New edition of Art. 72 Code of Criminal Procedure of the Russian Federation
1. A defense lawyer, representative of a victim, civil plaintiff or civil defendant does not have the right to participate in criminal proceedings if he:
1) previously participated in the proceedings in this criminal case as a judge, prosecutor, investigator, head of the inquiry body, head of the inquiry unit, investigator, assistant judge, court secretary, witness, expert, specialist, translator or attesting witness;
2) is a close relative or relative of a judge, prosecutor, investigator, head of an inquiry agency, head of an inquiry unit, investigator, assistant judge, secretary of a court session who has taken or is taking part in the proceedings in this criminal case, or a person whose interests conflict with the interests of a participant in a criminal case legal proceedings that entered into an agreement with him to provide protection;
3) provides or has previously provided legal assistance to a person whose interests conflict with the interests of the suspect, accused or victim represented by him, civil plaintiff, civil defendant.
2. The decision to challenge a defense lawyer, a representative of a victim, a civil plaintiff or a civil defendant is made in the manner established by part one of Article 69 of this Code.
Commentary on Article 72 of the Code of Criminal Procedure of the Russian Federation
1. The rules of the commented article apply not only to the challenge of defense attorneys, representatives of victims, civil plaintiffs or civil defendants. In Art. 45 of the Code of Criminal Procedure mentions such a procedural figure as a representative of a private prosecutor. It seems possible to challenge such a representative by analogy with the provisions enshrined in the commented article
2. The question arises: is it possible to challenge by analogy? Undoubtedly it is possible. And no one ever had any questions about this when it came to, for example, the recusal of the head and (or) member of the investigative team (group of investigators). The law does not directly establish the factual grounds and procedure for challenging these subjects of criminal proceedings. Therefore, their recusal was always decided by analogy with the norms that enshrine the institution of recusal of an investigator. The same can be said about the challenge of the head of the investigative body when he implements it as provided for in Part 2 of Art. 39 of the Code of Criminal Procedure authority regarding the doctor mentioned in Part 6 of Art. 113, part 1 art. 178, part 4 art. 187 of the Code of Criminal Procedure, etc. Thus, we consider it consistent to recommend extending the requirements of the commented article to the challenge of a representative of a private prosecutor (by analogy with the challenge of a representative of a victim).
3. It is recommended that the term “judge” used by the legislator in Part 1 of the commented article be interpreted broadly. Such “judges” should also include the juror. The defense attorney, representative of the civil defendant, representative of the victim (representative of the private prosecutor) and (or) representative of the civil plaintiff cannot be a person who previously had the right to make procedural decisions in the same criminal proceeding. A person who is a close relative or relative of the subject who made procedural decisions in this criminal case cannot become (participate in) a criminal trial in the required capacity.
4. In clauses 1 and 2 of part 1 of the commented article, speaking about officials carrying out criminal proceedings at the pre-trial stages, the legislator remembers only the prosecutor, investigator and interrogator. But is it only the previous participation (presence of relationship with one) in the case as a given type of officials carrying out criminal procedural activities that is a circumstance that excludes his further entry (participation) in the same criminal process as a defense attorney, representative of a civil defendant, representative the victim (representative of the private prosecutor) and (or) representative of the civil plaintiff? I think not.
5. A defense lawyer, a representative of a civil defendant, a representative of a victim (a representative of a private prosecutor) and (or) a representative of a civil plaintiff do not have the right to participate in criminal proceedings even if he previously acted in the same criminal case:
- a representative of the investigative body, executing the instructions (instructions) of the preliminary investigation body, which is in charge of the criminal case, including those involved in accordance with Part 7 of Art. 164 of the Code of Criminal Procedure for participation in an investigative action by an official of the body carrying out operational investigative activities;
— head of the investigative group (group of investigators);
- a member of the investigative team (group of investigators);
- the head of the investigative body (head of the inquiry unit), who initiated the criminal case, accepted it for his proceedings and (or) carried out a preliminary investigation into the case in full.
6. A defense lawyer, representative of a victim, civil plaintiff or civil defendant does not have the right to participate in proceedings in a criminal case if he has previously participated in proceedings in this criminal case as a secretary of a court session. In addition to the secretary of the court session, the criminal procedural legislation knows the institution of an assistant judge. From the text of Art. Art. 326 - 328 of the Code of Criminal Procedure it is clear that the actions that are carried out in a number of cases by an assistant judge are also entitled to be carried out by the secretary of the court session. Accordingly, part of the legal status of an assistant judge is similar to that of a court secretary. However, the status of the latter does not allow him to subsequently act in the same criminal case as a defense attorney, a representative of a civil defendant, a representative of a victim (a representative of a private prosecutor) and (or) a representative of a civil plaintiff. Consistently, this enshrined in Part 1 of Art. 72 of the Code of Criminal Procedure, the requirement is extended by analogy to those defenders, representatives of the civil defendant, representatives of the victim (representatives of the private prosecutor) and (or) representatives of the civil plaintiff who previously acted as an assistant judge in the same criminal case.
