Defender of his rights and duties. The procedure for his participation in a criminal case. Mandatory participation of a defense attorney.

Public Defender

The path to the establishment of the institution of protection has several historical turns.
Every year, the composition of bar associations is formed, the legislation in this area is improved, which is caused primarily by the constitutional right to the protection of any citizen. That is why there was an option to exercise such a right as a public defender in criminal proceedings. Today, such an institution has ceased to exist, but in legal theory it continues to be highlighted as one of the effective options for supporting citizens accused of a crime.

What a public defender could do is evidenced by previous laws adopted in the Soviet Union.

The position of such subjects did not differ from the current lawyers and other persons:

unlimited access to case materials;
free communication with the ward;
providing personally obtained information about the case;
filing petitions, complaints;
involving other persons to clarify the situation;
participation in a case together with a lawyer, work as his assistant;
speech in the courtroom.

The responsibilities of the specified subject were formed according to the same principle as now. The main rule was compliance with the law.

The only thing that distinguished these subjects was that they were representatives of the public. This mattered because there was always a pattern of behavior, and censure by society was recognized as one of the measures of punishment.

Speaking about the participation of close relatives, at the time of the existence of the presented institution, this was allowed. Moreover, this phenomenon occurred most often and took place in conjunction with the activities of a professional lawyer, that is, a lawyer. In fact, it is still possible to obtain a representative from the public today. The institute itself was not abolished, but rather underwent a number of significant changes.

Thus, the institution of defense during the investigation of a crime and its direct consideration in court is an integral part of such a process. The direct right of every citizen subject to criminal prosecution to demand a representative who will protect his interests.

Such measures guarantee competition and equality of parties in the judicial system, which also implements one of the main constitutional principles.

Judge of the Tverskoy District Court of Moscow

From the defendant's full name.

Petition

on the admission of a defense lawyer along with a lawyer

Your court is considering a criminal case charging me under Part 3 of Article 30, paragraph “d”, Part 4 of Article 228.1 of the Criminal Code of the Russian Federation.

In order to effectively defend the case in accordance with generally accepted norms of international law, Article 48 of the Constitution of the Russian Federation, as well as Part 2 of Art. 49 and Part 1 of Article 50 of the Criminal Procedure Code of the Russian Federation, I ask you to ensure my constitutional right to defense and to admit as a defense attorney in the case, along with a lawyer, the full name of the defender (is .....), who has a higher education, etc., who is present in court.

There are no circumstances under which the full name of the defender cannot be admitted as a defense lawyer. She is not a witness in the case.

I especially want to draw the court’s attention to what exactly with the full name. the defender agreed on the position of the defense in a criminal case to a greater extent than with the lawyer.

The defense plan in a criminal case was discussed in more detail, as well as its strategy when considering a criminal case in court.

Part 1 of Article 48 of the Constitution of the Russian Federation reads:

“Everyone is guaranteed the right to receive qualified legal assistance.”

Part 1 of Article 50 of the Code of Criminal Procedure of the Russian Federation indicates:

“The suspect or accused has the right to invite several defense attorneys.”

Part 2 of Article 49 of the Code of Criminal Procedure of the Russian Federation reads:

“By determination or order of the court, one of the close relatives of the accused or another person for whose admission the accused applies may be admitted as a defense lawyer, along with a lawyer.”

Thus, the Determination of the Constitutional Court of the Russian Federation dated February 19, 2009 No. 152-О-О “On the refusal to accept for consideration the complaint of citizen Sergei Valerievich Yezhkov about the violation of his constitutional rights by part two of Article 49 of the Criminal Procedure Code of the Russian Federation” explains:

“...The Constitutional Court of the Russian Federation has repeatedly indicated that one of the methods of defense against the charge, which is not only not prohibited, but is also directly enshrined in part two of Article 49 of the Code of Criminal Procedure of the Russian Federation, is an invitation to participate in a court hearing at the request of the accused as a defense attorney for one from his close relatives or another person; refusal by the court to provide the accused with the opportunity to use this method and thereby restriction of the right guaranteed by Article 45 (Part 2) of the Constitution of the Russian Federation can take place only if there are substantial grounds for this (rulings of the Constitutional Court of the Russian Federation dated April 22, 2005 N 208-O , dated July 11, 2006 N 268-O, dated November 15, 2007 N 928-O-O and dated December 18, 2007 N 917-O-O). Giving the court the authority to decide the issue of admitting as defense lawyers persons other than lawyers chosen by the accused himself, as follows from the legal position of the Constitutional Court of the Russian Federation, set out in Resolution No. 2-P of January 28, 1997, is due to the fact that in court stages of criminal proceedings, it is the court that provides the conditions for the parties to exercise their rights, including the right of the accused to have the assistance of a defense lawyer and to defend himself by all means not prohibited by law. The norm of part two of Article 49 of the Code of Criminal Procedure of the Russian Federation does not imply the right of the court to arbitrarily - without taking into account other provisions of this Code, as well as the circumstances of a particular case and the personality characteristics of the person invited as a defense lawyer - to reject the corresponding petition of the accused (Determination of the Constitutional Court of the Russian Federation of July 11, 2006 N 268-O)".

The ruling of the Constitutional Court of the Russian Federation dated April 22, 2005 N 208-O “On the refusal to accept for consideration the complaint of citizen Artur Konstantinovich Korkovidov about the violation of his constitutional rights by part two of Article 49 and part seven of Article 236 of the Criminal Procedure Code of the Russian Federation” explains:

“... An invitation, at the request of the accused, to participate in a court hearing as a defense attorney of one of the close relatives or another person is directly provided for by the criminal procedure law, in particular the norm challenged by the applicant, as one of the methods of defense. Since this method of defense is not only not prohibited, but is directly provided for by law, the court’s refusal to provide the accused with the opportunity to use it can only occur if there are significant obstacles to this, including due to the presence of circumstances provided for by the criminal procedural law that exclude participation defense attorney in criminal proceedings. In any case, the decision to admit as a defense attorney, along with a lawyer, one of the close relatives of the accused or another person for whose participation the accused applies, cannot be arbitrary, not taking into account the requirements of the law, the circumstances of a particular case and the personality characteristics of the person invited as a defense lawyer. At the same time, within the meaning of the criminal procedure law, the participation of a professional lawyer in the case cannot be recognized as a circumstance preventing the admission as a defense attorney of a person who is not a lawyer, since neither the Constitution of the Russian Federation nor the criminal procedure law limits the number of defense attorneys who can participate in the case, and also since, by virtue of part two of Article 49 of the Code of Criminal Procedure of the Russian Federation, the participation in the case of a lawyer, on the contrary, is one of the conditions for the admission as a defense lawyer of another person, along with the lawyer.

Thus, the specified norm, in its constitutional and legal meaning, does not imply the right of the court to arbitrarily reject the accused’s request for admission as a defense lawyer of a person who is not a lawyer, and does not prevent the protection of the interests of the accused in court by a close relative or other person along with a defense lawyer.” .

I ask the court to ensure my constitutional right to effective protection and to comply with the requirements of the above Federal Laws, the Federal Constitutional Law and the Constitution of the Russian Federation.

Full name details defender: passport details, address, contact details (telephone, email)

Defendant

Lawyer (I support the petition)

What does judicial practice show under this article?

