The concept of procedural time. Rules for calculating procedural time limits
Procedural deadlines in criminal proceedings are the time established by law for performing procedural actions, making procedural decisions, starting and completing proceedings at a specific stage of legal proceedings. The establishment of procedural deadlines is aimed at ensuring timely protection of the rights and legitimate interests of participants in legal proceedings, rapid and effective investigation, consideration and resolution of criminal cases.
International standards establish the right of everyone, when determining his civil rights and obligations or when considering a criminal charge, to a fair public hearing within a reasonable time by an independent and impartial court established by law (clause 1 of Article 6 of the ECHR), as well as to carry out legal proceedings on criminal and civil cases without undue delay (clause 3 of article 14 of the International Covenant). It is no coincidence that in 2010 Ch. 2 of the Code of Criminal Procedure was supplemented with the new principle of “reasonable time for criminal proceedings” (Article 61).
The need to comply with procedural deadlines has been repeatedly pointed out by the Plenum of the Supreme Court of the Russian Federation: failure to comply with the deadlines for consideration of criminal cases violates the constitutional right of citizens to judicial protection, guaranteed by Art. 46 of the Constitution of the Russian Federation.
The basic rules for calculating, observing, extending and restoring procedural deadlines in criminal proceedings are enshrined in Art. 128-130 Code of Criminal Procedure. Time frames are calculated in hours, days, months. When calculating periods in months, the hour and day at which the period begins are not taken into account. When calculating the periods of detention, detention, house arrest and stay in a medical or psychiatric hospital, non-working time is also included.
The period, calculated in days, expires at 24 hours of the last day. A period calculated in months expires on the corresponding date of the last month, and if this month does not have a corresponding date, then the period ends on the last day of that month. If the end of the period falls on a non-working day, then the last day of the term is considered to be the first working day following it, with the exception of cases of calculating time periods during arrest, detention, house arrest and stay in a medical or psychiatric hospital.
Thus, in the case of S., the question of compliance with the requirements of Art. 312 of the Code of Criminal Procedure on the delivery of a copy of the verdict to the convicted or acquitted person, his defense attorney and prosecutor within five days from the date of proclamation of the verdict.
As can be seen from the minutes of the court session, the verdict in this case was announced on May 31, 2004. The Deputy Chairman of the court, according to the covering letter available in the case, sent a copy of the verdict on June 2, 2004 to the prosecutor's office, where it was received on June 7, 2004.
According to Part 2 of Art. 128 of the Code of Criminal Procedure of the Russian Federation, if the end of a period calculated in days falls on a non-working day, the last day of the period is considered to be the first working day following it. The fifth day for delivery of a copy of the verdict fell on Saturday, June 5, 2004, i.e., a non-working day, and therefore the last day for delivery of a copy of the verdict to the public prosecutor expired on Monday, June 7, 2004, when it was actually received by the regional prosecutor's office.
The law establishes deadlines for carrying out investigative, judicial and other procedural actions. Thus, the period for conducting a preliminary investigation is two months (Part 1 of Article 162 of the Code of Criminal Procedure), inquiry - 30 days (Part 3 of Article 223 of the Code of Criminal Procedure), urgent investigative actions - 10 days (Part 3 of Article 157 of the Code of Criminal Procedure). Monitoring and recording of telephone and other conversations can be carried out for no more than six months (Part 5 of Article 186 of the Code of Criminal Procedure).
The interrogation cannot last continuously for more than four hours. The continuation of the interrogation is allowed after a break of at least one hour for rest and eating, and the total duration of the interrogation during the day should not exceed eight hours (Parts 2 and 3 of Article 187 of the Code of Criminal Procedure). The interrogation of a minor suspect or accused cannot last more than two hours without a break, and in total more than four hours a day (Part 1 of Article 425 of the Code of Criminal Procedure).
When choosing a preventive measure against a suspect, as a general rule, charges must be brought against him no later than 10 days from the moment the preventive measure was applied, and if the suspect was detained and then taken into custody - within the same period from the moment of detention (Part 1 of Art. 100 Code of Criminal Procedure).
The charge must be brought against the person no later than three days from the date of the decision to charge him as an accused (Part 1 of Article 172 of the Code of Criminal Procedure).
