Home Press Center Criminal lawyer: what he does and when you need him
Operatives and investigators are uncomfortable working with a lawyer who actually helps his client, and does not imitate the defense or “play along” with law enforcement officers. Therefore, they try to convince the person who comes to them that nothing depends on the lawyer in a criminal case, dissuade him from entering into an agreement with the lawyer (“why do you need to pay him money?”) and even promise to appoint a defense attorney “at the expense of the state,” who “does nothing.” no worse." Unfortunately, many suspects and accused believe all this at first and then regret it. To decide whether you need a criminal lawyer or not, you need to understand what he does and when his help may be needed.
What is the job of a criminal defense lawyer?
First of all, let's figure out what a lawyer does in defense of a criminal case:
- analyzes case materials, legislation, judicial practice and explains to the defendant the possible consequences and risks of various actions;
- taking into account specific circumstances and evidence, develops a defense strategy: acquittal, termination of the criminal case, changing the charge to a more lenient one, reducing the punishment, etc.;
- collects information in favor of the client, including sending attorney requests, obtaining expert opinions, looking for possible defense witnesses, etc.;
- draws up petitions and complaints;
- if the client is in custody, he visits him in the pre-trial detention center (SIZO), monitors the absence of torture and other pressure;
- assists the client during investigative actions and in court;
- if there is such a task, it prepares a criminal case for subsequent consideration of the complaint in the European Court of Human Rights.
The actions of a lawyer in a particular case depend, firstly, on how ready the client is to fight for his fate, secondly, on the professionalism of the defense lawyer, thirdly, on what kind of criminal case it is (bribery or murder, on drugs or robbery, etc.), fourthly, on what the situation is in the case, what and how the investigator does (for example, sometimes it is important to remain silent about a discovered procedural error in order to use it in the future).
In short, a good lawyer knows what needs to be done, how it needs to be done, when it needs to be done and what result can be obtained. It is this knowledge that distinguishes a professional from a person who is trying to defend himself - “with the help of the Internet,” “friends from the pre-trial detention center,” etc. - and as a result, he randomly and chaotically “presses all the buttons at once,” sometimes obtaining a result that further worsens his situation.
You can read about some signs that allow you to decide on the choice of a lawyer at the very beginning here.
In addition, the work of a defense lawyer depends on what stage the criminal case is at.
Official website of the Supreme Court of the Russian Federation
The Supreme Court of the Russian Federation examined a case of drug trafficking, which revealed an interesting nuance: during the preliminary investigation, the interests of the accused were represented by a lawyer who also defended the suspect in a separate case.
Her second client subsequently became a prosecution witness in the first's case. At the same time, both at the first interrogation and during the preliminary investigation, the defendant denied his guilt, and the witness, on the contrary, accused him of involvement in the crime. Thus, they had a radically opposite position, but they had a common lawyer. The accused’s new lawyer drew attention to this discrepancy with the law in a complaint to a higher authority: her client’s right to defense was violated, since there were contradictions between the interests of the accused and the witness, and they were represented by the same defender.
Position of the Armed Forces
As follows from the verdict, the testimony of the witness, given by him during the preliminary investigation, including when checking his testimony on the spot, was presented as evidence of the commission of the crime of which the convicted person was found guilty.
At the same time, the same person cannot be a defender of two suspects or accused if the interests of one of them contradict the interests of the other (part b of Article 49 of the Code of Criminal Procedure of the Russian Federation), notes the Supreme Court.
“A defense attorney is subject to recusal if he provides or has previously provided legal assistance to a person whose interests conflict with the interests of the person he is protecting. According to the meaning of the law, these circumstances are the basis for the challenge of the defender, regardless of how this assistance was expressed and whether it was provided in the same or another case (Clause 1, Part 1, Article 72 of the Code of Criminal Procedure of the Russian Federation),” explains the highest authority.
It also recalls the explanations of the Plenum: in the presence of any of the circumstances specified in Article 72 of the Code of Criminal Procedure of the Russian Federation, the participation of a defense lawyer is excluded at all stages of criminal proceedings (paragraph 10 of the resolution of June 30, 2015 No. 29).
