The term of punishment is counted from the day of detention, not arrest

Official website of the Supreme Court of the Russian Federation

From what moment does the punishment of a convicted defendant begin to be calculated, what is the difference between the articles of the Criminal Code on calls for terrorist activities and inciting hatred and enmity and whether they can be mutually exclusive, how to correctly qualify the actions of collectors of wild narcotic plants, the Supreme Court of the Russian Federation explained in its review of judicial practice.

Day of detention

“The day of actual detention of a person found guilty of committing a crime shall be counted towards the term of serving his sentence,” the Supreme Court points out.

He cites the example of the verdict of the West Siberian District Military Court, according to which two defendants in the case received real sentences. At the same time, the court counted the time of detention and the date of detention into their sentence - from January 14, 2021.

However, during the trial, one of the witnesses testified that the suspects were actually detained a day earlier - on January 13. The defendants in the case were detained in Krasnoyarsk, from where they moved to Abakan, where the investigation took place; the arrest report was drawn up the next day, so it contained the wrong date.

“By virtue of the set of rules governing the rules for calculating the amount and beginning of the term of serving a sentence, namely part 7 of article 302 and paragraph 9 of part 1 of article 308 of the Code of Criminal Procedure of the Russian Federation, the term of serving a sentence for a person who was kept in custody before the sentencing must be calculated from the date of the sentencing including in this period the time of his detention from the day of detention until the day of sentencing.

Consequently, the day of actual detention of a person found guilty of committing a crime shall be counted towards the period of serving his sentence,” the highest authority emphasizes.

In this regard, the judicial panel for cases of military personnel of the Armed Forces of the Russian Federation changed the sentence and included in the sentence the day of actual detention, and not indicated in the protocol (appeal ruling No. 206-APU18-2).

Articles 282 and 205.2 of the Criminal Code of the Russian Federation are not competitors

Articles on public calls for terrorism and incitement to hatred and enmity encroach on different objects, have different subjective characteristics and objective aspects and are not competing, explains the RF Armed Forces.

In the review, he analyzes the verdict of the Far Eastern District Military Court of January 23, 2021, issued in a special manner. The court found the person involved in the case guilty of publishing videos on the Internet with propaganda to join the Islamic State organization banned in the Russian Federation. The accused received 2 years in a penal colony for publicly calling for terrorist activities and publicly justifying terrorism.

At the same time, the court excluded from the charges the article on inciting hatred and enmity, as being overly imputed. The first instance indicated that the illegal actions of the convicted person were committed with one intent, aimed at disseminating materials and information calling for terrorist activities, justifying and justifying the ISIS organization, one of the goals of which, as established by the decision of the Supreme Court of December 29, 2014, is to conduct the so-called holy war with infidels throughout the world, and therefore they form a single ongoing crime provided for by a special criminal law norm - part 1 of article 205.2 of the Criminal Code of the Russian Federation (as amended on December 7, 2011).

“Meanwhile, in accordance with the provisions of the criminal law, crimes encroach on various objects: Article 205.2 of the Criminal Code of the Russian Federation - on public safety and the safety of institutions of society and the state, Article 282 of the Criminal Code of the Russian Federation - on the foundations of the constitutional system, the constitutional rights of citizens, their honor and dignity,” - reminds the Sun.

Also, the two articles have different objective aspects of the crime - according to 205.2 it is expressed in public calls for terrorist activities or public justification of terrorism, and according to 282 it is characterized by actions aimed at inciting hatred or enmity, as well as humiliating the dignity of a person or group of persons on the basis of gender , race, nationality, language, origin, attitude to religion, as well as belonging to any social group.

“A mandatory feature of the subjective side of the crime provided for in Article 282 of the Criminal Code of the Russian Federation, in contrast to the subjective side of the crime provided for in Article 205.2 of the Criminal Code of the Russian Federation, is a certain special purpose - inciting hatred or enmity, as well as humiliating the dignity of a person or group of persons on certain grounds.

Thus, contrary to the conclusion of the district military court, the offenses provided for in Articles 282 and 205.2 of the Criminal Code of the Russian Federation are not general and special norms of criminal law in relation to each other, and therefore they cannot compete with each other in this sense,” notes the Supreme Court RF.

The Judicial Collegium for Military Affairs changed the sentence and included punishment for inciting hatred and enmity (appeal ruling No. 208-APU18-3).

Plant collection

A person detained while directly collecting narcotic plants cannot be held criminally liable for drug possession; his actions are considered the acquisition of prohibited substances.

The Supreme Court refers to a case in which the accused collected wild hemp for personal use. When he saw the police officers, he threw his backpack on the ground. It was subsequently established that the backpack contained 232.40 grams of the drug.

The court of first instance qualified the actions of the accused under Part 2 of Article 228 of the Criminal Code of the Russian Federation as illegal acquisition and storage without the purpose of selling narcotic drugs on a large scale. He was sentenced to 3 years in prison.

“The cassation court changed the verdict and excluded from the conviction illegal possession without the purpose of selling a narcotic drug on a large scale, since from the description of the criminal act it is clear that the accused, upon seeing the police officers, immediately threw away the narcotic drug,” the review says.

