Procedural position of the defense lawyer in criminal proceedings

Defender - a person who, in accordance with the procedure established by the Criminal Procedure Code of the Russian Federation, protects the rights and 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 of the Russian Federation). At the same time, the defense attorney cannot be regarded as a representative of the accused. An indispensable condition for representation is the transfer to the representative of all rights of the represented. Russian criminal proceedings are based on the fact that the accused personally participates in it. The accused cannot replace himself with a defense lawyer and act through him. Thus, the defender is an independent subject of the criminal process.

List of services of lawyers, defenders of clients

The services of defense lawyers may be needed in a variety of situations, from representation in court or investigative authorities when initiating a criminal case, to civil proceedings. In the latter case, legal assistance is also important. If they are trying to collect a debt or compensation from a client, with the help of a qualified specialist it is possible to obtain a court decision in his favor, and then he will not have to pay.

What services do lawyers and criminal defense attorneys provide?

• Preparation of claims, objections and other procedural documents;
• Challenging sentences and determinations;
• Oral and written consultation;
• Protection of clients at meetings;
• Collection of evidence, search for witnesses;
• Development of a business strategy;
• Analysis of case materials;
• Appealing unlawful actions of investigators.

Services of a lawyer (defender) in civil cases

• Challenging transactions in courts;
• Appealing court decisions;
• Resolution of disputes regarding inheritance or division of property;
• Work on family law: collection of alimony or arrears, deprivation of parental rights, establishing or challenging paternity;
• Representation in disputes with insurance companies regarding non-payment of compensation for road accidents or understatement of the amount of payments.

Defense lawyers also provide their services in administrative cases: challenging acts and resolutions of government agencies, bringing citizens and legal entities to justice, etc.

The Supreme Court clarified the admission of public defenders to the colony

According to the law, the court can, along with a lawyer, allow one public defender (often a relative of the defendant), who is not required to have a higher legal education (Article 49 of the Code of Criminal Procedure), to attend the trial. And such a defender will have all the rights of a professional lawyer in this proceeding, says a former senior investigator of the Ministry of Internal Affairs, and now a lawyer. Law Office "Thorn" Law Office "Thorn" Regional rating. Farhad Timoshin.

For admission to court

Former member of the Public Monitoring Commission (POC) of the Republic of Mordovia, Sergei Maryin, has been acting as a defender for local prisoners for several years. At the end of 2021, he wanted to go to the territory of Mordovian IK-10, where three of his clients were serving sentences under various articles. In statements addressed to the head of the colony, Maryin indicated that he was going to take powers of attorney from prisoners to file complaints with the ECHR. But he was not allowed to see the convicts, and the documents were returned without any notes from the head of IK-10 about the reasons for the refusal of visits.

Case No. 15-КГ18-9

Plaintiff: Sergey Maryin

Defendant: Correctional colony (IK-10) of the Republic of Mordovia

Court: Supreme Court

The essence of the dispute: Can a public defender without a higher legal education get a meeting with his clients in a colony?

Solution: Yes it can

Then the former member of the PMC challenged the actions of the FSIN employees in court (case No. 33a-828/2018). He presented the protocol decisions of the courts, which allowed him to be a defense lawyer in three trials. Despite this, two authorities in their refusal indicated that the plaintiff does not have a higher legal education, which means he cannot professionally provide qualified legal assistance. The courts emphasized that the convicts themselves did not ask for a meeting with Maryin. The first instance and the appeal added that the colony administration is not obliged to indicate the reason why it refuses such visits (Order of the Ministry of Justice of December 16, 2021 No. 295).

The public defender did not agree with such conclusions and appealed them to the Supreme Court (case No. 15-КГ18-9). The Supreme Court immediately noticed: in the case materials there is evidence that Maryin is the defender of the convicts with whom he sought to meet. This is confirmed by the protocol decisions of the courts. The judges of the Supreme Court also noted that for the controversial situation it does not matter whether the prisoners themselves asked for a meeting with the ex-member of the POC or not. The Judicial Collegium for Administrative Cases emphasized that in the case under consideration, the courts had to first determine whether Maryin was seeking a meeting to provide legal assistance to his clients or for something else. Taking into account the above, the trio of judges of the Supreme Court, chaired by Vladimir Khamenkov, canceled the acts of the lower authorities and sent the case for a new trial back to the court of first instance with a different composition (editor's note - not yet considered).

Pravo.ru experts: “The Armed Forces are fighting against bad practices”

The problem with accessing defense attorneys to clients who are in pre-trial detention centers and colonies has existed for several years. Four years ago, a draft law was submitted to the State Duma for consideration, which provided for the access of lawyers to clients. But until December 2016, parliamentarians did not have time to consider it. The bill was remembered only after FPA adviser Yuri Kostanov, during a meeting between Vladimir Putin and members of the HRC in December 2021, complained to the president that lawyers were still having difficulties visiting clients in pre-trial detention centers (see “Lawyers reminded the president about problems with admission to the pre-trial detention center"). After this, Putin himself initiated a similar bill, which was adopted in the spring of 2017. Among other things, the novellas eliminated the “terminological error” in Art. 49 Code of Criminal Procedure. Now the lawyer “enters” into a criminal case, rather than “allowed” to participate in it. This change enshrined at the legislative level the access of lawyers to clients.

Partner Romanov & Partners Law Firm Romanov & Partners Law Firm Federal rating. group Criminal Law Company profile Matvey Protasov recalls that back in 2021, the Constitutional Court indicated the obligation of FSIN employees to motivate the refusal of a lawyer to meet with the accused (Determination No. 2358-O). The Constitutional Court then emphasized that such a refusal cannot be based solely on the lack of information about the participation of a lawyer in a specific criminal case. Moreover, the administration must independently find out information about this from the investigator. But, despite the clarifications of the Constitutional Court and the adopted “presidential amendments” to the Code of Criminal Procedure, difficulties with access to the pre-trial detention center for defenders still arise, Protasov admits. In some Russian regions, pre-trial detention center employees still require lawyers to obtain permission from the investigator and the court, but such a document is not enshrined in either the Criminal Procedure Code or other legal acts, notes Timoshin.

Until now, lawyers, planning to visit some pre-trial detention centers, are forced to insure themselves against the risk of not getting to their client with such “permissions” from investigators. They are not provided for by criminal procedure legislation, so defense attorneys present them only as a last resort.

Dmitry Soldatkin, managing partner of MCA Soldatkin, Green and Partners (SZP Law) MCA Soldatkin, Green and Partners (SZP Law) Federal rating. group Family and inheritance law group Labor and migration law (including disputes) group Criminal law

But problems with seeing a lawyer occur not only when the principal is in custody. Sometimes a citizen is deprived of the opportunity to contact a lawyer during a search, says lawyer Alexey Serdyuk from Knyazev and Partners Knyazev and Partners Federal Rating. group Criminal law Company profile. To do this, it is enough for the investigator to obtain a search warrant with a note of familiarization. After this, law enforcement officers report that the investigative event has begun, and all those present until its end are prohibited from communicating with each other and other persons, including contacting lawyers, the lawyer explains: “Of course, such a restriction is illegal, since his participation is directly provided for in Art. 182 of the Code of Criminal Procedure (“Grounds and procedure for conducting a search”). So, in order to avoid such situations, Serdyuk recommends first contacting a lawyer, and only then getting acquainted with the search warrant and putting the appropriate mark in it.

Taking into account all the listed difficulties, Protasov welcomes the decision of the Supreme Court under discussion: “It demonstrates the effectiveness of judicial appeal of decisions of officials that clearly contradict the opinion of judges.” The conclusions of the Supreme Court will ideally stop the vicious practice of non-admission or at least serve as a stable guideline for lower courts, which sometimes still take the side of FSIN employees.

