Participation of a lawyer in criminal proceedings: rights and obligations

One of the forms of legal assistance provided by a lawyer is participation as a representative or defender of the client in criminal proceedings. In criminal proceedings, a lawyer can act on the side of both the defense and the prosecution. A lawyer is a representative of the prosecution in cases where he defends the interests of the victim, civil plaintiff and private prosecutor (Part 1 of Article 45 of the Code of Criminal Procedure of the Russian Federation). How does a lawyer participate in criminal proceedings?

On the defense side, the lawyer has the powers of a defender, i.e. a person who, in accordance with the procedure established by law, protects the rights and legitimate interests of suspects and accused and provides them with legal assistance in criminal proceedings (Part 1 of Article 49 of the Code of Criminal Procedure).

A lawyer has the right to act as a representative of a civil defendant (Part 1 of Article 55 of the Code of Criminal Procedure).

The suspect's lawyer is allowed to participate in a criminal case:

1. from the moment a criminal case is initiated against a person, which is investigated in the form of an inquiry in accordance with Art. 223 art. 150 Code of Criminal Procedure of the Russian Federation. If a criminal case initiated against a specific person is subject to investigation in the form of a preliminary investigation, then the suspect’s lawyer is allowed to participate in the case from the moment the decision to order a forensic psychiatric examination is announced to him or from the moment other procedural coercive measures begin or other procedural actions affecting the rights and freedoms of a person suspected of committing a crime (clause 2, 5, part 3, article 49 of the Code of Criminal Procedure of the Russian Federation).

Actions affecting the rights and freedoms of a person suspected of committing a crime include any procedural actions related to the criminal prosecution of this person.

This means that in cases of persons suspected of committing a crime, against whom a criminal case has been initiated, subject to investigation by an investigator, a lawyer is allowed to participate in the case from the moment the first procedural action is carried out with the participation of the suspect, or a decision on this is announced to him:

2. from the moment of actual detention of a person on suspicion of committing a crime in accordance with Art. 91 and 92 of the Code of Criminal Procedure of the Russian Federation;

3. from the moment a preventive measure is applied to the suspect in accordance with 100 Code of Criminal Procedure of the Russian Federation in the form of detention until charges are brought against him.

The law establishes two ways to ensure the participation of a defense attorney in a criminal case:

By agreement. In this case, a lawyer is invited by the suspect, accused, his legal representative, as well as other persons on behalf of or with the consent of the suspect, accused.
By appointment. In this case, the participation of a lawyer is ensured by the inquirer, investigator, prosecutor or court at the request of the suspect, accused or by virtue of the requirements of Art. 51 Code of Criminal Procedure of the Russian Federation. At the stage of preliminary investigation, the activity of a lawyer as a defense attorney should be aimed at providing legal assistance to the accused or suspect, protecting his rights and legitimate interests.

From the moment he begins to participate in a criminal case, the defense attorney acts on the basis of Article 53 of the Code of Criminal Procedure, which establishes a wide range of procedural rights of the defense attorney intended to ensure the tasks facing him, namely:

The right to have meetings with the suspect or accused.
The right to collect and present evidence necessary to provide legal assistance.
The right to attract a specialist.
The right to be present at the arraignment.
The right to participate in the interrogation of a suspect, accused, as well as in other investigative actions carried out with the participation of the suspect, accused or at his request or at the request of the defense attorney himself.
The right to get acquainted with the arrest report, the decision on the application of a preventive measure, protocols of investigative actions carried out with the participation of the suspect, accused, and other documents that were presented or should have been presented to the suspect, accused.
The right to get acquainted with all the materials of the criminal case at the end of the preliminary investigation, to write out any information in any volume from the criminal case, to make copies at one’s own expense from the materials of the criminal case, including using technical means.
The right to file petitions and challenges.
The right to participate in the trial of a criminal case in the courts of the first, second and supervisory instances, as well as in the consideration of issues related to the execution of the sentence.
The right to file complaints against the actions (inaction) and decisions of the inquirer, investigator, prosecutor, court and to participate in their consideration by the court.
The right to use other means and methods of protection.

Also read: What responsibility does a person who has committed a crime bear under Article 158 Part 1 of the Criminal Code of the Russian Federation?
A lawyer is obliged, during the preliminary investigation, to take an active part in proving the innocence of his client. He has the right to independently collect information about the circumstances of the crime by interviewing, with their consent, persons allegedly in possession of such information.

In addition, in accordance with clause 6 of the Federal Law “On Advocacy and the Bar in the Russian Federation”, he has the right to request from government authorities of other organizations: certificates, characteristics and other documents relating to the actual circumstances of the case.

During criminal proceedings in the court of first instance, the defense attorney is given broad rights to defend the position of his client.