7. If a person has acted as a witness, then in the same case he cannot be a defense attorney, a representative of a civil defendant, a representative of a victim (a representative of a private prosecutor) and (or) a representative of a civil plaintiff. And when he is a victim in the case, why does the wording of paragraph 1 of part 1 of the commented article allow him in the same criminal process to be a defense attorney, a representative of a civil defendant, a representative of another victim (a representative of a private prosecutor) and (or) a representative of a civil plaintiff? Well, can the victim subsequently become a defender of the accused, a representative of the civil defendant, etc.?
8. If we literally interpret the requirements enshrined in clause 1 of part 1 of the commented article, then yes. But such an interpretation does not fit into the general concept of the criminal procedural institution of challenge. That is why we recommend that the law enforcer broadly interpret the term “witness” used by the legislator in paragraph 1 of part 1 of the commented article - to include both the “witness” itself and the victim in its content. In our opinion, the victim, at least, does not have the right to subsequently act as a defense attorney (representative of the civil defendant) in the same criminal case, as well as a representative of another victim (representative of the civil plaintiff), whose legitimate interests contradict the legitimate interests of the victim himself. And, accordingly, such a defender (representative of the civil defendant), representative of another victim (representative of the civil plaintiff) are subject to challenge if they “previously” participated in the same criminal process as a victim.
9. If a person who has the special knowledge necessary for a criminal case is called (invited) to participate in a criminal trial as a specialist, he does not have the right to act in the same criminal case as a defense attorney, a representative of a civil defendant, a representative of a victim (a representative of a private prosecutor) and (or) a representative of the civil plaintiff. In this regard, the question arises: what to do in a situation where, before becoming a defense attorney, representative of a civil defendant, representative of a victim (representative of a private prosecutor) and (or) representative of a civil plaintiff, a person acted in the same criminal proceeding as a doctor, teacher or a psychologist? If we proceed from the point of view according to which this is a type of specialist <420>, then such a defender, a representative of the civil defendant, a representative of the victim (a representative of a private prosecutor) and (or) a representative of a civil plaintiff are subject to challenge. ——————————— <420> See, for example: Commentary on the Criminal Procedure Code. M.: Exam XXI, 2002. P. 584 - 585; and etc.
10. And if we adhere to the position according to which the legislator calls the subject a doctor, teacher, psychologist, because he wants to point out that this is not a type of specialist? Even if the doctor, teacher, psychologist mentioned in the Code of Criminal Procedure are not specialists, we would still recommend extending to them the rules of paragraph 1 of part 1 of the commented article. In other words, if a person has previously acted (is acting) in the case as doctor, teacher (psychologist), it cannot, within the same criminal process, be a defense attorney, a representative of a civil defendant, a representative of a victim (a representative of a private prosecutor) and (or) a representative of a civil plaintiff.
11. The law says the same about the previous participation of a person as an interpreter and witness. And if the defense attorney, the representative of the civil defendant, the representative of the victim (the representative of the private prosecutor) and (or) the representative of the civil plaintiff was previously not an attesting witness, but participated in the identification of the accused as an extra, is he subject to recusal? The literal interpretation of the rule of law in question does not allow us to unconditionally declare that in such a situation he is subject to challenge. This issue remains controversial. Although we would recommend not allowing into criminal proceedings as a defense lawyer, a representative of a civil defendant, a representative of a victim (a representative of a private prosecutor) and (or) a representative of a civil plaintiff, persons who previously acted as extras during an identification parade in the same case.
12. Clause 2 of Part 1 of the commented article refers to a person whose legitimate interests “contradict the interests” of another participant in criminal proceedings. The contradiction of legitimate interests in the context under consideration implies not only a situation where one thing (testimonies, thoughts, actions of the suspect (accused, etc.) excludes another that is incompatible with it. This is, first of all, the opposite, the complete dissimilarity of these legitimate interests.
13. The contradictions referred to in paragraph 2 of part 1 of the commented article do not necessarily have to be significant. This basis is not eliminated even if a confrontation is held between the participants in a criminal proceeding in order to eliminate existing contradictions in their testimony. Contradictions in the legitimate interests of participants in criminal proceedings can occur even when there are no contradictions in their testimony.
