Lived and will live
Article 49. Defender
Defender - a person who protects the rights and interests of suspects and accused and provides them with legal assistance in criminal proceedings. A lawyer is allowed to participate in a criminal case as a defense attorney upon presentation of a lawyer's certificate and a warrant. If a defense attorney participates in proceedings in a criminal case, the materials of which contain information constituting a state secret, and does not have appropriate access to the specified information, he is obliged sign a non-disclosure agreement. The same person cannot be the defense attorney of two suspects or accused if the interests of one of them contradict the interests of the other. A lawyer does not have the right to refuse to undertake the defense of a suspect or accused.
In accordance with paragraph 1 of Art. 2 of the Federal Law of May 31, 2002 No. 63-FZ “On advocacy and the legal profession in the Russian Federation”, a lawyer is “a person who has received the status of a lawyer in the manner prescribed by law and the right to practice law.” In addition, the lawyer is an independent legal adviser. Acquire the status of a lawyer in accordance with paragraph 1 of Art. 9 of the Federal Law “On Advocacy and the Legal Profession in the Russian Federation”, a person who has a higher legal education obtained from a state-accredited educational institution of higher professional education, or an academic degree in a legal specialty, has the right. The specified person must also have at least two years of experience in the legal profession, or undergo an internship in legal education within the time limits established by this federal law.”
Moment of admission to participate in the case
The defense attorney participates in a criminal case ( Part 3, Article 49
) :
1) from the moment a decision is made to charge a person as an accused, with the exception of cases provided for in paragraphs 2 - 5 of this part;
2) from the moment of initiation of criminal proceedings against a specific person;
3) from the moment of actual detention of a person suspected of committing a crime, in the following cases:
a) provided for in Articles 91 and 92 of this Code;
b) application to him in accordance with Article 100 of this Code of a preventive measure in the form of detention;
3.1) from the moment of delivery of a notification of suspicion of committing a crime in the manner established by Article 223.1 of this Code;
4) from the moment the decision to order a forensic psychiatric examination is announced to the person suspected of committing a crime;
5) from the moment of the beginning of implementation of other measures of procedural coercion or other procedural actions affecting the rights and freedoms of a person suspected of committing a crime;
6) from the moment of the commencement of procedural actions affecting the rights and freedoms of the person in respect of whom the report of a crime is being verified in the manner prescribed by Article 144 of this Code.
Invitation, appointment and replacement of a defender
As for the method of a defense lawyer’s entry into a case, the current legislation provides for a different procedure: by invitation and by appointment ( Article 50
).
1. A defense attorney is invited by the suspect, accused, his legal representative, as well as other persons on behalf of or with the consent of the suspect, accused. The suspect or accused has the right to invite several defense attorneys.
2. At the request of the suspect, the accused, the participation of a defense attorney is ensured by the inquiry officer, investigator or court.
3. If the invited defense attorney fails to appear within 5 days from the date of filing a request to invite a defense attorney, the inquiry officer, investigator or court has the right to invite the suspect, accused to invite another defense attorney, and in case of his refusal, take measures to appoint a defense attorney. If a defense attorney participating in a criminal case cannot take part in a specific procedural action within 5 days, and the suspect or accused does not invite another defense attorney and does not apply for his appointment, then the inquirer or investigator has the right to carry out this procedural action without the participation of a defense attorney, with the exception of cases provided for in paragraphs 2 - 7 of part one of Article 51 of this Code.
4. If within 24 hours from the moment of detention of a suspect or the detention of a suspect or accused, the appearance of a defense attorney invited by him is impossible, then the inquiry officer or investigator takes measures to appoint a defense attorney. If the suspect or accused refuses the appointed defense attorney, investigative actions with the participation of the suspect or accused may be carried out without the participation of a defense attorney, except for the cases provided for in paragraphs 2 - 7 of part one of Article 51 of this Code.
5. If a lawyer participates in a preliminary investigation or trial by appointment of an inquiry officer, investigator or court, the costs of remunerating his labor are compensated from the federal budget.
Powers of the defender
Article 53. Powers of the defense attorney
1. From the moment of admission to participation in a criminal case, the defense attorney has the right:
1) have meetings with the suspect or accused in accordance with paragraph 3 of part four of Article 46 and paragraph 9 of part four of Article 47 of this Code;
2) collect and present evidence necessary to provide legal assistance in the manner established by part three of Article 86 of this Code;
3) involve a specialist in accordance with Article 58 of this Code;
4) be present at the presentation of charges;
5) participate in the interrogation of the suspect, accused, as well as in other investigative actions carried out with the participation of the suspect, accused or at his request or at the request of the defense attorney himself in the manner established by this Code;
6) get acquainted with the protocol of detention, the decision on the application of a preventive measure, protocols of investigative actions carried out with the participation of the suspect, accused, other documents that were presented or should have been presented to the suspect, accused;
7) at the end of the preliminary investigation, get acquainted with all the materials of the criminal case, write out any information in any volume from the criminal case, make copies at your own expense from the materials of the criminal case, including using technical means; (Clause 7 of part 1 of Article 53 is subject to application in accordance with the constitutional and legal meaning identified in the Determination of the Constitutional Court of the Russian Federation dated May 12, 2003 N 173-O.)
file petitions and challenges;
9) participate in the trial of a criminal case in the courts of the first, second, cassation and supervisory instances, as well as in the consideration of issues related to the execution of the sentence;
10) bring complaints against the actions (inaction) and decisions of the inquirer, investigator, prosecutor, court and participate in their consideration by the court;
11) use other means and methods of protection not prohibited by this Code.