In accordance with Article 248 of the Code of Criminal Procedure, the defendant’s defense attorney participates in the examination of evidence, submits motions, expresses to the court his opinion on the merits of the charge and its proof, on the circumstances mitigating or justifying the defendant’s punishment, on the measure of punishment, as well as on other issues arising in the case. during the trial.

The final stage of a lawyer’s work in the court of first instance is the stage of judicial debate, where the lawyer is given the opportunity to subject the prosecution’s version to extensive criticism, showing its inconsistency, and present to the court his arguments in favor of the client. A lawyer’s defense speech should consist of several parts: introduction; analysis of the actual circumstances of the case; analysis and assessment of the legal side of the accusation; characteristics of the defendant's personality; conclusion.

After pronouncing the verdict, the judge explains to the parties the right and the procedure for appealing it. Procedural costs are not recoverable from the defendant.

After the verdict is announced, the defense attorney must meet with the client and discuss the need to file a cassation appeal against the announced verdict, because The defense attorney does not have the right to make such a decision on his own.

If the convicted person or his defense attorney disagrees with the sentence passed by the court of first instance, the defense has the right to appeal to the court of second instance during the appeal period. The participation of a lawyer in cassation and supervisory proceedings is not mandatory from the point of view of law. A lawyer can participate at this stage only if he has instructions from his client or his legal representatives.

The right to defense is a real opportunity to receive qualified legal assistance. The defense attorney must monitor the correct observance of all procedural rules, which allows, from the moment of arrest, to monitor compliance with the rights of the client and prevent violations of the law in relation to him.

Forms of participation of a lawyer in criminal procedural evidence

What forms of lawyer participation in criminal proceedings exist? The most pressing problem for the criminal process in Russia is the question of the participation of the defense attorney in evidence. In Part 1 of Art. 86 of the Code of Criminal Procedure of the Russian Federation, the defender is not listed among the subjects collecting evidence, since, unlike them, he does not have authority. However, the criminal procedure law, part 3 of Art. 86 of the Code of Criminal Procedure of the Russian Federation, gave the defense lawyer the right to collect evidence only in his own way.

In addition, from Part 3 of Art. 7 of the Code of Criminal Procedure of the Russian Federation it follows that only the activities of the court, prosecutor, investigator, body of inquiry or interrogator during criminal proceedings, subject to the norms of the Code of Criminal Procedure of the Russian Federation, entail the recognition of evidence obtained in this way as admissible.

Thus, from the analysis of Part 3 of Art. 7 of the Code of Criminal Procedure of the Russian Federation, as well as Part 1 and Part 3 of Art. 86 of the Code of Criminal Procedure of the Russian Federation, we can come to the following conclusions:

firstly, the defender cannot collect evidence in the same way as the above-mentioned officials and the court, he collects it only in his own way; secondly, his activities in collecting evidence do not entail the recognition of evidence obtained in this way as admissible.

This means that the defender collects factual material that has the property of relevance, and then presents it to the person conducting the proceedings in order to obtain the property of admissibility.

This state of affairs fits into clause 2, part 1, art. 53 of the Code of Criminal Procedure of the Russian Federation, according to which the defense attorney has the right to collect and present evidence necessary to provide legal assistance in the manner established by part three of Article 86 of this Code. Since the defender cannot collect evidence directly himself, but collects it through subjects authorized to collect evidence in accordance with Part 1 of Art. 86 of the Code of Criminal Procedure of the Russian Federation, which means that he collects them indirectly, and thus the defender participates in the collection of evidence.

Also read: How to initiate a criminal case under the article of private prosecution of the Criminal Code of the Russian Federation

Precisely because the activity of the defense attorney in collecting evidence is indirect in nature, implemented through the activities of the persons conducting the proceedings, the legislator has not regulated the procedure for collecting evidence by the defense attorney, since it is not procedural in nature, but is a non-procedural activity of the defense attorney.

The rule of law that gives the green light to the possibility of using the work of private detectives to collect evidence in the interests of participants in the process is considered by us as progressive and in keeping with the trends of the times. Meanwhile, the absence of a mechanism for involving information obtained in this order simply blocks its implementation.

It seems that the Code of Criminal Procedure of the Russian Federation needs to consolidate not only the ability of a defense attorney to turn to the services of private detectives to collect evidence, but also the mechanism for using the information obtained as evidence. We would venture to assume that this mechanism may be similar to the mechanism of involving the results of operational-search activities in the process of proving (however, not in the form enshrined in Article 89 of the Code of Criminal Procedure of the Russian Federation).

The lawyer is obliged to protect the accused, his rights and legitimate interests by establishing circumstances indicating the innocence of the accused or his guilt of a less serious crime, as well as circumstances mitigating his responsibility by collecting evidence, filing petitions to include them in the materials of the criminal case and to conduct investigative actions etc.

