Article 424. Procedure for summoning a minor suspect, accused A minor suspect, accused, who is not in custody, is summoned to an investigator, interrogating officer or to court through his legal representatives, and if

Article 425. Interrogation of a minor suspect, accused 1. Interrogation of a minor suspect, accused cannot continue without a break for more than 2 hours, and in total more than 4 hours a day.2. During the interrogation of a juvenile suspect,

§4. Peculiarities of preparation and interrogation of a suspect and accused Preparation for interrogation, its planning is a modeling of the upcoming activity, the formation of its indicative basis. Particularly detailed preliminary study is subject to

32. The right of convicts to receive information, to use their native language and to freely choose the language of communication, freedom of conscience and religion. The right to receive information is constitutional and obliges the administration to provide information about the requirements

Question 380. Detention: grounds, procedure for election, modification and cancellation. Duration of detention. Participation of the defense lawyer in the consideration by the court of requests for the detention of the suspect, the accused, the extension of the term of detention in relation to the accused

§ 7. The right of the accused and his defense attorney to access the materials of the criminal case and to receive the necessary copies of procedural documents. Practice of the ECtHR in certain Russian and foreign cases. The European Court has repeatedly noted that the accused must be familiarized with

2. The right to freely choose a lawyer as a defender and representative The possibility of personal choice of a defender or representative as ensuring the quality of legal assistance Providing effective legal assistance requires a trusting relationship between

§ 3. The right of the suspect, accused and defendant to the appointment of a defense lawyer and free legal assistance As already noted, part 3 (d) of article 14 of the International Covenant on Civil and Political Rights and part 3 (c) of article 6 of the European Convention on the Protection of Rights person and

defender of the accused

One of the lawyer's specializations

Litigation Attorney

Lawyer, defender

The prosecutor is the opposite

Spring in a court car

Attorney at Law

A specialist who defends the accused (and in those days sometimes won the case)

Lawyer, defense lawyer in court (in England - barrister)

Defense lawyer in court

Who is trying to canonize the defendant as a saint?

A series in which the hero of Andrei Sokolov plays the role of a defense attorney in court

Dutch football player and football coach, head of St. Petersburg Zenit

Professional "copper"

The novel by the American writer E. Gardner “... Perry Mason”

What term do scientists use to describe the activities of a person involved in Roman legal proceedings?

Painting by the French artist Honore Daumier “Reading...”

This is exactly what a lawyer was called in the ancient Roman Republic, whose advice was often resorted to when considering important cases.

Who was Salvador Dali's father?

What was the profession of writer Walter Scott?

A man who can find thirteen loopholes in the Ten Commandments

Lawyer playing defense

Taylor Hackford's thriller starring Keanu Reeves is called "...The Devil"

What is a barrister?

Who was a syndic in Ancient Greece?

The lawyer any criminal can ask for

Prosecutor's opponent

Intercessor at trial

Standing with your chest for the accused

Defender, but not an athlete

Defense lawyer

The defendant's highly paid friend

Defendant's Counsel

Defends the accused

Lawyer in defense

Defender before Themis

Prosecutor's counterpart

Trial Defender

. "friend" of the accused

Defender

Perry Mason, profession

Who wants to acquit the defendant?

Who guards the rights of the defendant?

The accused's best friend

Who defends the defendant?

Lawyer defending in court

Defender for the suspect

Requesting a reduction in the sentence of the defendant

Procuroa Attack Slugger

Defends the defendant to the best of his ability

Sentence reducer

Professional prison cop

Film by American director William Wyler (1933)

A lawyer who provides first aid, consulting citizens and organizations, representing their interests in court, in arbitration, etc.

Specialist in judicial exonerations

Defendant's defense attorney

Defender of other people's interests

Prosecutor's opponent in court

Who protects the rights of the convicted person?

Series about the defender

Replacement for Gus Ivanovich

. defendant's "bleach"

Man protecting

Professional deadline excuser

. "friend" of the defendant

. "sidekick" of the accused

Who needs a criminal code?

Profession of Henry Reznik

Who needs a management company in their work?

Lawyer, opponent of the prosecutor

Who defends the accused?

Specialist in the defendant's excuses from the court

Who knows the criminal code?

