Пенитенциарная наука (Sep 2024)
Algorithm for introducing the appointed defense lawyer into the criminal process: how to avoid a “double defense” situation
Abstract
Introduction: the right to receive qualified legal assistance is enshrined in Article 48 of the Constitution of the Russian Federation. It is the right of everyone who is subject to criminal prosecution, regardless of the financial situation of the person. In the system of criminal law and criminal procedural relations, this right is imperative, and violation of this right entails negative consequences for the results of the criminal case investigation and its consideration on the merits. At the same time, in practice, situations occur when a lawyer participating in the process, for one reason or another, disrupts the production of pre-planned investigative actions or court hearings, thereby delaying the investigation and consideration of the criminal case on the merits. In this situation, the investigation and the court can appoint another defense attorney despite objections of a defendant and his/her lawyer, thereby giving rise to a “double defense situation”. At the same time, the legal community recognizes the participation of an appointed defense lawyer in the “double defense” situation as a violation of the Code of Professional Ethics of a Lawyer. In this article, the author continues the previously started research on this topic, and, taking into account the established disciplinary practice, proposes an algorithm of actions that will allow the lawyer to act within the framework established by the criminal procedure legislation and internal corporate regulatory legal acts in order to avoid possible violations, including preventing the emergence of a “double defense situation”. Purpose: to continue the study of controversial issues arising at the current stage of the implementation of the constitutional right to defense in criminal proceedings, affecting the problems of interaction between the defense lawyer and the defendant and other lawyers participating in the case, and to propose an algorithm of actions for lawyers entering into criminal proceedings by appointment of the inquiry officer, investigator or court in order to avoid possible violations of the Code of Professional Ethics of a Lawyer and the situation of “double defense”. The task of the study is to develop an algorithm for the entry of a appointed lawyer into criminal proceedings in order to prevent violation of the right to defense of a person brought to criminal liability and, at the same time, to prevent violations of internal corporate regulatory legal acts and avoid the emergence of a situation of “double defense”. Methods: general dialectical method of cognition of sociolegal phenomena, general scientific research methods (analysis and synthesis, deduction and induction, system-structural and others), private scientific methods of cognition (logical-formal and system analysis). The results of the study are both theoretical and applied in nature and have elements of scientific novelty. The author studies issues of entry of an appointed defense lawyer into criminal proceedings, proposes an algorithm of the lawyer’s actions in order to avoid possible violations and emergence of “a double defense situation”. At the same time, the author suggests considering “double defense” not as an institution of criminal procedural law, but as a significant violation of the norms of advocacy in criminal proceedings. Conclusion: discussion of the identified problems will draw attention of the scientific community and the legislator to the development of solutions to eliminate the identified gaps in the implementation of defense in criminal proceedings and will protect appointed defense lawyers from possible violation and subsequent accusation of violating internal corporate regulatory legal acts and creating “a double defense” situation.
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