1. From the moment of admission to participate in a criminal case, the defense attorney has the right: 1) to have meetings with the suspect or accused in accordance with paragraph 3 of the fourth part of Article 46 and paragraph 9 of the fourth part 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) upon completion 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; 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 inquiry officer, the head of the inquiry unit, the head of the inquiry body, the inquiry body, the investigator, the prosecutor, the 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 lawyer participating in an investigative action, within the framework of providing legal assistance to his client, has the right to give him brief consultations in the presence of an investigator, interrogator, ask questions to the interrogated persons with the permission of the investigator, interrogator, make written comments regarding the correctness and completeness of entries in the protocol of this investigative action. The investigator or inquiry officer may dismiss the defense counsel’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.
Case Study
Let's trace the real development of the situation. The defense attorney, independently or with the help of a private detective, identified a person who has important information in favor of the client.
Since a lawyer does not have the right to consolidate a person’s testimony through interrogation, the maximum that he can obtain is a written explanation from the person addressed to the investigator or prosecutor. Having such a document, the defense attorney, guided by Articles 119-120 of the Code of Criminal Procedure, submits a written petition to the investigator investigating the case with a request to interrogate the specified person as a witness and attaches the received explanation to the petition.
The investigator, on the basis of Article 159 of the Code of Criminal Procedure, is obliged to interrogate a witness, however, there are two possible consequences that are undesirable for the defense lawyer.
- Firstly, the investigator can refuse to satisfy any request, and often does this completely unmotivated.
- In addition, it must be taken into account that according to the new Code of Criminal Procedure, the investigator performs only the function of prosecution (criminal prosecution) and he does not need exculpatory evidence. Secondly, finding yourself in the “grip” of the investigator, under the threat of criminal liability for giving knowingly false testimony (and this is not included in the explanations to the defense lawyer), the interrogated person may give evidence that is completely different from what he stated in his explanation to the lawyer.
Anticipating such prospects, the defense attorney most likely will not reveal his “card” to the investigator, but, based on tactical considerations, will present a potential defense witness only in court, where he will necessarily be questioned in accordance with Part 4 of Art. 271 Code of Criminal Procedure.
So, an interview with a person by a defense attorney will become evidence in the case only if the investigator, through an investigative action - interrogation - obtains testimony from this person.
