Has custody always been justified? What is “justified custody”? Why shall the complaints on change of the measure of restraint be satisfied so rarely? Will the house arrest be used in our practice? How much does the bail “cost? These and some other questions were answered within the frames of “Letter of the Law”, author program of Denis Aleinikov, Senior Partner of Law Group “Argument” by the Deputy Chairman of the Supreme Court of the Republic of Belarus, chairman of the judicial division for criminal cases of the Supreme Court of the Republic of Belarus, Valery Kalinkovich.

According to the official statistics, over five thousand people are discharged from pretrial detention after imposing of non-custodial penalties each year. On the one hand, it’s good that they shall be set free, on the other hand, if they are set free, has their custody been justified? May be, any other measure of restraint should have been taken? Has this issue been examined by the Supreme Court and what does the Supreme Court do in this respect?

Unfortunately, our today’s topic of discussion does not sound much like a New Year’s. Ideally, one would prefer doing something more pleasant on the eve of the New Year holidays than dealing with custody matters and the like. But this is the news topic which is very important.

Under the assignment of the President of the Republic of Belarus the issue on efficiency of application of the measures of restraint in relation to the suspects and the accused of crimes has been examined. Our Criminal Procedure Code has several of them; the strictest among them are custody and house arrest. We have got rather rich material to suggest certain amendments to the current laws. The key reason which prompted us to raise this topic before the sitting of the Plenum of the Supreme Court is that in the course of examining and generalization of the court practice we have established a whole range of problems in the activity of the courts demanding operative treatment and giving to the courts certain explanations of the enforcement matters.

What problems are you talking about?

The problem you have just pronounced, Denis. We should be aware that each person who has found himself in the sphere of the criminal procedure, has his own destiny, his own reasons for getting there, and the destiny of each person who has got into the sphere of our activity shall be shaped strictly on individual basis. The same is for the people who have been arrested before trial and who have received a non-custodial sentence.

The same is applied to the people who have been arrested before trial and sentenced to non-custodial penalty.

However this is just one of the reasons. Analysis of the situation shows that the majority of the accused who have been taken into custody every year during the preliminary investigation shall be accused of the crimes referred to misdemeanor and crimes of average gravity, in relation to the alternative penalty that has been stipulated by the law. Surely, we have been interested in the question, why the more severe measures of restraint shall be preferred, but the second question is not less attractive. Today’s law contains additional constitutional guarantee – ability of a person to protect his rights in the court if he considers it to be unlawful or unreasonable to take him into custody. Special chapter of the Criminal Procedure Code has been devoted to the ways and the means of exercising this right of a person, but in practice it turns out to be that the suspects and the accused persons exercise this right quite rarely.

Do you mean the right to appeal against the measure of restraint?

Yes, the right to appeal the measures of restraint in the court in form of house arrest or the custody – the right to appeal it due to the motives of illegality and invalidity. This right shall be exercised quite rarely. 505 such complaints were received in 2008, 491 – last year, 333 – in the first half of the current year.

And how many of the complaints received were satisfied?

It should be mentioned for the start, that the courts consider about 60 thousand criminal cases each year, and about 20% of them are on the accused kept in custody. That is why the resume on how often our people shall exercise their right to file a complaint to the court shall be done by you; it is a very scanty percentage. 8 complaints among 333 have been satisfied. They have been satisfied basically due to the reasons that the prosecuting agencies have violated the criminal procedure law while applying the measures of restraint.

Just 333 complaints have been filed during half a year, and 8 have been satisfied. What is it – aren’t the attorneys aware that the court reviews on the matter of legality and validity of the selected measures of restraint shall be conducted, or the citizens just do not trust the court reviews and thus fail to make complaints?