The consideration of a criminal case in a court session must begin no later than 14 days from the day the judge made a decision to schedule a court session, and in criminal cases considered by a court with the participation of jurors - no later than 30 days (Part 1 of Article 233 of the Code of Criminal Procedure) .
The parties are notified of the place, date and time of the court hearing at least five days before its start (Part 4 of Article 231 of the Code of Criminal Procedure).
The protocol must be prepared and signed by the presiding officer and the secretary of the court session within three days from the date of the end of the court session (Part 6 of Article 259 of the Code of Criminal Procedure). The parties have the right to submit comments on the protocol of the court session within three days from the date of familiarization with the protocol (Part 1 of Article 260 of the Code of Criminal Procedure).
Within five days from the date of proclamation of the verdict, copies of it are handed over to the convicted or acquitted person, his defense lawyer and the prosecutor (Article 312 of the Code of Criminal Procedure).
The sentence is subject to execution within three days from the date of its entry into legal force (Part 4 of Article 390 of the Code of Criminal Procedure).
The law also determines the deadlines for making procedural decisions.
Thus, a decision on a received message about a committed or impending crime must be made no later than three days from the date of receipt of the specified message (Part 1 of Article 144 of the Code of Criminal Procedure).
A petition submitted during the preliminary investigation is subject to immediate consideration and resolution, and in cases where this is impossible, no later than three days from the date of its application (Article 121 of the Code of Criminal Procedure).
The prosecutor, the head of the investigative body, considers complaints received from participants in criminal proceedings within three, and in exceptional cases - 10 days from the date of their receipt (Part 1 of Article 124 of the Code of Criminal Procedure).
The prosecutor makes a decision on a case received with an indictment within 10 days (Part 1 of Article 221 of the Code of Criminal Procedure) and a case received with an indictment - within two days (Part 1 of Article 226 of the Code of Criminal Procedure).
The judge checks the legality and validity of the actions (inaction) and decisions of the inquirer, investigator, prosecutor no later than five days from the date of receipt of the complaint (Part 3 of Article 125 of the Code of Criminal Procedure); considers a request for an investigative action no later than 24 hours from the receipt of the said request (Part 2 of Article 165 of the Code of Criminal Procedure); considers the issue of imposing a monetary penalty on a person who committed a corresponding violation during pre-trial proceedings, within five days from the date of receipt of the protocol on the violation (Part 3 of Article 118 of the Code of Criminal Procedure).
If the jurors, when discussing the issues put to them within three hours, failed to reach unanimity, then the decision is made by voting (Part 1 of Article 343 of the Code of Criminal Procedure).
The establishment of deadlines for the application of procedural coercive measures is important for ensuring the rights of participants in legal proceedings. Thus, until a court decision, a person cannot be detained on suspicion of committing a crime for a period of more than 48 hours from the moment of actual detention (Part 2 of Article 22 of the Constitution of the Russian Federation, Section 11 of Article 5, Part 1 of Article 10, Part 3 Article 94, Part 3 Article 128 Code of Criminal Procedure). Limit periods for detention have been established both in pre-trial proceedings and during the consideration of the case in court (Articles 109, 255 of the Code of Criminal Procedure).
In some cases, the law establishes rules on the immediate (immediate) performance of procedural actions and decision-making. One of his relatives is immediately notified of the place of detention of the suspect or accused or of a change in the place of detention (Part 12 of Article 108 of the Code of Criminal Procedure). Their legal representatives are immediately notified of the arrest, detention or extension of the period of detention of a minor suspect or accused (Part 3 of Article 423 of the Code of Criminal Procedure). A person who has an obligation to appear must immediately report a change of residence (Part 2 of Article 112 of the Code of Criminal Procedure). The applicant must be immediately notified of the decision made on his complaint by the prosecutor (Part 3 of Article 124 of the Code of Criminal Procedure).
A copy of the decision of the investigator or inquiry officer to initiate a criminal case is immediately sent to the prosecutor.
The judge immediately considers comments on the protocol of the court session (Part 2 of Article 260 of the Code of Criminal Procedure).
In many cases, the law does not establish time limits. Thus, the review of a conviction due to new or newly discovered circumstances in favor of the convicted person is not limited by any time limit (Part 1 of Article 414 of the Code of Criminal Procedure).