“If there are contradictions between the interests of the accused defended by one lawyer (acknowledgment of the accusation by one and challenging by another on the same episodes of the case; incrimination by one accused of another, etc.), then such a lawyer is subject to recusal (clause 3, part 1 article 72 of the Code of Criminal Procedure of the Russian Federation, subparagraph 2 of paragraph 4 of article 6 of the law of May 31, 2002 No. 63-FZ “On advocacy and the legal profession”, paragraph 1 of article 13 of the “Code of Professional Ethics for Lawyers”).
Based on the interrelated provisions of Part 1 of Article 72 of the Code of Criminal Procedure of the Russian Federation, the restriction established in paragraph 3 of this norm applies to cases when the defense lawyer, within the framework of this or a case separated from it, provides or has previously provided legal assistance during pre-trial proceedings or in previous stages of judicial proceedings and court hearings a person whose interests contradict the interests of the accused he is protecting.
However, this does not exclude the possibility of disqualifying the defense attorney and in other cases revealing similar contradictions that do not allow him to participate in this case,” the Supreme Court emphasizes.
In this case, the suspect was a witness to the circumstances that are included in the subject of evidence in the case against the defendant and his testimony, acting as a prosecution witness, is given in the verdict as one of the evidence on the basis of which the court concluded that the convicted person is guilty. Thus, the interests of the defendants contradicted each other, the Supreme Court agrees.
Under such circumstances, due to the direct prohibition of the law, the lawyer could not defend the accused, since she assumed the responsibilities of protecting the witness, since their interests conflicted with each other, as stated in the ruling of the highest authority.
Moreover, these circumstances prevented the drawing up of an indictment based on evidence obtained with the participation of one lawyer of two defendants with an opposite position, the Supreme Court emphasizes.
In this connection, the Judicial Collegium decided to cancel the conviction, and returned the criminal case to the prosecutor to eliminate violations of the criminal procedural law that prevented the verdict.
Alice Fox
Work of a lawyer during a pre-investigation check
The criminal case goes through several stages. The first is a pre-investigation check. Based on its results, a decision is made whether to initiate a criminal case or not. In many ways, the prospects of the business are determined at this stage.
This is where those who go to the operatives “just to talk” make a big mistake, bring them documents or even write a confession. This mistake is not using the help of a lawyer you trust. In practice, there are many cases where the participation of a lawyer in a pre-investigation investigation saved a person from negative consequences and, on the contrary, arrogance (“I have nothing to hide, I will tell everything as it is”) and the desire to save on legal assistance led to a serious deterioration of an initially favorable situation. Understand a simple thing: a good lawyer is your legal security. And sometimes also physical (but more on that later).
A common technique used by law enforcement officials is to first get an explanation without a lawyer, then interrogate the person as a witness (again without a lawyer), and only then, when everything is recorded in the protocols as they need, transfer the witness to the status of a suspect or accused, who is entitled to a lawyer .
Remember: by agreement, a lawyer has the right to participate at any stage of the process, regardless of your legal status (detainee, interrogated, witness, victim, suspect, accused, convicted) and regardless of the desire/unwillingness of the operative, investigator or judge. Therefore, the sooner you have a good lawyer in your case, the better.
General recommendations on how to behave if you are called to the police or detained can be read here.
Work of a lawyer during the preliminary investigation
If a criminal case has been initiated, the next stage is a preliminary investigation. At this stage, the investigator interrogates witnesses, conducts examinations, seizures, searches, identifications, and inspections. Based on the results of the preliminary investigation, the investigator decides whether to send the case to the prosecutor and then to the court or not.
At this stage, there are several directions in the lawyer’s work.
Firstly, it is assistance to the client during investigative actions, which are carried out on the initiative of the investigator himself. For example, before interrogation, the lawyer explains to the client whether it is advisable to testify, to what extent, or whether it is better to exercise his right not to testify. During interrogation, the lawyer has the right to ask questions to the client, briefly advise him, and protect him from the use of torture or other pressure. Afterwards, the defense attorney checks the interrogation protocol, makes comments on it, if the protocol says something that the person did not say, or it is written in the wrong way.
Secondly, the lawyer has the right to file petitions to carry out investigative actions at the initiative of the defense, to include in the case materials documents in favor of the client obtained by the lawyer himself. This is done so that the case is formed taking into account the position of the defendant, and not just as the investigator needs.
