The FPA Council explained how to protect for its intended purpose

The FPA Council explained how to protect for its intended purpose

Collage: Legal.Report Recommendations of the FPA Council on ensuring continuity of protection as intended have been published. The extensive document reminds exactly how a lawyer should behave in a criminal case, what duties are assigned to him and to what extent they should be performed. And also how to interact with clients and colleagues.

To begin with, the FPA conducts an educational program and reminds that effective qualified legal assistance in defending a criminal case implies constant and systematic provision of it to the accused (suspect), taking into account the staged structure of criminal proceedings. In accordance with clause 17 of the Standard for the implementation of defense in criminal proceedings, “a lawyer participates in a criminal case until full fulfillment of his obligations, except for cases provided for by law and (or) clarifications of the Commission of the Federal Chamber of Lawyers on Ethics and Standards approved by the Council of the Federal Chamber lawyers." The principle according to which the defense attorney participates in the case from beginning to end is also included in the procedure for appointing lawyers as defense attorneys in criminal proceedings.

At the same time, in accordance with paragraph 8 of Art. 10 of the Lawyer’s Code of Professional Ethics, his duties when working as assigned should not differ from those performed for a fee.

The lawyer who accepted the assignment to carry out the defense as assigned in pre-trial proceedings, in accordance with paragraph 2 of Art. 13 of the Code of Professional Ethics does not have the right to refuse to defend itself in the court of first instance, including preparing and filing an appeal against the court verdict. However, he has the right not to file an appeal if the court agrees with his demands or if there is a written statement from the client to refuse to exercise the right to file an appeal by a lawyer, as provided for in paragraph 4 of Art. 13 Code of Professional Ethics.

A lawyer who has accepted an assignment to carry out the defense as assigned in pre-trial proceedings is obliged to participate not only in procedural actions carried out by the investigator (inquirer), but also in judicial control proceedings in the first and appellate instances (when choosing, changing and extending a preventive measure, measures procedural compulsion, when appealing against actions (inaction) and decisions in the manner prescribed by Article 125 of the Code of Criminal Procedure of the Russian Federation, etc.).

A lawyer who provides defense by appointment in the court of first instance is also required to participate in the court of appeal when appealing interim court decisions.

Unless otherwise established by regional rules adopted by the chambers of constituent entities in accordance with the procedure for appointing lawyers as defense attorneys in criminal proceedings approved by the FPA, in the event of consideration of an appeal by a court of appeal of general jurisdiction, the lawyer providing defense by appointment in the court of first instance has priority in the implementation of defense in the appellate instance. However, the lack of his consent to accept such an order is a valid reason for replacing a lawyer when considering the case by a court of appeal of general jurisdiction.

A lawyer who has accepted an assignment to carry out defense by appointment is obliged to appear before the initiator of the application, present a warrant and present identification, and then find out whether the accused (suspect, defendant) has a defense attorney by appointment or agreement.

If the accused has a lawyer by agreement, then the lawyer is obliged to ensure that he is properly notified within the period established by law and demand a copy of the procedural decision, which properly motivates the appointment of a lawyer in accordance with Articles 50, 51 of the Code of Criminal Procedure of the Russian Federation in the presence of a lawyer by agreement.

It is unacceptable for defense lawyers to carry out defense by appointment along with lawyers who defend the same persons on the basis of an agreement, with the exception of the case specified in paragraph 18 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 30, 2015 No. 29 “On the practice of application by courts of legislation ensuring the right to defense in criminal proceedings.” According to this clarification, the refusal of a defense attorney by appointment if the same person has a defense attorney by agreement may not be accepted by the inquirer, investigator or court only when the procedural behavior of the defense attorney by agreement or the behavior of the suspect accused in exercising the right to freely choose a defense attorney, being clearly unfair, infringes on the constitutional rights of other participants in the proceedings. Consequently, the appointment or continued participation in the case of a defense attorney by appointment when the same person has a defense attorney by agreement cannot be considered as an unacceptable duplication of defense functions, violating the constitutional right of the suspect or accused to freely choose a defense attorney, only on the condition that the procedural decision of the inquirer, investigator or the court, which rejected the declared refusal of the defense attorney by appointment, was not only issued in accordance with the requirements of the law, but also contains an indication of precisely such dishonest behavior of the suspect, accused and/or defense attorney(s) by agreement, citing specific factual circumstances confirming the validity of this conclusion.