When carrying out his professional activities, a lawyer is obliged to honestly, reasonably, conscientiously, skillfully, principledly and timely fulfill his duties, actively protect the rights, freedoms and interests of clients by all means not prohibited by law, guided by the Constitution of Russia, the law and the specified Code.

If defending the accused were not a duty, but a subjective right of the lawyer, he could arbitrarily refuse to use such a right. The essence of subjective legal rights lies precisely in the possibility of using them at the request or discretion of the subject of legal relations.

However, a lawyer does not have the right to refuse to undertake the defense of a suspect or accused.

In addition, failure to fulfill or improper fulfillment of a subjective legal obligation may give rise to negative consequences for the violator. Likewise, a defense lawyer, if he fails to fulfill or improperly fulfills his professional duties to the client, or violates the norms of the Code of Professional Ethics, may be subject to disciplinary liability by decision of the council of the bar chamber of a constituent entity of the Russian Federation.

“Thus, it can be stated that the defense lawyer, being a professional participant in criminal proceedings, is subject to the burden of proof. At the same time, the specificity of its procedural position and the peculiarity of expressing obligations in proof is expressed in the fact that all procedural actions of a lawyer should be aimed exclusively at identifying and establishing only those circumstances that justify the accused or mitigate his responsibility.”

Thus, the participation of the defense attorney in proof is determined by the fact that:

he evaluates evidence in order to protect the rights and legitimate interests of the client, and his activities are unilateral;
the results of activities to evaluate evidence are expressed in petitions, statements, etc., aimed at convincing the investigator and the court of the correctness of their position, and the results of such activities are expressed in procedural documents (decrees, rulings, etc.) that determine the further movement of the criminal case and enforceable;
he is not named in Art. 17 and 88 of the Code of Criminal Procedure as the subject of evidence assessment. In addition, the defender is subject to the burden of proof.

Of utmost practical importance is the question of whether a defense lawyer can receive items that have the characteristics of material evidence in a strictly confidential manner, when it is undesirable or completely unacceptable to name the source of such receipt in criminal proceedings, for example,

for moral reasons;
when the transfer of such an item is conditional on the fact that the name of its previous owner will remain a secret from everyone and, in particular, from the participants in the criminal process.

In relation to advocacy, this issue has not received wide discussion. But it deserved close attention in relation to cases where the item was obtained as a result of covert operational-search activity, where the principles of confidentiality also prevail, in certain cases even elevated to the rank of state secret.

On the main point, experts are unanimous: if during the preliminary investigation and at the court hearing it is impossible to find out the source of origin of the relevant item, it, as a rule, loses all evidentiary value. But at the same time, cases have been noticed when, based on the signs that follow; directly from the law and the evidence developed in theory, the corresponding object, which has the attribute of material evidence, can serve as such, regardless of its “biography”, that is, regardless of the background of its origin and existence, in particular, on the circumstances under which it came into possession the one who presented him for inclusion in the criminal case.

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The literature suggests that this situation has the same legal meaning in the case of the presentation of the item by both the intelligence service and the defense attorney; they are equalized by the fact of the confidential origin of the item. We are most often talking about photographic photographs, phonograms and videotapes that display certain fragments of a criminal event, bearing its visually observable or audible traces (a photograph or video recording of a scene, the transfer of a bribe, a phonogram recording a dialogue between the extortionist and his victim, or characterizing the relationship between the participants process, etc.).

This point of view has caused heated debate in the literature. However, it appears that the arguments on which it is based have never been completely refuted. It consists (in our interpretation, taking into account the topic) as follows.

There are “other documents” that are added to the case, again at the discretion of the investigator (Article 84 of the Code of Criminal Procedure).

REPUBLIC OF INGUSHETIA

Recently, the FPA RF has increasingly received information about facts when defense lawyers, participating in criminal proceedings, evade carrying out certain procedural actions, or limit their formal participation in such actions solely to their presence during their implementation. Explaining this behavior, lawyers, as a rule, either refer to tactical techniques and considerations of the defense, or point out that the criminal procedure law gives lawyers the right, but does not indicate the obligation to participate in certain procedural actions. Sometimes misunderstood defense tactics led to the fact that lawyers refused to participate in debates and make defensive speeches, and even to the case when, when the client did not admit guilt, the lawyer stated that guilt was fully proven and asked the court to impose a sentence of imprisonment. In connection with these circumstances, as well as taking into account the emerging disciplinary and judicial practice, the Expert Methodological Commission of the Council of the Federal Chamber of Lawyers of the Russian Federation considers it necessary to give the following clarifications. The formal participation of a lawyer in procedural actions, even if his actions do not contain a direct violation of criminal procedural legislation, conflicts with the legislation on the legal profession and the ethical rules of the profession, in particular with the lawyer’s duty to protect the rights and interests of his client by all means not prohibited by law, honestly, reasonable, conscientious, qualified, principled, timely and proactive.