Who protects the suspect?

Who helps you win your case in court?

Who guards the interests of the defendant?

Trial Defender

Defense lawyer at trial

Detective novel by A. Konstantinov

Dutch footballer, coach

. "Friend" of the accused

. "Friend" of the defendant

. "Sidekick" of the accused

. The defendant's "bleach"

What term do scientists use to describe the activities of a person involved in Roman legal proceedings?

Painting by the French artist Honore Daumier "Reading..."

Who was Salvador Dali's father?

Who was a syndic in Ancient Greece?

What was the profession of the writer Walter Scott?

Who needs a management company in their work?

Who needs a criminal code?

Who helps you win your case in court?

Who defends the accused

Who protects the suspect

Who is defending the defendant?

Who protects the rights of the convicted person

Who is trying to canonize the defendant

Who is familiar with the criminal code?

Who guards the interests of the defendant?

Who stands guard over the rights of the defendant

Who is a barrister

Who wants to acquit the defendant

M. lat. a sworn attorney, a lawyer who undertakes the conduct of litigation and the defense of the defendant; private intercessor in litigation, lawyer, walker, businessman. Lawyers' techniques. Advocacy Wed, advocacy f. litigation. To advocate, to advocate, to cook, to go about business, to courts, to suits

Dutch footballer and football coach, head of St. Petersburg Zenit

Prosecutor Attack Slugger

Professional "screw up"

The novel by the American writer E. Gardner "... Perry Mason"

Taylor Hackford's thriller starring Keanu Reeves is called "...The Devil"

Lawyer playing defense

A lawyer who provides first aid, consulting citizens and organizations, representing their interests in court, in arbitration, etc.

A jumble of letters from the word "avdotka"

Who protects the rights of the defendant

Give me the Colt! Do you need it for protection? No, for protection I have.....

A jumble of letters from the word “avdotka”

Who protects the rights of the defendant?

Business in law

16.5. DEFENDER IN CRIMINAL PROCEEDINGS, HIS RELATIONSHIP WITH THE SUSPECTED, ACCUSED

Kharzinova Violeta Mukhamedinovna. Position: Head of the Department of General Legal Disciplines.

Place of work: North Caucasus Institute for Advanced Training of Employees of the Ministry of Internal Affairs of Russia (branch) Krasnodar University of the Ministry of Internal Affairs of Russia

[email protected] Abstract: The article reveals the concept of defense in criminal proceedings and the features of the implementation of defense by participants in criminal proceedings on the part of the prosecution

Keywords: Defense side, prosecution side, defender, accused, lawyer, defense function, prosecution function, ensuring the rights and interests of the accused, circumstances of the case, collection of evidence, line of defense, credibility of the defense, method of persuasion

DEFENDER IN CRIMINAL PROCEEDINGS, HIS RELATIONSHIP WITH THE SUSPECT, ACCUSED

Kharzinova Violeta Mukhamedinovna candidate of law sciences, senior teacher the North-Caucasian Advanced Training Institute for the personnel of the Ministry of Internal Affairs of Russia (branch) of the Krasnodar University of the Ministry of Internal Affairs of Russia the head of the general law disciplines ' chair

Work place: North-Caucasian Advanced Training Institute for the personnel of the Ministry of Internal Affairs of Russia (branch) of the Krasnodar University of the Ministry of Internal Affairs of Russia

[email protected]

Annotation: the article reveals the concept of protection in criminal process and peculiarities of defense implementation by criminal proceedings participants for the prosecution

Keywords: the defense, the prosecution, defender, accused, counsel, protection function, prosecution function, guarantee of the rights and interests of the accused, case circumstances, evidence gathering, defense line, protection reliability, persuasion method

In criminal proceedings, defense is a set of procedural actions taken in accordance with criminal procedural legislation, and aimed at establishing the guilt or innocence of a suspect or accused, as well as establishing circumstances mitigating the guilt of a suspect or accused of committing a crime.

The actions of the defense attorney are aimed only at ensuring the rights and interests of the client. It is ensured at all stages of criminal proceedings by all means, methods, forms and methods that are prescribed by criminal procedural legislation or do not contradict them. At the same time, the defender is obliged to protect the rights and legitimate interests the client honestly, conscientiously, reasonably,

since the provision of professional ethics does not allow for other principles of defense.

