Judgment of the Constitutional Court of 16 July 2015 № 23-П upon the petition of citizen Makhin

Legislation in question: Parts 3 through 7 of Article 109 and Part 3 of Article 237 of the Criminal Procedure Code

Legal issue: The constitutionality of the provision, according to which during the time when the case is returned to a prosecutor for completion, the defendant is being kept in custody for the period of his/her repeated review of the case materials, so that an improvement in quality of investigation is achieved at the expense of removing the absolute deadline for keeping the defendant under custody.

Ratio decidendi: Disputed provisions do not contradict with the Constitution. The Constitutional Court has mentioned on numerous occasions that the rights of the citizens are not being violated by the provisions of the law establishing a concrete length of defendant’s custody during the time allocated for his /her becoming familiar with the materials of the criminal investigation, allowing the length of such stay to be determined by the circumstances of the case. Nevertheless, the court is responsible for maintaining a reasonable time-frame to accommodate investigative and other procedural actions necessary for removing all obstacles to hearing the case in court, and resolving the custody issue. This also implies that while deciding to extend the period of custody or choosing a means of restraint for a defendant the court must determine a reasonable time-frame, given the necessity to conduct the investigative and other procedural actions necessary for removing all obstacles to getting the case to hearing and to ensure the defendant’s right to access the case materials.

Dissenting opinion:
  • The conclusions of the Constitutional Court are correct; however, the legislative warranties are required to ascertain that the selection of the means of restraint were not utilized by the office of preliminary investigations wrongly, namely, as a punishment an unacceptable method of influencing the defendants.

  • In relation to particularly grave crimes the existing law provides that the defendant’s custody cannot exceed 18 months, even during the times when the case is returned to a prosecutor for completion to eliminate any obstacles for presenting it to court. Upon approval of the extension of defendant’s custody, investigative office could under a pretext of eliminating the obstacles and allowing the defendant to familiarize him/herself with the case materials use time for investigative actions to remedy the shortcomings of the earlier investigation. In addition, since the law does not limit the ability of the court to transfer the case to the prosecution to eliminate any obstacles to hearing, the extension of the custody time-frame tends to become indefinite, being limited, perhaps, only by statute of limitation for indictment. It does not seem to be productive to create practically a new norm by way of such constitutional interpretation and thus contradicting our own positions, formulated earlier and adopted by the Supreme Court of the Russian Federation, by using a very vague term of “reasonable” instead of a definitive time limitation of the custody.

  • As a result of the indeterminate legal language, the provisions of Article 109 of the Criminal Procedure Code could be interpreted in reality very freely, as enabling courts to repeatedly extend absolute deadlines of custody during investigation, after returning the case to the prosecutor’s office without giving consideration to the time period of the preliminary investigation (including cases when the absolute deadline for custody, i.e. 6, 12, 18 months since the day of criminal indictment was reached prior to court submission). Notably, the indeterminate nature of the legal language allows the courts to use the provisions of the Article 109 of the Criminal Procedure Code in relation with Article 237 of said Code in such manner as to imply that counting of the time-frame for preliminary investigation, as well as a time-frame for custody, including absolute deadlines (6, 12, 18 months), after returning the case materials to the prosecutor’s office, starts anew every time. It is therefore extremely significant to stress that the defendant “pays” in such instances not for his/her negative behavior, but exclusively for the “omissions of the preliminary investigation” - i.e. for the mistakes of his/her procedural adversary - the prosecutor’s side.

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Subject area:
Court Proceedings criminal procedure