• Alexey Malakhovsky

• Supreme Court of the Russian Federation
• criminal process

Cost of services in criminal proceedings

Consulting From 4,600 Drawing up claims and objections From 5,100 Filing petitions From 2,150 Travel to the place of detention of the ward From 12,200 Collection of evidence From 12,100 Defense before the initiation of a criminal case From 33,200 Representation during the preliminary investigation From 65,100 Cassation or appeal From 41,100 Representation during cassation proceedings From 22,200 Drawing up complaints From 14,150 Representation during investigative activities From 8,100 Attending the first court hearing From 12,250 Analysis of criminal case materials with development of strategy From 7,200 Resolving legal issues with police officers From 8 100 Meetings with clients in detention centers From 7,600 Protection of the rights of wards in temporary detention facilities From 22,100 Representation in courts of first instance From 45,200

Everything about criminal cases

Joining a case in court
Ith instance
- the restriction that the defender can only participate along with a lawyer

- it's nothing.

Url Additional information:

- Part 3 51 Code of Criminal Procedure

if a defense attorney is not invited, they are required to provide one

- there is no need to specifically hire a lawyer, the court will provide a free one ( 51 Code of Criminal Procedure

).

- technical aspect, if you are entering into a case at the court of the first instance, then it is appropriate to notify the judge in advance about the need to invite a free lawyer, this (in practice, it is quite enough to call the secretary, introduce yourself, inform that you will enter into the case as a public defender, explain the reasons for your call that you warn about the need to call a lawyer in advance).

Url Additional information:

- part 1 241 of the Code of Criminal Procedure

proceedings in the courts are open (general rule)

- come to the courtroom together with all participants (according to the general rule 241 of the Code of Criminal Procedure

the proceedings in court are open and any citizen has the right of access to the courtroom).

- when the judge begins to find out the identities of those in the room, you need to inform him that you are the defense attorney for whose admission the defendant will file a petition.

Url Additional information:

— Part 1 271 Code of Criminal Procedure

at the beginning of the hearing the judge is obliged to ask about motions

— the moment for filing a petition is provided for by 271 Code of Criminal Procedure

, the defendant verbally declares that he has a petition for admission of a defense lawyer and submits it (through the bailiff) to the judge.

If the defendant is in custody

- the problem here is that the defense lawyer (before he is recognized as such in court) does not have the opportunity to meet with the client, the question arises: how to submit the petition

?

— the relatives of the defendant cannot help here; in the period before the verdict is announced, they are usually not given visits.

You will need the assistance of a lawyer

- hand over two petition forms to the defendant in the pre-trial detention center with the help of a lawyer.

- He signs one form and gives it to the lawyer.

- He leaves the second form for himself in order to read it orally.

— it makes sense to write a covering letter that explains to the defendant when and how he should make this motion.

- advice: if a free lawyer is involved in the case, then he is not obliged to visit the pre-trial detention center, pay him for 1 visit to the pre-trial detention center to submit a petition, this is fair, because the state does not pay for visits to the pre-trial detention center (contrary to paragraph 4

Plenum No. 42).

- all this can be implemented directly on the day of the trial; for this, the lawyer, before the start of the court hearing, can go to the “escort” (the place where those brought to court are kept).

Url Additional information:

- Art. No. 103-FZ correspondence of persons in custody

- if time before the meeting allows, then it is quite possible to do this by mail (Article No. 103-FZ).

Prices for lawyers to protect victims

Oral consultation From 4,100 Sending lawyer requests From 4,600 Appealing the refusal to initiate a criminal case From 4,200 Filing an application to initiate criminal proceedings From 7,600 Presence during investigative activities From 6,050

Additional services

Representation in civil proceedings From 27,200 Protection of interests in administrative cases or arbitration proceedings From 32,100

The assistance and comprehensive assistance of a lawyer (defender) may be needed by all parties to the proceedings: suspects, accused, convicted persons, victims, witnesses. In such matters, it is important to choose a professional, and our rating has already helped several hundred people with this.

The Constitutional Court decided whether the defender should have a legal education

The Constitutional Court of the Russian Federation issued a ruling refusing to accept for consideration the complaint of citizen P., who is serving a criminal sentence. In his appeal, he raised the question of the unconstitutionality of a number of norms of the Code of Criminal Procedure of the Russian Federation, which relate to the invitation, appointment and replacement of a defense lawyer, payment for his work, as well as circumstances excluding his participation in criminal proceedings. According to P., the contested norms, among other things, allow the court to refuse admission as a defense attorney to one of the relatives or another person on the sole grounds that the defense of the defendant is carried out by a professional lawyer, and the person for whose admission the defendant applies does not have a legal education .

The Constitutional Court indicated that, indeed, in relation to the judicial stage of the criminal process, one of the methods of defense against the accusation, which is not only not prohibited, but is also directly enshrined in Part 2 of Art. 49 of the Code of Criminal Procedure of the Russian Federation, is an invitation to participate in a court hearing at the request of the accused as a defense attorney, along with a lawyer, one of his close relatives. The Court also noted that during proceedings before a magistrate, the specified person is allowed instead of a lawyer.

“Part 2 art. 49 of the Code of Criminal Procedure of the Russian Federation does not imply the right of the court to arbitrarily - without taking into account other provisions of this Code, the circumstances of a particular case and the personality characteristics of the person invited as a defense attorney - to reject the corresponding petition of the accused,” the Court emphasized, referring to a number of previously issued rulings. The Court pointed out that law enforcement practice proceeds from the same thing. But at the same time, the Court indicated that restriction of such a right is possible if there are significant grounds for this, one of which is the inability of the proposed defense attorney to provide legal assistance to the defendant and perform other procedural duties.

As noted by Sergei Borodin, advisor to the Federal Law Enforcement Agency of the Russian Federation, managing partner of Borodin and Partners, the lengthy wording of Part 2 of Art. 49 of the Code of Criminal Procedure of the Russian Federation led to the formation of a false idea among ordinary people regarding the possibility of admission to participation in a criminal case as a defender of any of the relatives.

He noted that, indeed, the text itself does not contain any reservations regarding the requirements for relatives and other persons admitted as defenders. However, according to the expert’s remark, the Constitutional Court of the Russian Federation back in 1997, that is, before the adoption of the current Code of Criminal Procedure of the Russian Federation, expressed its position on the obligatory nature of the defense lawyer’s legal education. Thus, Resolution No. 2-P of January 28, 1997 confirmed the right of the accused to choose his defense attorney. At the same time, it is indicated there that enshrined in Part 2 of Art. 48 of the Constitution of the Russian Federation, the right to use the assistance of a lawyer (defender) is one of the manifestations of a more general right guaranteed by Part 1 of Art. 48 of the Constitution, every person has the right to receive qualified legal assistance.

“Therefore, the provisions of Part 2 of Art. 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. Participation as a defense attorney during the preliminary investigation of the case of any person of the choice of the suspect or accused may lead to the fact that the defense attorney turns out to be a person who does not have the necessary professional skills, which is incompatible with the objectives of justice and the duty of the state to guarantee qualified legal assistance to everyone,” stated Sergei Borodin.

The expert also recalled that the Constitutional Court of the Russian Federation confirmed this position subsequently in its Determination No. 208-O of April 22, 2005, that is, already during the period of validity of the current Code of Criminal Procedure of the Russian Federation. In addition, as Sergei Borodin pointed out, the above opinion is shared by the Plenum of the Armed Forces of the Russian Federation, which in paragraph 11 of its Resolution No. 29 of June 30, 2015 “On the practice of application by courts of legislation ensuring the right to defense in criminal proceedings”, explained that provisions of Part 2 of Art. 49 of the Code of Criminal Procedure of the Russian Federation should not be interpreted as allowing arbitrarily to admit as a second defender (not a lawyer) any person, even one who, due to his mental, moral and psychological qualities, is capable of defending himself in a criminal case.

“As for my personal opinion as a lawyer, I completely agree with the position of the Constitutional Court. Removing any restrictions on the admission of relatives of the accused or other persons who do not have a specialized education as defense attorneys is unacceptable. Firstly, this will create the risk of turning individual court hearings into a “bazaar”, during which “relative defenders” who do not have a basic understanding of the rules of the criminal process will actually hinder the normal and consistent trial of the case. Secondly, providing the accused with unqualified legal assistance can harm him. It seems doubtful that this or that relative of the accused without proper education will be able to correctly build a line of defense, timely submit this or that petition, formulate it correctly, etc.,” the expert concluded.