Legislation and rules of professional ethics on the powers of a defense lawyer

The Constitution of the Russian Federation guarantees everyone the right to receive qualified legal assistance. Every person detained, taken into custody, or accused of committing a crime has the right to have the assistance of a defense lawyer (Article 48). The Constitutional Court of the Russian Federation, in Resolution No. 2-P of January 28, 1997, indicated that the right enshrined in Part 2 of Article 48 of the Constitution of the Russian Federation to use the assistance of a lawyer (defender) is one of the manifestations of a more general right guaranteed by Part 1 of Article 48 of the Constitution of the Russian Federation to every person , - the right to receive qualified legal assistance. Therefore, the provisions of Part 2 of Article 48 of the Constitution of the Russian Federation cannot be interpreted in isolation and without taking into account the provisions of Part 1 of the same article. The criteria for qualified legal assistance in relation to criminal proceedings should, in particular, ensure the principles of adversarialism and equality of parties enshrined in Part 3 of Article 123 of the Constitution of the Russian Federation, and the legislation on the legal profession establishes professional requirements for lawyers designed to ensure the qualified nature of the legal assistance they provide. Thus, the Constitutional Court of the Russian Federation considers the institution of the legal profession as a state guarantee of ensuring the constitutional right to qualified legal assistance, which obliges the bodies of legal self-government to take care of ensuring that lawyers fulfill their professional duties. A guarantee of the actual provision of qualified legal assistance to the accused (suspect) in criminal proceedings is the powers of lawyers established by law to protect the rights and interests of clients. In turn, lawyers participating in criminal proceedings as defense attorneys are obliged to fully ensure their clients the right to defense. The Federal Law “On Advocacy and the Bar in the Russian Federation” (hereinafter referred to as the Law on the Bar) establishes the general responsibilities of a defense lawyer: - a lawyer does not have the right to refuse to undertake the defense of a suspect and accused (subparagraph 6 of paragraph 4 of Article 6), otherwise, this should entail the reversal of the sentence. A similar norm is also enshrined in the Code of Criminal Procedure of the Russian Federation (part 7 of Article 49) and in the Code of Professional Ethics for Lawyers, where this norm is supplemented by the phrase - except for the cases specified in the law (clause 2 of Article 13); - a lawyer does not have the right to take a position in a case against the will of the client, except in cases where the lawyer is convinced of the client’s self-incrimination (subclause 3 of clause 4 of Article 6); - a lawyer does not have the right to make public statements about the proof of the client’s guilt if he denies it (subparagraph 4 of paragraph 4 of Article 6). - a lawyer is obliged to honestly, reasonably and conscientiously defend the rights and legitimate interests of the client by all means not prohibited by law (subparagraph 1 of paragraph 1 of Article 7). The Code of Professional Ethics for Lawyers (hereinafter referred to as CPEA) developed the norms of the Law on the Bar and established, in particular, that a lawyer must fulfill his duties to protect the rights, freedoms and interests of clients by all means not prohibited by law, not only honestly, reasonably and in good faith, but also qualified, principled, timely and active (clause 1 of Article 8). The Criminal Procedure Code of the Russian Federation regulates the powers of a defense lawyer in criminal proceedings in Articles 53, 248, 292 and a number of other articles. Thus, Article 53 establishes the rights of a defense lawyer: to have a meeting with the client, to participate in investigative actions with the participation of the client, to get acquainted with the protocols of investigative actions with the participation of the client, to file petitions and challenges, to participate in court proceedings in courts of all instances, to file complaints against the decisions of the inquirer , investigator, prosecutor, court and participate in their consideration, and others. Article 248 of the Code of Criminal Procedure of the Russian Federation establishes the powers of the defense attorney in court proceedings: to participate in the study of evidence, make motions, express to the court his opinion on the merits of the charge and its proof, on the circumstances mitigating or justifying the defendant’s punishment, on the measure of punishment, as well as on other issues arising during the trial. Article 292 of the Code of Criminal Procedure of the Russian Federation states that the stage of the trial - the debate of the parties, as a general rule, consists of speeches by the prosecutor and the defense attorney. It should be noted that the powers of the defense lawyer can be divided into two categories: First, these are the duties of the defense lawyer, which he must perform in the interests of the client on the basis of the requirements of the Code of Criminal Procedure of the Russian Federation, regardless of the will of the client. For example, participation in the trial of a case (Article 53 of the Code of Criminal Procedure of the Russian Federation), participation in the debate of the parties (Article 292 of the Code of Criminal Procedure of the Russian Federation). Secondly, these are the rights of the defense lawyer, which he is obliged to exercise in the interests of the client under two conditions: to exercise these powers there must be the necessary legal grounds and the exercise of these powers does not contradict the will of the client (a lawyer has the right to take a position in the case contrary to the will of the client only when he is convinced of the existence of self-incrimination). For example, a defense lawyer has the right to challenge a judge, but there are no legal grounds for this, or a defense lawyer has the right to appeal a court verdict and there are legal grounds for this, but his client does not want to appeal the verdict. Similar rules defining the powers of defense lawyers are contained in the norms of international law. The Basic Principles concerning the Role of Lawyers (adopted by the Eighth UN Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August - 07 September 1990) in the section “Roles and Responsibilities” establishes that lawyers “shall always have strict regard for the interests of their clients.” (paragraph 15), “in protecting the rights of their clients ... must ... in all cases act ... in good faith in accordance with the law and recognized standards and professional ethics …” (paragraph 14). The General Code of Practice for Lawyers of the European Community (adopted by the Council of the Bar and Legal Societies of the European Union, Strasbourg, 28 October 1988) states that “a lawyer is always obliged to act in the interests of the client, which for him always prevail over his own and the interests of his fellow lawyers “(clause 2.7), act “timely, conscientiously and diligently” (clause 3.1.2), in court “the lawyer is obliged to protect the interests of the client in good faith and with the maximum benefit for him, however, without going beyond the framework provided by law” (clause 4.3) . The European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, November 4, 1950, as amended) provides that the State provides everyone with the right to a fair trial (Article 6(1)) and establishes the right of those accused of a criminal offense to defend themselves by means of defense attorney (subparagraph “c” of paragraph 3 of Article 6). Neglect of these duties not only violates the specified legislation, but also compromises the institution of the legal profession, undermines the principles of legality, independence, self-government and corporatism on the basis of which the domestic legal profession operates, and also violates the public interests that the legal profession serves, the rights and interests of citizens to whom lawyers are called protect.

