Who is a public defender - status, rights and responsibilities of a public defender

Art.
49 of the Code of Criminal Procedure of the Russian Federation is a norm providing for the possibility of participation in the course of the investigation and further trial of a representative of the potential culprit of the crime. The defender of the Criminal Procedure Code is provided as a person capable of acting at the stages of proceedings in order to mitigate or eliminate the position of the perpetrator. Neither the victim nor the court itself can abolish such a right. Multi-channel free hotline Legal advice on criminal law. Every day from 9.00 to 21.00

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Public defender in the Code of Criminal Procedure of the Russian Federation

The term “public defender” is a relic of Soviet times, when such a person could participate in court in addition to a professional lawyer. In the Russian Code of Criminal Procedure there is no concept of “public defender”, but there is the term “defender”. His role is the same as that of the Soviet-era public defender. This person has the right to participate in the stages of judicial proceedings, seeking mitigation or exclusion of punishment for the accused.

The grounds for the participation of a public defender in the investigation and trial of the case are specified in Article 49 of the Code of Criminal Procedure. The court or the victim does not have the right to refuse a public defender to defend the accused.

At the same time, the law strictly defines the list of persons who can be defenders:

Relatives of the accused.
Lawyers.
Members of some public associations and labor colleges.
The accused himself.

The only restriction for the public defender is the ban on participation in the preliminary investigation.

Unaware of this restriction, the accused file a motion to involve a defense attorney during the pre-trial stage of the investigation. Such requests remain unsatisfied.

Regarding participation in court, it must be borne in mind that in order to attract a public defender, several requirements must be met:

Participation in the case of a professional lawyer, except for cases in magistrates' courts.
The accused himself submitted a request for admission to a public defender.

Without compliance with these two requirements, the participation of a defense attorney in the trial is impossible.

What legal services are provided?

List of legal services:

a) Suspect/accused/defendant

within the framework of the preliminary investigation - monitoring the actions of law enforcement agencies;
appealing a verdict or other judicial acts;
grant of parole;
replacing the unserved part of the sentence with a more lenient form;
changing the type of correctional institution;
bringing the sentence into compliance with current legislation (for example, recalculation under Article 72 of the Criminal Code of the Russian Federation);
early expungement of a criminal record, etc.

b) To the victim

consultation, development of a position, drawing up a complaint about the actions or inaction of employees; law enforcement;
appealing a decision to refuse to initiate a criminal case;
consultation, development of a position, drawing up procedural documents for the court to toughen the punishment for the guilty person (for example, shortcomings in the materials of the criminal case are indicated; grounds for reclassification to a more serious offense are thought out; aggravating circumstances that were not taken into account by the investigation are thought out, etc.);
drawing up a civil claim;
re-indexation of awarded amounts in a criminal case (for example, compensation for moral damage, material damage);
developing a position and drawing up procedural documents for the court if a convicted person has applied for parole, replacing the unserved part of the sentence with a milder form, changing the type of correctional institution (the position reflects the motivated opinion of the victim, in particular if the victim does not agree).

Rights and responsibilities of a public defender

The law determines the procedure for the participation of the defense attorney in the case. He can start participating after:

Notifying the defendant that he is suspected of committing a crime.
Transferring the case to court.
Signing a resolution obliging the client to undergo a forensic psychiatric examination.
In other procedural actions that affect the interests of the suspect.

The accused gives consent to the participation of a defense lawyer in the process after meeting with him.

The defender has the right:

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Participate in unlimited number and time visits with the client.
Participate in the collection of data, including expert data.
Participate in investigative actions with the ward, including his interrogations. The public defender may ask questions. The investigator has the right to reject those that he considers inappropriate, but only after they are entered into the protocol.
Involve specialists who can help with a detailed analysis of the circumstances of the case to mitigate the sentence.
Present in court with evidence and your own point of view on the case.
Be present when the verdict is announced.
Question witnesses.
Ask to involve specific individuals in the process or, conversely, to remove them from participation.
Participate in trials of various authorities.
File complaints.
Use other legal means of protecting the ward.

At the same time, the law also contains prohibitions for defense counsel. He cannot:

Carry out instructions from the client that are contrary to the law.
Pursue your own selfish goals.
Act against the will of the accused.
Distribute and disclose information about the case.

The duties of a defense attorney include:

Support the accused until the end of the process, protecting his interests by all legal means.
Comply with all legal requirements for participation in investigative actions and judicial proceedings?
Improve your legal skills through various educational activities.
Maintain legal ethics.

The performance of his duties by a public defender is strictly regulated by the legislative acts of the Russian Federation.