The effectiveness of the defense lawyer’s work depends on the kind of relationship the defense attorney has with the suspect, and then with the accused. From the moment the defense attorney enters the criminal proceedings, his status in the criminal proceedings must be clearly defined.

A defense attorney in criminal proceedings is independent of anyone. He is an independent participant in criminal proceedings within the scope and scope of protection. As an independent participant in criminal proceedings, he is obliged to build his defense within the framework of the current law in six areas:

1) establishing in the materials of the criminal case circumstances that are important for improving the situation of the suspect and accused;

2) collecting and presenting evidence to provide complete and effective legal assistance;

3) attracting the necessary specialists to ensure protection;

4) providing legal assistance to a suspect or accused in the protection of procedural, property, non-property and other rights;

5) drawing up procedural documents as part of the defense;

6) providing legal advice to refute the accusation.

He does not have the right to support and build a defense in ways prohibited by law, as well as to follow the lead of a suspect or accused who in any way seeks to get away from criminal liability. The defense attorney does not have the right to conflict with the law; as an independent participant in criminal proceedings, he is obliged to fulfill his professional duty in accordance with federal laws and the principles of legal ethics. The principle of advocacy - “the client is always right, any desire of the client is the law” – should not apply in the literal sense. This principle is acceptable only within the framework of the law. The defender is free to choose the methods and methods of protection that he needs to implement the protection function. In this case, the defense attorney independently determines his position on the circumstances of the case in accordance with lawyer’s ethics. Therefore, protection is carried out in accordance with moral standards, standards of professional ethics, which in turn are regulated by the norms of federal laws. So subparagraph 3, paragraph 4, article 6 of the Law on Advocacy1, as well as subparagraph 2 p. 1 art. 9 of the Code of Professional Ethics for Lawyers2. The lawyer’s position cannot be built against the will of the suspect and the accused. An exception to this provision is self-incrimination of the suspect or accused.

S.A. Kasatkina, considering this provision indicates the inadmissibility, demands from the defender of integrity and objectivity in refutation

1 the federal law dated 05/31/2002 N 63-FZ (as amended on 07/02/2013) “On advocacy and the legal profession in the Russian Federation” / Collection of Legislation of the Russian Federation, 07/08/2013, N 27, Article 3477.

2 Code of Professional Ethics for Lawyers (adopted by the First All-Russian Congress of Lawyers on January 31, 2003) (as amended on April 22, 2013) // Bulletin of the Federal Chamber of Lawyers of the Russian Federation, No. 3, 2013.

Kharzinova V. M.

DEFENDER IN CRIMINAL PROCEEDINGS, HIS RELATIONSHIP WITH THE SUSPECTED, ACCUSED

voluntary self-incrimination of the accused under the threat of a possible conflict with the defendant, who revealed to the defense attorney the true reasons for the self-incrimination. She notes that “The conduct of the defense counsel in such a situation must be determined taking into account ethical aspects those consequences that can result from defense “at any cost”3 On advocacy and the legal profession in the Russian Federation.” A similar opinion is expressed by M.V. Khodilina, who notes that “the defense lawyer should proceed not from the ethical norms of the Law, which prescribe the proper behavior of a lawyer in the current situation, but, first of all, from the specific circumstances of the criminal case, taking into account ethical norms”4. We cannot agree with this formulation of this issue, since a lawyer must build his defense in accordance with the rules of the law, and then in accordance with the provisions of morality and ethics.

In connection with the above, it should be noted that during the period of concluding an agreement with a suspect or accused lawyer - defender must guarantee the honest and conscientious performance of his duties, but not the positive results of completing the defense, since it is practically impossible to foresee this.

The relationship between the suspect or accused and the lawyer must be based on real, reliable documents and evidence, circumstances that will occur during the investigation and judicial trial. The lawyer is not obliged to assist the accused in any way or to present unreliable evidence.

The positions of the lawyer, the suspect or the accused, may be different. There is no legislative regulation that the positions of a lawyer and his client must necessarily coincide. If the position of the lawyer does not coincide with the position of the client, then the lawyer must resolve the conflict situation by explaining the circumstances of the case, as well as by timely notification of the methods and techniques of organizing the defense.