14. The same person cannot be admitted to a criminal case as a defense attorney, a representative of a civil defendant, a representative of a victim (a representative of a private prosecutor) and (or) a representative of a civil plaintiff of two or more participants in a criminal proceeding, if there is at least a possibility that that the legitimate interests of the new client (represented person) contradict the legitimate interests of the one (those) whom he is already protecting.
15. Typical examples of the presence of contradictions in the legitimate interests of defendants were formulated back in Part 2, Clause 14 of the Resolution of the Plenum of the Supreme Court of the USSR of June 16, 1978 No. 5 “On the practice of application by courts of laws providing the accused with the right to defense.” These included the following situations:
- recognition of the accusation by one and challenge by another;
- incrimination by one defendant of another;
- contradictions caused by the nature of the charges brought against each of them;
- other contradictions.
16. These also include contradictions in testimony regarding the role of each participant in the commission of the crime; forms of guilt, motives, goals; the amount of damage caused; up to the circumstances characterizing the personality of a particular accused; mitigating and aggravating circumstances; and so on.
17. And lastly, with regard to contradictions in the legitimate interests of various participants in criminal proceedings, which may result in the recusal of at least the defense attorney. In accordance with Part 1 of Art. 13 of the Code of Professional Ethics for Lawyers, in addition to the cases provided for by the legislation on advocacy and the legal profession, a lawyer does not have the right to accept orders to defend two or more persons in a criminal case, not only when the legitimate interests of one of them contradict the legitimate interests of the other, but also in the case If:
- the legitimate interests of one, although they do not contradict the legitimate interests of the other, but these persons hold different positions on the same episodes of the case;
— in one case it is necessary to protect persons who have reached and have not reached the age of majority.
18. The phrase “on provision of protection” used in paragraph 2 of part 1 of the commented article is subject to a broad interpretation. A defense lawyer, a representative of a victim, a civil plaintiff and (or) a civil defendant does not have the right to participate in criminal proceedings if he is a close relative or relative of a person whose legal interests contradict the legitimate interests of a participant in criminal proceedings who has entered into an agreement with him to provide any type of legal assistance in criminal proceedings, both the defense itself and the representation of the civil defendant, the victim (private prosecutor), and the civil plaintiff.
19. The phrase “a participant in criminal proceedings who has entered into an agreement with him” is also subject to a broad interpretation. It is known that, for example, according to Part 1 of Art. 50 of the Code of Criminal Procedure, a defense attorney may be invited not by the suspect (accused) or his legal representative, but by another person with the consent of the suspect (accused). Here the legislator does not mean a participant in criminal proceedings who has concluded “an agreement with him to provide protection,” but a participant in criminal proceedings “to whom he provides legal assistance.” Only in this case, when resolving an application for challenge (self-recusal) on the second basis enshrined in paragraph 2 of part 1 of the commented article, the presence (absence) of contradictions between the legitimate interests of the person to whom the defense lawyer, the representative of the civil defendant, the representative of the victim (the representative of the private prosecutor) will be clarified ) and (or) a representative of a civil plaintiff within the same criminal case provides legal assistance (protection) and the legitimate interests of his close relative or a relative of another participant in the same criminal process.
20. Explaining the text of paragraph 3 of part 1 of the commented article, it should be noted that legal assistance in paragraph 3 of part 1 of the commented article refers not only to criminal procedural activities.
21. According to the Constitutional Court of the Russian Federation, legal assistance of a lawyer (defender) in criminal proceedings is not limited to the procedural and time frame of his participation in the case during the investigation and trial, it includes possible preliminary legal consultations and explanations on legal issues, oral and written information on legislation, drawing up statements, complaints and other documents of a legal nature, representation, provision of other legal assistance <421>. ——————————— <421> See: Determination of the Constitutional Court of the Russian Federation of July 6, 2000 N 128-O “On the complaint of citizen Viktor Vasilyevich Parshutkin about the violation of his constitutional rights and freedoms by paragraph 1 of part two of the article 72 of the Code of Criminal Procedure of the RSFSR and articles 15 and 16 of the Regulations on the Bar of the RSFSR” // Collection of legislation of the Russian Federation. 2000. N 33. Art. 3433.
22. Representation of a client by a lawyer may be carried out in:
1) constitutional proceedings (Article 53 of the Federal Constitutional Law “On the Constitutional Court of the Russian Federation”);
2) criminal proceedings;
3) civil and arbitration proceedings;
4) proceedings in cases of administrative offenses;
5) proceedings in arbitration courts, international commercial arbitration (court) and other conflict resolution bodies;
6) government bodies, local government bodies, public associations and other organizations;
7) government bodies, courts and law enforcement agencies of foreign states, international judicial bodies, non-state bodies of foreign states;
enforcement proceedings, as well as in the execution of criminal punishment;
9) tax legal relations.