The law defines the time limits for parties and other participants in legal proceedings to submit petitions, complaints and submissions. Thus, a judge’s decision to choose detention as a preventive measure or to refuse it can be appealed to a higher court within three days from the date of its issuance (Part 11 of Article 108 of the Code of Criminal Procedure). A request for a preliminary hearing may be submitted by a party after familiarization with the materials of the criminal case or after sending the criminal case to the court within three days from the date the accused receives a copy of the indictment or indictment (Part 3 of Article 229 of the Code of Criminal Procedure). A complaint and submission against a sentence, ruling or ruling of the court may be filed by the parties on appeal within 10 days from the date of proclamation of the appealed decision, and by a convicted person in custody - within the same period from the date of delivery of a copy of the sentence, ruling, ruling. (Part 1 of Article 389.4 of the Code of Criminal Procedure).
The duty of the court, prosecutor, investigator, interrogator to explain to the suspect, accused, victim, and other participants in criminal proceedings the rules on procedural deadlines and to provide them with the opportunity to timely exercise their rights follows from the principle of protecting the rights and freedoms of man and citizen (Article 11 of the Code of Criminal Procedure). In a number of cases, the law directly obliges participants in criminal proceedings to explain the rules on procedural deadlines. Thus, an explanation of the deadlines for appealing a sentence must be contained in the operative part of the sentence (Part 3 of Article 309 of the Code of Criminal Procedure).
Missing a deadline without valid reasons entails leaving the petition, complaint or presentation without consideration. For example, such a rule is specifically established for complaints and submissions against the decision of the court of first instance, filed after the deadline (Part 3 of Article 389.4 of the Code of Criminal Procedure). The deadline is not considered missed if the complaint, petition or other document is submitted by post before the expiration of the deadline, handed over to the person authorized to receive it, and for persons in custody or in a medical or psychiatric hospital - if the complaint or other document is before the expiration term handed over to the administration of the place of pre-trial detention or a medical or psychiatric hospital.
In cases and in the manner prescribed by law, the period may be extended. Thus, the period for making a decision on a received message about a committed or impending crime can be extended to 10 days, and if it is necessary to conduct documentary checks or audits - up to 30 days (Part 3 of Article 144 of the Code of Criminal Procedure). The court, including during pre-trial proceedings, has the authority to make decisions on extending the period of detention (Clause 2, Part 2, Article 29, Parts 2-4, Article 109, Part 3, Article 255 of the Code of Criminal Procedure). Under certain conditions, the terms of the preliminary investigation (parts 4-6 of Article 162 of the Code of Criminal Procedure) and the inquiry (parts 4 and 5 of Article 223 of the Code of Criminal Procedure) can be extended.
A deadline missed for a valid reason must be restored on the basis of a decision of the inquirer, investigator or judge in charge of the criminal case. For example, the missed deadline for appealing court decisions that have not entered into legal force through appeal or cassation procedures can be restored. Refusal to restore the deadline may be appealed.
At the request of an interested person, the execution of a decision complained of missing the deadline may be suspended until the issue of restoring the missed deadline is resolved.
Reasonable duration of criminal proceedings
June 8, 2018
In accordance with the criminal procedure law, one of the purposes of criminal proceedings is to protect the rights and legitimate interests of persons and organizations that have suffered from crimes (clause 1, part 1, article 6 of the Code of Criminal Procedure of the Russian Federation). Guarantees to ensure this protection include the timely initiation of a criminal case, its investigation, exposure of the perpetrators and bringing them to justice as soon as possible.
Procedural deadlines are important for ensuring the regime of legality both when performing individual investigative actions and making procedural decisions, and during the investigation as a whole.
The procedural significance of deadlines lies in the fact that they limit the time for conducting procedural actions, thereby contributing to the stability of the legal status of individual participants in criminal proceedings within a certain time. On the other hand, procedural deadlines make it possible to optimize the investigation process itself, preventing slowness and red tape, and predetermine the pace at which the investigator performs procedural actions, thereby ensuring the fastest possible detection of crimes.
Article 6.1 of the Criminal Procedure Code of the Russian Federation (hereinafter referred to as the Code of Criminal Procedure of the Russian Federation) contains the concept of a reasonable period of criminal proceedings, including a reasonable period of pre-trial proceedings (from the day of filing a statement of crime until the day of the decision to suspend the preliminary investigation in a criminal case due to failure to identify the person to be brought in as a suspect or accused).