.
Often appeals and petitions under this article are considered by the Supreme Court of the Russian Federation:

By decision of the Supreme Court, the petition of the accused, and after the convicted K., was rejected regarding the presentation of his case by several defense attorneys. Reason: lack of understanding of the criminal case in its legitimate legal interpretation by the persons for whom the petition was filed. The norm does not imply the obligation of the court to satisfy the petition; the right of a positive decision on the petition can be supported by an assessment of the provision of objective legal assistance.
Defendant F.'s request for the participation of a close relative as a defense attorney was granted, but with reservations: in a criminal case, a defense attorney is appointed along with a professional lawyer, and not instead of him. Whether a relative has an official legal education without lawyer documents is not taken into account. A relative of the convicted person F. was retained as an assistant lawyer.

https://youtube.com/watch?v=0PsiQLqqBIg

The article must be consulted to confirm the rights and obligations of the person who takes upon himself the defense of a citizen involved in a criminal case as a suspect or accused. The moment of attraction is determined by regulations and can occur either from the time of delivery of the notification or from the fact of the citizen’s detention. The competence of the court does not extend to assessing the actions of a lawyer.

The Supreme Court confirmed that the status of a defense attorney, along with a lawyer, remains after the verdict

Lawyer, assistant lawyer at Real Law Law Firm Vladimir Shmidt participated in the criminal case against Konstantin Borisov as a defense attorney along with a lawyer. Borisov was found guilty and sent to serve his sentence in a correctional facility in the Krasnoyarsk Territory. Subsequently, he was treated at the Regional Tuberculosis Hospital No. 1 and Medical Correctional Institution No. 37 of the Federal Penitentiary Service of Russia in the Krasnoyarsk Territory.

While Konstantin Borisov was in the medical institutions of the Federal Penitentiary Service, Vladimir Schmidt repeatedly tried to hold working meetings with him, but he was denied this.

Vladimir Shmidt filed an administrative claim with the Chertanovsky District Court of Moscow. The court satisfied the lawyer's demands to recognize as illegal the verbal refusals of the head of LIU-37, Konstantin Werner, to allow him to attend working meetings with his client, the convicted Borisov, using communications equipment, a camera, a video camera and a voice recorder, which were necessary for carrying out activities to protect his rights and freedoms and legitimate interests.

At the same time, the judge refused to satisfy the administrative claim regarding the recognition as illegal of Werner’s oral refusals to hold working meetings between them confidentially. It was also refused to satisfy the request to recognize as illegal the verbal prohibitions of the head of KTB-1 of the GUFSIN of Russia in the Krasnoyarsk Territory, Oleg Styk, to visit Borisov, as well as to recognize as illegal the decision of the prosecutor for supervision of compliance with laws in correctional institutions, Vladimir Ulyanov, who considered the refusals of FSIN officials to be legal.

The Moscow City Court overturned the decision of the first instance, indicating that since the verdict against Konstantin Borisov entered into legal force, the powers granted to Vladimir Schmidt by decision of the Naro-Fominsk City Court of the Moscow Region to carry out his defense in a criminal case along with a lawyer and related to the right to hold working meetings with the convicted person at the place of his detention was terminated. Under these circumstances, Vladimir Schmidt may be granted a meeting with the convicted Borisov solely on a general basis.

The lawyer was denied the transfer of the cassation appeal for consideration by the Presidium of the Moscow City Court, and therefore he appealed to the Supreme Court. In the cassation appeal, he indicated that, by virtue of the provisions of Part 1 of Art. 49 of the Code of Criminal Procedure of the Russian Federation, a defense attorney is a person who, in accordance with the procedure established by this Code, protects the rights and interests of suspects and accused and provides them with legal assistance in criminal proceedings. As established in Part 1 of Art. 401 of the Code of Criminal Procedure of the Russian Federation against a court decision made when resolving issues related to the execution of a sentence, an appeal or presentation may be filed in the manner established by Ch. 45.1 of this Code.

“Since the criminal procedure law defines only the initial, but not the final moment of the accused’s exercise of the right to the assistance of a defense attorney, including a person admitted to participate as a defense attorney along with a lawyer, then, taking into account the provisions of paragraph 51 of Art. 5 of the Code of Criminal Procedure of the Russian Federation, according to which judicial proceedings are understood as a court hearing in the court of the first, second and supervisory instances, the implementation of the enshrined right must be ensured at all stages of the criminal process, including during proceedings in the court of the supervisory instance and in accordance with Ch. 49 of the Code of Criminal Procedure of the Russian Federation,” the complaint emphasized.