Thirdly, the lawyer records the violations committed against the client. These may be violations that affect evidence (for example, incorrectly selected extras during identification), health status (for example, torture, failure to provide necessary medical care in a pre-trial detention center) and, in general, the legal status of the defendant (for example, being kept in a cage in a courtroom ). Some violations should be responded to immediately, others are useful to simply record, but file the necessary petition or complaint later, and others should be saved for the court.
Fourthly, when the client is in a pre-trial detention center, it is necessary to monitor whether torture is being applied to him, whether his operational employees are trying to persuade him to take on “extra” episodes, or whether his conditions of detention are being deliberately worsened. In addition, it is important to simply maintain contact with the person in custody under stress, so that he receives not only legal, but also moral support.
Important! The investigator has the right not to allow relatives to meet with the person in custody. This is often used to get the accused to confess in exchange for a meeting. At the same time, the investigator cannot limit the lawyer in meetings with the client. When the accused does not admit guilt and is ready to actively defend himself against the accusation, and the investigator “blackmails” him with a meeting, the lawyer becomes virtually the only one who can visit the person in the pre-trial detention center, help and support.
The results of the lawyer’s work during the preliminary investigation may be reclassification of the charge to a more lenient one, exclusion of evidence, termination of the criminal case by the investigator or the creation of the basis for further termination of the case in court, preparation of the case favorable for the client for consideration by his court (including a jury trial or the European Court of Justice). human rights).
Participation of a defense lawyer in the preliminary investigation and inquiry
The general principles of defense in a criminal case are the fullest use by the lawyer of all means of procedural activity provided by criminal procedure legislation.
Powers of a lawyer
The powers of the defender are regulated by Art. 53 of the Code of Criminal Procedure of the Russian Federation. From the moment of admission to participate in a criminal case, the defense attorney has the right:
- have meetings with the suspect or accused. Meetings must take place privately and confidentially, including before the first interrogation of the accused, without limiting their number and duration;
— collect and present evidence necessary to provide legal assistance. The defender has the right to collect evidence by: 1) obtaining objects, documents and other information; 2) interviewing persons with their consent; 3) requesting certificates, characteristics, and other documents from state authorities, local governments, public associations and organizations that are obliged to provide the requested documents or copies thereof;
- attract a specialist;
- be present at the arraignment;
- participate in the interrogation of the suspect, accused, as well as in other investigative actions carried out with the participation of the suspect, accused or at his request or at the request of the defense attorney;
- get acquainted with the arrest report, the decision on the application of a preventive measure, protocols of investigative actions carried out with the participation of the suspect, accused, other documents that were presented or should have been presented to the suspect, accused;
- at the end of the preliminary investigation, familiarize yourself with all the materials of the criminal case, copy out any information in any volume from the criminal case, make copies at your own expense from the materials of the criminal case, including using technical means;
— file petitions and challenges;
- participate in the trial of a criminal case in the courts of the first, second and supervisory instances, as well as in the consideration of issues related to the execution of the sentence;
- bring complaints against the actions (inaction) and decisions of the inquirer, investigator, prosecutor, court and participate in their consideration by the court;
- use other means and methods of defense not prohibited by the Code of Criminal Procedure of the Russian Federation.
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 may dismiss the defense lawyer's questions, but is obliged to enter the dismissed questions into the protocol.
Defense tactics of a lawyer in a criminal case
In the process of working on a criminal case, a lawyer must act tactically correctly. To do this, from the entire mass of factual and legal material on the case, it is necessary to highlight the tactical key points and build further participation in the criminal process in accordance with them. The process of a lawyer’s work, taking into account the support points, includes several successive stages.
1. The lawyer needs to study the case materials in order to navigate what is happening. A high-quality defense of an accused in a criminal case is impossible without knowledge of the prosecution’s tactics, as well as the defense tactics of other defendants in the case, without familiarization with the evidence available in the case.
However, the lawyer usually gets the general picture at the end of the preliminary investigation, when he has the opportunity to familiarize himself with all the materials of the case, drawn up in the final form, in which they will go to court and will be examined in the judicial investigation.
