Advocacy and notary office. Participation of a defense attorney in a criminal case at the stage of preliminary investigation (lecture notes)

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Advocacy and notary office. Participation of a defense attorney in a criminal case at the stage of preliminary investigation (lecture notes)

Lecture notes, cheat sheets

Directory / Lecture notes, cheat sheets

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LECTURE No. 5. Participation of a defense counsel in a criminal case at the stage of preliminary investigation

1. Strategy and tactics of the work of a lawyer at the stage of preliminary investigation of a criminal case

The main goal of a lawyer’s activity is to respect the rights of the client. The directions contributing to its achievement are the following:

1) exclusion of unreasonable prosecution;

2) mitigation and adequacy of punishment in case of its inevitability.

For the most effective implementation of protection functions The lawyer carries out his activities in certain forms:

1) giving advice to the client;

2) development of the direction of protection;

3) participation in investigative actions;

4) interaction with law enforcement agencies conducting the investigation in order to best respect the rights and interests of the client;

5) establishing contact with a representative of the injured party, working out possible cases of compromise (peaceful regulation);

6) appeal against the actions of officials of law enforcement agencies;

7) conducting a lawyer's investigation in order to establish information unknown to the investigation and contributing to the establishment of objective truth;

8) analysis of evidence in terms of admissibility, relevance, reliability, sufficiency;

9) participation in the process of proving during the consideration of the case in court;

10) formation of protective speech;

11) appeal against court decisions if there are grounds provided for by law;

12) participation of a defense counsel in higher judicial instances.

According to part 3 of Art. 86 of the Code of Criminal Procedure of the Russian Federation, a lawyer is subject of proof. He has the right to collect evidence by: obtaining objects and other information; interviewing persons with their consent; requesting certificates, characteristics, various documents from state authorities, local governments, etc.

The proof carried out by a lawyer in criminal cases is unilateral in nature - it is aimed at protecting the rights and interests of the suspect, the accused, the defendant. This circumstance plays a decisive role in determining the circumstances that he has to establish in a particular criminal case. The defender-lawyer directs his efforts to proving the circumstances relating to the innocence of the client in the commission of the crime, the characteristics of his personality, the elimination of crime and the punishability of the act, the mitigation of punishment, as well as those that may entail exemption from criminal liability and punishment (clauses 2, 3, 5 -7 part 1 article 73 of the Code of Criminal Procedure).

Based on the defense tactics developed in a criminal case and agreed with the client, the lawyer determines the scope, sequence and stage of presentation of evidence collected in the interests of defending the suspect, accused, defendant.

Features are also characteristic of defense tactics in court proceedings, primarily expressed in the work of a lawyer with evidence: all the information he collects must be presented to the court, included in the research process, investigated during the judicial investigation. In this way, the defender-lawyer refutes the accusation as a whole, its individual parts or episodes, confirms his position on the basis of the evidence presented by him to the court.

One of the ways for a lawyer to provide evidence in pre-trial proceedings is to participate in the proceedings investigative actions. Here, the lawyer’s goal is to identify circumstances and evidence that influence the resolution of the question of the defendant’s guilt, the qualification of the act committed by him, the type and amount of responsibility or release from it.

With regard to the stage of familiarizing the lawyer with the materials of the completed preliminary investigation, practice and theory have developed a number of methodological recommendations, the implementation of which is determined by the moment the lawyer enters the case. If he participates in the case from the moment the suspect is detained or the person is charged as an accused, then the lawyer does not need to start familiarizing himself with the case materials by studying the decision to bring the person as an accused. First of all, you should start studying the materials related to the prosecution of the person defended by the lawyer, carefully and carefully study the decision to bring him as an accused. This will make it possible to determine which volumes of the case materials and to what extent are to be studied.

The petitions of the lawyer, declared upon acquaintance with the materials of the completed preliminary investigation, may be aimed at collecting evidence that is important for the defense of the accused, checking versions that refute the charge brought against the defendant, changing the qualification of the actions of the accused to a softer one, excluding certain episodes or parts from the charge. , stop the criminal case and criminal prosecution (clauses 1-3 of part 1 of article 24; part 3 of article 24 of the Code of Criminal Procedure).

2. 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 purpose of participation of a lawyer in criminal proceedings - implementation of defense, criminal procedural representation and support of private prosecution on behalf of the victim in cases of private prosecution (parts 1, 2 of article 20 of the Code of Criminal Procedure of the Russian Federation), as well as the provision of qualified legal assistance to the client and the principal. To do this, a lawyer is obliged to use the entire arsenal of means provided for by law, as well as other measures and means that do not contradict the law.

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, prisoner, 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). In addition, the law provides for the obligation of a lawyer to participate in a criminal case as a defense counsel by appointment of the bodies of inquiry, bodies of preliminary investigation, the prosecutor and the court, which are obliged to ensure his participation at the request of the suspect, accused, defendant (clause 10, article 25 of the Law on the Bar, Part 2, Article 50 of the Code of Criminal Procedure of the Russian Federation).

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 of 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 had assumed the defense of the named participants in the criminal proceedings, he would not have been 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.

The procedural and legal aspects of an invitation, appointment, replacement, as well as waiver of protection are regulated by Art. 50, 52 Code of Criminal Procedure of the Russian Federation. According to their instructions, the defender is invited by the suspected, the accused, the defendants, and, on their behalf, also by other persons. The new criminal procedure law gives the suspect, the accused, the defendant the right to invite several defense lawyers (Part 1, Article 50 of the Code of Criminal Procedure of the Russian Federation).

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.

The law provides for circumstances excluding the participation in a criminal case of a lawyer-defender and a lawyer-representative (clauses 1-3 of part 1 of article 72 of the Code of Criminal Procedure of the Russian Federation). The presence of at least one of the circumstances listed in this article gives the right to each of the participants in criminal proceedings established by law to challenge the lawyer.

Democracy, humanism and fairness of the modern Russian criminal process is manifested in the fact that the criminal procedure law establishes the mandatory participation of a lawyer in criminal proceedings (part 1 of article 51 of the Code of Criminal Procedure of the Russian Federation).

Author: Nevskaya M.A.

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