When do you have the right to defense in criminal proceedings?

Right to defense in criminal proceedings

The right to defense in criminal proceedings presupposes a set of procedural rights granted to the suspect and accused for protection from suspicion and accusation, both personally and with the help of a defense lawyer. Only a lawyer acts as a defense attorney at the preliminary investigation stage. The current criminal procedural legislation of the Republic of Belarus does not provide for the right to defense in criminal proceedings for persons who are not in the status of a suspect or accused. Thus, the right to defense in criminal proceedings , including the right to have a defense attorney, formally, belongs exclusively to persons in the status of a suspect and accused.

In what situations does a person acquire the status of a suspect and accused, and therefore have the right to defense in criminal proceedings ? What to do if you need the protection of a lawyer during procedural actions much earlier than you have officially acquired the status of a suspect or accused? We'll talk about this and much more in this article.

In accordance with criminal procedural legislation, a defense attorney is allowed to participate in a criminal case from the moment a decision is made against a person to initiate a criminal case, as well as from the moment of actual detention, application of a preventive measure, recognition of a person as a suspect or filing of charges. These are the moments when the right to defense arises.

Let's take a closer look at each of these points, and also talk about earlier moments when a person needs the protection of a lawyer in criminal proceedings.

Grounds for recognizing a person as a suspect

Legislative acts establish several grounds for recognizing a person as suspected of committing a socially dangerous act.

Notification

In this case, the person is given official notice that he is a suspect.
Obtaining such a document is possible when, during the activities, the investigator established that this person was directly related to the commission of a crime. This document is handed over to the addressee against his signature; the investigator must draw up an appropriate protocol and explain to the person suspected of a crime what rights he has.

Within 3 days after delivery of the notice, the civil servant must conduct an interrogation.

Initiation of a case

To initiate a case, the authorized person must have the reasons established by Article 140 of the Criminal Procedure Code:

1. The official has a statement containing information about the crime being prepared;
2. A statement has been received about the commission of a criminal act;
3. The criminal turned himself in to confess his crime and bear the responsibility provided for by law;
4. A resolution from the prosecutor or his assistant on the need to initiate criminal proceedings in the case;
5. In some cases, the reason may be materials sent by the Central Bank of the Russian Federation or a bankruptcy trustee or liquidator of a financial structure (Article 172.1 of the Criminal Code of the Russian Federation).

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Article 140. Criminal Procedure Code of the Russian Federation “Reasons and grounds for initiating a criminal case”

Criminal proceedings in a case can be initiated if the received document contains sufficient data indicating signs of a criminal act. As for the facts indicating that a specific person is guilty of committing it, they are not necessary at the time of initiation of a criminal case. Since a factual case can initially be initiated, that is, against unidentified persons.

Suppression of freedom

Various preventive measures may be applied to a person detained as a suspect:

1. Detention;
2. Personal guarantee;
3. House arrest;
4. Drawing up a recognizance not to leave;
5. Pledge;
6. Observation of military unit command;
7. Supervision of the accused who has not reached the age of majority.

Such preventive measures can be taken by the inquiry officer or investigator during the preliminary investigation, or by the court - based on the results of consideration of the collected case materials.

If one of the above preventive measures is applied to a suspected person, the inquiry officer or investigator must file charges within 10 days from the date of its application.

Detention on suspicion of committing a crime

A person may be detained:

1. If he was caught directly at the moment of committing an illegal act;
2. If witnesses or the victim have identified this person as a criminal who needs to be brought to justice;
3. If during the inspection obvious traces of a crime were found on the body or clothing of the suspect.
4. If there is other information giving reason to suspect a person of committing a crime. In cases where he:

• tried to hide
• does not have permanent residence,
• his identity has not been established,
• the investigator, in agreement with the leadership of the investigation department, or the investigator (if there is prosecutorial consent), sent a petition to the court to select a preventive measure against him - detention.

After detention, an authorized law enforcement officer, an interrogating officer, must, within 3 hours, draw up a protocol of detention and conduct an interrogation in accordance with the current norms of the Code of Criminal Procedure of the Russian Federation (Article 46, 189-190). In a situation with minors, holding such an event is possible only in the presence of a lawyer.

The right to defense in criminal proceedings from the moment the charge is filed

Bringing charges consists mainly of presenting a person with a resolution to implicate him as an accused.