23. The types of other legal assistance discussed by the Constitutional Court of the Russian Federation are:
1) participation as a defense attorney for a person who has committed an act prohibited by criminal law in a state of insanity, and as a lawyer for the principal (victim, witness, person whose premises are being searched) (person appointed by him) in criminal proceedings;
2) participation as a defender of the principal (the person appointed by him) in proceedings in cases of administrative offenses;
3) legal work to ensure economic and other activities of enterprises, institutions and organizations of any organizational and legal form;
4) provision of legal assistance to minors who are not subject to criminal liability, in respect of whom the possibility of their placement in special closed educational institutions is being considered, to their parents or legal representatives;
5) protection of the rights and legitimate interests of a citizen when providing him with psychiatric care (Part 3 of Article 7 of the Law of the Russian Federation of July 2, 1992 N 3185-1 “On psychiatric care and guarantees of the rights of citizens in its provision”);
6) selection and systematization of regulations, compilation of reference books on legal issues;
7) research work in the field of law;
provision of other legal assistance.
24. Moreover, if a lawyer (another person) has previously been approached for legal assistance by a person whose legitimate interests contradict the legitimate interests of the suspect (accused, etc.) protected by him or the victim he represents, a private prosecutor, a civil plaintiff, a civil defendant, but the agreement ( agreement) for the implementation of this type of activity was not concluded (the activity was not carried out), then the rules of clause 3, part 1, art. 72 of the Code of Criminal Procedure does not apply to such a defense lawyer, a representative of a civil defendant, a representative of a victim (a representative of a private prosecutor) and (or) a representative of a civil plaintiff.
25. In cases where, during the defense of two or more persons by a lawyer, contradictions are revealed between the legitimate interests of whom (acceptance of the charge by one and challenging by the other; incrimination by one defendant of the other; contradictions caused by the nature of the charge brought against each of them, etc.) , the courts, and therefore the investigator (interrogating officer, etc.), must provide a defense attorney for each of the defendants <422>. ——————————— <422> See: Resolution of the Plenum of the Supreme Court of the USSR dated June 16, 1978 No. 5 “On the practice of application by courts of laws that provide the accused with the right to defense” // Ibid. P. 137.
26. The same defense lawyer does not have the right to defend two accused even when at the moment there are no contradictions in their testimony, but the criminal case contains evidence, based on the content of which, it can be concluded that at a certain stage of the preliminary investigation there are contradictions in their legitimate interests existed.
27. Here we are talking about a protected suspect, an accused. Meanwhile, the defendants covered by clause 3 of part 1 of the commented article should also include: those who are not suspects or accused, “persons suspected of committing a crime,” as well as those who are neither suspects nor accused, persons who have committed an act prohibited by criminal law in a state of insanity. A defense attorney does not have the right to participate in criminal proceedings if he provides and (or) has previously provided legal assistance to a person whose legitimate interests contradict the legitimate interests of the suspect, accused, protected by him, as well as a non-person suspected of committing a crime, and (or) committed act prohibited by criminal law in a state of insanity
28. And a couple more clarifications. The removal of a lawyer from participation in the case due to the lack of access to state secrets does not comply with the Constitution of the Russian Federation, which is confirmed by the Resolution of the Constitutional Court of the Russian Federation of March 27, 1996 “In the case of verifying the constitutionality of Articles 1 and 21 of the Law of the Russian Federation of July 21, 1993 "On state secrets" in connection with complaints from citizens V.M. Gurdzhiyants, V.N. Sintsova, V.N. Bugrova and A.K. Nikitin" <423>. ——————————— <423> See: Collection of legislation of the Russian Federation. 1996. N 15. Art. 1768.
29. Ignorance by the defense attorney of the language in which the proceedings are conducted also cannot serve as a factual basis for excluding him from participation in criminal proceedings. In such cases, the investigator (inquiry officer, etc.), the court (judge) must ensure the participation of an interpreter in the criminal trial <424>. ——————————— <424> See: Resolution of the Plenum of the Supreme Court of the USSR dated June 16, 1978 No. 5 “On the practice of application by courts of laws that provide the accused with the right to defense” // Ibid. P. 137.