Vladimir Shmidt pointed out that the right of a convicted person to a work meeting (date) related to receiving legal assistance should be ensured to the defense attorney along with the lawyer at all stages of the criminal process, including at the stage of execution of the sentence in a specific case in which he was admitted as a defender, as well as for protection from actions and decisions of bodies and institutions executing punishment that infringe on his rights and legitimate interests.

The lawyer pointed out that after the Decision of the Supreme Court of the Russian Federation of June 26, 2007 No. GKPI07-520 came into force, the wording of clause 83 of the previously existing Internal Regulations of Correctional Institutions was changed, according to which, in order to receive legal assistance, convicts are granted visits with lawyers or other persons entitled to legal assistance. “This paragraph of the Rules does not contain any indication of the need to submit a separate application for a meeting between a defense lawyer and a convicted person to provide the latter with legal assistance. The current paragraph 79 of the Internal Regulations of Correctional Institutions does not contain such an instruction,” the complaint notes.

In addition, Vladimir Shmidt referred to the Decree of the Constitutional Court of the Russian Federation of April 1, 2004 No. 77-O, which states that the constitutional provisions on the right to receive qualified legal assistance in relation to convicted persons serving a sentence of imprisonment are specified in Part. 4 tbsp. 89 of the Penal Code of the Russian Federation, which connects the provision of meetings with lawyers and other persons entitled to provide legal assistance to convicted persons only with the submission of a corresponding application by the convicted person. The law does not provide for any additional, restrictive conditions for granting a convicted person meetings with a lawyer, from which it follows that the established Part 4 of Art. 89 of the Penal Code of the Russian Federation, the procedure for granting a convict a meeting with a lawyer is of a notification, and not a permissive nature, and therefore the administration of the institution executing a sentence of imprisonment does not have the right to refuse the convict’s application for a meeting with the lawyer he has invited.

The defense lawyer also referred to the Decree of the Constitutional Court of the Russian Federation of June 24, 2008 No. 453-О-О, which states that a person admitted to participate in a criminal case as a defense attorney retains his criminal procedural rights and obligations at all stages of the proceedings. case (including until the court accepts the accused’s refusal of this defense lawyer or the court decides to challenge him). This means that the status of a defender at the stage of supervisory proceedings does not require additional confirmation by the court. Part 1 art. 402 of the Code of Criminal Procedure of the Russian Federation directly names the defense lawyer among the persons authorized to petition for a review of a sentence that has entered into legal force.

Vladimir Shmidt noted that there are also provisions of Chapter. 49 of the Code of Criminal Procedure of the Russian Federation “Grounds for the resumption of criminal proceedings due to new or newly discovered circumstances”, which establishes the right of a defense attorney, along with a lawyer, to submit applications to the prosecutor’s office.

On August 29, the Judicial Collegium for Administrative Cases of the RF Armed Forces considered the complaint, satisfied it in full and sent the case for a new trial to the appellate court. The reasoned decision has not yet been published.

In a commentary to AG, Vladimir Shmidt explained to AG that he did not have any problems directly with access to the convicted person, since his status is equal to that of a lawyer. “But we demanded that I be allowed into every meeting with a telephone, so that I could make audio and video recordings, take photographs, etc. We submitted a statement that we needed confidential meetings to the office, but this was also denied to us. During such meetings, I could find out whether Borisov was subjected to torture, and if there were injuries, record them. Borisov could have said who tortured him, but this did not happen, since confidential meetings could not be achieved,” he said.

Vladimir Shmidt believes that the appeal ruling was canceled on the grounds that the Moscow City Court made a conclusion, contrary to substantive law, that if the verdict came into legal force in relation to Borisov, then the defender lost his procedural status.

The Russian Federal Penitentiary Service for the Krasnoyarsk Territory noted that due to the lack of text of the ruling of the RF Armed Forces, a response to the request will be provided after its receipt.

