Failure to comply with this rule is a significant violation of the right to defense.
He, in particular, is obliged to appear at the summons of investigative bodies, the prosecutor and court, not to evade investigation and court and execution of the sentence, not to interfere with establishment of the truth in criminal case, to observe order in court session and to obey the order of the judge (presiding judge). In case of non-fulfillment of the duties by the accused, the means of procedural coercion may be applied to him: a pretext, a precautionary measure, a warning and withdrawal from the courtroom temporarily or for the entire period of consideration of the case. And if such non-compliance has the characteristics of a crime (for example, coercion or bribery of a witness to refuse to testify or conclude), it entails criminal liability (Article 180 of the Criminal Code).
Defender is a participant in criminal proceedings authorized in the manner prescribed by law to protect the rights and legitimate interests of suspects, accused, defendants, convicted and acquitted and to provide them with the necessary legal assistance. The participation of a defense counsel in criminal proceedings allows these persons to more fully exercise their right to defense.
In practice, defenders are mostly lawyers, so to ensure the accused’s right to protection from prosecution and legal assistance in resolving cases in courts and other state bodies in Ukraine, the bar is an essential component of the human rights mechanism.
A lawyer may be a citizen of Ukraine who has a higher legal education, experience as a lawyer or assistant lawyer for at least two years, passed qualifying exams, received a certificate of the right to practice law and took the Oath of Lawyer of Ukraine, which states that the lawyer in his professional activity he must strictly adhere to the requirements of the current legislation of Ukraine, international acts on human rights and freedoms, rules of lawyer’s ethics and so on. Violation of this provision entails disciplinary action against the lawyer.
Mandatory participation of the defender
Assuming that the participation of defense counsel in the stages of preliminary investigation and trial of criminal cases is, as a rule, mandatory, the legislator aims to ensure the right of the suspect, accused and defendant to defense, adversarial process.
Refusal of the defender
Everyone can turn to a lawyer or refuse his services. Such refusal is allowed only on the initiative of the suspect, accused or defendant (ie should be only voluntary) and may not be an obstacle to continued participation in the case of the public or public prosecutor, as well as defenders of other suspects, accused or defendants. However, there are cases when the waiver of counsel cannot be accepted:
in cases of persons suspected or accused of committing a crime under the age of 18; in the cases of persons who due to their physical or mental disabilities (dumb, blind, deaf and others) cannot exercise their right to protection themselves; in cases of persons who do not speak the language in which the proceedings are conducted; when the sanction of the sex for which the crime qualifies provides for the death penalty; in cases of the use of coercive means of a medical nature.
The procedure for appointing a defender
Defendant from among the persons referred to in part one of Article 44 of the CPC (ie persons who have a certificate of the right to practice law or, with the consent of the defendant, close relatives, guardians and trustees are allowed as defense counsel) is invited to suspect, accused or defendant, his legal representatives, relatives or other persons on behalf of or at the request of the accused.
One and the same person may not be a defense counsel for two or more suspects, accused and defendants when the interests of the defense of one of them conflict with the interests of the defense of the other.
The law does not limit the number of defense attorneys who can defend one suspect, accused, or defendant.
Article 59 of the Constitution of Ukraine states that everyone is free to choose a defender of their rights. Since the client’s choice of defense counsel must be free, the investigator’s recommendation of another human rights defender (in the case of Articles 46 and 47 of the CPC) is unconstitutional. The right to defense will be violated if the defendant is intrusively recommended by a lawyer.
Procedural rights and duties of the defender.
During the trial, the defense counsel must make full use of all remedies specified in the law in order to clarify the circumstances that justify the suspect, accused and defendant or mitigate or exclude their liability, and provide them with the necessary legal assistance.