Applying the term “court review” we should take into consideration that in accordance with our laws it is not of random or total nature. In each separate case the inspection reason for legality or validity of the applied measure of restraint shall be the complaint of a person who has the right to apply: this is the suspect, the accused, their defenders and lawful representatives. The circle of these persons has been clearly determined. Each of that 333 persons in relation to which such a court review has been done, has its own destiny. Our criminal procedure law contains the regulation that if a person shall be suspected or accused of a felony or especially grave crime, then the measure of restraint in form of custody may be applied just due to the motive of its gravity of suspicion or accusation. The same is referred to the accusations of the gravest crimes, as a rule, in case of accusation of the violent crimes and the crimes connected with direct corruption and illegal drug trafficking. The results of the court review of complaints on such measures of restraint indicate that in general, the measure of restraint for such accusation categories has been applied correctly.

Coming back to those five thousand people kept in custody and set free in connection with non-custodial sentences, we may say that the issue is a bit more complicated. Among those five thousand people, who are quite different, there were those who found themselves in the places of confinement for the first time, and those who have already been previously brought to criminal responsibility, sentenced to different crimes and who have committed criminal acts again. There are people there who have not firstly been taken into custody but who have fled from prosecution agencies or from the court. In the final analysis, determining the type and the amount of penalty the court shall take into account the nature of what had been done, the identity of the person who had committed a crime, and the circumstances that should be taken into consideration as aggravating and mitigating. On the other hand, for the person who turned out to be taken into custody in any of the above mentioned situations, the option right remains: first of all, it’s his personal, subjective perception of the justice, to what extent he was treated right or wrong?

What option does this person have – to make complaint or not?

To make complaint or not, to file it to the superior prosecutor or to file it to the court in order to start the mechanisms of court review of custody’s legality and validity. First of all, the person himself, his defender or legal representative of the young person should find their own position.

The regulation on the right of the court to check the validity of the chosen measure of restraint came into effect this year. According to statistics, the Court of the City of Minsk has not even once revoked any measure of restraint chosen by the examining official or investigator during this year, in spite of the corresponding right of the court and receipt of complaints in this respect. You have done great preparation work on that issue for the Plenum of Supreme Court. What was the reason? Has it been inertness of the court, or unwillingness of the court to get in contact with the examining official, investigator and to recall the decision made by them?

The case is that in any field of human activity, no matter, whether it is law, medicine or education, the people work that have a certain qualification and legal awareness level. And everybody of us is the product of our society. No specialist has been grown in beds, everybody appears naturally. Speaking about this issue it comes out that the court review has been limited to the formal legality for over ten year period. Moreover, majority of those who has just started making career of examining official, prosecutor and the judge, studied the criminal procedure which didn’t contain the approaches which appeared in 2010, such as checking the validity of the chosen measure of restraint. Naturally, in order to lay down any explanations to the courts and to direct the court practice to the right course, so that the laws are applied uniformly, the Supreme Court should have worked out amendments to the law, so that the more or less significant practice could appear and conclusions could be made. In a number of case when examination of the made procedural decisions was done, it turned out that the judges failed to pay due attention to the validity criteria of the chosen measure of restraint. Nevertheless, generalization of the data has shown some progress in this respect. For example, the Court of Gomel Region has rejected to a certain extend such a measure of restraint as custody in relation to the accused person of respectable age who suffered from some serious diseases. In spite of the fact that the person was under accusation of a felony, the court has come to an absolutely right conclusion that further keeping that person in the place of confinement should have been unreasonable, because he needed thoroughgoing treatment; so, due to the state of his health he could not hide himself or intervene with the further investigation of the case. The public prosecution has agreed with this decision.

It turns out that the gravity of the incriminated article is not a priori an obstacle to selection of another measure of restraint or taking an appeal from such selected measure of restraint as custody, is it?

Yes, it is actually so. According to Art. 143, 144 of the Criminal Procedure Code, there are common court review criteria for legality and validity. The procedural order established by these regulations is also universal regardless of the official or the court applying this or that measure of restraint. Legality and validity of the decisions on extension of the applied measures of restraint are subject to court review. Even if the accused person applied to the court with the complaint on the applied measure of restraint and the court has waived this complaint, this person is not deprived of the right to appeal against extension of this measure of restraint if it is done after a certain period of time.