Sometimes a lawyer has the opportunity to obtain information about the incriminated act before the end of the preliminary investigation. The sources of this information are usually:
— explanations of the defendant regarding the criminal offense charged by the preliminary investigation authorities;
— explanations of the person conducting the preliminary investigation or inquiry;
copies of protocols of investigative actions carried out with the participation of the client;
- explanations of witnesses and victims in a criminal case, selected by the lawyer independently with their consent;
- copies of the decisions and rulings handed over to him by the preliminary investigation authorities;
— explanations of other persons accused in the same criminal case;
— explanations from defense lawyers of other defendants in the same criminal case.
Collecting information from the listed sources can give the lawyer an idea of the emerging picture in the criminal case. However, each source of information very rarely provides completely reliable information, so the lawyer’s overall picture of the case is distorted to a certain extent. The reasons for distorting information are different. Defendants explaining the circumstances of the case to the lawyer, as well as telling the essence of the testimony they previously gave, are often confused in them due to the fact that at the time of the commission of the crime they were intoxicated or illegal methods of influence were used against them by operatives of law enforcement agencies at the time of receiving initial confessions. In addition, it is necessary to understand that even reading the text of a protocol drawn up or a decision being served is not an easy task for some accused due to their low literacy, especially since a significant part of those brought to criminal liability suffer from various mental disorders. Many accused, when giving evidence and signing investigative reports, do not fully understand the contents of the documents drawn up by officials. Therefore, the information received by the lawyer from the client needs to be cross-checked from other sources.
When receiving information from officials representing the prosecution, it is necessary to take into account that they are procedural opponents of the lawyer, and the information coming from them may be deliberately distorted, or some of the information may be hidden. It is also necessary to be wary of information received from other defendants or their defense attorneys, especially since the exchange of information on a criminal case between lawyers is permissible only with the permission of their clients, which cannot always be obtained.
Witnesses and victims in a criminal case distort information for both of these reasons, that is, due to low legal literacy and due to a hostile attitude towards the lawyer as a person defending an unworthy member of society, moreover, who has offended the victim.
To eliminate the distortion of the overall picture in a criminal case, it is advisable for a lawyer to recommend that his client use the right granted to him by Art. 51 of the Constitution of the Russian Federation, that is, not to testify in a case against oneself. It is never too late to give testimony in a criminal case during the judicial investigation, but then this testimony will already be verified with other evidence collected by the prosecution in the case, which will eliminate unnecessary contradictions in the evidence base of the defense. Giving statements in a hurry may result in them having to be changed later under pressure from the totality of the incriminating evidence collected.
Every change in the defendant’s testimony in the case is regarded by the court as an attempt to evade criminal liability, that is, it indirectly speaks of the defendant’s guilt. This approach is objective: if a person speaks the truth, then it cannot be expressed with significant contradictions. Therefore, a lawyer should allow changes in the testimony of his client only in the most extreme cases. It is better not to give any testimony at the beginning of a criminal trial, and at the end to give coherent and consistent testimony, than to change testimony during pre-trial and trial proceedings. However, the right to refuse to testify cannot be abused either. Testimony that cannot conflict with other evidence in the case may be given immediately. Moreover, if this evidence indicates the innocence of the defendant. Such testimony must first of all include information about the defendant’s alibi. If the case involves several defendants whose interests are contradictory, especially if the defendant himself is confused for some reason in explaining what happened, testifying is contraindicated.
2. After receiving information that can be assessed by the lawyer as sufficiently reliable, it is necessary to identify the main points of reference for the alleged episodes of criminal activity. To do this, the charged act must be broken down into separate elements that carry an independent meaning in the criminal process.
As supporting points, you should choose only those procedural contradictions, one of the solutions to which leads to a change in the qualification of the offense. For example, the value of stolen property is on the threshold that determines large and especially large size, that is, it affects qualifications. In this case, you can fight to reduce the value of the stolen property, for example, by conducting a commodity examination, which will show a real decrease in the value of a specific product, or by applying depreciation rates to the stolen property if it is on the balance sheet of a legal entity whose fixed assets are subject to depreciation. You can apply for a certificate from the statistical authorities about the average market value of similar property if its value is unreasonably inflated by the victim. Reduction as a result of such procedural actions of the value of stolen property to less than 250,000 rubles. may change the qualification from the third to the second part of Art. 158 of the Criminal Code of the Russian Federation (theft), with a corresponding reduction in the maximum penalty from 6 to 5 years.