Lawyer at Patron Law Firm Lidiya Shevtsova agreed with her colleague that the norm in question, from the moment it was introduced into the Code of Criminal Procedure of the Russian Federation, has become “truly a cornerstone in terms of law enforcement practice.” According to the expert, the problem lies in the incorrect application of the basic provisions of legislative technology when constructing Art. 49 of the Code of Criminal Procedure of the Russian Federation, which subsequently leads to an erroneous interpretation of the content of the norms of constitutional and criminal procedural legislation interconnected with it (for example, Article 45 of the Constitution of the Russian Federation, Article 72 of the Code of Criminal Procedure of the Russian Federation).

However, Lidiya Shevtsova has a different opinion regarding the interpretation of the contested norm: “As judicial practice shows, most refusals to admit a defense attorney along with a lawyer are due to the lack of legal education of such a defender,” she said and emphasized that such decisions contradict the position of the Supreme Court. The expert also referred to paragraph 11 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 30, 2015 No. 29, but she said that it “specifically states that the court should only take into account the possibility of the defender, along with the lawyer, providing legal assistance to the accused, and not check the presence or absence of a diploma in legal education or identify the level of legal knowledge of the person whose participation in criminal proceedings the accused is applying for.”

Lidia Shevtsov concluded that the analyzed ruling of the Constitutional Court of the Russian Federation is justified and motivated in terms of the grounds and procedure for admitting a defense attorney along with a lawyer at the judicial stage of criminal proceedings: “Thus, the Constitutional Court points only to significant grounds that do not allow admitting a defense attorney into the case along with a lawyer.” with a lawyer, but does not imply that the defender lacks legal education. Within the framework of the powers granted by the Constitutional Court, a reasoned response was given to the applicant’s complaint, which does not contradict the norms of Russian criminal procedure legislation, including Art. 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.”

An expert at the Yusland Law Office, Alexander Changli, agrees that defense attorneys without a legal background can be admitted to the case: “The Constitutional Court has attributed the issue of admitting other persons as defense attorneys in a criminal case to the discretion of the court. At the same time, the Court indicated that the right to engage other persons as defenders may be limited in the event of the inability of the proposed defender to provide legal assistance to the defendant and fulfill his other procedural duties, and the court’s decision on the petition must be motivated.” He added that this decision of the Court fits well within the framework of the ideas of the Concept for regulating the market for professional legal assistance.

“Unfortunately, the problems we have are rather not legislative, but rather law enforcement,” concluded Alexander Changli, expressing the hope that this definition will not be perceived by the courts of first instance as an instruction to limit such a method of protection as the involvement of other persons as defenders.

Lawyer for defense in criminal proceedings

All suspects or defendants are entitled to state lawyers when initiating criminal proceedings. Often they do not want to work, because regardless of the results, the money will be paid to them. That is why citizens usually turn to private organizations to get help from a reliable defense lawyer.

The powers of a lawyer in criminal proceedings are determined by the Code of Criminal Procedure of the Russian Federation and other legislative acts. Throughout the entire process they have the following rights:

• Request visits with the client at any stage of the proceedings. This is necessary to clarify the circumstances and develop a strategy for further actions in favor of the client;
• Independently collect and provide evidence in courts and other authorized bodies involved in the proceedings;
• Involve other specialists. For example, if analysis and expert opinion are required;
• Be present at interrogations of the client;
• Familiarize yourself with all procedural documents related to the case;
• Receive copies of criminal case materials;
• Submit petitions and challenges;
• Appeal against illegal actions of prosecutors, judges and other government officials.

The full list of rights of lawyers and defenders can be described in one phrase: “what is not prohibited is permitted.” An experienced specialist will always find “loopholes” in the legislation, thanks to which it will be possible, at a minimum, to soften the sanctions for the ward, and, at a maximum, to achieve the dismissal of charges or the assignment of a suspended sentence, if the law allows it.

Some features of the legal status of a defender (lawyer) in modern criminal proceedings

 The article discusses the legal status of a criminal lawyer as a defense attorney and as a representative. Some problems in distinguishing these statuses are identified.

Key words: defense attorney, representative, criminal process, legal assistance.

The right of every person and citizen to receive qualified legal assistance is enshrined in Art. 48 of the Constitution of the Russian Federation [1] and is valid throughout the Russian Federation. Thus, this constitutional provision has changed the legal status of a lawyer in modern criminal proceedings.

Currently, advocacy is the provision of qualified legal assistance on a professional basis by defenders, that is, by persons who have received the status of a lawyer in the prescribed manner and, accordingly, the right to practice law [8, p. 7].

In modern legal realities, a lawyer is not only a defender in criminal legal relations, but also a professional, qualified adviser on all legal issues in this area.

As for the direct provision of legal assistance to citizens in criminal proceedings, it is very diverse, and includes participation in the preliminary investigation and criminal court as defenders, representatives of victims, and civil plaintiffs.

When a lawyer performs various procedural functions, his procedural status is formed based on the norms of the Criminal Procedure Code of the Russian Federation (hereinafter referred to as the Code of Criminal Procedure of the Russian Federation) [2].

Thus, in the Code of Criminal Procedure of the Russian Federation, the legal position of the defender is specified and filled with its own content depending on the status of the principal - that participant in criminal proceedings whose interests the lawyer defends. In addition to the Constitution of the Russian Federation and the Code of Criminal Procedure of the Russian Federation, which determine the legal status of a defense lawyer in criminal proceedings, the direct legislative act regulating his activities is the Federal Law of May 31, 2002 No. 63-FZ “On advocacy and advocacy in the Russian Federation” (hereinafter referred to as the Federal Law). Law No. 63-FZ) [3].

If we refer to clause 5, part 2, art. 2 of Federal Law No. 63-FZ, then in this norm you can see that a lawyer in criminal proceedings can have two procedural statuses: defender and representative. Here we should agree with A. A Davletov that these concepts are used in relation to the collective term “principal”, and therefore it is not clear from this legislative act in which cases the lawyer acts as a representative, and in which as a defender [6, p. 24]. We believe that an explanation of this problem can be found in the norms of the Code of Criminal Procedure of the Russian Federation.

In our opinion, a feature of the legal status of a lawyer is the direct area of ​​his activity, enshrined in the Code of Criminal Procedure of the Russian Federation and called “defense”. This concept is used in two meanings - broad (general legal) and narrow (industry) and is contained both in the scientific works of legal proceduralists and in legislative acts.

From a broad perspective, protection is nothing more than the defense of the rights, freedoms and interests of any person, in any legal field. A similar position is confirmed by Art. 45 of the Constitution of the Russian Federation. However, in the scientific literature there are opposing points of view on this issue. Thus, I.V. Tishutina believes that a lawyer represents a defender as a special, leading subject of countering the investigation, since only he is involved in the destruction, reformulation of information about the crime, up to justifying the need to counter the investigation [9, p. 53].

It should be noted that in criminal proceedings the concept of “defense” is given a different, narrow meaning, associated with only one subject - the criminally prosecuted person (suspect, accused). In all articles of the Code of Criminal Procedure of the Russian Federation, except Art. 6, the term “protection” is used in this meaning. The person entitled to such protection is called the suspect, the accused; a defender is called “a person who protects the rights and 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 of the Russian Federation). Cases of mandatory participation of a defense lawyer are established in relation to a suspect or accused (Article 51 of the Code of Criminal Procedure of the Russian Federation); the defender in court is designated as the defendant’s defender (Article 248 of the Code of Criminal Procedure of the Russian Federation), etc.

From the point of view of many theorists of criminal procedural law, the function of protection provided by a lawyer is a counterbalance to the function of prosecution by the state prosecutor [7, p. 52]. But, if in theory there is a clear definition of prosecution, then the definition of “defense,” unfortunately, is not clearly defined. However, by comparing the considered points of view, we can derive our own definition of “defense in criminal proceedings,” which should be understood as the procedural activity of the criminally prosecuted person and his lawyer, consisting of refuting suspicion or accusations or mitigating criminal liability.

