish it, for the period the decision enters into legal force.
If the verdict was appealed, it did not enter into legal force .
The accused will remain in pre-trial detention until a final verdict is rendered or until the preventive measure is changed. As you can see, the period of detention in a pre-trial detention center is divided into three periods: before the trial, during the trial, and until the day the verdict comes into force.
If the verdict is guilty, only those days that the citizen spent in custody before the start of the trial will be counted. Part 3 of Article 72 of the Criminal Code clearly states : all days spent in the detention center after the start of the proceedings are not taken into account in any way.
The draft law on introducing completely logical amendments to this article, providing for the recording of absolutely all days that a citizen spent in a pre-trial detention center, has been considered in the State Duma since 2008.