When is a defense attorney allowed to consider a criminal case?

The defense attorney may begin his direct duties if a decision has been made that the person has been charged as an accused. When the time has come to initiate criminal proceedings against this person. If the accused is caught while committing a crime or after committing it. If during the crime the accused was seen by any other person. When traces of a crime are found (face, clothing, housing). And also from the moment when the accused was sent for a forensic psychiatric examination.

In what cases is it necessary to have a public defender involved in a case?

All persons who have committed a crime have the right to request the involvement of a public defender in the case.

He is required to be involved in the case:

If the accused has not written a waiver of his participation.
The accused is under 18 years of age.
The accused has mental or physical disabilities.
He does not speak the language of legal proceedings.
The crime is punishable by imprisonment from 15 years to life or the death penalty.
In cases that are tried by jurors.

But it is worth considering a number of restrictions on the involvement of a public defender in court proceedings. These include:

The fact of his participation in this case in a different status (prosecutor, witness, witness or judge).
The presence of relatives of the defender in the representative body.
Working on a case in which he represented interests that were contrary to the real interests of the accused.

Despite the fact that most public defenders do not have a legal background, they often provide clients with excellent defense in court. A serious attitude to the role of a defense attorney encourages them to study the law, think through the line of defense, prepare questions for the participants in the process and, of course, cooperate with a professional lawyer.

Article 44. Implementation of consumer rights protection by local government bodies

(as amended by Federal Law dated August 22, 2004 N 122-FZ)

In order to protect the rights of consumers in the territory of a municipality, local government bodies have the right to:

consider consumer complaints, advise them on consumer protection issues;
apply to the courts to protect the rights of consumers (an indefinite range of consumers).

If a consumer complaint reveals goods (work, services) of inadequate quality, as well as those that are dangerous to the life, health, property of consumers and the environment, immediately notify the federal executive authorities responsible for monitoring the quality and safety of goods (work, services).

Reception of consumer complaints can be carried out through multifunctional centers for the provision of state and municipal services.

(Part three introduced by Federal Law dated July 28, 2012 N 133-FZ)

Who are government lawyers?

There are no such persons as state lawyers. The concept appeared only for the implementation of Art. 48 of the Constitution of the Russian Federation, which states that every citizen has qualified legal protection of his rights. However, not all citizens have the opportunity to provide themselves with highly qualified assistance. Therefore, the government is forced, in order to respect Constitutional rights, to provide such a service free of charge.

Often in the role of government The defenders are young lawyers who have recently received a license. Over the course of several years, they gain experience as so-called “free defenders”, while receiving wages from the state.

It is also a common practice for established lawyers, with many years of experience and experience, to take on several cases per month in which they act as a public defender. Unlike young lawyers, these lawyers value their reputation and will not simply tarnish it. Therefore, protection against them will be much more high-quality. However, it is far from a fact that you will come across exactly this one. This practice is rather an exception to the rule.

Lawyer by appointment and by contract: main differences

Performing the functions of a so-called free lawyer, a legal specialist is often negligent in fulfilling his duties. For the most part, the reason for this is the professional’s direct attitude to the work performed as unpaid (payments to assigned lawyers are delayed, and not rarely - payment is not made by the state at all). Quite often, the appointed lawyer takes a passive position, limits himself to being present at some specific investigative actions, and does not guide his client from “A” to “Z”. In rare cases, full-fledged legal assistance is provided, including the organization of the necessary examinations, a comprehensive study of the issue, collection of evidence, communication with investigative authorities within the framework of the Criminal Procedure Code, etc. The public is aware of blatant cases when appointed lawyers protect the interests of the investigation, and not their client, persuade the client to confess to committing a crime, engage in falsification of evidence, and when choosing a preventive measure in the form of detention, they declare their agreement with the position of the investigation.

Why is this situation happening? Everything is quite simple. Until now, the basic rate of remuneration for a free lawyer (the amount that the state pays for providing legal assistance) is at a very low level, and lawyers do not receive this meager payment. Therefore, some of them simply “serve their duty”, approaching the matter formally and superficially. In addition, it should be borne in mind that experienced and sought-after lawyers do not have time to provide services as assigned; they can be exempted from this duty by choosing a material form of participation on legal grounds. As a result, inexperienced, young specialists, or specialists who are not in demand among clients due to low qualifications are often hired as appointed lawyers.

There are undoubtedly exceptions. Some lawyers, performing their functions as public defenders, approach their work with full dedication (by the way, the requirement to perform their duties equally well and in full as assigned or for a fee is provided for in Article 10 of the Code of Professional Activity of a Lawyer).