When determining these deadlines, such circumstances as the legal and factual complexity of the criminal case, the behavior of participants in criminal proceedings, the sufficiency and effectiveness of the actions of the court, the prosecutor, the head of the investigative body, the investigator, the head of the inquiry unit, the inquiry body, the interrogator, carried out for the purpose of timely implementation of the criminal case, are taken into account. prosecution or consideration of a criminal case, and the total duration of criminal proceedings.
At the same time, Part 4 of Article 6.1 of the Code of Criminal Procedure of the Russian Federation indicates that no objective difficulties or circumstances in organizing the work of law enforcement agencies can be taken into account as justification for exceeding reasonable deadlines.
The said code establishes the following terms for pre-investigation checks and investigations of criminal cases.
In accordance with Art. 144 of the Code of Criminal Procedure of the Russian Federation, the inquiry officer, the inquiry body, the investigator, the head of the investigative body are obliged to accept and verify a report of a crime and, within the limits of their competence, make a decision on it no later than 3 days from the date of its receipt. This period may be extended to 10 days by the head or up to 30 days by the head of the investigative body or the prosecutor, respectively, due to the need to carry out specific verification activities.
The period of inquiry in criminal cases is established by Article 223 of the Code of Criminal Procedure of the Russian Federation and is 30 days from the date of initiation of the criminal case. This period can be extended by the prosecutor up to 30 days (in total up to 6 months, in exceptional cases related to the execution of a request for legal assistance - up to 12 months).
The terms of preliminary investigation in criminal cases are established by Art. 162 of the Code of Criminal Procedure of the Russian Federation and constitute 2 months from the date of initiation of the criminal case. In criminal cases, the investigation of which is particularly difficult, the period of preliminary investigation can be extended to 12 months; further extension of the period is allowed only in exceptional cases.
If reasonable deadlines for criminal proceedings are violated during pre-trial proceedings in a criminal case, participants in criminal proceedings, as well as other persons whose interests are affected, may contact the prosecutor or the head of the investigative body with a complaint, which must be considered in the manner established by Article 124 of the Code of Criminal Procedure of the Russian Federation , within 3 days, and if it is necessary to request additional materials or take other measures - 10 days.
In accordance with Part 1 of Article 125 of the Code of Criminal Procedure of the Russian Federation, the inaction of the inquirer, investigator, head of the investigative body and prosecutor, which is capable of causing damage to the constitutional rights and freedoms of participants in criminal proceedings or complicating citizens' access to justice, can be appealed to the district court at the place where the act was committed containing signs of a crime.
A complaint may be filed with the court by the applicant, his defense attorney, legal representative or representative directly or through an inquiry officer, investigator, head of an investigative body or prosecutor.
Prepared by the Directorate for Supervision of
Criminal Procedure and Operational Investigative Activities
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Cassation appeal against the verdict
The new edition of Article 389.28 of the Code of Criminal Procedure of the Russian Federation “Appeal verdict, determination and resolution” stipulates that the operative part of an appeal verdict, determination or resolution must, among other things, contain explanations:
- on the procedure and deadlines for appealing them in cassation;
- on the right of a convicted and acquitted person to petition for participation in the consideration of a criminal case by a court of cassation.
The new version of Article 389.33 of the Code of Criminal Procedure of the Russian Federation “Resolution of an appeal sentence, issuance of an appeal ruling, resolution and their execution” clarifies that an appeal sentence, determination or resolution within 7 days from the date of their issuance is sent along with the criminal case for execution to the court, rendered a verdict or made another final judicial decision. A copy of the appeal verdict, ruling or resolution is immediately sent to the court that passed the sentence or made another final judicial decision for delivery to the convicted person (acquitted) and the parties in the manner established by Part 1 of Article 393 of the Code of Criminal Procedure of the Russian Federation.