Examples of disciplinary and judicial practice

The above considerations are confirmed by disciplinary and judicial practice. Thus, the Review of the Disciplinary Practice of the Moscow Bar Association provides the following conclusions of the Qualification Commission, with which the Council of the Chamber agreed: “4. ... In accordance with paragraph 5 of part 1 of Article 53 of the Code of Criminal Procedure of the Russian Federation, the defense attorney is not present, but participates in the interrogation of the suspect ... this form of legal assistance by the lawyer to the suspect during interrogation is an occasional presence in the office where the interrogation takes place, and conducting the interrogation of the suspect one by one the case of consultations with the head of the investigation of the internal affairs department on another case (also outside the office where the interrogation took place), does not comply with the requirements of the law, indicates improper (unfair) performance by the lawyer of his professional duties to the client, that is, a violation by lawyer B. of subparagraph 1 of paragraph 1, Article 7 of the Federal Law “On Advocacy and the Bar in the Russian Federation.” The occasional presence of a lawyer during the interrogation of his client was recognized as dishonest defense, since the lawyer violated the requirement of the Code of Criminal Procedure of the Russian Federation, obliging him to participate in the interrogation of the client. In another case, the Qualification Commission of the Moscow Administration indicated: “6. ... The behavior of lawyer M. ... who did not study the materials of the court proceedings ..., who did not talk with F. to determine the position and line of defense and did not familiarize himself with the documents that his client F. petitioned for inclusion in the materials of the court proceedings, who did not speak at the court hearing ( with the exception of the phrase “I support”), the qualification commission recognizes no arguments in support of F.’s stated petition to attach documents and to postpone consideration of the submission as a violation of subparagraph 1 of paragraph 1 of Article 7 of the Federal Law “On Advocacy and the Bar in the Russian Federation” ... and paragraph 1 Article 8 of the Code of Professional Ethics for Lawyers...” The dishonesty and passivity of the defense was manifested in the fact that the lawyer was obliged to use all the powers granted to him by the Code of Criminal Procedure of the Russian Federation, but did not familiarize himself with the documents, did not agree with the client’s legal position, and did not provide arguments in support of the client’s request. Another example of dishonesty and passivity of the defense is described in the Conclusion of the Qualification Commission of the Moscow Bar Chamber No. 97 dated September 24, 2004, which states: “... lawyer S., when defending a minor named L., violated paragraph 1 of Article 8 of the Code of Professional Ethics lawyer, since she ... did not familiarize herself with the protocol of the court session ... and, as a result, did not bring comments on this protocol ... ". The lawyer did not take advantage of the right to familiarize himself with the protocol of the court hearing and make comments on it, which he was obliged to do in the conscientious and active defense of the minor. In all the above examples of disciplinary practice, more or less serious violations by lawyers of the rights and interests of their clients are seen, the protection of which the state guaranteed to the accused (suspect) by providing qualified assistance from a defense lawyer. The above and other similar violations by lawyers of their professional duties influenced or could influence the decision of a legal, reasonable and fair sentence and should entail adequate disciplinary measures against unscrupulous and unqualified lawyers. In judicial practice, cases are especially highlighted when violation of the professional duties of lawyers leads to violations of the rights of the accused to have the assistance of a defense lawyer and, as a consequence, to the reversal of sentences on the grounds provided for in subparagraph 4 of paragraph 2 of Article 381 of the Code of Criminal Procedure of the Russian Federation. To illustrate, we give an example from national judicial practice and the practice of the ECHR. In 2004, the North Caucasus District Military Court overturned the verdict of the Grozny Garrison Military Court and sent the case for a new trial, since... the defendant’s right to defense was violated. The ruling of the district court states: “In accordance with part 7 of article 49 of the Code of Criminal Procedure of the Russian Federation, paragraphs 3 and 6 of part 4 of article 6 of Federal Law No. 63-FZ of May 31, 2002 “On advocacy and advocacy in the Russian Federation,” as well as paragraph 2 Part 1 of Article 9 and Part 2 of Article 13 of the Code of Professional Ethics for Lawyers, a lawyer who has accepted, by appointment or by agreement, an assignment to defend a criminal case, does not have the right to refuse to undertake the defense of the accused. At the same time, the lawyer does not have the right to take a position on the case and act contrary to the will of the principal (client). At the court hearing, the defendant Z. did not plead guilty and, in accordance with Article 51 of the Constitution of the Russian Federation, refused to testify on the merits of the charges brought against him. However, the defense lawyer G. did not support this position of his client. Moreover, during the debate, the defense attorney stated that, despite Z.’s refusal to admit his guilt, it had been fully proven, and asked the court to sentence the defendant to 2 years of imprisonment in a penal colony. Accused Z., after the defense lawyer’s speech, asked the court not to deprive him of his freedom in his last word. Under such circumstances, the judicial panel for criminal cases came to the conclusion that the defense lawyer actually abandoned the defense he had accepted, as a result of which the defendant’s right to defense during the consideration of the case was significantly violated.” In 2008, the Supreme Court of the Russian Federation, by ruling No. 30-O08-9, overturned the verdict of the Supreme Court of the Karachay-Cherkess Republic of July 8, 2008 against K. in connection with a violation of the defendant’s right to defense. The Supreme Court's Ruling states: “According to Part 1 of Article 292 of the Code of Criminal Procedure of the Russian Federation, the debate between the parties consists of speeches