2. A defense attorney participating in an investigative action, as part of providing legal assistance to his client, has the right to give him brief consultations in the presence of an investigator, ask questions to the persons being interrogated with the permission of the investigator, and make written comments regarding the correctness and completeness of the entries in the protocol of this investigative action. The investigator may dismiss the defense lawyer's questions, but is obliged to enter the dismissed questions into the protocol.
3. The defense attorney does not have the right to disclose preliminary investigation data that became known to him in connection with the implementation of the defense if he was warned about this in advance in the manner established by Article 161 of this Code. The defense attorney is responsible for the disclosure of preliminary investigation data in accordance with Article 310 of the Criminal Code of the Russian Federation.
Everything about criminal cases
Joining a case in courtIth instance
- the restriction that the defender can only participate along with a lawyer
- it's nothing.
Url Additional information:
- Part 3 51 Code of Criminal Procedure
if a defense attorney is not invited, they are required to provide one
- there is no need to specifically hire a lawyer, the court will provide a free one ( 51 Code of Criminal Procedure
).
- technical aspect, if you are entering into a case at the court of the first instance, then it is appropriate to notify the judge in advance about the need to invite a free lawyer, this (in practice, it is quite enough to call the secretary, introduce yourself, inform that you will enter into the case as a public defender, explain the reasons for your call that you warn about the need to call a lawyer in advance).
Url Additional information:
- part 1 241 of the Code of Criminal Procedure
proceedings in the courts are open (general rule)
- come to the courtroom together with all participants (according to the general rule 241 of the Code of Criminal Procedure
the proceedings in court are open and any citizen has the right of access to the courtroom).
- when the judge begins to find out the identities of those in the room, you need to inform him that you are the defense attorney for whose admission the defendant will file a petition.
Url Additional information:
— Part 1 271 Code of Criminal Procedure
at the beginning of the hearing the judge is obliged to ask about motions
— the moment for filing a petition is provided for by 271 Code of Criminal Procedure
, the defendant verbally declares that he has a petition for admission of a defense lawyer and submits it (through the bailiff) to the judge.
If the defendant is in custody
- the problem here is that the defense lawyer (before he is recognized as such in court) does not have the opportunity to meet with the client, the question arises: how to submit the petition
?
— the relatives of the defendant cannot help here; in the period before the verdict is announced, they are usually not given visits.
You will need the assistance of a lawyer
- hand over two petition forms to the defendant in the pre-trial detention center with the help of a lawyer.
- He signs one form and gives it to the lawyer.
- He leaves the second form for himself in order to read it orally.
— it makes sense to write a covering letter that explains to the defendant when and how he should make this motion.
- advice: if a free lawyer is involved in the case, then he is not obliged to visit the pre-trial detention center, pay him for 1 visit to the pre-trial detention center to submit a petition, this is fair, because the state does not pay for visits to the pre-trial detention center (contrary to paragraph 4
Plenum No. 42).
- all this can be implemented directly on the day of the trial; for this, the lawyer, before the start of the court hearing, can go to the “escort” (the place where those brought to court are kept).
Url Additional information:
- Art. No. 103-FZ correspondence of persons in custody
- if time before the meeting allows, then it is quite possible to do this by mail (Article No. 103-FZ).
Mandatory participation of a defender
Article 51. Mandatory participation of a defense lawyer
1. The participation of a defense attorney in criminal proceedings is mandatory if:
1) the suspect or accused did not refuse a defense lawyer in the manner established by Article 52 of this Code;
2) the suspect or accused is a minor;
3) the suspect or accused, due to physical or mental disabilities, cannot independently exercise his right to defense;
3.1) the trial is conducted in the manner prescribed by part five of Article 247 of this Code;
4) the suspect or accused does not speak the language in which the criminal proceedings are being conducted;
5) the person is accused of committing a crime for which a penalty of imprisonment for a term of more than fifteen years, life imprisonment or the death penalty may be imposed;
6) the criminal case is subject to trial by a court with the participation of a jury;
7) the accused filed a petition for consideration of the criminal case in the manner established by Chapter 40 of this Code;
the suspect filed a petition for an investigation in a criminal case in an abbreviated form in the manner established by Chapter 32.1 of this Code.
2. In the cases provided for in paragraphs 1 - 5 of the first part of this article, the participation of the defense attorney is ensured in the manner established by the third part of Article 49 of this Code, and in the cases provided for in paragraphs 6, 7 and 8 of the first part of this article - from the moment of application although if one of the accused petitions for consideration of a criminal case by a court with the participation of a jury or a petition for consideration of a criminal case in the manner established by Chapter 40 of this Code, or from the moment the suspect submits a petition for proceedings in a criminal case in the manner established by Chapter 32.1 of this Code.