30. See also commentary to Art. Art. 45, 53, 61, 62, 65, 69, as well as to all other articles of the Code of Criminal Procedure <425> mentioned here. ——————————— <425> For a more complete commentary on this article, see: Ryzhakov A.P. Representatives of the victim, civil plaintiff, private prosecutor: Scientific and practical guide. M.: Exam, 2007; Ryzhakov A.P. Civil defendant and his representative: concept, rights and obligations: Scientific and practical guide. M.: Exam, 2007.
Commentary to Art. 72 Code of Criminal Procedure of the Russian Federation
1. Comment rules. Art. extend not only to the challenge of defense attorneys, representatives of victims, civil plaintiffs or civil defendants. In Art. 45 of the Code of Criminal Procedure mentions such a procedural figure as a representative of a private prosecutor. It seems possible to challenge such a representative by analogy with the provisions enshrined in the commentary. Art.
2. The question arises: is it possible to challenge by analogy? Undoubtedly it is possible. And no one ever had any questions about this when it came to, for example, the recusal of the head and (or) member of the investigative team (group of investigators). The law does not directly establish the factual grounds and procedure for challenging these subjects of criminal proceedings. Therefore, their recusal was always decided by analogy with the norms that enshrine the institution of recusal of an investigator. The same can be said about the challenge of the head of the investigative body when he implements it as provided for in Part 2 of Art. 39 of the Code of Criminal Procedure authority regarding the doctor mentioned in Part 6 of Art. 113, part 1 art. 178, part 4 art. 187 Code of Criminal Procedure, etc. Thus, we consider it consistent to recommend the dissemination of commentary requirements. Art. and to challenge a representative of a private prosecutor (similar to the challenge of a representative of a victim).
3. Used by the legislator in paragraph 2 of the comment. Art. The term “judge” is recommended to be interpreted broadly. Such “judges” should also include the juror. The defense attorney, representative of the civil defendant, representative of the victim (representative of the private prosecutor) and (or) representative of the civil plaintiff cannot be a person who previously had the right to make procedural decisions in the same criminal proceeding. A person who is a close relative or relative of the subject who made procedural decisions in this criminal case cannot act (participate) in a criminal trial in the required capacity.
4. In paragraphs 1 and 2, parts 1 comment. Art., speaking about officials carrying out criminal proceedings at the pre-trial stages, the legislator remembers only the prosecutor, investigator and inquirer. But is it only the previous participation (presence of relationship with one) in the case as a given type of officials carrying out criminal procedural activities that is a circumstance that excludes their further entry (participation) in the same criminal process as a defense attorney, representative of a civil defendant, representative the victim (representative of the private prosecutor) and (or) representative of the civil plaintiff? I think not.
5. A defense attorney, a representative of a civil defendant, a representative of a victim (a representative of a private prosecutor) and (or) a representative of a civil plaintiff do not have the right to participate in criminal proceedings even if they previously acted in the same criminal case:
- a representative of the investigative body, executing the instructions (instructions) of the preliminary investigation body, which is in charge of the criminal case, including those involved in accordance with Part 7 of Art. 164 of the Code of Criminal Procedure for participation in an investigative action by an official of the body carrying out operational investigative activities;
— head of the investigative group (group of investigators);
- a member of the investigative team (group of investigators);
- the head of the investigative body (head of the inquiry unit), who initiated the criminal case, accepted it for his proceedings and (or) carried out a preliminary investigation into the case in full.
6. A defense lawyer, representative of a victim, civil plaintiff or civil defendant does not have the right to participate in proceedings in a criminal case if he has previously participated in proceedings in this criminal case as a secretary of a court session. In addition to the secretary of the court session, the criminal procedural legislation knows the institution of an assistant judge. From the text of Art. Art. 326 - 328 of the Code of Criminal Procedure it is clear that the actions that are carried out in a number of cases by an assistant judge are also entitled to be carried out by the secretary of the court session. Accordingly, part of the legal status of an assistant judge is similar to that of a court secretary. However, the status of the latter does not allow him to subsequently act in the same criminal case as a defense attorney, a representative of a civil defendant, a representative of a victim (a representative of a private prosecutor) and (or) a representative of a civil plaintiff. Consistently, this enshrined in Part 1 of Art. 72 of the Code of Criminal Procedure, the requirement is extended by analogy to those defenders, representatives of the civil defendant, representatives of the victim (representatives of the private prosecutor) and (or) representatives of the civil plaintiff who previously acted as assistant judges in the same criminal case.
7. If a person has acted as a witness, then in the same case he cannot be a defense attorney, a representative of a civil defendant, a representative of a victim (a representative of a private prosecutor) and (or) a representative of a civil plaintiff. And when it is the victim in the case, why is the editor of paragraph 1, part 1 comment. Art. allows him in the same criminal process to be a defense attorney, a representative of a civil defendant, a representative of another victim (a representative of a private prosecutor) and (or) a representative of a civil plaintiff? Well, can the victim subsequently become a defender of the accused, a representative of the civil defendant, etc.?