The defense is carried out by a lawyer, taking into account the interests of the client in the direction of acquittal, retraining or mitigation of punishment. But if the accused is satisfied only with his acquittal, and not with mitigation of guilt or reclassification, then the lawyer is obliged to explain the groundlessness of his line of defense, its inconsistency, prompt the client to abandon the chosen line of defense and recommend to the defendant to invite another defense lawyer.

The different presentation of defense between the lawyer and the accused creates clash and contradiction in their relationship. The contradiction should be resolved by convincing the defendant of the credibility, truthfulness and validity of the line of defense.

If it is impossible to resolve the conflict between the suspects through persuasion, the accused has the right to refuse a defense lawyer. However, if the suspect or accused has not officially refused this lawyer, regardless of his opinion regarding

3 Kasatkina S.A. Confession of the accused: Monograph. M.: Prospekt, 2010. P. 125.

4 Khodilina M.V. Some ethical problems that arise when a lawyer defends himself in criminal cases // Lawyer's practice. 2012. N 3. P. 42 - 46.

defense, then the line of defense on the part of the lawyer continues.

Criminal procedural legislation regulates the means, methods, forms, as well as the boundaries of defense, depending on who carries out the defense. Some methods, means and forms are used only by the accused, since they are prescribed to him. For example, testify, or refuse to testify, familiarize yourself with all the materials of the case and write down any information from it.

Other means and methods of defense are prescribed by law only for a lawyer. For example, a meeting with the accused and a conversation with him, in private, the presence of a defense attorney from the moment of arrest in a criminal trial in all investigative and procedural actions, if necessary, with the permission of the investigator, the participation of a defense attorney in the examination of evidence. The third means of protection are presented in criminal procedural legislation, both for the accused and for the defense lawyer. For example, presentation of evidence, statement of challenges. participants in criminal proceedings, submission of petitions, joint familiarization with the materials of the criminal case, etc.

Regardless of who carries out the defense and how they are divided, all means and methods of defense are aimed at ensuring the right to protect the suspect, accused from suspicion or accusation. This right can be exercised by the accused himself or with the help of a lawyer. At the same time, the mandatory rule is that all means and methods of defense must be used according to the developed tactics and methods, which together enable the defender to realize his purpose.

One of the main methods of protection in pre-trial proceedings is a meeting between the suspect and the accused with a defense lawyer. From the moment a defense attorney is admitted to participate in criminal proceedings, a meeting with him alone and confidentially until the first questioning and interrogation is of no small importance, since the defense attorney must direct his client to the right path of defense. This tool defenses are not taken very seriously by lawyers, although further tactics and methods of defense depend on this. During the pre-trial period, if the defender missed the main method of defense and did not choose the correct tactics for producing the defense, in the future this may interfere with the successful implementation of the defense. It should be noted that later, at the investigation stage, and even more so at the trial stage, it is difficult, and sometimes even impossible, to correct this error. In addition, from the moment of the meeting and conversation between the suspect and the accused and the defense attorney, a trusting relationship must be formed that allows the defense attorney to find out the circumstances of the case and then discuss with the suspect or accused the chosen position of the defense. A different approach to defense infringes on the rights of the accused or suspect and actually deprives the defense of the real protection that could have been provided by the defense.

Practice shows that in order to facilitate his work, the defense lawyer, from the moment of the first meeting, pushes the client to give a confession in order to consider his case in a special manner.

Business in law

row and mitigation of the guilt of the suspect or accused. This approach to defense is unacceptable, since it is an illegal method of defense, especially for those suspects and accused who are not guilty of committing a crime. A defense attorney should not look for the easy way out; he must perform his duties conscientiously and honestly in order to mitigate punishment, and, if there are circumstances indicating his innocence, to achieve his acquittal.

The absence of active actions by the defense lawyer within the framework of the law for protection indicates that the lawyer’s formal relationship to the defense. To carry out the defense, from the moment of his meeting with the client, he is obliged to draw up a defense plan, which the lawyer must have in the production. At the same time, the Federal Law “On Advocacy and the Bar in the Russian Federation” does not contain mandatory requirement on introduction legal proceedings, while the necessity of its implementation follows from the law itself. Proper conduct of legal proceedings can contribute to further changes in tactics and methods of defense. Therefore, the mandatory conduct of legal proceedings must be established by law, which gives a complete picture of the implementation of the legal activities of a particular lawyer. In addition, with the help of legal proceedings, you can evaluate the quality of a lawyer’s work.