by the prosecutor and the defense attorney. In the absence of a defense lawyer, the defendant participates in the debate between the parties. As can be seen from the case materials, the defense of the defendant K. in accordance with Article 51 of the Code of Criminal Procedure of the Russian Federation was carried out by lawyer B. According to Part 7 of Article 49 of the Code of Criminal Procedure of the Russian Federation, a lawyer does not have the right to refuse to undertake the defense of the accused. Requests to refuse the assistance of a defense lawyer in accordance with Art. 52 of the Code of Criminal Procedure of the Russian Federation, including at the stage of judicial debate, K. did not declare to the court. Meanwhile, from the record of the court session, it follows that lawyer B., upon being given the floor by the court to speak in the judicial debate, stated that K. is a professional lawyer and, by their agreement, would speak in the judicial debate, thereby actually withdrawing from the protection of rights and interests of the accused in criminal proceedings. During the judicial debate, defendant K. made a defensive speech. Thus, in violation of Articles 49, 51, 53 of the Code of Criminal Procedure of the Russian Federation, lawyer B. did not fulfill his duties to protect K., thereby depriving the convicted person of the right to defense guaranteed by the Constitution of the Russian Federation and criminal procedure legislation. The court did not react to this violation of the law by the lawyer, without ensuring the participation of the defense lawyer in the judicial debate. Under such circumstances, the Judicial Collegium recognized the arguments contained in the cassation appeal of the convicted person about the violation of his right to defense as justified and, in accordance with the requirements of Article 381 of the Code of Criminal Procedure of the Russian Federation, canceled the verdict against him and sent the case for a new trial.” In 2010, the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation, by a cassation ruling (case No. 41-010-47 joint venture), overturned the guilty verdict of the Rostov Regional Court with the participation of jurors dated February 18, 2010 in relation to P. and T. and sent the case to a new trial in connection with the restriction of the defendant P.’s right to defense. The Supreme Court ruling states: “In accordance with paragraph 6 of part 1 of Article 51 of the Code of Criminal Procedure of the Russian Federation, the participation of a defense attorney in criminal proceedings is mandatory if the criminal case is subject to trial by a court with the participation of a jury. By virtue of Articles 292 and 366 of the Code of Criminal Procedure of the Russian Federation, the debate between the parties consists of speeches by the prosecutor and the defense attorney. In the absence of a defense lawyer, the defendant participates in the debate. These requirements of the law, as correctly stated in P.’s complaint, have not been met in this criminal case. From the record of the court session it follows that one defendant P. spoke in the debate, and lawyer L., who defended him, refused to participate in the debate, while the motive for the lawyer’s refusal to participate in the debate was not clarified... Under such circumstances, based on the principle of adversarialism and equality of procedural the rights of the parties when considering a criminal case with the participation of jurors, the refusal of the lawyer to participate in the debate is regarded by the judicial panel as a restriction of the defendant P.’s right to defense, that is, a violation of the criminal procedural law entailing the reversal of the verdict.” In all the examples given, the lawyers did not fulfill their duties to protect their clients, significantly violated their rights to defense, and by actually refusing to undertake the defense they deprived them of the right to defense, as a result of which the verdicts were overturned on the grounds provided for in paragraph 4 of paragraph 2 of Art. .381 Code of Criminal Procedure of the Russian Federation. An analysis of the practice of the European Court of Human Rights shows that it firmly adheres to the position in which a fair trial should provide the accused with an effective, rather than formal, protection. The mere participation in legal proceedings of a lawyer who neglects his duties cannot provide effective legal assistance. Poor performance by the defense lawyer of his duties leads to a violation of the accused’s right to defense in criminal proceedings and, as a consequence, to an unfair trial. For example, in the case of Czekalla v. Portugal, the European Court of Human Rights, in a ruling of October 10, 2002 (case No. 38830/97), found that the requirements of paragraph 1 and subparagraph “c” of paragraph 3 of Article 6 of the Convention had been violated and indicated, that the appointment of a lawyer in itself did not provide the accused with effective legal protection. While providing legal assistance, the applicant's lawyer did not comply with the procedural requirements contained in the country's legislation when filing a complaint with the Supreme Court. This procedural negligence led to the lawyer's complaint being declared inadmissible and Cekalla being deprived of a specific remedy. In the case of Sannino v. Italy, the European Court of Human Rights, in a judgment of 27 April 2006 (case no. 30961/03), found clear deficiencies in the work of the court-appointed lawyer, which violated the accused’s right to defense. The shortcomings were expressed in the fact that the lawyer did not apply to postpone the hearing and did not call witnesses on behalf of the accused, whose participation in court hearings was allowed. The court found the requirements of paragraph 1 and subparagraph “c” of paragraph 3 of Article 6 of the Convention to be violated. In the case of Sakhnovskiy v. Russia, the European Court of Human Rights, in its ruling dated 02/05/2009 (case No. 21272/03), recognized the fact that the lawyer did not have prior agreement with the client on the legal position as a violation of the right to defense. This was of particular importance due to the fact that the lawyer had to speak in court in support of the arguments of the cassation appeal filed long before by another lawyer. As a result, the presence of a defense lawyer at the hearing of the case in the court of cassation was reduced to a mere formality, in which the European Court found a violation of the requirements of paragraph 1 and subparagraph “c” of paragraph 3 of Article 6 of the Convention.