8. If we literally interpret the comments enshrined in paragraph 1, part 1. Art. requirements, then yes. But such an interpretation does not fit into the general concept of the criminal procedural institution of challenge. That is why we recommend that the law enforcer broadly interpret what the legislator used in clause 1, part 1 of the commentary. Art. the term “witness” - to include both the witness itself and the victim in its content. In our opinion, the victim, at least, does not have the right to subsequently act as a defense attorney (representative of the civil defendant) in the same criminal case, as well as a representative of another victim (representative of the civil plaintiff), whose legitimate interests contradict the legitimate interests of the victim himself. And, accordingly, such a defender (representative of the civil defendant), representative of another victim (representative of the civil plaintiff) are subject to challenge if they previously participated in the same criminal process as victims.
9. If a person who has the special knowledge necessary for a criminal case is called (invited) to participate in a criminal trial as a specialist, he does not have the right to act in the same criminal case as a defense attorney, a representative of a civil defendant, a representative of a victim (a representative of a private prosecutor) and (or) a representative of the civil plaintiff. In this regard, the question arises: what to do in a situation where, before becoming a defense attorney, representative of a civil defendant, representative of a victim (representative of a private prosecutor) and (or) representative of a civil plaintiff, a person acted in the same criminal proceeding as a doctor, teacher or a psychologist? If we proceed from the point of view that this is a type of specialist, then such a defense lawyer, a representative of the civil defendant, a representative of the victim (a representative of a private prosecutor) and (or) a representative of the civil plaintiff are subject to challenge.
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See, for example: Commentary on the Criminal Procedure Code... M.: Exam XXI, 2002. P. 584 - 585; and etc.
10. And if we adhere to the position according to which the legislator calls the subject a doctor, teacher, psychologist because he wants to point out that this is not a type of specialist? Even if the doctor, teacher, psychologist mentioned in the Code of Criminal Procedure are not specialists, we would still recommend extending the rules of paragraph 1, part 1, to them. Art. In other words, if a person previously acted (is acting) in a case as a doctor, teacher (psychologist), he cannot, within the same criminal process, be a defense attorney, a representative of a civil defendant, a representative of a victim (a representative of a private prosecutor) and (or) a representative of a civil plaintiff.
11. The law says the same about the previous participation of a person as an interpreter and witness. And if the defense attorney, the representative of the civil defendant, the representative of the victim (the representative of the private prosecutor) and (or) the representative of the civil plaintiff were previously not attesting witnesses, but participated in the identification of the accused as extras, are they subject to recusal? The literal interpretation of the rule of law in question does not allow us to unconditionally declare that in such a situation they are subject to challenge. This issue remains controversial. Although we would recommend not allowing into criminal proceedings as defense attorneys, representatives of the civil defendant, representatives of the victim (representatives of the private prosecutor) and (or) representatives of the civil plaintiff, persons who previously acted as extras during an identification parade in the same case.
12. In paragraph 2, part 1 comment. Art. refers to a person whose legitimate interests “contradict the interests” of another participant in criminal proceedings. The contradiction of legitimate interests in the context under consideration implies not only a situation where one (testimony, thoughts, actions of the suspect (accused, etc.)) excludes another, incompatible with it. This is, first of all, the opposite, the complete dissimilarity of these legitimate interests.
13. The contradictions discussed in paragraph 2, part 1 comment. Art., do not have to be significant. This basis is not eliminated even if a confrontation is held between the participants in a criminal proceeding in order to eliminate existing contradictions in their testimony. Contradictions in the legitimate interests of participants in criminal proceedings can occur even when there are no contradictions in their testimony.
14. The same person cannot be admitted to a criminal case as a defense attorney, a representative of a civil defendant, a representative of a victim (a representative of a private prosecutor) and (or) a representative of a civil plaintiff of two or more participants in a criminal proceeding, if there is at least a possibility that that the legitimate interests of the new client (represented person) contradict the legitimate interests of the one (those) whom he is already protecting.
15. Typical examples of the presence of contradictions in the legitimate interests of defendants were formulated back in Part 2, Clause 14 of the Resolution of the Plenum of the Supreme Court of the USSR of June 16, 1978 No. 5 “On the practice of application by courts of laws providing the accused with the right to defense.” These included the following situations:
- recognition of the accusation by one and challenge by another;
- incrimination by one defendant of another;
- contradictions caused by the nature of the charges brought against each of them;
- other contradictions.