3. If, in the cases provided for in the first part of this article, a defense attorney is not invited by the suspect, accused, his legal representative, as well as other persons on behalf of or with the consent of the suspect, accused, then the inquiry officer, investigator or court ensures the participation of the defense attorney in criminal proceedings.
Commentary on Article 51
1. At first glance, it seems that the circle of circumstances stipulating the mandatory participation of a defense attorney is traditional. Indeed, the provisions of paragraphs 2 - 4, 6 of part 1 of the commented article were also contained in the previous law. But at the same time there is significant novelty. Firstly, clause 1, part 1 opens up unprecedentedly wide opportunities for the mandatory participation of a defense lawyer. Secondly, the provisions of paragraph 5 of Part 1 of this article have received significant development, which provides for the mandatory participation of a defense lawyer if a person is accused of committing a crime for which punishment may be imposed not only in the form of the death penalty, but also in the form of life imprisonment or imprisonment for a term exceeding fifteen years. In addition, Part 1 is supplemented by Section 7, which provides for the mandatory participation of a defense attorney if the accused has filed a motion to resolve the case in the manner established by Chapter. 40 Code of Criminal Procedure.
2. The enumeration in the law of cases of mandatory participation of a defense attorney is caused by the presence of situations during the proceedings when the accused (suspect), due to various circumstances specified in the law or subjective reasons, is not able to independently carry out full protection of his interests.
3. Consideration of a criminal case without the participation of a defense lawyer in the cases provided for in the commented article is regarded as a significant violation of procedural norms, entailing the reversal of the sentence (Explaining the need to fulfill the requirements of the law on the participation of a defense lawyer in criminal proceedings, the Plenum of the Armed Forces of the Russian Federation in Resolution dated 03/05/2004 N 1 considered it is possible to draw the attention of the courts to the fact that his participation is mandatory if the suspect or accused has not renounced it in the manner established in Article 52 of the Code of Criminal Procedure.At the same time, as emphasized in the Resolution, participation in the criminal proceedings of the prosecutor (state prosecutor) is not a mandatory condition for the participation of a defense lawyer in criminal proceedings.
4. According to the law, when conducting a preliminary investigation in cases that may be the subject of consideration by a jury, the participation of a defense attorney is mandatory when announcing to the accused the completion of the preliminary investigation and presenting all the materials of the case to him for review. Failure to ensure the participation of a defense attorney at this stage of the preliminary investigation is considered a significant violation of the criminal procedural law, and if a verdict is passed, it means its cancellation.
5. The Plenum of the Supreme Court of the Russian Federation explained to the courts that the participation of a defense lawyer in a case of a crime involving a minor is mandatory, regardless of whether the accused who committed the crime before the age of 18 has reached the age of majority by that time. Moreover, this rule also applies to cases when a person is accused of committing crimes, one of which was committed by him before the age of 18, and the other after reaching the age of majority (clause 3 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated February 14, 2000 N 7).
6. The mandatory participation of a defense attorney on the side of a mentally retarded person occurs in cases where this person, due to mental disabilities, cannot independently exercise his right to defense.
7. The law contains only a general mention of physical and mental disabilities, the presence of which in the accused (suspect) determines the mandatory participation of a defense lawyer. The investigator and the court decide this issue depending on whether the owner of these deficiencies can practically use his subjective rights, i.e. exercise your right to defense. The Plenum of the Supreme Soviet of the USSR in Resolution No. 5 of June 16, 1978 “On the practice of application by courts of laws ensuring the accused the right to defense” explained that by persons who, due to physical or mental disabilities, cannot exercise their right to defense themselves, it should be understood, in in particular, persons, although recognized as sane, but suffering from temporary mental disorders, significant defects in speech, vision, hearing, or other serious illness.
8. For a person who does not speak the language in which legal proceedings are conducted, see comment. to Art. 18.
9. If the case is resolved according to the rules of Ch. 40 of the Code of Criminal Procedure, the court must ensure the participation of a defense attorney if he was not invited by the defendant or other persons (Part 1 of Article 315 of the Code of Criminal Procedure).
10. The mandatory participation of a defense attorney may take place either by appointment or by invitation of the accused or other persons. The legislator gives preference to the participation of a defense attorney on the basis of an invitation. At the same time, in practice, a defense attorney is recognized as elected not only when an agreement has been concluded regarding his participation, but also when the accused (defendant), while in custody, invites a lawyer through the court
Procedure for appointing lawyers as defense attorneys in criminal proceedings
Approved by the Decision of the Council of the FPA RF
dated March 15, 2022 (protocol No. 4),
with change dated November 18, 2022 (protocol No. 19),
as amended on February 18, 2022 (protocol No. 21),
effective March 1, 2022
Section 1. General provisions
1.1. The legal basis for the participation of lawyers as defense attorneys in criminal proceedings as appointed by investigative bodies, preliminary investigation bodies or the court are:
1) The Constitution of the Russian Federation, adopted by popular vote on December 12, 1993;
2) Criminal Procedure Code of the Russian Federation of December 18, 2001 No. 174-FZ (hereinafter referred to as the Code of Criminal Procedure of the Russian Federation);
3) Federal Law of May 31, 2002 No. 63-FZ “On advocacy and the legal profession in the Russian Federation”;
4) Code of Professional Ethics for Lawyers, adopted by the First All-Russian Congress of Lawyers on January 31, 2003 (hereinafter referred to as CPEA);
5) this Procedure for the appointment of lawyers as defenders in criminal proceedings and the rules of the bar chambers of the constituent entities of the Russian Federation for the implementation of this Procedure (hereinafter referred to as the Regional Rules).