It should be noted that on the territory of the Russian Federation there are guidelines, on the introduction of legal proceedings, approved by the Council of the Federal Chamber of Lawyers dated June 21, 2010 (protocol No. 5)5. However, these guidelines are advisory, but not mandatory nature. In connection with the above, we consider it appropriate to make changes and additions to the current legislation “On advocacy and the legal profession in the Russian Federation” on the mandatory conduct of legal proceedings.

Bibliography:

1. Federal Law of the Russian Federation dated May 31, 2002 N 63-FZ (as amended on July 2, 2013) “On advocacy and the legal profession in the Russian Federation” / Collection of Legislation of the Russian Federation, July 8, 2013, N 27, Art. 3477.

2. Code of Professional Ethics for Lawyers (adopted by the First All-Russian Congress of Lawyers on January 31, 2003) (as amended on April 22, 2013) // Bulletin of the Federal Chamber of Lawyers of the Russian Federation, N

3. Kasatkina S.A. Confession of the accused: Monograph. M.: Prospekt Publishing House, 2010. P. 125.

4. Khodilina M.V. Some ethical problems that arise when a lawyer defends himself in criminal cases // Lawyer's practice. 2012. N 3. P. 42 - 46.

1. Federal Law of the Russian Federation from 05/31/2002 N 63-FZ (as amended on 07/02/2013) "On Advocacy and Advocacy in the Russian Federation" / Collected Legislation of the Russian Federation, 07/08/2013, N 27, Art . 3477.

2. Professional code of ethics lawyer (adopted by the First All-Russian Congress of Advocates 01/31/2003) (as amended on 04/22/2013) // Bulletin of the Federal Bar of the Russian Federation, N 3, 2013.

3. Kasatkina SA Confession of the accused: Monograph. Moscow: Publishing House "Prospect", 2010. S. 125.

4. Hodilina MV Some ethical issues arising in the implementation of the defense counsel in criminal cases // Law practice. 2012. N 3. Pp. 42 - 46.

5. Methodical recommendations on the management of production of a lawyer / ratified. Council of the Federal Bar 06/21/2010 (protocol N 5) // Bulletin of the Federal Bar of the Russian Federation", N 3, 2010.

REVIEW

to the article “Defender in criminal proceedings, his relationship with the suspect, accused” by Kharzinova.M. The presented article reveals the concept of defense in criminal proceedings and the features of its implementation - defense by participants in criminal proceedings on the part of the prosecution.

The article reveals the features of criminal proceedings, in particular, defense is a set of procedural actions taken in accordance with criminal procedural legislation, and aimed at establishing the guilt or innocence of a suspect or accused, as well as establishing circumstances mitigating the guilt of a suspect or accused of committing a crime.

The author discloses in sufficient detail that the actions of the defense attorney are aimed only at ensuring the rights and interests of the defendant. It is ensured at all stages of criminal proceedings by all means, methods, forms and methods that are prescribed by criminal procedure legislation or do not contradict them. At the same time, the defense attorney is obliged to protect the rights and legitimate interests of the client honestly, conscientiously, and reasonably, since the provisions of professional ethics do not allow for other principles of defense.

Candidate Professor of the Department of SD legal sciences police colonel

Article 49. Defender

1. Defender - a person who, in accordance with the procedure established by this Code, protects the rights and interests of suspects and accused and provides them with legal assistance in criminal proceedings.

Lawyers participate as defenders. By determination or order of the court, one of the close relatives of the accused or another person for whose admission the accused applies may be admitted as a defense attorney, along with a lawyer. During proceedings before a magistrate, the specified person is allowed instead of a lawyer.

Information about changes:

Federal Law of June 6, 2007 N 90-FZ, part 3 of article 49 of this Code was supplemented with clause 3.1

3. A defense attorney participates in a criminal case:

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 specific person;

3) from the moment of actual detention of a person suspected of committing a crime, in the following cases:

a) provided for by 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 the implementation of other measures begins procedural coercion or other procedural actions affecting the rights and freedoms of a person suspected of committing a crime;

Information about changes:

Federal Law No. 23-FZ of March 4, 2013, added paragraph 6 to Part 3 of Article 49 of this Code

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.