From a theoretical perspective, it can be argued that defense in criminal proceedings is a function that can resist criminal prosecution, and a defense attorney is a person who has the right to exercise this function in the interests of the suspect or accused, and all other ways of defending the interests of other participants in the criminal process, cannot be considered a defense.

Based on this, in the legal literature, a second concept was formed, applied to the functions of a lawyer - “representation”. This term in criminal proceedings also has its own meaning.

Representation carried out by a lawyer (in theory it is called contractual, in contrast to legal representation), according to the Code of Criminal Procedure of the Russian Federation, is associated with four subjects: the victim, the civil plaintiff, the civil defendant and the private prosecutor. Only these participants of the Code of Criminal Procedure of the Russian Federation are given the right to “have a representative” (clause 8, part 2, article 42, article 43, clause 8, part 4, article 44, clause 6, part 2, article 54), and in art. . 45, 55 we are talking about representatives of only these persons.

According to D.V. Sharov, a defense lawyer is a representative, since he acts on behalf and in the interests of the criminally prosecuted person [10, p. 131].

If we proceed from the provisions of Federal Law No. 63-FZ on the two legal statuses of a lawyer in criminal proceedings - defender and representative, then all activities of a lawyer, except for providing qualified legal assistance to a criminally prosecuted person, are representation. The logic here is simple - if a lawyer is not a defender, then he is a representative, because there is no third option. However, such a conclusion conflicts with the limitation of the circle of represented persons to the four specified participants in criminal proceedings.

The Constitution of the Russian Federation provides everyone with the right to receive legal assistance, and therefore in the Code of Criminal Procedure of the Russian Federation, along with subjects who defend their legal interests in criminal proceedings through defense and representation, other participants also have the right to attract a lawyer: a witness (clause 6, part 4, article 56 ), persons participating in the stage of initiating a criminal case (Part 1.1 of Article 144), a person whose premises are being searched (Part 11 of Article 182), etc. In this regard, in the theory of criminal proceedings, the question arose about the status a lawyer providing legal assistance to the specified participants in legal proceedings.

As mentioned above, lawyers participate as defenders. Also, criminal procedural norms establish the right of one of the close relatives or another person to be admitted along with a lawyer as a defense attorney. The gap in the legislation is that there are no grounds on which this right can be limited. Satisfaction of a request to admit one of the close relatives or another person as a defense attorney remains at the discretion of the court. Namely, there are no necessary criteria for allowing a person to perform defense functions in a criminal case.

It should be noted that paragraph 10 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated June 30, 2015 No. 29 “On the practice of application by courts of legislation ensuring the right to defense in criminal proceedings” [4] indicates that the accused has the right to defend himself in pre-trial proceedings carried out only by a lawyer. Permission for a person who does not have the status of a lawyer to represent the interests of the accused in court proceedings and a ban at the pre-trial stage violate the continuity of the activities of the defense in a criminal case, which violates the completeness and timeliness of the provision of legal assistance.

As E.V. Bryanskaya rightly notes in modern criminal proceedings, a defense lawyer is necessary not only for the suspect and the accused, but also for justice in general, since only its full and objective provision provides constitutional guarantees of protection from judicial errors, which ensures its general social and public significance [5, p. 22].

Reinforced in Art. 123 of the Constitution of the Russian Federation, the fundamental provision, according to which legal proceedings are carried out on the basis of adversarial and equal rights of the parties, necessitates the study of the problem of providing the defense in criminal proceedings with sufficient procedural opportunities, allowing it to counteract illegal and unfounded accusations.

Regulated by Art. 15 of the Code of Criminal Procedure of the Russian Federation, the principle of adversarial criminal proceedings assumes that the presence of the prosecution requires the unconditional, mandatory presence of the defense in the criminal process.

Regulatory provisions parts 2 and 5 art. 50 of the Code of Criminal Procedure of the Russian Federation in the system of norms of criminal procedural legislation cannot be regarded as allowing the possibility of limiting the right of the accused to receive qualified legal assistance from a lawyer (defender), since in the absence of the accused’s refusal of a lawyer or in the presence of other circumstances specified in Part 1 of Art. 51 of the Code of Criminal Procedure of the Russian Federation, they do not exclude the obligation of the court to ensure the participation of a defense attorney during court proceedings.

Summarizing the consideration of some features of the legal status of a defense attorney in criminal proceedings, we can draw some conclusions:

1. The concepts of lawyer and defender cannot be identified in criminal proceedings.
2. A lawyer receives the procedural status of a defender only in cases where he defends a suspect or accused.
3. A lawyer who defends the rights of a victim, a civil plaintiff, or a civil defendant is granted the status of a representative.
4. A lawyer who defends the interests of persons in additional proceedings (for example, persons in respect of whom the issue of parole is being considered) is also called a lawyer, but his procedural status differs from that of a witness’s lawyer and is close to the procedural status of the defendant’s defense attorney.

Literature:

1. Constitution of the Russian Federation: adopted by popular vote on December 12. 1993 // Russian newspaper. - 1993. - December 25. - No. 237.
2. Criminal Procedure Code of the Russian Federation of December 18, 2001 No. 174-FZ // Collection. legislation of the Russian Federation. - 2001. - No. 52 (part I). — St. 4921.
3. On advocacy and the legal profession in the Russian Federation: federal law of May 31, 2002 No. 63-FZ // Collection. legislation of the Russian Federation. - 2002. - No. 23. - Art. 2102.
4. On the practice of application by courts of legislation ensuring the right to defense in criminal proceedings: Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 30, 2015 No. 29 // Rossiyskaya Gazeta. — 2015. — July 10.
5. Bryanskaya E.V. Argumentative power of evidence when considering criminal cases in the court of first instance: monograph. - Irkutsk: ISU Publishing House, 2015. - 193 p.
6. Davletov A. A. Procedural statuses of a lawyer in criminal proceedings // Lawyer practice. — 2021. — No. 5. — pp. 24–30.
7. Strukova V.V. On the issue of providing unqualified legal assistance from a lawyer in criminal proceedings // Siberian criminal procedural and forensic readings. - 2016. - No. 1. - pp. 51–56.
8. Tatyanchenko E. S. Legal status of a lawyer in criminal proceedings // Legality and legal order in modern society. — 2021. — No. 29. — P. 7–11.
9. Tishutina I.V. Defender in criminal proceedings // Bulletin of the East Siberian Institute of the Ministry of Internal Affairs of Russia. — 2021. — No. 2. — P. 52–60.
10. Sharov D.V. Representation of the victim in criminal proceedings: current state and directions for improvement // Bulletin of the Moscow University of the Ministry of Internal Affairs of Russia. - 2016. - No. 4. - P. 131–134.

Responsibilities of a defense lawyer in criminal proceedings

The obligations of a lawyer defending the interests of a client are determined by Art. 7 Federal Law dated May 31, 2002 No. 63-FZ. According to it, the defender must comply with the following rules:

• Defend the rights and interests of the client by any means permitted by current legislation;
• Transfer monthly contributions to the account of the Bar Association;
• Protect citizens when appointed by investigative authorities, provide free assistance in cases provided for by legal norms;
• Constantly improve the level of qualifications and knowledge;
• Comply with the norms of the code of professional ethics;
• Keep all information received during professional activities confidential, except in cases of interaction with government agencies.

Compliance with all the above criteria allows lawyers, called defenders, to carry out their activities without hindrance and expand their client base.

Our rating lists only experienced lawyers who, in addition to knowledge of the law, have extensive work experience. Their wealth of knowledge allows them to successfully complete even hopeless cases that are beyond the capabilities of public defenders and other companies that are not included in the rating.

Defender concept

A defense attorney is a person who, in accordance with the procedure established by law, protects the rights and 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).

It seems that at the same time, a defense attorney is an individual with a higher legal education who has entered into an agreement with a client to provide legal assistance to a suspect or accused and is allowed to participate in criminal proceedings.