The tactics of defense in a criminal case based on strong points are designed to save the procedural forces of the parties, and also aim to help the lawyer see and understand the real prospects of the case. If a lawyer defends a person accused of committing a criminal act haphazardly, he either does not see any defense options at all, since the entire array of procedural information is almost impossible to perceive at the same time, due to which he is inactive and misses tactical and strategic opportunities, or begins to fight for each major, medium and minor procedural position. Such protection is good if the sole purpose is to delay the preliminary or judicial investigation.
If the goal of defense is more serious, then it can hardly be achieved by fighting on all positions at once. In such a struggle, the forest is not visible for the trees. By appealing against everything and insisting on all points of a chaotically constructed version of the defense, the lawyer risks achieving the only internal conviction of the court that the client is trying to avoid criminal liability by all possible means. It is necessary to select the main, most promising and significant options for the development of the procedural situation for the defense, which can be justified by existing or promising relevant and admissible evidence. Breaking through the prosecution line on one of the leading points that are important for the qualification of the charged criminal act can reduce the amount of punishment or completely decriminalize the act of the defendant.
As confirmation of what has been said, one can cite a technique widely used by experienced lawyers, the essence of which is that when familiarizing yourself with case materials on property crimes, mainly robberies, it becomes clear whether the victim and the accused previously knew each other and whether the accused had any the victim of material claims. If debt obligations are proven, then robbery will be reclassified as arbitrariness, the sanction for which is much lower, and in cases involving minors, in some cases, criminal prosecution is terminated due to not reaching the age of criminal responsibility, since criminal liability for arbitrariness comes only from the age of 16, whereas for robbery - from a 14-year-old. Another confirmation of the procedural tactical victory is a competent analysis of the fact of the alleged penetration into the victim’s home. If the victim first invited a person into the premises, and then was robbed by him, the penetration is considered legal, and paragraph “a” of Part 2 of Art. 161 of the Criminal Code of the Russian Federation cannot be imputed, which, in the absence of other qualifying criteria, does not allow the defendant to be brought to criminal liability under Part 2 of Art. 161 of the Criminal Code of the Russian Federation.
Lawyer investigation
Such an action as “interviewing persons with their consent” in paragraph 2 of Part 3 of Art. 86 of the Code of Criminal Procedure of the Russian Federation is called a means of collecting criminal procedural evidence. Although the right in question is provided for by the criminal procedure law, it is not properly ensured by the legislator. The legislator clearly limited the circle of subjects for collecting evidence (Article 74, Part 1 of Article 86 of the Code of Criminal Procedure of the Russian Federation). The lawyer is deprived of the procedural opportunity to question defense witnesses and present their testimony to the court.
Professor P.A. Lupinskaya wrote that “documents, objects, information obtained as a result of questioning by the defense counsel do not meet such a mandatory property of evidence as admissibility, since they were not received and not secured in a procedural manner and in a procedural form.”
This position is a product of the weakness of the formulations of the Code of Criminal Procedure of the Russian Federation.
In clause 2, part 3, art. 86 of the Code of Criminal Procedure of the Russian Federation refers to the questioning by the defense attorney not of a witness, but of a “person”. The defense attorney “when interviewing a person (not having the authority to carry out investigative actions) does not have the right to warn the interviewee about criminal liability under Art. 307-308 of the Criminal Code of the Russian Federation, explain to the latter the content of these criminal law norms, since the person being questioned by the defense attorney does not give evidence as such, but only reports certain information.”
Information collected by the defense attorney as a result of interviewing a person with his consent is other evidence in the case.
Types of legal investigation acts:
- petition (Articles 119, 120 of the Code of Criminal Procedure of the Russian Federation);
— complaint (Article 123 of the Code of Criminal Procedure of the Russian Federation);
— explanation of the person interviewed by the lawyer with his consent (clause 2, part 3, article 86 of the Code of Criminal Procedure of the Russian Federation);
— expert opinion (when ordering an examination before initiating a criminal case);
- lawyer's request;
— response to a lawyer’s request.
The form of acts of lawyer's investigation is written.