May be, for the benefit of the case and development of the institute of court review we could now explain what shall be understood under legality and validity of custody? What is the difference between them? Why checking of custody legality has always existed and validity checking appeared just this year?

I would omit some legal discussions on that topic, because we have already had them. A number of lawyers had an opinion that legality and validity is just the same thing and they should not be separated from each other. But this is the issue of a scientific symposium. I would like to refer to the content of the Resolution of the Plenum of the Supreme Court adopted on December 23, which is soon to be duly published.

Decision on taking into custody may be made upon a criminal case only by the duly authorized official. Applying this measure of restraint shall be subject to observance of the right of defense of the accused person. There is a separate Resolution of the Plenum of the Supreme Court adopted a year ago, which was devoted to that issue. It contains quite exhaustive explanations; so any person who has just got acquainted with them without even reading the Criminal Procedure Code, is able to imagine what the right of defense is and how to enjoy it. Checking the legality of custody the court shall examine whether the charge formally brought against the person matches the content of the resolution on application of the measure of restraint.

One more issue falling under the scope of legality is whether there were any violations of the lawfully settled terms of keeping the person in custody or under house arrest or of procedural order for extension of such acts. The law has settled the terms during which the person may be kept in custody.

These are the legality and validity criteria for taking into custody. Let’s talk about what has been introduced this year. What is validity of custody?

In order to make custody not just formally legal, but also reasonable or valid, as well as the other measures of restraint, the Criminal Procedure Code contains a special regulation, article 117, in which the legislators substantiate the general grounds for application of the measures of restraint. Being governed by them, the prosecuting agencies, the prosecutor and the court shall finally determine to what extent it is needed to apply the measure of restraint in general, and if needed, then which one exactly from the number stipulated by the law. In order to determine the validity, the whole range of circumstances should be taken into account as a whole. Firstly, it is the nature of suspicion or accusation: violent or non-violent, felony or misdemeanor or any other crime category. Let’s assume that if the criminal law does not stipulate imprisonment for the committed crime, the accused person may theoretically be taken into custody only under condition that he has hidden himself from the prosecuting agencies or from the court – but the court has a number of limitations there. The data on identity of the person are vital; they may be significant for resolving the issue on the necessity of application of these measures of restraint. They include the data on the past and on social status of the person, on presence of the dependent, junior, incapacitated persons, or any other circumstances which may affect in which favor the certain complaint shall be considered in the court.

Let’s have a talk on the other measures of restraint. Shall the bail be used?

Actually, it has been used, but unfortunately just in single cases.

How many such cases have you come across during the year?

Very few, and there is much to think about; it is necessary for this measure to be applied to a greater extent, all the more the case is about non-violent crimes, economic crimes and crimes against property. By the way, at the sitting of the Plenum, one of the speaking judges gave an interesting example, when the court granted an appeal on the measure of restraint in relation to the person taken into custody for a minor theft. The court pointed out that such a measure of restraint had been chosen not reasonably enough and set him free. After the person had been released he compensated the victim material and moral damage, so the criminal case was terminated due to the reconcilement of the accused person with the victim. This is a vivid example indicating that in case of reasonable intervention of the court at the pretrial stage the social conflict was resolved by means of rational approach towards the choice of the measure of restraint.

So, if the person is far-out positive, this is the argument for non-applying of the custody as the measure of restraint in relation to him, isn’t it?

Including this thing as well. The field of research in this respect is rather big: what was the person’s conduct after committing the crime under condition the person does not deny his guilt.

And what if he pleads not guilty, isn’t it possible to change the measure of restraint?