At the same time, we agree with the legislator that the concept of a defender is broader than the concept of a defense lawyer. However, the participation of other persons as defense counsel in criminal proceedings is very insignificant. At the stage of preliminary investigation, only a lawyer who is a member of the Bar Association is allowed to act as a defense attorney for a suspect or accused in a criminal case. , one of the close relatives of the accused or another person for whose admission the accused applies may be admitted as a defense attorney in a criminal case in court proceedings, along with In a criminal case pending before a magistrate, the indicated persons may be admitted instead of a defense lawyer.

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<1> The organizational and legal foundations of advocacy are regulated by the Federal Law of May 31, 2002 N 63-FZ “On advocacy and the legal profession in the Russian Federation” (SZ RF. 2002. N 23. Art. 2102).

The defense attorney is allowed to participate in the criminal case in accordance with Part 3 of Art. 49 Code of Criminal Procedure from the moment:

1) issuing a resolution to charge a person as an accused, except for the cases provided for in paragraphs 2 - 5 of Part 3 of Art. 49 Code of Criminal Procedure;

2) initiation of criminal proceedings against a specific person;

3) actual detention (restriction of freedom of movement) of a person suspected of committing a crime in the following cases:

a) detaining a person on suspicion of committing a crime in the manner prescribed by Art. 91 and 92 Code of Criminal Procedure;

b) taking a person into custody as a preventive measure until charges are brought in the manner provided for in Art. 100 Code of Criminal Procedure;

4) delivery of a notice of suspicion of committing a crime in the manner prescribed by Art. 223.1 Code of Criminal Procedure;

5) announcing to a person suspected or accused of committing a crime a resolution to order a forensic psychiatric examination;

6) the beginning of implementation of other measures of procedural coercion or actions affecting the rights and freedoms of a person suspected of committing a crime.

A lawyer is allowed to participate in a criminal case as a defense attorney upon presentation of a lawyer's certificate and a warrant. If a defense attorney participates in proceedings in a criminal case, the materials of which contain information constituting a state secret, and does not have appropriate access to this information, he is required to sign a non-disclosure agreement. The same person cannot be the defense attorney of two suspects or accused if the interests of one of them contradict the interests of the other. A defense lawyer in a criminal case does not have the right to refuse to undertake the defense of a suspect or accused in a criminal case, i.e. after the conclusion of the contract.

As one of the additional guarantees of protecting the rights of certain categories of suspects and accused, the criminal procedure law provided for the mandatory participation of a defense lawyer (Article 51 of the Code of Criminal Procedure).

The participation of a defense attorney is mandatory in criminal cases in which:

1) the suspect or accused did not refuse a defense lawyer in accordance with Art. 52 Code of Criminal Procedure;

2) the suspect, the accused are minors (under 18 years of age);

3) the suspect or accused, due to physical or mental disabilities, cannot independently exercise their right to defense;

4) the trial is conducted in the manner prescribed by Part 5 of Art. 247 of the Code of Criminal Procedure (in the absence of a defendant in criminal cases of grave and especially grave crimes, when ensuring his participation in the trial is impossible);

5) the suspect or accused does not speak the language in which the criminal proceedings are being conducted;

6) the person is accused of committing a crime for which a penalty may be imposed in the form of imprisonment for a term exceeding 15 years, life imprisonment or the death penalty;

7) the criminal case against the accused is subject to trial by a court with the participation of a jury;

the accused filed a petition for consideration of his criminal case in the manner established by Chapter. 40 Code of Criminal Procedure.

Mandatory participation of a defense attorney in a criminal case in cases provided for in clauses 1 - 5, part 1, art. 51 of the Criminal Procedure Code, is provided from the moment and in the manner established by Part 3 of Art. 49 of the Code of Criminal Procedure, and in the cases provided for in paragraphs 6 and 7 of Part 1 of Art. 51 of the Code of Criminal Procedure - from the moment at least one of the accused files a petition for consideration of a criminal case by a court with the participation of a jury or a petition in the manner established by Ch. 40 of the Code of Criminal Procedure (in a special trial procedure).

According to Art. 50 of the Code of Criminal Procedure, the defense attorney is invited to participate in the case by the suspect, the accused, their legal representatives, as well as other persons on behalf of or with the consent of these persons. In this case, the interests of the suspect or accused may be represented by several defense attorneys. In particular, the interests of the oligarchs M. Khodorkovsky and P. Lebedev in the last criminal case were defended by 11 and seven defenders, respectively <1>.

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<1> See: Yamshanov B. Alexander Bastrykin: investigation under the contract. For the first time, investigators in particularly important cases will work on a contract basis // Rossiyskaya Gazeta. 2007. 29 Aug.

At the request of the suspect or accused, the participation of a defense attorney is ensured by the inquiry officer, investigator or court. If the invited defense attorney fails to appear within five days from the date of application for inviting a defense attorney, the relevant officials have the right to invite the suspect or accused to invite another defense attorney, and in case of his refusal, take measures to appoint another defense attorney. If a defense attorney participating in a criminal case cannot take part in a specific investigative or other procedural action within five days, and the suspect or accused does not invite another defense attorney and does not apply for the invitation of a designated defense attorney, then the inquiry officer or investigator has the right to carry out these procedural actions without participation of a defense attorney, with the exception of cases of his mandatory participation in criminal proceedings (clause 2 - 7, part 1, article 51 of the Code of Criminal Procedure).

If within 24 hours from the moment of arrest or detention of the suspect or accused, the appearance of the defense attorney invited by them is impossible, then the inquiry officer or investigator takes measures to appoint another defense attorney. If the suspect or accused refuses an appointed defense attorney, investigative and other procedural actions with the participation of these persons can be carried out without the participation of a defense attorney, except in cases of his mandatory participation (Clause 2 - 7, Part 1, Article 51 of the Code of Criminal Procedure).

The suspect and accused have the right to refuse the assistance of a defense lawyer at any time during the criminal proceedings. Such refusal is allowed only at the initiative of the suspect or accused. Refusal to have a defense attorney participate in a criminal case can only be stated in writing. If the refusal of a defense attorney is stated during an investigative or other procedural action, then a note about this is made in the protocol on the performance of the corresponding action.

The refusal of a suspect or accused to have a defense attorney is not obligatory for the interrogating officer, investigator or court. Refusal to have a defense attorney in criminal proceedings does not deprive the suspect or accused of the right to subsequently apply for admission of a defense attorney to participate in criminal proceedings. The admission of a defense attorney to criminal proceedings in accordance with a subsequent petition of the suspect or accused does not entail a repetition of criminal procedural actions that have already been carried out by that moment (Article 52 of the Code of Criminal Procedure).

In accordance with Art. 53 of the Code of Criminal Procedure, from the moment of admission to participation in a criminal case, a defense lawyer has the right to:

1) have private and confidential meetings with the suspect or accused without limiting their number and duration in accordance with paragraph 3 of Part 4 of Art. 46 and paragraph 9, part 4, art. 47 Code of Criminal Procedure;

2) collect and present evidence necessary to provide legal assistance in the manner prescribed by Part 3 of Art. 86 Code of Criminal Procedure;

3) involve a specialist in a criminal case in accordance with Art. 58 Code of Criminal Procedure <1>;

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<1> It seems that he can involve not only a specialist, but also a private detective in the criminal process (Law of the Russian Federation of March 11, 1992 N 2487-1 “On private detective and security activities in the Russian Federation” // Vedomosti SND and the Armed Forces of the Russian Federation. 1992. N 17. Art. 888).

4) be present at the presentation of charges;

5) participate in the interrogation of the suspect, the accused and other investigative actions carried out with the participation of the suspect and the accused or at their request or at the request of the defense attorney himself in the manner established by the criminal procedure law;

6) upon completion of the preliminary investigation, get acquainted with all the materials of the criminal case, write out any information from the criminal case and in any volume, make copies at your own expense from the materials of the criminal case, including using technical means;

7) file petitions and challenges;

participate in judicial proceedings 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;

9) bring complaints against the actions (inaction) and decisions of the inquirer, investigator, prosecutor and court and participate in their consideration;

10) use any other means and methods of defense not prohibited by procedural law.