16. These also include contradictions in testimony regarding the role of each participant in the commission of the crime, the form of guilt, motives, goals, the amount of damage caused, up to the circumstances characterizing the personality of a particular accused, mitigating and aggravating circumstances, etc. .P.
17. And lastly, with regard to contradictions in the legitimate interests of various participants in criminal proceedings, which may result in recusal, at least of the defense attorney. In accordance with Part 1 of Art. 13 of the Code of Professional Ethics for Lawyers, in addition to the cases provided for by the legislation on advocacy and the legal profession, a lawyer does not have the right to accept orders to defend two or more persons in a criminal case, not only when the legitimate interests of one of them contradict the legitimate interests of the other, but also in the case If:
- the legitimate interests of one, although they do not contradict the legitimate interests of the other, but these persons hold different positions on the same episodes of the case;
— in one case it is necessary to protect persons who have reached and have not reached the age of majority.
18. Used in paragraph 2, part 1 comment. Art. the phrase “providing protection” is subject to a broad interpretation. A defense lawyer, a representative of a victim, a civil plaintiff and (or) a civil defendant does not have the right to participate in criminal proceedings if he is a close relative or relative of a person whose legal interests contradict the legitimate interests of a participant in criminal proceedings who has entered into an agreement with him to provide any type of legal assistance in criminal proceedings, both the defense itself and the representation of the civil defendant, the victim (private prosecutor), and the civil plaintiff.
19. The expression “a participant in criminal proceedings who has entered into an agreement with him” is also subject to a broad interpretation. It is known that, for example, according to Part 1 of Art. 50 of the Code of Criminal Procedure, a defense attorney may be invited not by the suspect (accused) or his legal representative, but by another person with the consent of the suspect (accused). Here the legislator does not mean a participant in criminal proceedings, “who has entered into an agreement with him to provide protection,” but a participant in criminal proceedings, “to whom he provides legal assistance.” Only in this case, when resolving the application for challenge (self-recusal) under the second enshrined in clause 2, part 1 comment. Art. the basis will determine the presence (absence) of contradictions between the legitimate interests of the person to whom the defense lawyer, the representative of the civil defendant, the representative of the victim (representative of the private prosecutor) and (or) the representative of the civil plaintiff are providing legal assistance (defense) within the same criminal case, and the legitimate interests of someone who is his close relative or a relative of another participant in the same criminal proceeding.
20. Explaining the text of paragraph 3, part 1 comment. Art., it should be noted that under legal assistance in paragraph 3, part 1 comment. Art. not only criminal procedural activities are understood.
21. According to the Constitutional Court of the Russian Federation, legal assistance of a lawyer (defender) in criminal proceedings is not limited to the procedural and time frame of his participation in the case during the investigation and trial, it also includes possible preliminary legal consultations, explanations on legal issues, oral and written information on legislation, drawing up statements, complaints and other documents of a legal nature, representation, provision of other legal assistance.
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See: Determination of the Constitutional Court of the Russian Federation dated July 6, 2000 N 128-O “On the complaint of citizen Viktor Vasilyevich Parshutkin about the violation of his constitutional rights and freedoms by paragraph 1 of part two of Article 72 of the Code of Criminal Procedure of the RSFSR and Articles 15 and 16 of the Regulations on the Bar of the RSFSR” / / Collection legislation of the Russian Federation. 2000. N 33. Art. 3433.
22. Representation of a client by a lawyer may be carried out in:
1) constitutional proceedings (Article 53 of the Federal Constitutional Law “On the Constitutional Court of the Russian Federation”);
2) criminal proceedings;
3) civil and arbitration proceedings;
4) proceedings in cases of administrative offenses;
5) proceedings in arbitration courts, international commercial arbitration (court) and other conflict resolution bodies;
6) government bodies, local government bodies, public associations and other organizations;
7) government bodies, courts and law enforcement agencies of foreign states, international judicial bodies, non-state bodies of foreign states;
enforcement proceedings, as well as in the execution of criminal punishment;
9) tax legal relations.
23. The types of other legal assistance discussed by the Constitutional Court of the Russian Federation are:
1) participation as a defense attorney for a person who has committed an act prohibited by criminal law in a state of insanity, and as a lawyer for the principal (victim, witness, person whose premises are being searched) (person appointed by him) in criminal proceedings;
2) participation as a defender of the principal (the person appointed by him) in proceedings in cases of administrative offenses;
3) legal work to ensure economic and other activities of enterprises, institutions and organizations of any organizational and legal form;
4) provision of legal assistance to minors who are not subject to criminal liability, in respect of whom the possibility of their placement in special closed educational institutions is being considered, to their parents or legal representatives;
5) protection of the rights and legitimate interests of a citizen when providing him with psychiatric care (Part 3 of Article 7 of the Law of the Russian Federation “On psychiatric care and guarantees of the rights of citizens during its provision”);
6) selection and systematization of regulations, compilation of reference books on legal issues;
7) research work in the field of law;
provision of other legal assistance.