From the moment of admission to the case, the defense counsel has the right to:
to have a date with the suspect before his first interrogation; to have an appointment with the convict and the person to whom coercive measures of a medical nature have been applied; to be present during the interrogation of the suspect and the accused, as well as during other investigative actions carried out with their participation or at the request of the suspect or his defense counsel; to take part in certain investigative actions, for example, in actions carried out with the participation of the accused or suspect, at the request of the defense counsel or in other investigative actions with the permission of the investigator; mandatory participation of a lawyer only during interrogation, except in cases provided for in Article 46 of the CPCU; to use scientific and technical means in conducting those investigative actions in which he participates, as well as in reviewing the case materials – with the permission of the investigator or the person conducting the inquiry, and in court – with the permission of a judge or court ; to get acquainted with the materials which substantiate the detention of the suspect or the choice of a measure of restraint or indictment, and after the end of the preliminary investigation – with all the materials of the case; to write out from the materials of the case, with which he got acquainted, the necessary information; to participate in court proceedings; submit evidence and file motions and objections, submit documents, turn to specialists on issues that require special knowledge. The investigator must grant these requests; file complaints against the actions and decisions of the person conducting the inquiry, the investigator, the prosecutor, the judge and the court; gather information about facts that can be used as evidence in the case.
Protection in criminal proceedings
To participate in criminal proceedings, a lawyer must provide a certificate of the right to practice law and a warrant of the bar association or a power of attorney issued by his client – from that moment he acquires the procedural rights of a lawyer. With the consent of the defendant, the defender may be close relatives, guardians or trustees.
Provision of defense counsel is entrusted to the head (head) of the relevant bar association (currently 174 such associations are registered in Ukraine).
In criminal proceedings, a lawyer can act in two forms:
protection of the accused or suspect; ensuring the interests of the victim.
A lawyer may enter a case from the moment of indictment, and in case of detention of a person suspected of committing a crime, or application of a preventive measure in the form of detention, ie in all cases concerning a suspect in custody – within 24 hours of detention; in cases of crimes committed in a state of insanity, as well as crimes of persons who fell ill with a mental illness after its commission – the defender is admitted to the case from the moment of receipt of evidence of mental illness of the person; if the inquiry or preliminary investigation has not been conducted, the defense counsel shall be allowed to participate in the case after the accused has been brought before the court.
After entering the criminal proceedings, the first action of a lawyer is to meet with the suspect (accused) before the first interrogation face to face, confidentially. Obligatory participation of the defender only at interrogation. Only one appointment is possible before the first interrogation, after – without limitation of quantity and duration.
When the accused is first questioned as a witness, the information obtained during such questioning cannot be used as evidence.
The defense counsel may get acquainted with all the materials only after the end of the preliminary investigation, before that only with the materials substantiating the accusation (suspicion) or choosing a measure of restraint against the accused.
Defender may be involved in some investigative actions:
with the participation https://123helpme.me/narrative-essay-topics/ of the accused; at the request of the defense counsel; and in other actions with the permission of the investigator.
There may be different lawyers at different stages of the proceedings. This is due to the fact that in practice, lawyers take assignments, usually at separate stages.
Permission to meet the accused with the defense counsel after the accused is brought to court is issued by the court each time separately.
When reviewing the case materials, the accused and the defense counsel must check whether the case documents are bound and numbered. Failure to comply with this rule is a significant violation of the right to defense.
During the trial, the lawyer must fully exercise his rights as a defense counsel:
to take part in the interrogation of witnesses, experts, victims; to request the interrogation of witnesses; ask questions to witnesses, experts, victims, conduct cross-examination.
During the court debate, the defense counsel delivers a court speech in which he is obliged to present to the court his opinion on the significance of the verified evidence in the case, on the existence of circumstances that justify the defendant or mitigate his liability, as well as his legal position on criminal law. punishment, which can then be changed. But in the last defense speech, the position must be clear. Defensive speech should be objective and independent. It should be based only on the circumstances and materials considered by the court.
Debates cannot be limited in time, ie restrictions on the duration of the defense and the defendant’s presentation of circumstances in their favor are prohibited.
If the accused is defending himself, he must also take part in non-restricted judicial debates.
Previously, the defense speech was based on a certain scheme:
was to begin with a political analysis of the situation in the country; analysis of the social danger of the crime, its sanity; legal position of the defender; conclusion.
After the verdict is announced in court, the lawyer must read the minutes of the court hearing and ask the convict’s opinion: does he want to appeal the verdict.