For goodness’ sake. I have shown you the situation when the person did everything on voluntary basis to remove the consequences of the committed crime as much as possible. This is positive and quite normal; and our law allows it to release the person who committed a crime from the criminal responsibility in great number of criminal cases, subject to reconcilement of the accused person and the victim. A whole range of conditions shall be observed for this purpose, and our judges have made such a decision in relation to over one and a half thousand people just during six months of the current year. Eventually, the person who has shown active repentance and corrected his own mistakes is remaining with the pure biography because he has no records of conviction. That’s right and this shall get its further development in the practice.

We have received some more questions from the users of our program: “Please help me. My husband has been convicted of article 233 part 3 for three years imprisonment of medium security. Plus a suit. He was working for a commercial company for a year and a half upon the employment contract, having nothing apart from the salary of 150 units of exchange. He had been targeted as witness in the investigation for three years from 2004, and then he became the accused person. He was sentenced in September this year and I was left alone with two children - 7 year and 9 months old. I am on maternity leave now. We have filed a cassation appeal to the city court. It has been the fourth month already since that, and we have not got any answer yet. Where shall we strive for the truth? The children are suffering”.

I can say nothing about the validity of the sentence of this woman’s husband at the moment. We can come to a conclusion from her message that the verdict has not come to its legal force yet. I am asking the author of this message to reveal the situation in details and send it to official address of the Supreme Court specifying the court and the date of delivering the judgment. I promise you to examine the fact, and if the red tape is actually taking place, we shall take necessary measures to check the legality and validity of this verdict in due order, without intervention in the essence of the case.

One more question: “Our friend was taken into custody in accordance with article 201 part 4. A year and 7 months have gone since that already, but he has not been convicted, nor justified yet. The regional court has completely revoked the decision of the district court and returned the case for reconsideration, pointing out that the status of a public employee does not give any grounds for conviction in accordance with the corruption article. Petition to the prosecutor’s office and the appeal to the court have not taken any effect. Please advise us, what shall we do? Is it realistic today to change the measure of restraint at least and who can help us to do that? ”

I also got interested in this message and made some inquiry. Actually, there is such a case in one of the district courts, which is being reconsidered after revocation of the initial verdict. Consequently, no one can talk today on the probable prospect of the outcome of the case, because it is the exclusive jurisdiction of the district court to resolve all guilt or innocence issues. Nevertheless, the question you have raised can be answered along with the topic of our today’s discussion. The issue is that according to the order established by the Criminal Procedure Code which was discussed at a recent sitting of the Plenum, the legality and validity of the application or extension by the court of the measure of restraint may be appealed against at the next higher court. If that accused person assumes that he is illegally or invalidly kept in custody, he has right to appeal to the court of superior jurisdiction with the complaint which shall be considered in accordance with the procedure stipulated by the law. By the way, the law actually stipulates a two-level check-up for consideration of such complaints. For example, the person was arrested with the sanction of the prosecutor, but he filed a complaint to the district court at the place of preliminary investigation. Let’s assume that the district court dismissed the appeal. Such a decision of the court may be appealed against at the next higher court which, in accordance with the procedural scope, is doing practically the same work as the court of primary jurisdiction does. If the appeal was dismissed and the decision of the court has come into legal force, the person shall preserve the right to appeal against the made decisions to the Supreme Court; but it shall be done in the procedure of judicial supervision which is also effective in situations when the criminal case is already in court. By the way, some accused people make use of this procedure.

Should the accused person himself make use of such a procedure and write directly from the place of confinement, or could this also be done by the relative or by his attorney? To what extent is it feasible to exercise this right of appeal?

