The FPA Council explained how to protect for its intended purpose

The vast majority of citizens who are in the status of suspects or accused do not have sufficient knowledge and experience in protecting their own rights and interests. In order to avoid bias towards the prosecution, as well as in pursuance of Article 48 of the Constitution of the Russian Federation on the right of citizens to receive qualified legal assistance, the legislator has provided for the possibility of providing lawyers for appointment in criminal, civil and administrative proceedings. Most often, lawyers are hired to provide services as assigned specifically in criminal cases.

The substantive side of the institution of “lawyer by appointment” is that a lawyer is elected and engaged not by the person himself (suspect, accused or defendant) or his friends, but is appointed by the state in the person of the body that is investigating or considering a criminal case.

An appointed lawyer is provided by the state in two cases:

1. The suspect (accused or defendant) wants to use the services of a defense lawyer, but cannot due to lack of financial resources to pay for a lawyer’s services or for other reasons;
2. The suspect (accused or defendant) refuses the services of a lawyer, but due to the vulnerable position of the person, the state cannot leave him without protection (the person is a minor, the person, due to mental or physical problems, is not able to independently defend his rights, the person does not speak Russian, the person faces a punishment of more than 15 years of imprisonment, life imprisonment or the death penalty, when the case is considered by a jury or in a special trial procedure, etc.)

If a citizen has entered into an agreement with a third-party lawyer, the public defender is not involved. However, if there is such an agreement, but the chosen lawyer does not appear for investigative actions or before the justice body within 5 days, and the citizen does not show a desire to find a new defender, then a state lawyer is invited. In case of arrest or placement in custody, this period is 24 hours.

As you can see, an appointed lawyer is provided only within the framework of an already initiated criminal case. If we are talking about a pre-investigation check, then the citizen, according to the state, should cope on his own. For example, assistance during inspections of the Department of Economic Crimes (OEBiPK) is provided only by those chosen by the principal himself, and not by government lawyers. Meanwhile, timely legal assistance provided during inspections is very important, since it largely determines whether there will be a “continuation” in the form of a criminal case.

The procedure for inviting attorneys to be appointed as defense attorneys in criminal proceedings was approved by the Decision of the Council of the FPA of the Russian Federation dated October 5, 2017. According to this act, the basis for providing a defense lawyer is the corresponding procedural decision of the investigator, inquiry officer or judge. Upon receipt of a request, the Chamber of Lawyers provides a lawyer according to the duty schedule. In practice, everything can be simpler: the investigator invites a lawyer he knows to participate in the case, bypassing the Bar Association. It was to exclude such cases of investigators (interrogating officers) involving “pocket lawyers” that changes were made to Art. 50 of the Code of Criminal Procedure of the Russian Federation, according to which the investigator, inquiry officer or court has the right to involve not any appointed lawyer to participate in the case, but only in the manner approved by the chamber of lawyers. Thus, in order to implement this provision in several constituent entities of the Russian Federation, in particular in Moscow, there was a transition to an automated system for selecting lawyers by appointment, in which the investigator sends an application for a lawyer through a specially created Internet resource and cannot in any way influence the invitation of a specific one, a lawyer he knows.

Does a criminal lawyer work for free?

Contrary to popular belief, an appointed lawyer does not work for free. Based on Part 5 of Article 51 of the Code of Criminal Procedure of the Russian Federation, the services of defense lawyers are paid for at the expense of the state (another popular definition of lawyers by appointment as “state lawyers” is connected with this circumstance). However, if a conviction was made (or the case was completed for non-exonerating reasons), the convicted person must reimburse the costs of a lawyer at his own expense. In practice, courts often, when passing a guilty verdict, forget to resolve the issue of reimbursement of court costs for the services of an appointed lawyer at the expense of the convicted person, so the lawyer actually turns out to be free for a particular person, but you definitely cannot hope that you will be lucky and get a forgetful judge costs.