Conclusions and recommendations.

The duties of a defense lawyer in criminal proceedings are established by the Code of Criminal Procedure of the Russian Federation, the Law on Advocacy, the CPEA, as well as the norms of international law. The defense lawyer is obliged to honestly, reasonably, conscientiously, skillfully, principledly, timely and actively defend the rights and interests of the client by, firstly, fulfilling all the duties of a defender provided for by the Code of Criminal Procedure of the Russian Federation, and secondly, implementing all the rights of a defender provided for by the Code of Criminal Procedure of the Russian Federation, if for There are legal grounds for this and it does not contradict the will of the client. At the same time, the lawyer does not have the right to refuse to undertake the defense, make public statements about the proof of the defendant’s guilt if he denies it, and take a position in the case against his will (except for cases where the lawyer is convinced of self-incrimination). A lawyer can respond to unlawful or tactless actions of an investigator, judge, client, other participants in criminal proceedings or other persons only by procedural means - complaints, petitions, challenges, comments in the protocols. No matter how these persons behave, the lawyer does not have the right to arbitrarily refuse to perform an investigative or other procedural action, citing tactical considerations for such a refusal, or to leave the place where it is being carried out as a sign of protest, since such actions are a refusal to defend. As an exception to this general rule, the qualification commission and/or the council of the bar association has the right to recognize cases when the person conducting the investigative action or presiding at the court hearing, in gross violation of the law, deprives the lawyer of the opportunity to conscientiously perform his duties as a defense attorney. Refusal of the defense and transition to the position of the prosecution are, in particular, the lawyer’s refutation of the defendant’s explanations regarding his innocence, the defense lawyer’s openly expressed reluctance to challenge any circumstance significant for the defense, and the refusal to appeal the verdict when the defendant considers it necessary. It is unacceptable to refuse the defense due to the acceptance of another assignment or because the client has not paid the fee. A lawyer’s refusal to undertake the defense is a significant violation of the law, indicates a gross failure by the lawyer to fulfill his professional duty and entails the immediate replacement of a lawyer in criminal proceedings. The above judicial practice, in fact, is a certain legal position in the assessment of specific situations and is addressed not only to the courts, but also to lawyers involved in the defense of the accused (suspects). Lawyers who ignore the above legal position of the courts and act contrary to this position violate not only the criminal procedural law, but also the professional duty of a defense lawyer. Qualification commissions and councils of bar chambers of constituent entities of the Russian Federation must take into account all the circumstances of violation by lawyers of their professional duty, and first of all, pay attention and fundamentally respond to violations by defense lawyers of duties that limit or deprive their clients of the right to defense, and especially to such flagrant violations, which indicate the lawyer’s refusal to undertake the defense. Responsibility measures applied to lawyers who have committed violations of the rights to defend their clients must be proportionate to these serious violations of the professional duty of a defense lawyer, and if cases of refusal to defend are identified, as a rule, lead to deprivation of lawyer status.