Rights and responsibilities of a defense attorney in criminal proceedings

In order to determine the position of the defense attorney in criminal proceedings, it is necessary to study the aspect concerning his rights and obligations. The defender is an independent subject, but his independence in performing the most important procedural actions is limited by his connection with the suspect, since he provides protection in his interests. Thus, the choice of means and methods of defense by the defense attorney depends on the will of the accused, and the same applies to the appointment of the defense attorney himself[11]. However, the direction of defense chosen by the lawyer may differ from the position of the accused, but only if this direction can improve the situation of the suspect; but the defender must not take actions that will adversely affect the position of the suspect.

As we have already said, preference for participation as a defense attorney in criminal proceedings is given to professional lawyers, and his main function is to protect the accused and provide him with qualified legal assistance[12]. The defense attorney begins to exercise his powers from the moment he is admitted to participate in a criminal case[13]. The decision to admit a defense attorney can be made by an inquiry officer, investigator, court, or judge by issuing a warrant or other document that confirms the authority of the defense attorney.

Law Club Conference

Received status. The judge does not allow copies of the UD materials to be made. I went to the chairman of the court. She generally said that she did not understand why the judge followed our lead and made such a decision. That she would recommend reconsidering the decision he made and canceling it. She also did not allow me to make copies. She said that there is already a practice of denying the right to community. defender

if it’s not too late, ask for a separate resolution on admission, because then there will be a lot of hassle with an extract from the protocol - the special units of the pre-trial detention center will ask for a determination or resolution according to the Code of Criminal Procedure, and in the end you will be questioned through glass, like a relative, if they give it.

Comments on Article 49 of the Code of Criminal Procedure of the Russian Federation

The Commentaries elaborate on the rights and responsibilities of defense counsel in criminal proceedings, expanding the concept of a person who may be appointed in addition to the representation of counsel.

For persons in respect of whom a petition has been filed, the following rules apply:

a citizen must be able to provide the accused or suspect with real objective legal assistance;
the court does not oblige you to have an official legal education, but has the right to make sure that the defense attorney understands the criminal case from the point of view of the legal interpretation of legislative acts and regulations;
admission of relatives and other persons is a right, but not an obligation of the court, therefore a justified refusal may be made for specific circumstances with the provision of facts;
a public defender in criminal proceedings who is a relative or close family member of the accused is allowed at the trial stages of the process - the decision is made by the court.

The status of a defender does not require additional confirmation by the court of rights to become familiar with the case at the stage of its supervisory proceedings. This right of a lawyer is confirmed by the articles of this code regarding admission to participation in a criminal case. The duty of a defense lawyer is lifted only if the accused refuses the services of a lawyer or by a court decision to disqualify the defense lawyer.

By the law of the Constitutional Court of the Russian Federation and paragraph 4 of Art. 49 of the Code of Criminal Procedure of the Russian Federation, the defense lawyer is endowed with all legal rights, including visits with persons in custody, but only when a warrant is issued. If a lawyer is denied a meeting and access to the place of detention of the accused in custody, according to a warrant executed in the proper manner, then all procedural and investigative measures taken after the refusal of access are considered invalid and must be considered by the court as evidence obtained illegally.

An investigator or inquiry officer does not have the right to refuse a lawyer to familiarize himself with a criminal case that contains secret information. Such behavior is interpreted as a violation of the equality of the parties. The defense attorney has the right to submit a petition or complaint to the head of the investigative department or unit.

Reasons for which a lawyer may refuse the granted right to defend a suspect or accused:

Recusal. The circumstances of the case that exclude the participation of a defense attorney must be significant. What matters is the lawyer's knowledge of such circumstances before assuming responsibilities for the defense. If so, the defender will be subject to disciplinary action.
In the event of a serious illness, the need to care for a sick family member, or other valid reasons. It is necessary to present the relevant document.
In case of gross violation of the duties assumed by the principal. Such circumstances are also documented. In this case, the defender has the right to refuse to continue his duties. Non-payment of remuneration is considered a violation if this occurs systematically.
If a representative of the defense is appointed by the inquirer, investigator, or court, an agreement is concluded, which the lawyer has no right to terminate. But at the same time, the state’s failure to fulfill its obligations to pay the defense lawyer gives the right to present to the court the grounds for refusing to continue the defense.
Pressure on the lawyer himself, relatives for the purpose of forced commission of illegal actions, which threatens health, life, as well as loss of property, is a clear reason for stopping actions to protect the accused. The lawyer is obliged to present to the court documentary and other genuine evidence of persecution and pressure.