Participants in criminal proceedings

Depending on the performance of certain procedural functions, the Code of Criminal Procedure allows one to qualify participants in the process in criminal proceedings as follows:

1. Magistrate or district court, which performs the function of justice;
2. Participants on the prosecution side: the victim, the prosecutor, the investigator, the inquiry officer, the victim’s lawyer, the civil plaintiff;
3. Participants on the defense side: the defendant, the defendant’s lawyer, the civil defendant;
4. Other participants in the process, which include: experts, specialists. This category of subjects does not perform permanent procedural functions, and their presence at meetings is episodic; accordingly, they have no personal interest in resolving this case.

Important!

The latest news regarding attorney fees for suspects and defendants is not very encouraging. The amendments of the Ministry of Justice stipulate that in order to receive a suspended sentence, as well as to be released on parole, a citizen must pay in full for the services of his appointed defense attorney. If the amendments are adopted, the number of suspended sentences could be sharply reduced.

Specific rates were approved by Decree of the Government of the Russian Federation dated December 1, 2012 No. 1240.

• 550-1200 rubles for 1 working day;
• 825-1800 rubles for assistance at night;
• 1100-2400 rubles for help on weekends and holidays.

The specific amount of remuneration depends on the circumstances and complexity of the case.

The fees for assigned lawyers will soon increase. Decree of the Government of the Russian Federation of October 2, 2021 No. 1169 provides for a gradual increase in rates. So, from 2021, a day of work for a lawyer will cost 900-1500 rubles, from 2021 - 1250-1900 rubles, and from 2021 - 1500-2150 rubles.

The concept of the stage of criminal proceedings

The stages of criminal proceedings are certain stages of a single process, which are regulated by the criminal procedure law and act, successively replacing each other.

The totality of all stages of legal proceedings, interconnected by common goals and principles, forms a system of criminal proceedings, which consists of two main parts:

1. pre-trial proceedings in criminal cases;
2. judicial proceedings in criminal cases.

Each of the above parts of the proceedings, in turn, is divided into certain stages, which alternate in strict sequence. All stages of the criminal process are characterized by the following features:

1. the presence of certain tasks that must be solved within the framework of achieving a single goal of criminal proceedings;
2. the presence of a certain circle of participants in criminal proceedings who exercise their procedural powers;
3. the specifics of criminal procedural relations that take place at certain stages of criminal proceedings;
4. the presence of a final decision made by participants in criminal proceedings and implemented in the relevant procedural acts;
5. specificity of the procedural form;
6. the presence of a close relationship between all stages of the criminal process;
7. achieving a certain truth at each stage of the criminal process, with the exception of the stage of execution of the sentence.

Pre-trial proceedings in criminal cases

There are two stages of pre-trial proceedings in criminal cases:

1. criminal proceedings;
2. preliminary investigation.

Let us consider each of the above stages of the criminal process in more detail.

1. Initiation of a criminal case is the stage during which the inquiry officer or investigator makes a decision to begin proceedings in a specific case if there are legitimate reasons and grounds (signs of a crime). The procedural document issued at this stage of the criminal process is a resolution to initiate a criminal case. It serves as the legal basis for the production of procedural actions provided for by law in subsequent stages of the criminal process. Law enforcement agencies receive information from various sources about a socially dangerous act committed, then they check the information received and decide to initiate a criminal case if signs of a crime provided for in the Criminal Code of the Russian Federation are discovered. In the absence of such signs, the investigator has the right to issue a decision to refuse to initiate a criminal case.
2. The preliminary investigation stage begins only after the initiation of a criminal case. Its essence lies in the collection, verification and evaluation of evidence establishing the circumstances of the crime, the guilt of a particular person and the characteristics of his personal motives. The investigator and interrogating officer determine the type and amount of harm caused by the crime, as well as facts that mitigate or aggravate the guilt of the suspect. The preliminary investigation, unlike the trial, is unofficial and secret. In accordance with Article 161 of the Code of Criminal Procedure of the Russian Federation, data from a preliminary investigation can be made public only with the permission of the investigator or inquiry officer, if this does not contradict the interests of the competent authorities and is not associated with a violation of the rights of participants in criminal proceedings. At the end of the preliminary investigation, the investigator may issue an indictment against the suspect, and the investigator may issue an indictment. These procedural documents are approved by the prosecutor, only after which the criminal case can be transferred to the court for consideration on the merits. In addition, at the end of the preliminary investigation, a decision may be made to terminate the criminal case if the guilt of the suspect has not been confirmed.