A defense attorney participating in an investigative action, as part of providing legal assistance to his client, has the right to give him brief consultations in the presence of an investigator, ask questions to the interrogated persons with the permission of the investigator, and make written comments regarding the correctness and completeness of the entries in the protocol of this investigative action. The investigator and the inquiry officer may reject questions from the defense attorney in a criminal case, but are required to enter the questions they reject into the protocol.

Thus, we can conclude that the defense attorney has, in general, the rights of his client, with the exception of his personal, inalienable rights that cannot be transferred to another person, including the defense attorney (for example, the right to testify, speak in court with last word and some others) <1>.

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<1> The relationship between defense attorneys, between defense attorneys and their clients in a criminal case is regulated by the Code of Professional Ethics for Lawyers. This Code was adopted by the first All-Russian Congress of Lawyers on January 31, 2003 (with amendments and additions, approved by the second All-Russian Congress of Lawyers on April 8, 2005 and the third All-Russian Congress of Lawyers on April 5, 2007) // Rossiyskaya Gazeta. 2005. Oct 5; SPS "ConsultantPlus".

The duties of a defense attorney in criminal proceedings are to use all means and methods of defense specified in the law or not contrary to the law in order to:

1) identifying circumstances that justify the suspect or accused (strategic task) or mitigate their criminal liability or punishment (tactical task). The first of these problems is solved quite rarely, and the second is solved in the vast majority of criminal cases;

2) providing clients with the necessary legal assistance.

At the same time, a defense attorney in criminal proceedings cannot disclose preliminary investigation data that became known to him in connection with the performance of his defense function if he was warned about this in advance in the manner established by the criminal procedure law (Article 161 of the Code of Criminal Procedure). The defense attorney is responsible for the disclosure of preliminary investigation data in accordance with Art. 310 Criminal Code <1>.

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<1> See: Kozlova N. Lawyer violated confidentiality. Frenkel's defender may be deprived of his status // Rossiyskaya Gazeta. 2007. 19 Jan.

As is known, on the side of the defense are the civil defendant and his representative. As a general rule, the obligation to compensate for any type of harm caused by the commission of a crime rests with the accused (guilty). In this case, he is not specifically involved in the criminal case as a civil defendant, although at the same time he bears criminal and civil liability.

A civil defendant appears as an independent participant in the process when other individuals or legal entities bear civil liability for damage caused by a crime .

Thus, to summarize the above, a Defender is an individual who, in accordance with the procedure established by the Code of Criminal Procedure of the Russian Federation and other legislation of the Russian Federation, protects the rights and (or) legitimate interests of suspects, accused, as well as non-such persons suspected of committing a crime and (or ) who have committed an act prohibited by criminal law in a state of insanity, by providing them with the legal assistance necessary in criminal proceedings.

The defense attorney may be a lawyer upon presentation of a warrant for the execution of an assignment issued by the relevant legal entity and a lawyer’s identification card. By determination or order of the court, any citizen for whose admission the accused applies may be admitted as a second defense attorney. Only during proceedings before a magistrate does the accused have the right to have a first defense attorney—not a lawyer. The magistrate allows the specified person to act as a defense attorney instead of a lawyer (Part 2 of Article 49 of the Code of Criminal Procedure of the Russian Federation). The said person has an identification document; The law does not require a power of attorney, legal education, or any professional knowledge and experience. The Constitution of the Russian Federation does not contain any indication of the criteria, compliance with which indicates the proper level of qualifications of persons providing legal assistance to citizens <77>.

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<77> See: Resolution of the Constitutional Court of the Russian Federation of January 28, 1997 N 2-P “In the case of verifying the constitutionality of Part 4 of Article 47 of the Code of Criminal Procedure of the RSFSR in connection with complaints from citizens B.V. Antipova, R.L. Gitis and S.V. Abramov” // Bulletin of the Constitutional Court of the Russian Federation. 1997. N 1.

If a citizen who is not a lawyer is admitted to the process as a defense attorney, the withdrawal of the defense lawyer from the process or the completion of the consideration of the case by a magistrate (at first instance) does not change the status of this citizen. Admitted in compliance with the requirements of the law into criminal proceedings as a defense attorney, he remains so at subsequent stages of the criminal process.

Defense lawyer in civil proceedings

Civil proceedings are no less complex than criminal proceedings. Within its framework, defense lawyers are vested with a wide range of powers:

• Collection of complete information necessary to provide legal assistance to the client. To do this, they can interview citizens, talk with government officials and perform other actions that do not contradict the law;
• Collection and provision of evidence;
• Requesting copies of the case materials, obtaining complete information on it;
• Consulting clients at any time by agreement;
• Submission of petitions and complaints;
• Filing objections and claims;
• Participation in court hearings.

In civil proceedings, the powers of defense lawyers are not limited, but they must work taking into account current legislative norms.

By contacting a lawyer (defender) from the rating presented above, you can rest assured that the case will end in a favorable manner for the client. All specialists are highly qualified, have academic degrees and many years of experience, thanks to which they are able to overcome any legal obstacles without any problems.

The Constitutional Court prohibited the courts from imposing on the accused a defense attorney by appointment, which he refused

According to FPA Vice-President Gennady Sharov, the Court's ruling is long-awaited for defense attorneys and other participants in criminal proceedings. The opinions of AG experts in assessing the resolution differed. One of them believes that the document creates additional guarantees of ensuring the right of the accused to receive legal assistance from a defense attorney of his choice. Another believes that the Constitutional Court, instead of resolving a systemic problem, made an attempt to legitimize the implementation of imposed protection. The third is convinced that the ruling will only complicate the defense.

On July 17, the Constitutional Court of the Russian Federation adopted Resolution No. 28-P in the case of verifying the constitutionality of Art. 50 and 52 of the Code of Criminal Procedure of the Russian Federation.

"Collision protection"

The reason for considering the case was the complaint of Yuri Kavalerov (AG has it), against whom a criminal case was opened in February 2010 under Part 3 of Art. 30, part 4 art. 159, part 2 art. 291 of the Criminal Code of the Russian Federation.

In July 2021, the case was brought to the Kyzyl City Court of the Republic of Tyva, which appointed a defense attorney for the defendant at the expense of the federal budget. In January 2021, the court appointed another defense lawyer for Kavalerova and the other defendants in this case. That same month, the defendant filed a motion to disqualify the newly appointed lawyer, which the court did not grant.

In November 2021, the relatives of Yuri Kavalerov, who was in custody, entered into an agreement with an invited lawyer, who the next day was allowed by the court to participate in the case. At the court hearing, he filed a motion to disqualify previously appointed defense attorneys, which was supported by the defendant. However, the court rejected the petition, citing the fact that the refusal of a defense attorney is not mandatory for the court, and there are no circumstances precluding the participation of appointed defense attorneys in the case.

When appealing to the Constitutional Court, the applicant indicated that Art. 50 of the Code of Criminal Procedure contradicts the provisions of the Constitution of the Russian Federation, allowing the court not to limit the number of defense attorneys per defendant, which leads to manipulation of the right to qualified legal assistance. In addition, this norm allows the judicial community to allow the simultaneous participation in the case of defenders by appointment and by agreement, which contributes to the emergence of multiple (double) protection without the will of the principal.

The applicant added that, in accordance with Part 1 of Art. 52 of the Code of Criminal Procedure, refusal of the assistance of a defense attorney may occur at any time during criminal proceedings and is permissible only at the initiative of the suspect or accused. The complaint emphasizes that the exercise of the right to have the assistance of a lawyer in criminal proceedings cannot depend on the discretion of the official or body in charge of the case, “i.e. from a decision not based on the circumstances listed in the criminal procedure law, which provide for the mandatory participation of a defense lawyer in criminal proceedings, including by appointment.”

