Who can be a public defender in a criminal case?

Art.
49 of the Code of Criminal Procedure of the Russian Federation is a norm providing for the possibility of participation in the course of the investigation and further trial of a representative of the potential culprit of the crime. The defender of the Criminal Procedure Code is provided as a person capable of acting at the stages of proceedings in order to mitigate or eliminate the position of the perpetrator. Neither the victim nor the court itself can abolish such a right. Multi-channel free hotline Legal advice on criminal law. Every day from 9.00 to 21.00

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Who is a defender?

The participation of a defense attorney in criminal proceedings is determined by the procedural code. The law provides not only the direct possibility of involving a representative, but also the obligation of such participation in specific situations. Such provisions ensure that the interests of the accused person are respected and ensure his or her options during the course of the case.

A defender is a person who has the authority to implement measures to protect and ensure the interests of the ward, as well as provide him with professional assistance.

The legislator precisely determines the subjects who can act in the capacity under consideration.

• a lawyer confirming his status with a certificate;
• close people, relatives;
• other persons, when their participation is formalized by the petition of the accused and the decision of the investigator.

Despite the limited range of persons who have the opportunity to defend the accused, these subjects may differ, since the law establishes the specific powers of the defense attorney in criminal proceedings according to his status.

Attracting a representative for a person guilty of a crime is necessary so that he can, by legal means, contribute to the collection of evidence and information on the case, participate in the preliminary investigation, implement investigative measures, make statements, appeal decisions, and so on.

An important point is the participation of these persons in specific stages of the investigation. When only preliminary measures are carried out (the culprit should be interrogated, an investigative experiment should be conducted, and so on), only a lawyer participates, and other persons are also involved during the meeting by power of attorney and decree. In addition, challenge, as an institution of criminal proceedings, is also possible only for attorneys who do not have legal status, which distinguishes these entities.

The possibility of obtaining the support of a lawyer is secured not only by the code, but also by constitutional provision. Such a rule would mean that no one can be denied the involvement of a trusted person for assistance. At the same time, the legislator provides guarantees of compliance with such provisions.

First, there are special rules for assigning protection. Secondly, if a case is accepted for work, then it cannot be abandoned. Thirdly, the suspect can always refuse the specified assistance, and then request it for the remaining time of the trial. Fourthly, one person cannot simultaneously represent two persons whose interests contradict each other. And, fifthly, situations are determined that do not allow the participation of the defense at all.

These aspects make the institution of protection during investigation and further trial an independent element of the system. The representative of the suspected person has a legal connection exclusively with the ward, and neither the investigator, nor the prosecutor, nor the court can influence their decisions. The only limitation is the law, which must be observed; otherwise, such persons are allowed to independently investigate and present materials to establish the truth in the case.

Public defender in the Code of Criminal Procedure of the Russian Federation

The concept of “public defender” existed in the criminal law of the USSR. Now it is not in the norms of the Criminal Code and the Code of Criminal Procedure of the Russian Federation, but there is the concept of “defender,” which means a citizen who provides assistance to the accused or defendant at various stages of the investigation and trial. The goal of the defender, as well as a professional lawyer, is to achieve the abolition of the punishment for the ward or its mitigation.

The right to the participation of a public defender in a criminal case is determined by Article 49 of the Code of Criminal Procedure of the Russian Federation. The court or the victim in the case cannot deny this right.

Russian legislation identifies several categories of persons who have the right to defend themselves in criminal cases. These include:

• Professional lawyers.
• Relatives of the accused.
• Members of public associations and labor collegiums.
• The accused themselves.

The only restriction established by law for a public defender concerns the ban on his participation in the preliminary investigation. But not everyone knows about this ban. As a result of legal ignorance, many defendants petition for a public defender to participate in the case at an early stage. Such a petition is denied to them, which stops many from filing a second petition at subsequent stages of the proceedings.

The procedure for admitting a public defender to a criminal case requires compliance with two requirements:

• Participation in the case by a professional lawyer. This requirement is not mandatory for cases heard in magistrates' courts.
• Personal petition of the client.

Without a statement from the accused, the defense attorney will not be allowed into the case. Other persons do not have the right to apply for this.

Participation in the case

Only his defense attorney, who acts in the person of the involved subject, can be present when the court examines the case, participate in the disclosure of the act, and implement other measures in favor of a potentially guilty person. At the same time, the legislator precisely defines the requirements, without compliance with which the subject will not be able to become part of the process in the specified status.

The lawyer is required to have a certificate and transfer the warrant to the investigator to participate in the case; other representatives of the suspect are involved on the basis of the resolution.