1.2. For the purposes of this Procedure, the “chamber of lawyers,” along with the meaning of this term contained in paragraph 1 of Article 29 of the Federal Law “On Advocacy and the Bar in the Russian Federation,” means representatives of the council of the Bar Chamber, curators, coordinators, specialists of subsidized legal assistance centers , call center operators and other persons supporting the activities of the Chamber of Lawyers in organizing the participation of lawyers as defense attorneys in criminal proceedings (hereinafter referred to as representatives of the Chamber of Lawyers).
Section 2. Limits of validity of this Procedure and Regional Rules
2.1. The procedure for appointing lawyers as defense attorneys in criminal proceedings is determined by the Council of the Federal Chamber of Lawyers of the Russian Federation (hereinafter referred to as the FPA RF) in accordance with part 3 of article 50 of the Code of Criminal Procedure of the Russian Federation, subparagraph 3.1 of paragraph 3 of article 37 of the Federal Law “On advocacy and the legal profession in the Russian Federation” .
In order to organize the implementation of this Procedure, the councils of bar chambers of the constituent entities of the Russian Federation, within the limits of their powers provided for in subparagraph 5 of paragraph 3 of Article 31 of the Federal Law “On Advocacy and the Bar in the Russian Federation,” adopt Regional Rules, taking into account regional characteristics.
2.2. This Procedure and the Regional Rules define the rights and obligations of the bar chambers of the constituent entities of the Russian Federation (hereinafter referred to as the bar chambers), representatives of the bar chambers and lawyers arising from the moment the inquiry officer, investigator or court contacts the bar chamber (to representatives of the bar chamber) as part of their taking measures by appointment of a defense attorney in criminal proceedings in accordance with parts 3, 4 of Article 50 of the Code of Criminal Procedure of the Russian Federation until the lawyer enters a criminal case as a defense attorney in accordance with Part 4 of Article 49 of the Code of Criminal Procedure of the Russian Federation.
2.3. This Procedure applies throughout the Russian Federation, regardless of the place of appointment of lawyers as defense attorneys in criminal proceedings.
Regional rules adopted by the Bar Chamber of a constituent entity of the Russian Federation are applied on the territory of that constituent entity of the Russian Federation.
2.4. This Procedure applies to cases of appointment of a lawyer:
1) as a defender of a suspect, accused, defendant (parts 3, 4 of Article 50 of the Code of Criminal Procedure of the Russian Federation);
2) as a defender of a person in respect of whom a report of a crime is being verified in the manner prescribed by Article 144 of the Code of Criminal Procedure of the Russian Federation, from the moment of the commencement of procedural actions affecting the rights and freedoms of the specified person (clause 6 of part 3 of Article 49 of the Code of Criminal Procedure of the Russian Federation);
3) as a representative of a minor victim who has not reached the age of sixteen years, against whom a crime has been committed against the sexual integrity of a minor (Part 2.1 of Article 45 of the Code of Criminal Procedure of the Russian Federation);
4) in other cases provided for by criminal procedure legislation.
Section 3. Basic principles for the appointment of lawyers as defense counsel in criminal proceedings
3.1. The principle of independence of the legal profession
, which, in relation to the appointment of lawyers as defenders in criminal proceedings, means the exclusion of any influence of the inquiry bodies, preliminary investigation bodies, courts, other bodies and persons on the distribution of requirements for the appointment of a defender between specific lawyers.
3.2. The principle of equal rights for lawyers
, which, for the purposes of this Procedure, means the right of equal access of lawyers to participate in the provision of legal assistance as defense attorneys in criminal proceedings as appointed by investigative bodies, preliminary investigation bodies or the court, regardless of the form of legal education they have chosen and their affiliation with a specific legal entity.
3.3. The principle of territoriality
, which, in relation to the appointment of lawyers as defense attorneys in criminal proceedings, means a ban on participation in criminal proceedings by appointment of inquiry bodies, preliminary investigation bodies or courts on the territory of one subject of the Russian Federation for lawyers whose information is included in the register of lawyers of another subject of the Russian Federation.
Exceptions to the application of this principle are allowed:
1) for cases of procedural actions and court hearings on the territory of one subject of the Russian Federation in criminal cases being processed by the bodies of inquiry, preliminary investigation bodies and courts of another subject of the Russian Federation or preliminary investigation bodies of the interregional or federal level [1] (taking into account the priority principle of continuity of protection);
2) for hard-to-reach and sparsely populated areas of the country on the basis of a joint decision of the relevant bar chambers of the constituent entities of the Russian Federation;
3) in the case of the participation of lawyers in criminal proceedings in cases of crimes committed on the territory of a foreign state, which, in accordance with international treaties of the Russian Federation, are being processed by Russian investigative bodies, preliminary investigation bodies and courts, on the basis of relevant decisions of the Council of the Federal Chamber of Lawyers of the Russian Federation .