Article 393 of the Code of Criminal Procedure of the Russian Federation determines that a copy of the sentence, ruling or resolution of the court that has entered into legal force, and a copy of the appeal sentence, ruling or ruling are handed over to the convicted or acquitted person, his defense lawyer and prosecutor, and are also sent to the administration of the place of detention, the administration of the place of detention punishment for delivery to the convicted person in custody within 3 days from the date of receipt of such a copy by the court that passed the sentence or made another final judicial decision. The text of the new edition of the article states that:
If the verdict or other final court decision has not been appealed, then copies thereof are handed over to the convicted or acquitted person, their defense attorney and prosecutor, and are also sent to the administration of the place of detention, the administration of the place of serving the sentence for delivery to the convicted person in custody within 3 days from the date entry into force of a sentence or other final court decision. Within the same time frame, copies of court decisions may be served on the victim, civil plaintiff, civil defendant and their representatives upon request of these persons.
Commentary on Article 128 of the Code of Criminal Procedure of the Russian Federation
1. A procedural period is a period of time established by the Code of Criminal Procedure during which procedural actions must be performed or during which one must refrain from performing these actions. Compliance with the deadline ensures the fulfillment of the tasks of the criminal process. “The right to a trial within a reasonable time” has the meaning of an international legal principle (Articles 9, 14 of the Covenant on Civil and Political Rights and Articles 5, 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms). Failure to comply with the deadline significantly violates the constitutional right of citizens to judicial protection (Article 46 of the Constitution of the Russian Federation) and may entail a sanction of nullity (recognition of decisions made as invalid and the evidence obtained as having no legal force (Part 3 of Article 7 of the Code of Criminal Procedure)), as well as the established legal responsibility of the participants in the process. Thus, for a gross or systematic violation of the procedural law by a judge, resulting in an unjustified violation of the deadlines for resolving the case and significantly infringing on the rights and legitimate interests of the participants in the trial, taking into account the specific circumstances, a disciplinary sanction may be imposed, up to and including termination of the powers of the judge <1>.
——————————— <1> See: paragraph 2 of the Resolution of the RF Supreme Court of December 27, 2007 N 52 “On the time limits for consideration by the courts of the Russian Federation of criminal, civil cases and cases of administrative offenses” // BVS. 2008. N 2.
2. Procedural periods are calculated in hours, days and months. If the law specifies years (part 3 of article 326, part 2 of article 398, part 5 of article 400, part 3 of article 414 of the Code of Criminal Procedure), then the rules on calculating time periods in months apply. If the law specifies a period such as “day,” then the period from 6 a.m. to 10 p.m. local time is taken into account (Clause 21, Article 5). In some cases, the deadline - the period of time for performing (abstaining from performing) procedural actions - is established by indicating a certain event that must occur (for example, the preliminary investigation is suspended until the accused recovers - Article 211).
3. According to Part 1 of the commented article, the hour and day at which the period calculated in months begins is not included in this period. It seems that this rule does not apply to periods of detention, house arrest, or forced stay in a medical hospital. When calculating the term of detention, its beginning is considered to be “the moment of detention” (Part 9 of Article 109), i.e. the moment of actual deprivation of freedom of movement of the accused (suspect) - clause 15 of Art. 5.
4. The current criminal procedure law, in contrast to the Code of Criminal Procedure of the RSFSR, has changed the order in which the term begins to be calculated. “When calculating the period in months (emphasis mine - K.K.), the hour and day at which the period begins are not taken into account,” defines part 1 of the commented article. At first glance, this norm contains an unfortunate inaccuracy. There is a great temptation to simply not notice this difference and continue to do it the old way - not to take into account the current hour and the current day when calculating any deadlines. However, a broad interpretation of the new procedural norm (extending, by analogy, the rules for calculating time limits in months to calculating time limits in hours and days) can worsen the position of the individual and therefore is not always desirable when determining the actual procedural time limits. It seems that this problem should be solved as follows:
a) when calculating the period in hours, it is calculated from the beginning of the moment (minute) at which the legal fact occurred, entailing the passage of the period. For example, the moment of actual detention of the suspect took place at 12:45 p.m. Taking into account these 45 minutes, the period of detention should be calculated. “In case of detention, the period is calculated from the moment of actual detention,” the procedural law additionally emphasizes (Part 3 of Article 128). Judicial practice follows exactly this path (see the cassation ruling of the Investigative Committee according to the Criminal Code of the Armed Forces of the Russian Federation dated December 22, 2005 in case No. 67-o05-90);
b) when calculating the period in days, the part of the day that follows the legal fact entailing the beginning of the period is taken into account. However, in this case, the law does not clearly resolve the issue of the end of the period, since according to Part 2 of Art. 128 of the Code of Criminal Procedure it expires at 24 hours of the last day. For example, in relation to a suspect under Art. 100 of the Code of Criminal Procedure, the preventive measure was applied at 11 a.m. on July 15. In this case, within 10 days from the date of application of the preventive measure, he must be charged. Within the meaning of Art. 128 the remaining part of the day, in which the period begins from the moment of detention, is taken into account, i.e. The 10-day period begins exactly at 11 a.m. on July 15. In other words, the day (July 15) should not be rounded to 24 hours. Then the 10-day period expires on July 25. at 11, not 24 hours. However, if you follow the instructions of Part 2 of Art. 128, the period, on the contrary, must expire on July 25, but not at 11, but at 24 hours (“a period calculated in days expires at 24 hours of the last day”). In practice, this means that those days during which the period begins are not taken into account and rounded to whole days. However, the legislator provided the said rule for the beginning of the day only for calculating the period in months (Part 1 of Article 128), and not in days. Therefore, there is a conflict between the two norms of this article. According to the well-known rule of interpretation of legal norms, in case of such doubts, the law is given a softer meaning (benignius leges interpret
How is the period of prohibition of certain actions counted towards the sentence?
