Advocacy and notary office. Rules for accepting the defense and admitting the defense attorney to participate in the case (the most important)

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Advocacy and notary office. Rules for accepting the defense and admitting the defense attorney to participate in the case (the most important)

Lecture notes, cheat sheets

Directory / Lecture notes, cheat sheets

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8. Rules for the acceptance of the defense and the admission of the defense counsel to participate in the case

In criminal proceedings, a lawyer participates, on the one hand, as a defender of a suspect, accused, defendant and convict (parts 1, 2 of article 49 of the Criminal Procedure Code of the Russian Federation), on the other hand, a lawyer also has the right to participate in criminal proceedings as a representative of the victim, civil plaintiff, civil defendant and private prosecutor (Articles 43, 45, 55 of the Code of Criminal Procedure of the Russian Federation).

The admission of a defense lawyer to criminal proceedings is regulated by Part 2 of Art. 48 of the Constitution of the Russian Federation and part 3 of Art. 49 Code of Criminal Procedure of the Russian Federation. In accordance with the constitutional provisions, every detainee, taken into custody, accused of committing a crime has the right to use the assistance of a lawyer (defender), respectively, from the moment of detention, detention or charge.

The basis for the participation of a lawyer in criminal proceedings as a defense counsel or representative is an agreement between a lawyer and a client on the provision of legal assistance, set out in a contract of agency, which is drawn up in a simple written form (clauses 1, 2, article 25 of the Law on the Bar).

A lawyer is allowed to participate in a criminal case as a defense counsel upon presentation of a lawyer's certificate and a warrant (Part 4, Article 49 of the Code of Criminal Procedure of the Russian Federation). One and the same advocate is not entitled to defend two suspects, accused or defendants if the interests of one of them conflict with the interests of the other.

The Code of Criminal Procedure of the Russian Federation categorically prohibits a lawyer from refusing to take on the defense of a suspect, accused, defendant (Part 7, Article 49) for any reason, motive, or consideration.

The moment when a lawyer is allowed to participate in a criminal case is not the same as when he takes over the defense. This moment is not directly defined by law, but there is no doubt that it precedes the admission of a lawyer to participate in the case. If the lawyer assumed the defense of the named participants in the criminal proceedings, he would not be allowed to participate in the criminal case.

If the order is accepted, the lawyer draws up a warrant, which he submits to the investigator in charge of the investigation. Admission to participate in the case is made on the basis of a petition, which indicates all the details of the warrant, as well as a request for the appropriate notification of the administration of the place of temporary detention of his client and the provision of visits with him.

At the request of the suspect, the accused, the defendant, the interrogating officer, the investigator, the prosecutor and the court shall ensure the participation of the lawyer in the case. The appointment of a defense lawyer by them to participate in a criminal case is obligatory for him, and the costs of paying a lawyer are compensated at the expense of the federal budget (part 5, article 50 of the Code of Criminal Procedure of the Russian Federation).

In the complex of procedural rights of a suspect, accused, defendant, there is also such as the right to refuse legal assistance from a defense lawyer at any time in a criminal case (Part 1, Article 52 of the Code of Criminal Procedure of the Russian Federation). Procedural actions performed without the participation of a lawyer, after the admission of the defense counsel to the case, are not repeated.

Authors: Nevskaya M.A., Shalagina M.A.

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