The defense attorney’s refusal to participate in certain actions carried out in violation of legislative norms and directed against the interests of the defendant or accused does not constitute a refusal of the defense at all.

Lawyer from the moment of detention - myth or reality?

The Constitutional Court published a ruling on the complaint about the unconstitutionality of subsection. “a” clause 3, part 3, art. 49 of the Code of Criminal Procedure of the Russian Federation “Defender”, according to which the defender participates in a criminal case from the moment of actual detention of a person suspected of committing a crime, in cases provided for in Art. 91 and 92 of the Code, as well as clause 1, part 2, art. 74 of the Code of Criminal Procedure of the Russian Federation “Evidence”, indicating that the testimony of a suspect or accused is allowed as evidence.

According to the applicant, the contested norms contradict the Constitution of the Russian Federation, since they do not provide for the obligation of officials of the inquiry and preliminary investigation bodies to provide a defense lawyer from the moment of actual, not procedural arrest and to conduct an inspection of the scene of the incident, obtain a confession with the participation of a lawyer, and also allow the use of received without the participation of a defense lawyer, protocols of inspection of the crime scene and confession as evidence for the prosecution.

The Constitutional Court of the Russian Federation found no grounds for accepting the complaint for consideration. He pointed out that, contrary to the applicant's allegations, Art. 49 of the Code of Criminal Procedure of the Russian Federation directly establishes that a defense attorney participates in a criminal case from the moment of actual detention of a suspect in a crime in cases provided for in Art. 91 and 92 of the Code, as well as applications to it in accordance with Art. 100 of the Code of Criminal Procedure of the Russian Federation, a preventive measure in the form of detention.

Also, the Constitutional Court of the Russian Federation indicated that, within the meaning of Art. 157, 164, 165, 176, 182 and 183 of the Code of Criminal Procedure of the Russian Federation, the requirement to immediately ensure the right to the assistance of a lawyer cannot be extended to cases of investigative actions that are not related to the person giving evidence, are prepared and carried out without prior notification due to the threat of destruction evidence.

Regarding the issue of unconstitutionality of clause 1, part 2, art. 74 of the Code of Criminal Procedure of the Russian Federation, the court only indicated that its contested norm does not regulate the evidentiary value of the protocols for the inspection of the crime scene and the confession.

Commenting on the rejected ruling, lawyer of the Omsk Region Administrative Office Evgeniy Zabuga noted that the logic of the Constitutional Court of the Russian Federation is clear, since Art. 49 of the Code of Criminal Procedure of the Russian Federation really connects the participation of a defense lawyer in a criminal case with the moment of the actual detention of the suspect. Therefore, from the point of view of compliance with the Constitution of the Russian Federation, the norm of the criminal procedure law under consideration is consistent.

“However, after reading the Court’s ruling, any lawyer will understand the applicant’s point. This idea lies in the area of “operational work” with persons after their actual detention in order to obtain the maximum possible results (turning themselves in, other documentation of an admission of guilt, facilitating further work). And in such work, as a rule, law enforcement officials think least about human rights and the existence of the Code of Criminal Procedure of the Russian Federation,” he noted. Evgeniy Zabuga added that once again we have to state: the problem lies in law enforcement.

Andrei Grivtsov, partner at ZKS AB, was more critical of the laconicism of the definition: “The position of the Constitutional Court of the Russian Federation is evasive, as is standard for recent times. The Constitutional Court already habitually states that it does not assess specific violations committed in a criminal case, and the contested norms do not contradict the fundamental law of the state.”