Criminal proceedings

The following stages of judicial proceedings in criminal cases are distinguished:

1. preparation for a court hearing;
2. proceedings in the court of first instance;
3. proceedings in the court of second instance;
4. execution of the sentence passed.

Let us consider each of the above stages of the criminal process in more detail.

1. During preparation for the court hearing, the existence of grounds for considering and resolving the criminal case on its merits is established. This provides additional guarantees for the protection of the rights and legitimate interests of accused persons and other participants in the process. If there are sufficient grounds to consider a criminal case, the court holds a preliminary hearing and sets a trial date. At this stage of the process, the court does not decide the guilt of a particular person.
2. Proceedings in the court of first instance are the main stage of the criminal process, during which a specific case is resolved on its merits. The court determines the presence of a crime in the actions (or inaction) of the accused, the degree of his guilt and imposes an appropriate criminal punishment.

The structure of the trial consists of the following stages:

1. the preparatory part of the court session, during which organizational issues are resolved and motions from the prosecution and defense are considered;
2. judicial investigation, when the evidence available in the case is examined;
3. judicial debates, during which the parties justify their positions in the case;
4. the last word of the defendant;
5. decree and proclamation of verdict.
6. The appeal procedure for appealing court decisions is an independent stage of the criminal process, when the court of second instance reviews sentences and other decisions of the court of first instance that have not entered into legal force. The grounds for appeal proceedings are complaints from the defense or presentations from the prosecutor. The court of second instance checks the legality and validity of the contested decision only in the part in which it is appealed. At the end of the appeal proceedings, either a new verdict is issued, or the decision of the first instance court remains unchanged.
7. Execution of the sentence is the last stage of legal proceedings. After a guilty verdict is passed, the convicted person is sent to the place where he or she will serve his sentence. If the accused is acquitted, by law he has the right to rehabilitation. If law enforcement agencies receive new information regarding a closed criminal case that can make significant adjustments to the determination of the guilty person or his motives, then the proceedings may be resumed.

Lawyer by appointment or by invitation?

A suspect, accused or convicted person should not have to pay for an appointed lawyer “here and now”. This is the only advantage of turning to public defenders. And there are many more disadvantages.

1. A free criminal lawyer often has little interest in the outcome of the case. His fee, as we see, is relatively small and several times less than the amount of attorneys’ fees under the agreement. Therefore, many defenders prefer to “serve time” rather than provide real assistance.
2. Often, appointed lawyers secretly cooperate with the investigation. A recent example is the public defender of Ruslan Podgorny, who is in a pre-trial detention center. The lawyer did not want to cooperate with Podgorny’s chosen defenders, did not check procedural documents and participated in procedural actions only formally. The Moscow Bar Association will consider a disciplinary case against the appointed defense attorney, and will also decide on the issue of depriving him of his lawyer status.
3. Not all appointed lawyers are capable of providing quality services in all respects. For example, assistance with economic crimes requires from the defender not only an impeccable knowledge of the law, but also the ability to navigate accounting and tax accounting, and an understanding of how the Federal Tax Service works. For a low fee, you shouldn’t expect a deep dive into the topic. In such cases, it is better to find a lawyer with a narrow specialization.
4. A considerable part of appointed lawyers are specialists who are not in demand for one reason or another, whose services are not in demand, for example, young lawyers who do not have experience or qualifications in the field of criminal proceedings. Qualified lawyers prefer to participate in the system of providing legal services by appointment financially, that is, they pay an additional fee to the chamber so that they are not involved in providing such services.

It follows that if a citizen wants to receive real, rather than formal, help in a criminal case, he should enlist the support of a third-party criminal lawyer. The concluded contract will more fully protect the rights of the principal and will become an additional guarantee that the lawyer will conscientiously and efficiently fulfill all the duties assigned to him and will take the assigned task responsibly.