Vice-President of the FPA of the Russian Federation, Chairman of the EMC of the FPA Council, G.K. Sharov March 23, 2011

Case Study

Let's trace the real development of the situation. The defense attorney, independently or with the help of a private detective, identified a person who has important information in favor of the client.

Since a lawyer does not have the right to consolidate a person’s testimony through interrogation, the maximum that he can obtain is a written explanation from the person addressed to the investigator or prosecutor. Having such a document, the defense attorney, guided by Articles 119-120 of the Code of Criminal Procedure, submits a written petition to the investigator investigating the case with a request to interrogate the specified person as a witness and attaches the received explanation to the petition.

The investigator, on the basis of Article 159 of the Code of Criminal Procedure, is obliged to interrogate a witness, however, there are two possible consequences that are undesirable for the defense lawyer.

Firstly, the investigator can refuse to satisfy any request, and often does this completely unmotivated.
In addition, it must be taken into account that according to the new Code of Criminal Procedure, the investigator performs only the function of prosecution (criminal prosecution) and he does not need exculpatory evidence. Secondly, finding yourself in the “grip” of the investigator, under the threat of criminal liability for giving knowingly false testimony (and this is not included in the explanations to the defense lawyer), the interrogated person may give evidence that is completely different from what he stated in his explanation to the lawyer.

Anticipating such prospects, the defense attorney most likely will not reveal his “card” to the investigator, but, based on tactical considerations, will present a potential defense witness only in court, where he will necessarily be questioned in accordance with Part 4 of Art. 271 Code of Criminal Procedure.

So, an interview with a person by a defense attorney will become evidence in the case only if the investigator, through an investigative action - interrogation - obtains testimony from this person.

Lawyer's work in court

If the investigator transferred the case to the prosecutor and then to the court, the lawyer’s work depends on what strategy was chosen by the client.

If an active defense strategy is chosen in the case, criticizing the evidence and challenging the charges in whole or in part, the lawyer’s job is to interrogate witnesses, victims, and defendants in court; examine other evidence; submit petitions to the court (about the inadmissibility of evidence, to call a witness for questioning, etc.); object to the prosecutor’s requests that may harm the client; speak in debates and analyze in detail the evidence and legal position of the prosecution.

If the conditions established by law for termination of the case in connection with the reconciliation of the parties, with active repentance or with the imposition of a judicial fine are met in the case, and the defendant wants to obtain such a result, it is necessary to correctly draw up a petition for this, as well as convince the court of the advisability of terminating the criminal case.

Courts do not always dismiss criminal cases, since this is their right, not their obligation. For example, courts refuse to dismiss some criminal cases, citing the fact that the crime that the accused is charged with is “double-objective” and therefore cannot be dismissed. However, Russian legislation does not contain either the concept of “double-objective crimes” or restrictions on the termination of criminal cases for certain crimes. In addition, the size of the court fine is also important. A lawyer can tell you what measures to take to get the smallest fine possible or even pay it in installments.

If the defendant has chosen to consider the case in a special manner, it is necessary to collect and provide the court with as much information as possible about mitigating circumstances in order to mitigate the possible punishment as much as possible.

You can read about what a special order is, what its consequences are, and whether it is worth choosing it here and here.

The result of a lawyer’s work in a criminal case in court can be an acquittal in full or in part, reclassification of the charge to a more lenient one, mitigation of punishment, preparation of the case for further appeal, including filing a complaint with the ECHR.