Speaking about the relevance of the problem raised in the complaint, Andrei Grivtsov noted that he could not remember a single case in practice when a defense lawyer would participate in a case from the moment of actual arrest, and not from the moment the investigator drew up the arrest report. “Moreover, investigative actions are often carried out with the actual detainee, for example, an inspection of the crime scene, without the participation of a defense lawyer, and in the future the protocols of such investigative actions are not recognized as inadmissible evidence. The Constitutional Court of the Russian Federation could have tried to solve this problem, but once again avoided doing so,” concluded Andrei Grivtsov.

Lawyer of the Moscow Region AP, managing partner of AVEX YUST Law Firm Igor Bushmanov added to this that the problem of untimely admission of a defense lawyer will remain relevant until representatives of the investigative authorities “begin to respect the law and strictly observe the rights of citizens.” “We have to admit that modern investigators do not adhere to these principles. The closeness and bureaucratization of the preliminary investigation only contribute to this. Modern realities require changes and reorganization of the investigation into an institution closer to direct legal proceedings,” the lawyer believes.

He added that in this matter it would be useful to turn to the experience of the judicial reform of 1864. “Only a modernized judicial investigator, not burdened by excessive departmental control and a paper-and-stick work scheme, is able to turn his face to the law and be an independent figure for whom the maximum will be a priority. respect for the rights of other participants in criminal proceedings. Otherwise, the cart of well-worn investigation problems will continue to slow down reform innovations in criminal proceedings,” emphasized Igor Bushmanov.

Public defender in criminal proceedings

The participation of witnesses is also advisable in other investigative actions based on the observation method. In hard-to-reach areas, in the absence of proper means of communication, as well as when there is a threat to the life and health of people, any investigative action can be carried out without witnesses (Article 170 of the Code of Criminal Procedure).

Bends

Recusal is the removal of participants in legal proceedings from participation in a case due to circumstances precluding such participation.

The norms of this institution apply to those who are competent to make decisions on the case, either contribute to the administration of justice, or undertake to protect the interests of the parties. “Indispensable” participants are not subject to challenge: suspect, accused, witness, victim, civil plaintiff and defendant.

The grounds for withdrawal include:

• The need to participate in the case as “irreplaceable” persons: victim, suspect, civil plaintiff, defendant, witness.

• Previously performed another procedural function in this case;

• Personal interest in the case (including family relations with the participants in the process), and for representatives of the parties - providing assistance or family relations with the person whose interests contradict the interests of the newly represented person.

• For the judge and juror - his previously established knowledge of the case.

• Incompetence of the translator, specialist, expert.

• Illegality of the composition of the court, incorrect appointment to the position of prosecutor, investigator, interrogator.

If there are grounds for challenge, participants in the process are required to recuse themselves, or the challenge is declared by interested parties. The challenge is usually resolved by the body that conducts the proceedings. The challenge of a prosecutor is permitted by a superior prosecutor, the challenge of an investigator is accepted by the head of the investigative body, and the challenge of an investigator is accepted by the prosecutor.

1 According to the Code of Criminal Procedure of the Russian Federation, the court of people's assessors was abolished on January 1, 2004.

2 Resolution of the Constitutional Court of the Russian Federation in the case of verifying the constitutionality of the provisions of part one of Article 47 and part two of Article 51 of the Code of Criminal Procedure of the RSFSR in connection with the complaint of citizen V.I. Maslov, dated June 27, 2000 // Rossiyskaya Gazeta. 4th of July. 2000.

3 The Constitutional Court of the Russian Federation recognizes as unconstitutional the restriction of the circle of representatives in Art. 45 of the Code of Criminal Procedure of the Russian Federation only by lawyers. See the definitions of the Constitutional Court of the Russian Federation dated December 5, 2003 N 447-O; dated December 5, 2003 N 446-O.

Section I. General part

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PUBLIC DEFENDER FOR CRIMINAL CASES