The right of a suspect to have a lawyer

Lawyer Antonov A.P.

The following right is partially enshrined in Art. 16 of the Code of Criminal Procedure of the Russian Federation, in the part that deals with the right of a suspect to have the assistance of a defense lawyer. The following is written here verbatim: the suspect has the right “to use the assistance of a defense lawyer from the moment provided for in paragraphs 2 - 3.1 of part three of Article 49 of this Code, and to have a meeting with him alone and confidentially until the first interrogation of the suspect.”

The phrase “to use the help of a defense lawyer”, and not “to have a defense lawyer”, as some authors call this right in the old fashioned way, in this context allows the suspect to demand the involvement of a defense lawyer in the criminal process in accordance with paragraphs 2, 3 and 3.1 of Part 3 of Art. . 49 of the Code of Criminal Procedure of the Russian Federation in cases. To take advantage of means to benefit from something. Help is helping someone with something, participating in something, bringing relief to someone. Thus, the defense attorney, in cases provided for by law, is obliged to assist the suspect in defending his own rights and (or) legitimate interests in criminal proceedings in all ways that do not contradict the law, to facilitate the participation of the suspect in the preliminary investigation, as well as the decision of those facing him in this regard tasks.

The suspect has the right to have the assistance of a defense lawyer. The term “defender” was used once again by the legislator in paragraph 9 of Part 4 of Art. 46 of the Code of Criminal Procedure of the Russian Federation. The concept of “defender” in this article, as a rule, means a lawyer who has presented a lawyer’s certificate and a warrant issued by the relevant legal entity to provide protection in criminal proceedings for this particular person, who is a suspect.

In criminal proceedings, not only the suspects, but also the accused, as well as persons who have committed an act prohibited by criminal law in a state of insanity, can have a defense attorney. Moreover, until the fact of committing a socially dangerous act by an insane person has not been established, a lawyer can also defend a person in respect of whom a decision has been made to order a forensic psychiatric examination (Article 438 of the Code of Criminal Procedure of the Russian Federation) and evidence has been collected, which in the usual manner (if there had not been doubts about his sanity) would allow a decision to be made to charge the person as an accused. In Art. 46 of the Code of Criminal Procedure of the Russian Federation deals with the defense of only the suspect. Moreover, the participation of a defense attorney in a criminal case does not serve as a basis for limiting any rights of the suspect.

In clause 3, part 4, art. 46 of the Code of Criminal Procedure of the Russian Federation does not say this, however, based on the content of Part 4 of Art. 16 of the Code of Criminal Procedure of the Russian Federation, in cases provided for by the Code of Criminal Procedure of the Russian Federation and other federal laws, the suspect can use the assistance of a defense lawyer free of charge. Moreover, without paying a fee, he can only use the help of a defense lawyer participating in the preliminary investigation as appointed by the investigator (inquiry officer, etc.).

The right of a suspect to use the assistance of a defense attorney exists separately from the right in cases provided for by the Code of Criminal Procedure of the Russian Federation to use the assistance of a defense attorney free of charge. I think that is why they are located in different articles of the Code of Criminal Procedure of the Russian Federation.

According to clause 3, part 4, art. 46 of the Code of Criminal Procedure of the Russian Federation, a suspect has the right to use the assistance of a defense lawyer from the moment provided for in paragraphs 2, 3 and 3.1 of Part 3 of Art. 49 of the Code of Criminal Procedure of the Russian Federation. In other words, he is vested with the corresponding right in the case when he became a suspect in connection with the initiation of a criminal case against him, his detention in accordance with Art. Art. 91 and 92 of the Code of Criminal Procedure of the Russian Federation, applying to it in accordance with Art. 100 of the Code of Criminal Procedure of the Russian Federation, preventive measures in the form of detention or notification of suspicion of committing a crime in the manner established by Art. 223.1 Code of Criminal Procedure of the Russian Federation.

Along with the appearance of such a person as a suspect, he already has the right to use the assistance of a defense lawyer. The situation is more difficult with those who became suspects in accordance with paragraph 3 of Part 1 of Art. 46 of the Code of Criminal Procedure of the Russian Federation, but another preventive measure was applied to him, not detention. Well, they are not entitled to the assistance of a lawyer? Of course they are.