Thus, as reported in the complaint, the legal position of the Constitutional Court, expressed in the rulings of October 17, 2006 No. 424-O, of February 8, 2007 No. 251-O-P, etc., was not accepted by judicial practice, and the interpretation of the provisions of Art. . 50 and 52 of the Code of Criminal Procedure, not in accordance with the constitutional and legal meaning identified by the Constitutional Court, led to the infringement of the rights of Yuri Kavalerov, including to qualified legal assistance and judicial protection.

The Constitutional Court pointed out the inadmissibility of imposing on a person a specific lawyer whom he refused

Having considered the complaint, the Constitutional Court indicated that the right to defense guaranteed by Part 2 of Art. 48 of the Constitution, in conjunction with the provisions of international legal acts and within the meaning of the legal positions of the Constitutional Court, expressed in resolutions of March 27, 1996 No. 8-P, of November 29, 2010 No. 20-P, implies the possibility of choosing a defense lawyer. This makes it possible to achieve the effectiveness of both the legal assistance received and judicial protection in general, since representation in the case by a lawyer whom the client trusts and with whom he can agree on a defense strategy maximizes the realization of his legitimate interests.

The CC added that in Art. 5 and paragraph 1 of Art. 6 of the Code of Professional Ethics for Lawyers also emphasizes that interaction between a lawyer and a client is of a personal and confidential nature.

At the same time, the resolution notes, due to the public law nature of providing legal assistance to a suspect or accused, his right to choose a specific defense lawyer or to refuse his services may be limited in the interests of justice to ensure quick, fair and effective judicial protection not only this person, but also other participants in the case, including victims. The grounds for restriction may be, in particular, the refusal or inability of the suspect or accused to defend himself personally, inadequate protection of his interests, the presence of reasons for disqualifying a defense lawyer, his prolonged absence and other circumstances.

The Constitutional Court emphasized that the European Court of Human Rights adheres to a similar position when assessing compliance with sub-clause. "c" clause 3 of Art. 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. According to the ECtHR, the accused should have the opportunity to seek legal assistance of his choice, which is recognized in international human rights standards as a way to ensure an effective defense for the accused.

However, despite the importance of the relationship of trust between lawyer and client, this right may, if necessary, be limited in certain ways in cases of free legal assistance and if the interests of justice require that the accused be represented by a lawyer appointed by the court. Domestic authorities must take into account the desire of the defendant in terms of his choice of representative, but may disregard this desire if there are relevant and sufficient reasons. Where there are no grounds, restrictions on the free choice of a lawyer may lead to a violation of paragraph 1 of Art. 6 of the Convention along with the above rule, if this had a negative impact on the defense of the accused.

With reference to its previously expressed positions, the Constitutional Court recalled that the Code of Criminal Procedure directly establishes the right of a suspect or accused to refuse the assistance of a defense attorney at any time during the criminal proceedings, or to invite another defense attorney or several. At the same time, the Code established cases of mandatory participation of a defense attorney in criminal proceedings and the obligation of the inquiry officer, investigator and court to ensure the participation of a defense attorney in the form of his appointment if the invited defense attorney fails to appear within the period established by law. At the same time, the decision on the appointment of a defense attorney does not entail the removal of the defense attorney from participation in the case by agreement (decrees of the Constitutional Court of June 28, 2018 No. 1409-O and No. 1412-O).

The justification for refusing a lawyer must be assessed, including on the basis of those specified in Art. 72 of the Code of Criminal Procedure of the circumstances excluding his participation in the case, as well as taking into account the norms of Art. 6 and 7 of the Law on the Bar, establishing the powers and duties of a lawyer. At the same time, the Court added, Part 2 of Art. 52 of the Code of Criminal Procedure in conjunction with Part 1 of the same article and Art. 51 and without making the refusal of the defense lawyer obligatory for the inquirer, the investigator and the court, it assumes that when resolving the corresponding application in each case it should be established whether the will of the person is free and voluntary and whether there are reasons for recognizing the refusal as forced and harmful to his legitimate interests .

“Thus, the above-mentioned norms, being public legal guarantees for the protection of the individual from illegal and unfounded accusations, convictions, restrictions on his rights and freedoms, aimed at protecting the rights of the suspect, the accused, do not imply the possibility of imposing on a person a specific defender whom he refused, and exclude coercion person to exercise his subjective right against his will. The exercise of the right to use the assistance of a defense lawyer at any stage of the process cannot be made dependent on the arbitrary discretion of the official or body in charge of the criminal case, i.e. from a decision not based on the circumstances listed in the criminal procedure law, which provide for the mandatory participation of a defense lawyer in criminal proceedings, including by appointment,” the document says.

The court emphasized that the Code of Criminal Procedure does not directly regulate the situation related to the participation in the case of a defense attorney by appointment, which the suspect (accused) refuses while simultaneously participating in the case of a defense attorney by agreement. Such a refusal, the Constitutional Court believes, cannot be considered as a refusal of a defense lawyer in general, since the right to receive qualified legal assistance is assumed to be secured, and therefore the provision of Part 2 of Art. 52 of the Code of Criminal Procedure on the non-obligatory refusal of a defense lawyer for the interrogating officer, the investigator and the court in this case cannot be applied with reference to the protection of the rights of the suspect (accused). “Nevertheless, this does not exclude the possibility of leaving unsatisfied a person’s application to refuse an appointed defense attorney in case of abuse of the right to defense by that person, as well as by an invited defense attorney. The criteria for the presence of such abuse have been developed by judicial practice,” the resolution notes.

Thus, the Plenum of the Supreme Court of the Russian Federation in paragraph 18 of Resolution No. 29 of June 30, 2015 indicated that the court may not recognize the accused’s right to defense as violated in cases where a refusal to satisfy a petition or other restriction in the exercise of certain powers of the accused or his the defender is due to their clearly dishonest use of these powers to the detriment of the interests of other participants in the process by virtue of Part 3 of Art. 17 of the Constitution. According to the Supreme Court, the court’s failure to accept the defendant’s refusal of appointed defense attorneys and the simultaneous participation in the case of invited and appointed defense attorneys can be, taking into account the specific circumstances characterizing the behavior of the accused and defense attorneys, recognized as not contrary to the law and not violating the right to defense. “Relevant circumstances may include, in particular, statements made repeatedly and without any basis to replace the defense lawyer, his failure to appear at the court hearing under various pretexts, i.e. actions clearly aimed at impeding the normal course of the trial and indicating an abuse of law (Determination of the Supreme Court of the Russian Federation of July 25, 2012 in case No. 5-D12-65),” the resolution states.

Thus, the Constitutional Court summarized, the contested norms of the Code of Criminal Procedure cannot be regarded as contrary to the Constitution, since they do not allow the inquirer, investigator or court to dismiss without satisfaction a person’s application to refuse a defense attorney by appointment when participating in a criminal case a defense attorney by agreement, if in the behavior of this person and the invited defense attorney there are no signs of abuse of the right to defense. The future application of these provisions contrary to the constitutional and legal meaning specified in this resolution is not permitted.

The procedural decisions made in the applicant’s case were recognized by the Constitutional Court as subject to review, if there are no other obstacles to this, procedural actions are not expected to be repeated, if the presence of an appointed lawyer in the case after an unsuccessful refusal did not adversely affect the defense of the accused, taking into account the proceedings as a whole .

“The Constitutional Court resolved the contradiction”

According to the vice-president of the Federal Board of Lawyers of the Russian Federation, Gennady Sharov, this resolution is long-awaited for lawyers and other participants in criminal proceedings. “Often, even if the defendant has a lawyer by agreement and refuses to have an appointed lawyer, the investigator and the court nevertheless refuse to satisfy this request,” he explained. – Previously, the Constitutional Court has repeatedly explained that a citizen’s subjective right to protection cannot be imposed. He is free to waive this right. At the same time, there is an article in the Code of Criminal Procedure stating that only the investigator or the court will exempt the defense attorney from participation in the trial (at the request of the accused).

Thus, Gennady Sharov added, a contradiction existed for a long time, which has now been resolved by the Constitutional Court, ruling that preventing the subjective right to refuse an appointed defense attorney is unacceptable unless the investigator or the court sees in such a petition an attempt to abuse the right.

