The court granted the motion filed by Alexander Shadrin, a partner at BARRISTERS, LLC, to credit the period of pretrial detention.

The court granted the motion filed by Alexander Shadrin, a partner at Barristers, LLC, to credit the period of pretrial detention and credited the period of pretrial detention in accordance with the rules set forth in Article 72 of the Criminal Code of Ukraine, toward the term of imprisonment, on the basis that one day of pretrial detention corresponds to two days of imprisonment, in accordance with the legal opinion of the Grand Chamber of the Supreme Court.

Legal Opinion on the Application of the Provision of Article 72(5) of the Criminal Code of Ukraine (Crediting the Period of Pretrial Detention Toward the Term of Imprisonment)

102. The provisions of Part 5 of Article 72 of the Criminal Code of Ukraine regarding the rules for counting pretrial detention toward the term of imprisonment or other types of punishment provided for in Part 1 of Article 72 of the Criminal Code of Ukraine define “other criminal law consequences of the act” within the meaning of Part 2 of Article 4 of the Criminal Code of Ukraine.

103. If a person committed a crime during the period from December 24, 2015, to June 20, 2017 (inclusive), then when counting pretrial detention toward the term of punishment, Part 5 of Article 72 of the Criminal Code of Ukraine, as amended by Law No. 838-VIII (direct application of Law No. 838-VIII).

104. If a person committed a crime during the period up to and including December 23, 2015, then when counting pretrial detention toward the sentence, Part 5 of Art. 72 of the Criminal Code of Ukraine, as amended by Law No. 838-VIII (retroactive effect of Law No. 838-VIII as a law that “otherwise improves the person’s situation” within the meaning of Part 1 of Article 5 of the Criminal Code of Ukraine).

105. Thus, if a person committed a crime on or before June 20, 2017, then when counting pretrial detention toward the term of punishment, Part 5 of Art. 72 of the Criminal Code of Ukraine, as amended by Law No. 838-VIII, shall apply by virtue of both the direct and retroactive application of criminal law in time.

106. If a person committed a crime on or before June 20, 2017, and measures of pretrial detention continued to be applied to that person after June 21, 2017—that is, after Law No. 2046-VIII, then when counting pretrial detention toward the term of punishment, Part 5 of Article 72 of the Criminal Code of Ukraine, as amended by Law No. 838-VIII, shall apply. In such a case, Law No. 838-VIII has ultra vires (retroactive) effect. The application of Law No. 2046-VIII to such cases is incorrect, since the retroactive effect of Law No. 2046-VIII—as a law that “otherwise worsens the person’s situation”—is not permitted under Part 2 of Article 5 of the Criminal Code of Ukraine.

107. If a person committed a crime on or after June 21, 2017, then when crediting pretrial detention toward the term of punishment, Part 5 of Art. 72 of the Criminal Code of Ukraine, as amended by Law No. 2046-VIII (direct application of Law No. 2046-VIII).

In light of the foregoing and pursuant to Articles 434–434-2, 436, 438, and 442 of the Criminal Procedure Code of Ukraine, paragraph 7 of Section XI “Transitional Provisions” of the Criminal Procedure Code of Ukraine (as amended by Law No. 2147-VIII), Part 6 of Article 13, and paragraph 1 of Part 2 of Article 45 of Law of Ukraine No. 1402-VIII of June 2, 2016, “On the Judicial System and the Status of Judges,” the Grand Chamber of the Supreme Court.