Lawyer Antonov A.P.
The period of prohibition of certain actions is a relatively new preventive measure. Less than 2 years have passed since Article 105.1 of the Code of Criminal Procedure of the Russian Federation came into force, however, since this preventive measure is used very often, law enforcers have a number of questions that are not resolved by law. This situation is partly due to the fact that the prohibition of certain actions was actually separated from house arrest. If before April 2021 house arrest could consist of partial or complete isolation from society, now house arrest only represents complete isolation from society, and partial isolation has turned into a ban on certain actions.
The question of whether the prohibition of certain actions implies isolation from society is extremely important, including for practical activities. This is due to the fact that for preventive measures that involve complete or partial isolation from society, rules are provided for counting the period of application of this measure against the sentence. from the point of view of the legislator, it is considered that part of the sentence has already been served, and the proportions depend not only on the chosen measure of restraint, but also on the type of correctional institution.
The prohibition of certain actions, as follows from Article 105.1 of the Code of Criminal Procedure of the Russian Federation, consists of imposing on the suspect or accused the obligation to appear promptly when summoned by an inquiry officer, investigator or to court, as well as to comply with one or more additional prohibitions, including a ban on going out during certain periods of time outside the residential premises in which he lives as an owner, tenant or on other legal grounds. That is, it turns out that during these periods of time the person is actually isolated from society, therefore, counting the period of application of the prohibition of certain actions into the sentence is fair.
However, Article 72 of the Criminal Code of the Russian Federation does not contain proportions for counting the period of application of this preventive measure against the term of punishment, in contrast to house arrest or detention. At the moment, this gap has been resolved in law enforcement practice through the indirect application of the rules on detention. Based on Part 10 of Article 109 of the Code of Criminal Procedure of the Russian Federation, the period of detention also includes the time of prohibition of certain actions (if a ban is imposed - a ban on leaving the premises at certain periods of time), at the rate of two days of its application for one day of detention guards. And the legislation contains the proportions for counting the term of imprisonment against the term of punishment.
This gap in the legislation has been successfully resolved, but this method of resolving it is not entirely correct from the point of view of legal technology. In fact, the courts are using an analogy of law (through a reference to detention), which is unacceptable. However, most likely, this problem will be finally resolved by issuing a special resolution by the Plenum of the Supreme Court of the Russian Federation.
As an example of filling a gap in legislation, one of the decisions of the Supreme Court of the Russian Federation can be cited. He pointed out that the issue of counting the time of application of a preventive measure (if it was chosen) must necessarily be contained in the verdict or other final decision of the court. The Sverdlovsk Regional Court correctly applied the rules regarding detention (appeal ruling of the RF Supreme Court dated September 24, 2019 in case No. 45-APU19-22). The Supreme Court of the Russian Federation agreed with a similar decision of the Rostov Regional Court, leaving the verdict unchanged in another case (appeal ruling dated 08/07/2019 in case No. 41-APU19-13).
Sincerely, lawyer Anatoly Antonov, managing partner of the law firm Antonov and Partners.