3.4. Continuity of protection principle
, which, in relation to the appointment of lawyers as defenders in criminal proceedings, means the participation of the same lawyer in a criminal case from the moment of appointment until the full fulfillment of his obligations, except for cases provided for by law, this Procedure and the Regional Rules.
3.5. The principle of centralization and informatization
, which, in relation to the appointment of lawyers as defenders in criminal proceedings, means the centralized appointment of lawyers as defenders in criminal proceedings using an automated information system that excludes the influence of any interested parties on the distribution of assignments between lawyers [2].
Section 4. Notice of Appointment of Defense Counsel
4.1. As part of taking measures to appoint a defense lawyer, provided for in Article 50 of the Code of Criminal Procedure of the Russian Federation, the inquirer, investigator or court makes a decision ensuring the exercise of the right to defense of the suspect, accused, defendant in criminal proceedings and entailing the emergence of expenditure obligations of the state to pay remuneration to the lawyer and reimbursement of other procedural costs .
The inquirer, investigator or court notify the Bar Chamber (representatives of the Bar Chamber) about the decision made in order to appoint as a defense attorney in a criminal case the lawyer whom the Bar Chamber (representatives of the Bar Chamber) entrusts with participation in this criminal case.
After a lawyer enters a criminal case as a defense attorney, further notification of him about the dates, times and places of procedural actions or court hearings is carried out by the inquiry officer, investigator and court in accordance with the Code of Criminal Procedure of the Russian Federation and is not regulated by this Procedure and Regional Rules.
4.2. Notification of the Bar Association (representatives of the Bar Association) by the inquiry officer, investigator or court of the decision made to appoint a defense attorney in a criminal case (hereinafter referred to as the notification of the appointment of a defense attorney) is carried out in one of the following forms:
1) in writing (resolution on the appointment of a lawyer as a defender, application, request, etc.);
2) orally (using telephone communication);
3) electronically (using the Internet channel).
4.3. In order to ensure the timely appointment of a defender, it is necessary:
1) information for issuing a warrant, upon presentation of which a lawyer, in accordance with Part 4 of Article 49 of the Code of Criminal Procedure of the Russian Federation, enters into a criminal case as a defense attorney (the absence of this information makes it impossible to appoint a specific lawyer as a defense attorney due to the impossibility of issuing a warrant [3]):
– the date from which the appointment of a defender is required;
– surname, name, patronymic (if any) of the individual to whom a defender is assigned (if the surname, name, patronymic of this person is not established, “identity not established” is indicated);
– stage of consideration of the case (inquiry, preliminary investigation, consideration of the case in court, indicating the authority);
– name of the inquiry body, preliminary investigation body or court;
2) information facilitating the timely appearance of the lawyer at the place of procedural actions or court hearing:
– the time at which a lawyer is called;
– the address at which the lawyer is called (indicating the office number);
– position, as well as last name, first name, patronymic (if any) of the inquirer, investigator or judge;
– contact telephone number of the inquiry officer, investigator or court to inform about the appointment and coordinate organizational issues with the lawyer.
If the bodies of inquiry, the bodies of preliminary investigation or the courts, in agreement with the bar association, have determined a single communication channel (for example, a contact telephone number), ensuring confirmation of the authority to take measures to appoint a defense lawyer, as well as the exchange of information between the official and the lawyer, then the position , last name, first name, patronymic (if any) of the inquirer, investigator or judge may not be indicated when notifying about the appointment of a defense attorney.
4.4. When notifying the Bar Association (representatives of the Bar Association) about the appointment of a defense attorney, the inquiry officer, investigator or court may indicate the following information to facilitate the more effective appointment of a defense attorney (including reducing the time frame for appointment):
1) qualification of the crime charged;
2) last name, first name, patronymic (if any) of the lawyer who previously participated in this criminal case;
3) other information offered by the Regional Rules, taking into account the method chosen in the constituent entity of the Russian Federation for distributing orders for the appointment of a defense lawyer and the established practice of interaction between the bar association and the bodies of inquiry, the bodies of preliminary investigation and the courts, including:
– an indication of the urgency of appointing a defense lawyer due to the need for his participation in urgent investigative actions and other urgent cases;
– date of birth of the person to whom a defender is appointed;
– the current number of the criminal case (the current number in the book of records of reports of crimes), as well as previously assigned numbers of the criminal case (numbers in the book of records of reports of crimes);
– the presence in the case materials of information constituting a state secret;
– consideration of the case by a court with the participation of a jury;
– schedule of procedural actions or court hearings and other information.
The absence of any information from the above list is not a basis for refusing to appoint a lawyer as a defense attorney, however, if there are circumstances that exclude or prevent the lawyer from participating in a criminal case, it may make it impossible for him to join the case.