In this regard, the court considered it possible to change the sentence of the defendant in the case and decided to consider the deprivation of liberty suspended (definition No. 92-UD17-11).

Let's look at how the police detains someone suspected of committing a crime:

Before arrest, a police officer must introduce himself, show his official identification, explain the motives and grounds for the arrest, and tell the individual about his rights and responsibilities. Next, law enforcement officers restrict the freedom of the person, including the use of special means (handcuffs), and then deliver him to the investigator, interrogating officer or the inquiry agency. The time spent on delivering the citizen is included in the period of detention.
The investigator or interrogating officer must draw up a detention report within 3 hours from the moment the citizen arrives at the department: the citizen acquires the status of a suspect. The rights enshrined in the Article 46 of the Code of Criminal Procedure of the Russian Federation.
The arrest report states:
- date, time of document preparation;
results of a personal search;
other circumstances.

In addition, the suspect is given the right to make one telephone call to relatives or close people within the first 3 hours from the moment of arrest. If he renounces this right (or is unable to use it due to his characteristics), the investigator or interrogator must notify the relatives.

Within 12 hours, the inquiry officer or investigator informs the prosecutor about the arrest.
The suspect is interrogated, the investigator or interrogator can search him. If there are no grounds for further detention of a citizen, the investigator or interrogating officer issues an appropriate resolution to release the suspect. A citizen is also released if within 2 days a preventive measure in the form of detention has not been chosen against him or the court has not extended the period of detention.

When a citizen is released, he is given a certificate of detention. It contains information about when, by whom, where and on what grounds he was detained, as well as information about the time and reasons for his release.

Detention of a minor

Minor citizens can also be detained by the police if there are grounds for this.

A child may be detained for the following actions:

begging;
consumption of alcohol or drugs;
socially dangerous behavior that can cause harm to others or to oneself;
homelessness and neglect;
law violation.

When a minor is detained, a police officer is obliged to immediately notify his parents, guardians or other legal representatives about this, and inform which department the detainee will be taken to.

A minor may be detained until his identity is determined if he was stopped by the police on the street and did not have documents. Also, a child can be detained if he is in public places after 23.00 unaccompanied by adults , under these conditions he is considered homeless and can be taken to the department.

Attention! An official does not have the right to search a minor citizen; a search can be carried out and processed only if the detainee has given his consent to this. A protocol must be drawn up indicating everything that was shown during the inspection. Only instruments used to commit criminal acts are subject to immediate confiscation.

It is especially important for teenagers to know what to do if they are detained by the police.
During detention you must behave correctly:

do not panic;
do not argue with the policeman;
if identification was not presented, you should politely ask for it;
ask the reason why the employee contacted you;
if you need to go to the police station, you need to calmly go there with a police officer;
do not attempt to escape or resist;
provide the contact details of the parents and wait for their arrival.

Important! You must carefully read what you are given for signing, including inspection protocols.

A minor also has the right to a lawyer , which he must be informed about during detention.

Assistance from a lawyer during detention

One of the most fundamental rights of a detainee is the right to obtain legal assistance. Although a citizen has the right to a lawyer from the moment of actual detention by the police, its practical implementation is possible after a certain period of time. As a rule, the relatives of the detainee deal with the search for a criminal lawyer: in our country, unfortunately, most citizens do not have contacts of trusted defense lawyers. Therefore, it may take several hours before a lawyer gets involved in the case.

What exactly is the assistance of a lawyer when detained by the police?

The lawyer explains to the Client his rights and obligations, explains the algorithm of actions during arrest, and even provides psychological support.
The defense attorney studies the arrest report and makes his comments (if any) into it.
The lawyer, alone with the suspect in an atmosphere of confidentiality, agrees on tactics during interrogation. The defense attorney tells you what questions the investigator or interrogator may ask, how to answer them correctly, and also in what cases it is better to remain silent. The right to a meeting between a lawyer and a detainee is enshrined in Part 4 of Article 92 of the Code of Criminal Procedure of the Russian Federation .
The lawyer is present during the interrogation of the detainee: in particular, the lawyer has the right to give his Client brief consultations, ask him questions (with the consent of the interrogator or investigator), ensure that the citizen’s rights are respected, and also make his comments in the interrogation protocol.
The defense attorney will prepare a reasoned request for the release of the detainee.
The lawyer will prepare complaints (including to the court) against the actions (inactions) of law enforcement officers. For example, most often lawyers file complaints about the unjustified use of physical force when detaining an individual.
The lawyer will prepare the Principal and himself to prepare for the court's consideration of the petition to take the citizen into custody.
If the criminal case or prosecution against the detainee is terminated, the lawyer will provide assistance in the rehabilitation process in order to compensate for harm in connection with the unjustified detention.

Get a lawyer's protection

So, to summarize the above, it can be noted that when detained by the police, a criminal lawyer is not just needed, but necessary. Citizens deprived of qualified legal support may be subjected to psychological, physical violence and various types of falsification: ultimately, this will lead to the fact that law enforcement officers will obtain the testimony they need from the detainee. Do not aggravate your situation: ask your relatives to call you a lawyer as soon as possible.

Specialists of JSC “Trial Advocate” are ready to come to your aid around the clock, including on holidays and weekends!