• When an act is issued that the suspect is brought as an accused, which means the case is transferred to court.
• From the immediate start of work on the case when a specific person is identified.
• When implementing such a measure as detaining potential criminals. However, it does not matter whether this is an initial means of restraining the suspect, or a preventive measure determined by the court.
• As soon as a person has received notification that he is suspected of committing a crime. For the defense to enter into the case, the fact of detention will not be necessary.
• After drawing up and signing a resolution on the need for the offender to undergo a forensic psychiatric examination.
• In the event of the commencement of other procedural actions that may affect the interests of the criminal or the person in respect of whom an investigation is only being carried out, but the case has not been initiated.

When it is necessary to obtain the consent of the suspect to receive protection, the investigation is obliged to organize a meeting between the lawyer and his potential ward.

• if there is no refusal on the part of the suspect to use the services of a lawyer, the procedure of which is provided for by law;
• the person acting as an accused or only suspected of a crime has not reached eighteen years of age;
• the accused cannot represent his own interests due to the presence of physical or mental disabilities;
• the person does not speak the language in which legal proceedings are carried out;
• the charge carries a penalty of more than fifteen years' imprisonment, life imprisonment, or the death penalty;
• the participation of jurors is provided.

Accordingly, when a petition is filed by the accused, it will also be impossible to refuse the participation of an attorney, and its provision will become the responsibility of law enforcement officers.

The legislator provides for some limited periods. When a suspected person expresses a desire to involve a lawyer or other representative, but no measures have been taken for this within five days, the investigation offers to involve their specialist or is otherwise obliged to contribute to ensuring the right to defense.

Accordingly, we can conclude that the person in question is always an independent subject participating in the process and possessing the necessary competence. The main task is to protect the interests of his ward, which presupposes the commission of procedural actions on his part, the direction of which is determined by him independently. At the same time, all protection measures should be aimed at strengthening the rule of law and solving the problems of legal proceedings.

Lawyer by appointment and by contract: main differences

Performing the functions of a so-called free lawyer, a legal specialist is often negligent in fulfilling his duties. For the most part, the reason for this is the professional’s direct attitude to the work performed as unpaid (payments to assigned lawyers are delayed, and not rarely - payment is not made by the state at all). Quite often, the appointed lawyer takes a passive position, limits himself to being present at some specific investigative actions, and does not guide his client from “A” to “Z”. In rare cases, full-fledged legal assistance is provided, including the organization of the necessary examinations, a comprehensive study of the issue, collection of evidence, communication with investigative authorities within the framework of the Criminal Procedure Code, etc. The public is aware of blatant cases when appointed lawyers protect the interests of the investigation, and not their client, persuade the client to confess to committing a crime, engage in falsification of evidence, and when choosing a preventive measure in the form of detention, they declare their agreement with the position of the investigation.

Why is this situation happening? Everything is quite simple. Until now, the basic rate of remuneration for a free lawyer (the amount that the state pays for providing legal assistance) is at a very low level, and lawyers do not receive this meager payment. Therefore, some of them simply “serve their duty”, approaching the matter formally and superficially. In addition, it should be borne in mind that experienced and sought-after lawyers do not have time to provide services as assigned; they can be exempted from this duty by choosing a material form of participation on legal grounds. As a result, inexperienced, young specialists, or specialists who are not in demand among clients due to low qualifications are often hired as appointed lawyers.

There are undoubtedly exceptions. Some lawyers, performing their functions as public defenders, approach their work with full dedication (by the way, the requirement to perform their duties equally well and in full as assigned or for a fee is provided for in Article 10 of the Code of Professional Activity of a Lawyer).

Rights and obligations

Any participant in a process, in particular a criminal process, is vested with a number of powers.
The legislator establishes the boundaries of what is permitted, exhaustive lists of possibilities, and also provides a limiting framework in the form of responsibilities. Representatives of persons accused of a crime are no exception. Lawyers and other persons may act only within the limits of their competence. The rights and responsibilities of a defense attorney in criminal proceedings are comprehensively outlined in the law.

It is necessary to understand that the investigation procedure for a socially dangerous act, consideration of materials by the court, and sentencing are all strictly regulated actions. They are briefly reflected in legislative acts, scientific works, and are widely used in practice. Any change in the order, and in particular the status of the participants in the process, affects its entire course. Therefore, it is important to talk about some kind of procedural standing at the initial stage of the investigation.

The competence of such a subject of investigation involves several groups of provisions. The first of them secures the rights vested in the specified person.