4.5. Notification of the appointment of a defense attorney is carried out within the time limits provided for by the Code of Criminal Procedure of the Russian Federation for notifying the defense attorney of the place, date and time of a procedural action or court hearing.
In other cases, notification of the appointment of a defense attorney is recommended within a reasonable period of time, including:
– in advance [4], if the procedural action or court hearing is planned in advance;
– immediately if a defense lawyer is required to participate in urgent investigative actions and in other urgent cases.
Section 5. Process for Appointing a Lawyer as Defense Counsel
The process of appointing a lawyer as a defense attorney in criminal proceedings consists of the following steps, which affect the time the lawyer arrives to participate in a procedural action or court hearing:
1) receipt by the chamber of lawyers (representatives of the chamber of lawyers) of notification of the appointment of a defense attorney in a criminal case;
2) entering the received information into the documentation of the bar association (representatives of the bar association), including into the database of the information system for the automated distribution of orders for the appointment of a defense attorney;
3) distribution of assignments between specific lawyers, which includes:
a) forwarding the received information to the lawyer (lawyers) through the channels of communication with lawyers used in the bar association;
b) the lawyer’s decision on the possibility or impossibility of his participation in a given criminal case, which should not exceed 15 minutes (when making a decision, the lawyer should take into account the date and time indicated in the notification, employment on other cases pending in his proceedings, as well as the expected reasonable time to arrive at the place of the procedural action or court hearing);
c) receiving a response from lawyers about the possibility or impossibility of participation in this criminal case, in this case:
– if the answer is positive, the Chamber of Lawyers (representative of the Chamber of Lawyers) entrusts a specific lawyer with participation in this criminal case as a defense attorney by appointment;
– if there are negative answers or no response within the time established by the Regional Rules, the distribution of the assignment is repeated until the acceptance of the assignment by any lawyer;
4) informing the inquirer, investigator or court by the lawyer to whom the Chamber of Lawyers has assigned the order to appoint a defense lawyer, within a reasonable time (and if necessary, immediately) about the order he has accepted;
5) the appearance of a lawyer to participate in criminal proceedings at a specified time, taking into account territorial remoteness, transport accessibility, the possibility of attributing transport costs to procedural costs and other conditions and circumstances affecting the time of arrival of the lawyer;
6) identification by the lawyer of circumstances that exclude or prevent his participation in the proceedings in this criminal case as a defense attorney, as a result of which:
a) in the absence of the specified circumstances - the entry of a lawyer into a criminal case as a defense attorney;
b) in the presence of the specified circumstances, which may entail the need to re-distribute the assignment to other lawyers and were not reported by the inquiry officer, investigator or court when notifying the bar association (representatives of the bar association) about the appointment of a defense attorney in this criminal case:
- if circumstances are identified that exclude the participation of a lawyer in the proceedings in this criminal case as a defense attorney on the basis of Article 72 of the Code of Criminal Procedure of the Russian Federation, - the lawyer takes measures to immediately inform the inquiry officer, investigator or court, as well as the chamber of lawyers (representative of the chamber of lawyers) about this distribution of this assignment to another lawyer;
– if circumstances are identified that impede the participation of a lawyer in the proceedings in this criminal case as a defense attorney on the basis of paragraph 3 of Article 10 of the CPEA and the provisions of other acts specified in paragraph 10.1 of this Procedure, the lawyer takes measures to immediately agree on organizational issues of the lawyer’s participation in this in a criminal case with an inquirer, investigator or court in order to eliminate identified obstacles, and if this is not possible, the lawyer takes measures to immediately inform the bar association (representatives of the bar association) in order to distribute this assignment to another lawyer.
Section 6. Methods of receiving notifications of the appointment of a defender
6.1. The Chamber of Lawyers ensures the receipt of notifications about the appointment of a defender in the following ways:
1) transfer of information provided for in paragraphs 4.3–4.4 of this Procedure to the telephone numbers of the bar association (representatives of the bar association), which are determined by the bar association for these purposes, including with the possibility of audio recording telephone conversations (if provided for by the Regional Rules);
2) transfer of information provided for in paragraphs 4.3–4.4 of this Procedure by filling out a special form on the website of the bar association on the Internet information and telecommunications network, which is used for these purposes, or in the personal account of an authorized person in the subsystem of automated distribution of assignments between lawyers protection as prescribed by the Integrated Information System of the Russian Bar (ARPN KIS AR subsystem) on a special Internet portal of the Federal Chamber of Lawyers of the Russian Federation and/or through a specially developed mobile application.[5]
6.2. By agreement between the Bar Chamber and the relevant investigative bodies, preliminary investigation bodies and courts, the use of postal service operators, e-mail and other methods of receiving notifications of the appointment of a defense attorney is permitted.
Section 7. Time for receiving notifications and distributing assignments between lawyers
7.1. If used to receive notifications about the appointment of a telephone defender:
1) if it is necessary for the participation of a defense attorney in planned procedural actions and court hearings, notifications are accepted and instructions are distributed during the working hours of the chamber of lawyers (representatives of the chamber of lawyers), established by the relevant decision of the chamber of lawyers or Regional Rules (taking into account an 8-hour working day with a 40-hour working day week, including breaks for rest and meals, as well as weekends and non-working holidays);
2) if it is necessary for the participation of a defense lawyer in urgent investigative actions and in other urgent cases, notifications are accepted and instructions are distributed around the clock;
3) if it is necessary for the defense attorney to participate in scheduled procedural actions and court hearings after hours, as well as on weekends and non-working holidays, notifications are accepted and orders are distributed in the mode established for urgent cases.