The structure of acts of legal investigation in most cases assumes the presence of three parts:
- descriptive;
- motivational;
- pleading.
The content of the acts of the lawyer's investigation includes evidentiary information on the case that exonerates the client or mitigates his responsibility.
The significance of acts of lawyer's investigation lies in the fact that they can be attached to the materials of a criminal case and form the basis of a verdict (not acquittal or less severe in relation to the verdict that would have been passed on the basis of only the evidence of the prosecution).
Preliminary conversation with the client
When a lawyer enters a criminal case at any stage of the process, his first action is to organize a preliminary conversation with his client (coordination of positions, lines of defense). Ignoring the significance of the preliminary conversation with the client, or conducting it in a crumpled, short manner can have a sharply negative impact on the result of the entire work of the defense attorney.
A preliminary conversation with the client implies:
— clarification from the defendant of circumstances that are not reflected in the collected materials of the criminal case;
— agreement on the position on the case;
— preparing the client to testify;
— explaining to the client his rights and obligations.
During the preliminary conversation with the client, it is especially necessary to stipulate the form of his behavior in the court hearing, since often persons brought to criminal liability behave not only inappropriately, but also offensively towards other participants in the process, mainly towards victims and witnesses.
Familiarization with the case materials
In the process of familiarizing yourself with the materials of the criminal case, it is necessary to compare the dates and times of all procedural actions. To do this, it is recommended to note in your diary as you study each protocol the time and date of its compilation. If the time of drawing up several protocols coincides, or there is no time interval between the drawing up of several protocols, and the places where they were compiled are different, then this indicates their illegality.
If a lawyer has discovered procedural defects reflected in the protocols of investigative actions, then one should not immediately file a petition to eliminate them, since these protocols can be rewritten by the investigator without violations. It is not the investigator who needs to point out violations of the law committed during the preliminary investigation, but directly to the court at the preliminary court hearing or during the judicial investigation, when the investigator no longer has access to the materials of the criminal case.
Another point that a lawyer needs to pay special attention to at this stage of the criminal process is the participation of witnesses during investigative actions. The details of all witnesses must be written down and after the criminal case is sent to court, you must talk to them. There are often cases when witnesses not only did not participate in investigative actions, but were also in another locality (on a business trip or on vacation).
It is also undesirable to neglect interviewing witnesses because, with some exceptions, they are persons disinterested in the results of the investigation in a criminal case, and if the lawyer manages to find psychological contact with the witness, it is possible to obtain an additional witness for the defense. Witnesses often explain that the police officer simply told them where to sign.
Lawyer's work in court
If the investigator transferred the case to the prosecutor and then to the court, the lawyer’s work depends on what strategy was chosen by the client.
If an active defense strategy is chosen in the case, criticizing the evidence and challenging the charges in whole or in part, the lawyer’s job is to interrogate witnesses, victims, and defendants in court; examine other evidence; submit petitions to the court (about the inadmissibility of evidence, to call a witness for questioning, etc.); object to the prosecutor’s requests that may harm the client; speak in debates and analyze in detail the evidence and legal position of the prosecution.
If the conditions established by law for termination of the case in connection with the reconciliation of the parties, with active repentance or with the imposition of a judicial fine are met in the case, and the defendant wants to obtain such a result, it is necessary to correctly draw up a petition for this, as well as convince the court of the advisability of terminating the criminal case.
Courts do not always dismiss criminal cases, since this is their right, not their obligation. For example, courts refuse to dismiss some criminal cases, citing the fact that the crime that the accused is charged with is “double-objective” and therefore cannot be dismissed. However, Russian legislation does not contain either the concept of “double-objective crimes” or restrictions on the termination of criminal cases for certain crimes. In addition, the size of the court fine is also important. A lawyer can tell you what measures to take to get the smallest fine possible or even pay it in installments.
If the defendant has chosen to consider the case in a special manner, it is necessary to collect and provide the court with as much information as possible about mitigating circumstances in order to mitigate the possible punishment as much as possible.
You can read about what a special order is, what its consequences are, and whether it is worth choosing it here and here.
The result of a lawyer’s work in a criminal case in court can be an acquittal in full or in part, reclassification of the charge to a more lenient one, mitigation of punishment, preparation of the case for further appeal, including filing a complaint with the ECHR.
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
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