• Regular meetings with the client. There are no restrictions on the number of meetings or their duration.
• Collection and provision of information. We are talking about presenting evidence in favor of the ward, carrying out activities aimed at obtaining important information, implementing control measures, for example, ordering an independent examination, transferring its results to the investigation, and so on.
• Attracting specialists. Their assistance can be used to clarify situations that can improve the situation of the accused.
• Take part in investigative activities. The lawyer has the opportunity to be with the ward during interrogation, when charges are brought against him, and when other procedural measures are applied to him.
• Studying the case materials. The defense attorney can freely familiarize himself with decisions and protocols, study the materials of the entire case when transferring it to the court, give his explanations, file motions, and correct information if necessary.
• Participation in the proceedings. Directly at the meeting, the defender can intervene on behalf of the ward, defending his interests, proving his version, presenting the information received, speaking publicly, and so on.
• Filing complaints. To appeal or clarify other issues that require the work of the court, a defense lawyer can make a statement, since he acts in the interests of the guilty person.

The law also allows for the commission of other actions, provided that they do not contradict the norms of criminal law.

• accept orders and fulfill requests of the ward or other persons that are obviously illegal;
• accept a case if there is personal interest;
• take a position contrary to the will of the defendant, if there is no reason to believe the existence of self-incrimination;
• declare the guilt of the ward when he denies it;
• disseminate information on the case, including directly about the ward;
• abandon the assumed role of protector.

Such restrictions do not apply to every representative. For example, self-recusal is allowed if the participant does not have the status of a lawyer, which implies abandonment of the entire process.

Another important group is responsibilities. Failure to comply may even lead to criminal liability.

• Upholding the rights of the ward. All legal methods are acceptable here. A lawyer cannot take the other side. His duty is to support the defendant to the end.
• Compliance with legal requirements. This rule especially applies to cases where a lawyer is required to be present during the investigation.
• Training. Any lawyer should periodically improve his knowledge by taking special courses and seminars.
• Follow the rules of ethics. There is a Code of Ethics for Lawyers, as well as orders issued by the leadership of the Bar Association, and compliance with them is mandatory for the legal activities of a lawyer.

In fact, it is not difficult to become one of the defenders if the suspect gives consent. However, to do this, you should remember the mandatory rules and requirements proposed by law.

Who is better: public or private lawyer?

In fact, this question is rhetorical. Considering that the free defender feeds from the hands of the state, and the frequent one from yours. Therefore, without a doubt, the motivations of these two individuals will be different.

If you do not have a permanent contract with a private lawyer, you can wait to see what the state offers you. Already during the first conversation, it will become clear how legally savvy your lawyer is and whether you can trust him with your freedom.

If the person provided is frankly not free to protect you (most likely this will be the case), you should immediately start looking for a more suitable candidate. It is worth understanding that private defenders do not take on every case. First, they decide for themselves whether there is an opportunity to win or whether the process is obviously a losing one. And few people want to tarnish their reputation with a failed business.

You can often hear the expression that a public defender is worse than a prosecutor. Therefore, it is recommended to use their services only if there are no funds for a private one, and you are not able to defend yourself in court on your own.

Why you should refuse a public defender right away

The legislation provides for the opportunity to refuse a public defender and invite a lawyer at his own discretion. In most cases, this is a completely correct decision, because... There are many reasons for refusing to appoint a lawyer.

Low skill level

Many bar associations assign novice lawyers to criminal cases. And such a specialist is not always able to competently assess all the circumstances of the case in order to build an effective line of defense.

Other specialization

Most lawyers work with a certain category of cases and in their field they have no equal. However, the assignment does not always take into account the specialization of the defender; as a result, he cannot properly think through the defense strategy because he may lack basic knowledge of the specifics of investigating certain crimes for which he has not previously worked.

Psychological pressure

Often appointed lawyers begin to put psychological pressure on their client. Moreover, such pressure can pursue different goals: from demanding an unofficial fee to admitting guilt.

Inducement to admit guilt (even if there is none)

The offer to admit guilt comes from government lawyers quite often. They are trying to convince that only this can help bring about a more lenient sentence. This is done with different intentions. For example, when admitting guilt, it is easier to build a line of defense; it is enough to collect mitigating evidence, and one of the main ones will be the confession. In another case, inducement to admit guilt is part of the agreement with the investigation.

Lack of motivation to protect

An appointed lawyer receives a fixed amount of payment from the budget for his work, which in a complex case practically does not encourage active participation in the defense. In this regard, the state lawyer rarely makes serious efforts to ensure the protection of his client, but makes decisions on him according to the principle of residuality.

An unspoken agreement between the state lawyer and the investigative authorities.

Each lawyer is independent in his actions and is obliged to keep confidential all information received from the client. However, in practice this is not the case. Often, appointed lawyers conduct their activities not so much in the interests of the client, but rather assist the investigation by disclosing information from the client. The reasons for this behavior are varied. In most cases, this is a desire to establish informal connections in the authorities in order to obtain any advantages in protecting clients under an agreement.

With respect to you and your business,

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