The use of remand in custody and periods of detention: some theoretical and legal issues

One of the significant problems in contemporary domestic criminal proceedings is the issue of uniform, lawful and justified application of preventive measures in the form of remand in custody. This concerns both the selection of this measure of procedural coercion and the extension of the period of detention in custody. An analysis of scientific publications, legislation, and the positions of the Constitutional Court, the Supreme Court and the European Court of Human Rights suggests the need to improve the provisions of the Code of Criminal Procedure regulating the application of this preventive measure. Under Article 109 of the Code of Criminal Procedure, which specifies the duration of remand in custody, remand in custody during the investigation of an offence may not exceed two months; if it is impossible to complete the preliminary investigation within that period and there are no grounds for changing or quashing the preventive measure, the period may be extended to six months. Further extensions (up to 12 months) may be made in respect of persons accused of serious or particularly serious offences only when the criminal case is particularly complex and there are grounds for choosing this preventive measure. The period of detention (up to 18 months) can be extended at the pre-trial investigation stage only in exceptional cases in respect of persons accused of especially grave crimes. As a general rule, this period is the maximum and no further extension is permitted. The exception to this rule is the extension of the period of remand in custody until the accused and his or her counsel have been informed of the case file (up to 30 days) or, if that is not sufficient, for a longer period of time. After the pretrial investigation has been completed, the period of remand in custody may also be extended by the court, on application by the investigator or the person conducting the initial inquiry, to ensure that the prosecutor, and also the trial court, takes account of the period provided for in article 221, paragraph 1, or article 226, paragraph 1, or article 226.8, or article 227, paragraph 3, of the Code of Criminal Procedure (article 109, paragraph 8.1 of the Code). The time limit may also be extended in the cases referred to in paragraph 8.2 of Article 109 of the Code of Criminal Procedure - to ensure that the higher prosecutor, as well as the trial court, takes decisions on the received criminal case for a period, the length of which is determined by taking into account the time limits referred to in paragraph 4 of Article 221, or paragraph 4 of Article 226, or paragraph 4 of Article 226.8, as well as paragraph 3 of Article 227 of the Code of Criminal Procedure. Thus, the current Code of Criminal Procedure of Russia allows for a reasonable length of detention and does not set a time limit for a person under arrest to be held in strict isolation from society, limiting detention to an overall limit of 18 months only during the pre-trial investigation. This is because even very long periods of detention may be compatible with Article 5 § 3 of the European Convention. Article 5 § 3 of the European Convention on Human Rights, as the safeguards in that provision do not imply any permissible period of detention beyond which it would automatically be breached or guarantee compliance with it.

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