The use of any preventive measure always represents a procedural action affecting the rights and freedoms of a person suspected of committing a crime. And according to clause 5, part 3, art. 49 of the Code of Criminal Procedure of the Russian Federation, the defense attorney participates in criminal proceedings from the moment such actions begin. Actually, therefore, let us draw three conclusions. First: enshrined in clause 3, part 4, art. 46 of the Code of Criminal Procedure of the Russian Federation, the right applies to all suspects, including those against whom a criminal case has not been initiated, there has been no actual arrest or notification of suspicion of committing a crime in the manner established by Art. 223.1 Code of Criminal Procedure of the Russian Federation. This conclusion also follows from the content of Part 1 of Art. 16 of the Code of Criminal Procedure of the Russian Federation. It notes that the suspect is provided with the right to defense, which he can exercise personally or with the help of a defense lawyer.

Secondly, suspects have the right to use the assistance of a defense lawyer not only from the moment provided for in paragraphs 2, 3 and 3.1 of Part 3 of Art. 49 of the Code of Criminal Procedure of the Russian Federation, but also, at least, from the moment mentioned in paragraph 5 of Part 3 of Art. 49 of the Code of Criminal Procedure of the Russian Federation, when it comes to the application of a preventive measure not related to the detention of a person. And third, the right of a suspect to have a meeting with a defense lawyer alone and confidentially, including before his (the suspect’s) first interrogation, also applies to cases of implementation against him in accordance with Art. 100 of the Code of Criminal Procedure of the Russian Federation of preventive measures. A person has this right from the moment the application of at least one of these measures begins.

Sincerely, lawyer Anatoly Antonov, managing partner of the law firm Antonov and Partners.

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Procedure for appointing a public defender

If the lawyer invited by the suspect, the accused (or other persons at his request) does not appear within 5 days from the date of filing the petition, or the accused (suspect) has not entered into an agreement with the defense lawyer, but wants to use the services of a lawyer, also in cases of refusal of the defense lawyer , if the participation of a defense attorney is mandatory by law, the investigator, inquiry officer or court ensures the participation of the defense attorney as assigned in the case by contacting the bar association (usually the nearest one) with a request to the head to allocate a defense attorney for investigative actions or for a court hearing.

The head of the bar association distributes such cases among lawyers. At the same time, his decision is mandatory. And here it does not matter the authority (eminence) of the lawyer or whether he has a large number of existing contracts with clients in private (that is, those in progress). It should be noted that at present a decision has been made to ensure the participation of appointed lawyers using the Unified Automated System, but so far this decision has not been implemented in practice, preparatory measures are underway. Before starting his duties, the so-called free defense lawyer checks with the detainee, the accused, and his relatives whether they have invited anyone else. If not, then the investigator or judge gives authority to the defense attorney as assigned.

For example, a young man is accused of drug distribution. This is a very serious criminal article. In this case, you simply cannot do without a defender. But the accused does not have the opportunity to hire a lawyer at his own expense and tells the investigator about this. Accordingly, the investigator, guided by the scheme described above, takes the necessary measures to ensure the participation of the designated defense attorney in the case

However, in matters of appointing a public defender, not everything is as simple as it might seem at first glance. For example, a mediocre businessman or the head of a state enterprise, who can afford to hire a private professional as a defense lawyer, declares this to a representative of the inquiry or investigative authorities. But sometimes it is difficult for a lawyer by agreement to immediately intervene in a case for various reasons (the investigator’s need to meet procedural deadlines for detention, his desire to have a “loyal”, “convenient” defense lawyer, whom the investigator himself knows, and not the suspect or accused, etc.) force investigators and interrogators go to various tricks to prevent the selected lawyer from participating in the case or to exclude him from the case).

As a result, a paradoxical situation may arise for a businessman when, by agreement, a lawyer can stand at the door of the police station, but the investigator draws up materials indicating that he did not appear, so at the initial stage it was necessary to involve a lawyer by appointment.