In all other cases, the appointed defense attorney does not have the right to take part (including continue his previously begun participation) in the inquiry, preliminary investigation or in the consideration of the case by the court if the suspect, accused has a defense attorney under an agreement that he has not refused and which has not been withdrawn from participation in the case in the manner and on the grounds provided for by law.

If the accused (suspect, defendant) previously had an assigned defense attorney, then the lawyer should take measures before participating in any procedural actions (including when meeting with the accused (suspect) in private) to find out the reasons for replacing this defense attorney, if necessary by contacting him. If a lawyer who has arrived to participate in the case makes sure that his appointment as a defense attorney was carried out in violation of the established rules, or the previous defense attorney was not properly notified, or there is no reasoned procedural decision made in accordance with the requirements of the law, excluding the possibility of the participation of a previously appointed defense attorney in in a criminal case, he is obliged to withdraw from participation in procedural actions by making an appropriate statement.

A lawyer who has entered into a criminal case as a defense attorney by appointment, in order to ensure his proper participation in the defense in the future, is recommended to submit a written application to the person in charge of the criminal case about mandatory proper notification of the defense attorney about all planned investigative (judicial) and other procedural actions with the participation of the accused (suspect, defendant), as well as any other actions affecting the rights of the latter.

The release of a lawyer from participation in a criminal case as a defense attorney by appointment is allowed only in cases provided for by law (the adoption by the relevant official, in accordance with the requirements of the law, of a reasoned procedural decision to challenge the defense attorney if there are legal grounds for this, acceptance of the refusal of the accused (suspect) from the defense attorney , entry into the case of a lawyer by agreement who has not previously taken part in the case, suspension of the status of a lawyer, etc.) and (or) clarifications of the Commission of the Federal Chamber of Lawyers on Ethics and Standards, approved by the Council of the Federal Chamber of Lawyers of the Russian Federation, as well as in the presence of other respectful reasons (for example, a serious long-term illness that prevents the performance of professional duties, transfer of the case under jurisdiction or jurisdiction to another territorial entity, etc.).

Does a criminal lawyer work for free?

Contrary to popular belief, an appointed lawyer does not work for free. Based on Part 5 of Article 51 of the Code of Criminal Procedure of the Russian Federation, the services of defense lawyers are paid for at the expense of the state (another popular definition of lawyers by appointment as “state lawyers” is connected with this circumstance). However, if a conviction was made (or the case was completed for non-exonerating reasons), the convicted person must reimburse the costs of a lawyer at his own expense. In practice, courts often, when passing a guilty verdict, forget to resolve the issue of reimbursement of court costs for the services of an appointed lawyer at the expense of the convicted person, so the lawyer actually turns out to be free for a particular person, but you definitely cannot hope that you will be lucky and get a forgetful judge costs.

Pre-trial settlement of disputes

The procedure for resolving disagreements between citizens pre-trial can take place in two options: voluntary, mandatory.
In fact, in criminal proceedings such situations occur quite often. A criminal, not wanting to initiate a criminal case of private or private-public accusation, can voluntarily make amends for the harm he has caused to the victim.

In most cases, this occurs through the transfer of a certain amount of money, which is voiced by the victim. But it is also possible to pay for some services, procedures (for example, medical, cosmetic), purchase new property to replace damaged property, etc. As a result, the victim simply does not contact law enforcement agencies with a statement or withdraws an application that has already been submitted. And in cases of this kind, initiating a criminal case in the absence of a statement from the victim is legally impossible. The norms of the Code of Criminal Procedure of the Russian Federation directly state this.

The mandatory procedure is present where the accused wants to reduce his sentence. Some articles of the Criminal Code of the Russian Federation contain a clause that criminal punishment is reduced or criminal liability does not occur at all if the guilty person has made amends for the harm he caused.

Attention! If the parties decide to reach reconciliation, the participants in the process have the right to involve a lawyer in such a procedure. A specialist will be able to advise all aspects of this process, based on the characteristics of each specific situation.