It is impossible to bring charges without first initiating a case. If a case is initiated against a specific person, then from the moment of initiation of the case until the filing of charges, the person has the status of a suspect, and the right to defense in criminal proceedings arises in this case from the moment the case is initiated. If the case was initiated upon the commission of a crime, and the person did not subsequently acquire the status of a suspect (for example, the person was not detained, a decision was not made against him to recognize him as a suspect, etc.), then the right to defense for this person will arise from the moment bringing charges. The exception is a similar situation in which the person in respect of whom a decision has been made to recognize him as an accused is located in another area or his location is unknown. In this case, the person may be detained to face charges (this is a separate basis for detention), and the right to defense in criminal proceedings will arise for this person from the moment of detention.

As you can see, there are situations when the defense lawyer has the right to be allowed to participate in the case much earlier than the charge is brought. The sooner a defense attorney enters the case, the greater the person’s chances of proving his innocence or achieving the establishment of facts that maximally mitigate his responsibility.

right to defense in criminal proceedings arises . Therefore, he can invite the suspect to indicate in some document (for example, in the protocol on clarification of rights) that he needs a lawyer from the moment the charges are filed. This allows the investigator (inquiry officer) to carry out investigative actions in the absence of a defense lawyer before bringing charges. Thus, it is advisable for the suspect, immediately after the rights of the suspect are announced to him, to demand the representation of a defense lawyer, about which to make a note in the protocol explaining these rights.

In any situation, if you are called to face charges, you have the right to have a defense attorney during this procedural action.

Services of a lawyer in a supervisory court:

• Protecting the rights of a convicted person in a supervisory court: studying the materials of the criminal case, developing a line and choosing defense tactics, determining the legal prospects for appealing the verdict; drawing up and filing a supervisory appeal against a sentence passed by the court of first instance that has entered into legal force; visiting a convicted person in a pre-trial detention center, consulting the convicted person and his close relatives on issues of criminal law and procedure; participation in the consideration of a complaint by a supervisory court;
• Representing the interests of the victim, civil plaintiff, civil defendant in the supervisory court: studying the materials of the criminal case, determining the legal prospects for appealing the verdict; drawing up and filing a supervisory appeal against a sentence passed by the court of first instance that has entered into legal force; participation in the consideration of a complaint by a supervisory court

The right to defense in criminal proceedings in criminal proceedings: conclusions

Thus, determining the moment when the right to defense arises in criminal proceedings is very important. After all, it is at this stage that a position on the case is formed, expressed in testimony during interrogation, submitted petitions and other actions aimed at protecting the suspect or accused. It is the first testimony that is most often used by the body conducting the criminal trial as one of the evidence of guilt, and then the court refers to this testimony in the verdict. Therefore, the sooner a lawyer enters into criminal proceedings as your defender, the more effective your defense in criminal proceedings will be.

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Services of a lawyer in the court of cassation (appeal) instance:

• Protection by a criminal lawyer of the rights of a convicted person in a court of cassation (appeal) instance; studying the materials of the criminal case, developing a line and choosing defense tactics, determining the legal prospects for appealing the verdict; drawing up and filing a cassation (appeal) complaint against the sentence passed by the court of first instance; visiting a convicted person in a pre-trial detention center, consulting the convicted person and his close relatives on issues of criminal law and procedure; participation in the consideration of a complaint by a court of cassation (appeal) instance;
• Representing the interests of the victim, civil plaintiff, civil defendant: studying the materials of the criminal case, determining the legal prospects for appealing the verdict; drawing up and filing a cassation (appeal) complaint against the sentence passed by the court of first instance; participation in the consideration of a complaint by a court of cassation (appeal) instance

Lawyer services at the stage of execution of the sentence:

• Protecting the rights of the convicted person: determining the place where the sentence will be served; conditional early release from serving a sentence; replacing the unserved part of the sentence with a more lenient punishment; early expungement of a criminal record, expungement of a criminal record; appealing the actions and decisions of the administration of the colony or other body in charge of executing punishment;
• Representation of the interests of the victim, civil plaintiff, civil defendant: obtaining a writ of execution, presenting it to the bailiff service to initiate enforcement proceedings; participation in executive actions; exercise of other rights of a representative in enforcement proceedings

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Remember that there are no hopeless situations!

There is a way out of any life situation involving a violation of the law. If you do not see him, then you need the services of a lawyer in a criminal case. We are ready to organize professional assistance from a lawyer who will help you develop a strategy and tactics of action and bring the criminal case to its conclusion.

Call today on +7 (846) 212-99-71 and a criminal lawyer in Samara will help you. Today you can find out a simple solution to your problem.

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