It is naturally that the person who has been arrested or taken into custody has this right of appeal; the same is for his defender or legal representative in case the accused is under age. If the appeal shall be filed by the person who has been taken into custody and has been in the place of confinement, then this institution administration shall file a complaint first to the body dealing with investigation of the case or to the court; then that body or the court shall attach the other necessary documents to this complaint related to the applied measure of restraint and shall file it to the competent authority. Everything shall take three days, so the terms are rather tight to prevent the long-term and invalid custody. If we talk about the defendant he shall file this complaint directly to the investigating body or to the court. Further the algorithm of actions is the same: a set of documents for this complaint shall be formed, and then it is to be sent to the competent court or to the next higher court. The law does not contain any tough requirements to the form and content of the complaint itself. So that the court had any action platform it is desirable to lay down comprehensively when the person was arrested and why does he think that the arrest or custody was illegal or unfair.

Taking into custody is perhaps, the most widespread measure of restraint today. The European practice shows that it is rather the exclusive measure of restraint: bail, house arrest and recognizance not to leave are the forms that are well developed in Europe. Why is our practice going towards custody?

Speaking about that issue, we can mention recognizance not to leave and the proper conduct as the most widespread measure of restraint, which to our regret, some irresponsible persons try to run from and let themselves in for trouble.

Why do we have just single cases of bail and house arrest? What is it connected with?

Until recently according to the previous edition of the Criminal Procedure Code, the minimal bail amount was 500 basic units. The investigative practice has shown that there were just few people willing to pay such money. In the recent past the minimum amount of the caution money was reduced up to 100 basic units. As far as I understand, applying of this measure of restraint depends on the accused inclusive as well as on the persons ready to go bail for him: if there are no such persons, the bail shall not be posted.

Have there been any cases when there were people ready to make bail, but they were told that the measure of restraint shall be custody anyway?

I have never come across such cases in my practice. There have been cases when the bail was made but the people could not be found any more afterwards. That is why bail, as any other measure of restraint, shall be applied on individual basis. I don’t think that the house arrest is a universal measure of restraint either.

In what way shall the house arrest be implemented? How does it look like in practice?

The person shall be guarded, but at home. Actually it’s a round-the-clock personal guarding. The conditions of its implementation depend on the person himself and to what extent the determined conduct limitations are essential for him. This measure of restraint is not inexpensive.

We shall bear in mind that it is not an end in itself to lock somebody up and to keep him there. To make it optimal and not very costly for the government we are also working on improvement of the laws. There are some suggestions among lawyers to remove public character from the criminal law; it is also regularly suggested to transfer the criminal procedure to as near as self-recoupment, so that the accused person should pay almost all costs connected with investigation in relation to him. We shall be very careful with such things, because the criminal justice is the state mechanism of protection of the person’s rights and legal interests, not a lottery drum.

Are there any private prisons somewhere in the world?

There are private prisons. In some European countries appeal from judgment in the second instance results in serious procedural costs which are to be imposed on the accused in case he loses the appeal. The amounts are far from small.

A special bracelet is being used in some countries; nobody is guarding the person under house arrest. Has such an issue been seriously considered in our country?

Such a possibility is being worked out, but we shall count the money due to the fact that such bracelets cost something. The problem lies not just in the measures of restraint. I have already told you that the law provides multifold possibilities so that the law-abiding people could be released from responsibility for misdemeanor in the future if they strive to correct the mistake. Such options shall be widely used. They could be used in pre-trial stages, in the court.

I know, the Supreme Court is interested in getting open-minded opinion of people about the level of work of the court system and you have got a message in this respect…

In connection with monitoring of the court system activity conducted by the Supreme Court, we ask you to express your opinions about the work of ordinary courts in the republic (district courts, regional courts, Minsk City Court and the Supreme Court of the Republic of Belarus).

We will be grateful to you for the objective assessments and constructive proposals on improvement of the court activity. It is very important for us, what you estimate as positive in the justice and what, to your mind, does not promote enforcement of each person’s rights to apply to the court and getting efficient and qualified court protection.

Please send your suggestions to the e-mail via Site section “Feed-back” or to the e-mail of the Supreme Court This e-mail address is being protected from spambots. You need JavaScript enabled to view it indicating the subject of the message “Monitoring”.