Video about pre-trial dispute resolution

Participants in criminal proceedings

Depending on the performance of certain procedural functions, the Code of Criminal Procedure allows one to qualify participants in the process in criminal proceedings as follows:

1. Magistrate or district court, which performs the function of justice;
2. Participants on the prosecution side: the victim, the prosecutor, the investigator, the inquiry officer, the victim’s lawyer, the civil plaintiff;
3. Participants on the defense side: the defendant, the defendant’s lawyer, the civil defendant;
4. Other participants in the process, which include: experts, specialists. This category of subjects does not perform permanent procedural functions, and their presence at meetings is episodic; accordingly, they have no personal interest in resolving this case.

Work of a lawyer during the preliminary investigation

If a criminal case has been initiated, the next stage is a preliminary investigation. At this stage, the investigator interrogates witnesses, conducts examinations, seizures, searches, identifications, and inspections. Based on the results of the preliminary investigation, the investigator decides whether to send the case to the prosecutor and then to the court or not.

At this stage, there are several directions in the lawyer’s work.

Firstly, it is assistance to the client during investigative actions, which are carried out on the initiative of the investigator himself. For example, before interrogation, the lawyer explains to the client whether it is advisable to testify, to what extent, or whether it is better to exercise his right not to testify. During interrogation, the lawyer has the right to ask questions to the client, briefly advise him, and protect him from the use of torture or other pressure. Afterwards, the defense attorney checks the interrogation protocol, makes comments on it, if the protocol says something that the person did not say, or it is written in the wrong way.

Secondly, the lawyer has the right to file petitions to carry out investigative actions at the initiative of the defense, to include in the case materials documents in favor of the client obtained by the lawyer himself. This is done so that the case is formed taking into account the position of the defendant, and not just as the investigator needs.

Thirdly, the lawyer records the violations committed against the client. These may be violations that affect evidence (for example, incorrectly selected extras during identification), health status (for example, torture, failure to provide necessary medical care in a pre-trial detention center) and, in general, the legal status of the defendant (for example, being kept in a cage in a courtroom ). Some violations should be responded to immediately, others are useful to simply record, but file the necessary petition or complaint later, and others should be saved for the court.

Fourthly, when the client is in a pre-trial detention center, it is necessary to monitor whether torture is being applied to him, whether his operational employees are trying to persuade him to take on “extra” episodes, or whether his conditions of detention are being deliberately worsened. In addition, it is important to simply maintain contact with the person in custody under stress, so that he receives not only legal, but also moral support.

Important! The investigator has the right not to allow relatives to meet with the person in custody. This is often used to get the accused to confess in exchange for a meeting. At the same time, the investigator cannot limit the lawyer in meetings with the client. When the accused does not admit guilt and is ready to actively defend himself against the accusation, and the investigator “blackmails” him with a meeting, the lawyer becomes virtually the only one who can visit the person in the pre-trial detention center, help and support.

The results of the lawyer’s work during the preliminary investigation may be reclassification of the charge to a more lenient one, exclusion of evidence, termination of the criminal case by the investigator or the creation of the basis for further termination of the case in court, preparation of the case favorable for the client for consideration by his court (including a jury trial or the European Court of Justice). human rights).

Important!

The latest news regarding attorney fees for suspects and defendants is not very encouraging. The amendments of the Ministry of Justice stipulate that in order to receive a suspended sentence, as well as to be released on parole, a citizen must pay in full for the services of his appointed defense attorney. If the amendments are adopted, the number of suspended sentences could be sharply reduced.

Specific rates were approved by Decree of the Government of the Russian Federation dated December 1, 2012 No. 1240.

• 550-1200 rubles for 1 working day;
• 825-1800 rubles for assistance at night;
• 1100-2400 rubles for help on weekends and holidays.

The specific amount of remuneration depends on the circumstances and complexity of the case.

The fees for assigned lawyers will soon increase. Decree of the Government of the Russian Federation of October 2, 2022 No. 1169 provides for a gradual increase in rates. So, from 2022, a day of work for a lawyer will cost 900-1500 rubles, from 2022 - 1250-1900 rubles, and from 2022 - 1500-2150 rubles.