FPA Advisor Sergei Borodin, in turn, noted that in practice there is an established understanding that Part 1 of Art. 52 of the Code of Criminal Procedure in terms of regulating the refusal of a defender does not work, unlike the second part of this article. “If the suspect (accused) is provided with the participation of a defense attorney, then in the event of his failure to appear within five days, neither the investigator nor the court will accept the refusal of the appointed defense attorney,” he explained. – Formally, this means the forced participation of a defender, and practice accepts this. Even in the commented decision one can see the following justifications: “the right to refuse the services of a defense attorney may be limited in the interests of justice,” or a reference to the decision of the ECHR: “the interests of justice may require the appointment of a defense attorney against the wishes of the accused.”

In addition, Sergei Borodin added, one should not forget about Part 2 of Art. 75 of the Code of Criminal Procedure, which refers to inadmissible evidence the testimony of a suspect (accused), which he gave during pre-trial proceedings in a criminal case in the absence of a defense lawyer, including cases of refusal of a defense lawyer, and not confirmed by him in court. “For this reason, no sane investigator will interrogate a suspect (accused) without a defense attorney, much less accept a refusal from an appointed defense attorney,” he concluded.

AG experts disagreed in their assessment of the resolution

According to the associate professor of the Department of Criminal Procedure Law of the University. O.E. Kutafin Artem Osipova, the ruling of the Constitutional Court creates additional guarantees of ensuring the right of the accused to receive legal assistance from a defense attorney of his choice. “By filling the legislative gap, the Constitutional Court established a rule to resolve the conflict between this right of the accused and the discretion of the court in the area of ​​appointing or retaining a previously appointed defense lawyer in the case,” he explained. “The essence of this rule, as interpreted by the Constitutional Court, is that the appointment or retention of a previously appointed defense attorney after a defense attorney has entered the case by agreement is possible only as an exception - in the event of a clear abuse of the right to defense by the accused or the lawyer invited by him.”

The vagueness of the concept of “abuse of law,” according to the expert, does not weaken the significance of this legal position of the Constitutional Court and is the lesser of the possible evils, when the Constitutional Court could completely avoid resolving the issue posed to it, leaving it entirely within the discretion of the law enforcer or making it dependent on another less clear criteria – for example, the court’s assessment of the effectiveness of the defense lawyer’s work. “In practice, the investigator needs backup lawyers to obtain loyal testimony from the accused, and the court needs them to ensure the smooth and conflict-free course of the proceedings. Now the accused, when trying to replace or impose a defense lawyer, has the right to demand indication of the reasons indicating abuse of law, and this is the absolute value of the Constitutional Court’s decision,” summarized Artem Osipov.

Lawyer of Law Firm "Legal Status" Alexey Ivanov noted that the problems of double protection, backup lawyers, and the implementation of defense against the will of the client have long been in the area of ​​close attention of the professional community. “Despite the general understanding that protection should not be provided by force, the courts do not accept the refusal of an appointed defender in the presence of a lawyer by agreement, and procedural motions are rejected. Even if for the court the refusal of a defense attorney is not mandatory, it should be absolute for each defense attorney, provided that the will of the client is expressed directly and unambiguously and is not forced, and there is a lawyer in the case by agreement, he believes. – If a client refuses a defense attorney as assigned, and especially one appointed against his will, this cannot be considered a defense in the full sense of the word. The right to defense cannot be exercised against the will of a lawyer whose help was refused, because the will of the client is law for us.”

The expert added that a lawyer whose help was refused does not have the right to defend himself by force and to be in the courtroom, since in this case, with his participation, he puts himself in an awkward and disadvantageous position, fraught with scandal, and “legalizes” justice. “It is difficult to disagree with the Constitutional Court that the fundamental right to defense can be limited by the court and in this sense it is not absolute,” emphasized Alexey Ivanov. – On the other hand, the appointment of a backup lawyer against the will of the principal and in the presence of a lawyer by agreement cannot be justified by the interests of justice. The meaning of the resolution is aimed at maintaining the interests of justice, but not at realizing the right to defense in the conditions of its abuse by the court and investigative bodies. Instead of resolving the systemic problem, the Constitutional Court made an attempt to legitimize the implementation of the imposed protection.”

At the same time, the lawyer of the Sverdlovsk Regional Guild of Lawyers, Sergei Kolosovsky, believes that the resolution is another document that complicates the defense. “The problem is obviously related to the participation of “pocket” lawyers and their poor quality of work, as well as backup lawyers,” he explained. “The Constitutional Court, having declared what seemed to be the right things, actually formulated provisions that make it possible to solve these problems not in the interests of both the accused and an effective defense.”

As Sergei Kolosovsky emphasized, in general, the Constitutional Court indicated the inadmissibility of appointing a defense lawyer against the will of the accused and in the absence of legal grounds for the appointment. “However, the Court immediately stipulated that the right of the accused to choose a specific defense lawyer may be limited. At the same time, the Constitutional Court indicated the evaluative grounds for the restriction, which will be interpreted unjustifiably broadly by law enforcement officials - as “inadequate protection of the interests of the accused,” “other circumstances.”

The lawyer noted that the FPA is taking regulatory measures to improve the quality of assigned defense, including eliminating the practice of appointing backup lawyers. However, the resolution of the Constitutional Court, believes Sergei Kolosovsky, actually neutralizes those positive norms that are laid down in the Decision of the FPA Council “On double protection” dated September 27, 2013 (according to which an understudy can be appointed only in cases of failure of the defender to appear by agreement within 5 days) and the Procedure for appointing lawyers as defenders in criminal proceedings dated March 15, 2021, which established the principle of continuity of defense (clause 3.4.). “The use of the above assessment categories in the resolution will allow law enforcement officers to arbitrarily change defenders according to their assignment, including contrary to the interests of the defense,” emphasized Sergei Kolosovsky.

Even more reactionary, according to the expert, precisely because of the use of evaluative definitions, is the conclusion of the Constitutional Court that the interests of justice in a particular trial may require the appointment of a defense lawyer against the wishes of the accused, especially if he significantly and systematically impedes the proper conduct of the trial, or has been charged with a serious crime but is unable to act in his own best interests, or where this is necessary to protect vulnerable witnesses from further stress or intimidation if they are to be questioned by the accused. Such a definition, Sergei Kolosovsky believes, provides the law enforcement officer with an almost unlimited field for imagination. “Frankly speaking, I did not understand the last provision about the need to protect witnesses from stress by assigning a defense lawyer to the accused. To protect witnesses from stress, what should the defense attorney assigned to the accused do? Shut him up? – the expert is perplexed.

Another example of the inconsistency of the resolution, the lawyer added, is the indication of the Constitutional Court that the Code of Criminal Procedure does not directly regulate the situation related to the participation in the case of a defense attorney by appointment, which the suspect or accused refuses while at the same time the participation of a defense attorney in the case by agreement. The resolution emphasizes that such a refusal cannot be considered as a refusal of a defense lawyer in general, since the right of the suspect or accused to receive qualified legal assistance is assumed to be secured, and therefore the provision of Part 2 of Art. 52 of the Code of Criminal Procedure on the non-obligatory refusal of a defense lawyer for the interrogating officer, the investigator and the court in this case cannot be applied with reference to the protection of the rights of the suspect or accused.

“At the same time, having started for health, the Court ends for peace, continuing the thought with reference to judicial practice - “nevertheless, this does not exclude the possibility of leaving without satisfaction a person’s application for refusal of a defense attorney in case of abuse of the right to defense on the part of this person, as well as a guest defense attorney. The criteria for the presence of such abuse have been developed by judicial practice,” the lawyer explained.

“Such a streamlined and generally reactionary ruling, as expected, ends with the conclusion that the court’s failure to accept the defendant’s refusal of appointed defense attorneys and the simultaneous participation in the case of invited and appointed defense attorneys can be - taking into account the specific circumstances characterizing the behavior of the accused and defense attorneys - recognized as not contrary to the law and not violating the right to defense,” summed up Sergei Kolosovsky.

Tatiana Kuznetsova