7.2. If a special form is used to receive notifications about the appointment of a defender on the Internet and/or a mobile application, notifications are accepted around the clock, and orders are distributed:
1) if it is necessary for the participation of a defense attorney in planned procedural actions and court hearings - during the working hours of the chamber of lawyers (representatives of the chamber of lawyers), established by the relevant decision of the chamber of lawyers or Regional Rules (taking into account an 8-hour working day with a 40-hour working week, including breaks for rest and meals, as well as weekends and non-working holidays);
2) if it is necessary for the participation of a defense lawyer in urgent investigative actions and in other urgent cases - around the clock;
3) if necessary, the participation of a defense lawyer in scheduled procedural actions and court hearings outside working hours, as well as on weekends and non-working holidays - in the mode established for urgent cases.
Section 8. Information Security
8.1. The protection of information related to the appointment of a lawyer as a defense attorney in criminal proceedings, when received and processed by the Bar Association, is ensured by:
1) in relation to information containing attorney-client privilege - by lawyers, assistants and trainees of lawyers, employees of bar associations, employees of the bar chamber and other persons involved in the reception and processing of this information, in accordance with paragraph 1 of Article 8 of the Federal Law “On the Bar activities and advocacy in the Russian Federation" (including a subscription to non-disclosure of attorney-client privilege);
2) in relation to the secrecy of correspondence, telephone conversations, postal items, telegraph and other messages transmitted over telecommunication networks and postal networks - by telecom operators in accordance with Article 63 of the Federal Law of July 7, 2003 No. 126-FZ “On Communications” ;
3) in relation to information transmitted using the Internet information and telecommunications network - the protocol for protecting the Internet channel used for receiving and transmitting information contained in the notice of appointment of a defender from unauthorized third-party access https (Hyper Text Transfer Protocol Secure);
4) compliance of the information systems used for the automated distribution of requests for the appointment of a defense attorney with legislative requirements.
8.2. Information, regardless of the form of its storage (on paper or electronically), must be contained and processed by the bar association in such a way as to exclude the possibility of illegal or unauthorized access to it by unauthorized persons.
Section 9. Regional peculiarities of distribution of assignments for the appointment of a defense lawyer between lawyers
9.1. When distributing assignments for the appointment of a defense lawyer among specific lawyers, the council of the Bar Association takes into account the following regional features:
1) the number of lawyers participating in criminal proceedings by appointment, in relation to the administrative-territorial division of the corresponding subject of the Russian Federation (districts of the subject of the Russian Federation, cities, intra-city areas and districts of the city, rural settlements, etc.);
2) territorial distance from the location of the inquiry bodies, preliminary investigation bodies and courts;
3) transport accessibility to the location of the inquiry bodies, preliminary investigation bodies and courts, subject to the possibility of classifying the transport costs of lawyers as procedural costs;
4) other factors influencing the distribution of requirements for the appointment of a defense lawyer between specific lawyers or the time of arrival of a lawyer to enter into criminal proceedings (in order to ensure the provisions of Article 6.1 of the Code of Criminal Procedure of the Russian Federation on a reasonable period of legal proceedings).
9.2. During the period of implementation of an automated information system on the territory of the relevant constituent entity of the Russian Federation, councils of bar associations have the right to distribute assignments for defense by appointment among specific lawyers:
1) based on the duty schedules of lawyers;
2) with the help of representatives of the councils of bar associations, curators, coordinators, specialists from subsidized legal assistance centers, etc.;
3) using information systems for the automated distribution of orders for the appointment of a defender (including through call centers, web applications, mobile applications and other channels for receiving information).
Taking into account regional characteristics on the territory of a constituent entity of the Russian Federation, various methods of distributing orders for protection according to their intended purpose can be used simultaneously.
9.3. Bar Council:
1) organizes work on the proper implementation of this Procedure and the Regional Rules in the chamber of lawyers, representatives of the chamber of lawyers and lawyers (including determining a mechanism for resolving emergency situations that may arise in the process of appointing lawyers as defenders in criminal proceedings);
2) keeps records of received and processed requests for the appointment of a defense attorney in the form approved by the decision of the Council of the Federal Arbitration Court of the Russian Federation;
3) ensures the storage of information related to the organization of the provision of legal assistance by lawyers participating as defense attorneys in criminal proceedings as assigned.
Section 10. Responsibilities of a lawyer who has been assigned the assignment of a defense attorney
10.1. The participation of lawyers in criminal proceedings is regulated by the acts specified in paragraph 1.1 of this Procedure, as well as:
1) The standard for the defense lawyer in criminal proceedings, adopted by the VIII All-Russian Congress of Lawyers on April 20, 2022, and other decisions of the All-Russian Congress of Lawyers;
2) decisions of the Council of the FPA of the Russian Federation adopted within their competence;
3) clarifications of the RF FPA Commission on Ethics and Standards;
4) decisions of the councils of bar chambers of the constituent entities of the Russian Federation, including explanations regarding possible actions of lawyers in a difficult situation regarding compliance with ethical standards.