24. Moreover, if a lawyer (another person) has previously been approached for legal assistance by a person whose legitimate interests contradict the legitimate interests of the suspect (accused, etc.) protected by him or the victim he represents, a private prosecutor, a civil plaintiff, a civil defendant, but the agreement ( agreement) for the implementation of this type of activity was not concluded (the activity was not carried out), then the rules of clause 3, part 1, art. 72 of the Code of Criminal Procedure does not apply to such a defense lawyer, a representative of a civil defendant, a representative of a victim (a representative of a private prosecutor) and (or) a representative of a civil plaintiff.
25. In cases where, during the defense of two or more persons by a lawyer, contradictions are revealed between the legitimate interests of whom (acceptance of the charge by one and challenging by the other; incrimination by one defendant of the other; contradictions caused by the nature of the charge brought against each of them, etc.) , the courts, and therefore the investigator (investigator, etc.) must provide a defense attorney for each of the defendants.
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See: Resolution of the Plenum of the Supreme Court of the USSR of June 16, 1978 No. 5 “On the practice of application by courts of laws providing the accused with the right to defense” // Ibid. P. 137.
26. The same defense lawyer does not have the right to defend two accused even when at the moment there are no contradictions in their testimony, but the criminal case contains evidence, based on the content of which, it can be concluded that at a certain stage of the preliminary investigation there are contradictions in their legitimate interests existed.
27. Here we are talking about a protected suspect, an accused. Meanwhile, to the defendants who are subject to clause 3, part 1 comment. Art., should also include: persons who are not suspects or accused persons suspected of committing a crime, as well as persons who are neither suspects nor accused persons who have committed an act prohibited by criminal law in a state of insanity. A defense attorney does not have the right to participate in criminal proceedings if he provides and (or) has previously provided legal assistance to a person whose legitimate interests contradict the legitimate interests of the suspect, accused, or other person suspected of committing a crime and (or) who has committed a prohibited act. criminal law is an act in a state of insanity.
28. And a couple more clarifications. The removal of a lawyer from participation in the case due to the lack of access to state secrets does not comply with the Constitution of the Russian Federation, which is confirmed by the Resolution of the Constitutional Court of the Russian Federation of March 27, 1996 “In the case of verifying the constitutionality of Articles 1 and 21 of the Law of the Russian Federation of July 21, 1993 "On state secrets" in connection with complaints from citizens V.M. Gurdzhiyants, V.N. Sintsova, V.N. Bugrova and A.K. Nikitin".
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See: Collection. legislation of the Russian Federation. 1996. N 15. Art. 1768.
29. Ignorance by the defense attorney of the language in which the proceedings are conducted also cannot serve as a factual basis for excluding him from participation in criminal proceedings. In such cases, the investigator (inquiry officer, etc.), the court (judge) must ensure the participation of an interpreter in the criminal trial.
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See: Resolution of the Plenum of the Supreme Court of the USSR of June 16, 1978 No. 5 “On the practice of application by courts of laws providing the accused with the right to defense” // Ibid. P. 137.
30. See also commentary to Art. Art. 53, 61, 62, 65, 69, as well as to all other articles of the Code of Criminal Procedure mentioned here.
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For a more complete commentary on this article, see: Ryzhakov A.P. Representatives of the victim, civil plaintiff, private prosecutor: Scientific and practical guide. M.: Exam, 2007; Ryzhakov A.P. Civil defendant and his representative: concept, rights and obligations: Scientific and practical guide. M.: Exam, 2007.
Another comment on Art. 72 of the Criminal Procedure Code of the Russian Federation
1. In criminal proceedings, performing the function of protecting or representing the rights and interests of the victim, civil plaintiff and civil defendant requires from the person who carries them out objectivity and a certain freedom when performing procedural actions in the interests of his client. Such freedom may be called into question if a person has previously provided or is providing legal assistance to a person with opposing procedural interests. In addition, this circumstance jeopardizes the relationship of trust between the defender and his client, between the representative and the represented.
2. If the circumstances specified in this article of the Code of Criminal Procedure of the Russian Federation become known to a lawyer at the time a person applies to him for legal assistance, he should not undertake to provide legal assistance to this person.