When participating in criminal proceedings as defense attorneys, lawyers must also take into account the rulings of the Constitutional Court of the Russian Federation and the decisions of the Plenum of the Supreme Court of the Russian Federation in the field of application of the norms of the Code of Criminal Procedure of the Russian Federation.
10.2. A lawyer to whom the Chamber of Lawyers has assigned an assignment to appoint a defense attorney is obliged to:
1) take measures to inform within a reasonable time (and if necessary, immediately) the inquiry officer, investigator or judge about the accepted order in order to coordinate organizational and other issues;
2) arrive at the place where the procedural action or court hearing is taking place at the appointed time (taking into account the territorial distance, transport accessibility, the possibility of attributing transport costs to procedural costs and other conditions and circumstances affecting the time of arrival of the lawyer);
3) make sure that there are no circumstances that exclude or prevent his participation in the proceedings in this criminal case as a defense attorney, and enter into the criminal case as a defense attorney (in this case, if such circumstances are identified, the lawyer should act in accordance with subparagraph “b” of paragraph 6 Section 5 of this Procedure);
4) keep records and reports established by the relevant decision of the bar association or Regional Rules.
Section 11. Information about the Procedure and Regional Rules
11.1. FPA RF as an organization authorized in accordance with Article 50 of the Code of Criminal Procedure of the Russian Federation, subparagraph 3.1 of paragraph 3 of Article 37 of the Federal Law “On Advocacy and the Bar in the Russian Federation” to determine the procedure for appointing lawyers as defense attorneys in criminal proceedings:
1) publishes this Procedure on the official website of the FPA RF on the information and telecommunications network “Internet” and in the official printed publication of the FPA RF “Bulletin of the FPA RF” [6];
2) sends this Procedure to the Ministry of Justice of the Russian Federation, the Supreme Court of the Russian Federation, the Investigative Committee of the Russian Federation, the Ministry of Internal Affairs of the Russian Federation, the Federal Security Service of the Russian Federation and other federal ministries and services whose subordinate bodies appoint lawyers as defense attorneys in criminal cases legal proceedings.
11.2. Councils of bar chambers, in accordance with subparagraph 5 of paragraph 3 of Article 31 of the Federal Law “On Advocacy and the Bar in the Russian Federation,” communicate this Procedure and Regional Rules (including information about the methods used for receiving notifications about the appointment of a defense lawyer, about representatives of the bar chamber and their contact details, etc.) to the information of the inquiry authorities, preliminary investigation authorities and courts operating on the territory of the relevant constituent entities of the Russian Federation, as well as to lawyers whose information is included in the register of lawyers of the relevant constituent entity of the Russian Federation.
Section 12. Monitoring the implementation of this Procedure
Control over the implementation of this Procedure and the Regional Rules is carried out by the Council of the Federal Law Firm of the Russian Federation and the councils of bar associations within the limits of their competence.
In case of non-fulfillment (improper fulfillment) of the requirements of this Procedure, liability measures provided for by current legislation will be applied.
Section 13. Transitional provisions
13.1. This Procedure comes into force on the date of its approval by the Council of the FPA of the Russian Federation.
From the date of entry into force of this Procedure, the “Procedure for the appointment of lawyers as defenders in criminal proceedings”, approved by the decision of the Council of the FPA of the Russian Federation dated October 5, 2022 (Protocol No. 5), is declared invalid.
13.2. In order to bring the current Regional Rules into compliance with this Procedure, a transition period is established until March 1, 2022, during which the Regional Rules are agreed upon by the Council of the FPA of the Russian Federation in terms of compliance of certain provisions of the Regional Rules with the provisions of this Procedure.
During the period of implementation of an automated information system on the territory of the relevant constituent entity of the Russian Federation and until approval by the Council of the FPA of the Russian Federation, the current Regional Rules are applied to the extent that does not contradict this Procedure.
[1] For example, the Investigative Directorate of the Federal Security Service of the Russian Federation, the Main Investigation Directorate and the Directorate for Investigation of Particularly Important Cases of the Investigative Committee of the Russian Federation, the Investigation Department of the Ministry of Internal Affairs of the Russian Federation.
[2] This principle applies to bar associations that use information systems for the automated distribution of requests for the appointment of defenders.
[3] Order of the Ministry of Justice of Russia dated April 10, 2013 No. 47 “On approval of the form of the warrant.”
[4] In order to more effectively appoint a defense lawyer, in this case it is recommended to send a request for the appointment of a defense attorney no later than 24 hours before the start of the scheduled procedural action or court hearing.
[5] During the period of implementation by the Federal Chamber of Lawyers of the Russian Federation of the all-Russian information system for the automated distribution of requirements for the appointment of defense attorneys, this method is mandatory only when the chamber of lawyers uses the automated information system.
[6] Certificate of registration of mass media dated April 5, 2010, series PI No. FS77-39469.