4. A lawyer enters a criminal case as a defense attorney upon presentation of a lawyer’s certificate and a warrant. From this moment on, the lawyer is subject to the rules established by part three of Article 53 of this Code.

Information about changes:

Federal Law No. 73-FZ of April 17, 2017 supplemented Article 49 of this Code with Part 4.1

4.1. If it is necessary to obtain the consent of the suspect or accused for the participation of a lawyer in a criminal case, before entering into a criminal case, the lawyer is given a meeting with the suspect or accused upon presentation of a lawyer’s identification and a warrant.

5. If the defense attorney participates in criminal proceedings, the materials of which contain information constituting state secret, and does not have appropriate access to the specified information, he is obliged to sign a non-disclosure agreement, take measures to prevent other persons from becoming familiar with it, and also comply with the requirements

SUBJECTS OF PROOF

The participation of the accused in evidence ensures the protection of his legal

interests and at the same time contributes to a comprehensive, complete and objective

investigation of the circumstances of the case, establishing the truth. The accused is not

committed a crime, by his participation in proving objectively

helps the investigator and the court establish his innocence. This allows

investigative bodies and the court to focus their efforts on establishing

real criminal. The accused who committed the crime, his

active participation in proving it promotes comprehensive and objective

investigation of the circumstances of the case by the investigator and the court, clarification

circumstances mitigating liability. Participation of the accused in evidence

carried out by exercising the rights granted to him by law (Art. Art.

46.77 Code of Criminal Procedure of the RSFSR). The right of the accused to know the subject of the accusation is exercised

by presenting him with a resolution to implicate him as an accused (in

court - by delivering a copy of the indictment), in which they must

factual circumstances be stated crime committed and him

criminal legal qualifications The exercise of this right serves as a necessary

a prerequisite for the further active participation of the accused in the process

proof In relation to each procedural act in which

accusation, law is formulated, modified, confirmed or rejected

establishes the time period within which the accused must be familiarized with

factual circumstances communicated to the accused upon presentation

charges must be such that it corresponds to the composition

crime charged, the Law does not require that at this moment

investigations were reported to the accused and, moreover, presented

evidence on which the accusation is based (Article 143 of the Code of Criminal Procedure of the RSFSR). This is in

in many cases would create difficulties in incriminating the accused and could

entail falsification and concealment of evidence that has not yet been discovered.

However, there is no prohibition in the law to indicate in the resolution the involvement of a person in

as the accused evidence, as well as present evidence

accused at any time during the investigation. The solution to this issue is determined

tactical considerations investigator At the same time, it should be taken into account that

the accused who knows the evidence supporting the charge,

has the opportunity to more actively exercise his right to defense,

challenge the investigator’s conclusions, refute the evidence collected against him

evidence, put forward new versions and thereby contribute

comprehensive and complete establishment of the circumstances of the case. Participation of the accused

in proof can be expressed in giving them explanations and evidence on the merits

the charge brought (Chapter X). Explanations and testimony of the accused are usually

are closely related to each other and, as a rule, are presented to him during interrogation. However

explanations of the accused can be given outside of interrogation, for example during

conducting a search, investigative experiment, etc. Outside of interrogation, he gives his

explanations by the defendant, answering the court's question whether he pleads guilty.

In the cassation courts, the convicted (acquitted) person is allowed to visit the dacha

explanations (but not testimony) in all cases when he appeared in court (Article 338

Code of Criminal Procedure of the RSFSR). The right to summon a convicted person (acquitted) for this purpose

is also used by the court considering the case by way of supervision (Article 377 of the Code of Criminal Procedure

RSFSR). Unlike explanations, the accused can only testify on

interrogation In exercising the right to testify, the accused who has confessed

guilty, can provide the investigator and the court with important information necessary for

verification of recognition and individualization of responsibility. Accused,

those who deny guilt, as a rule, indicate circumstances justifying it,

verification of which is the responsibility of the investigator and the court. Indications

the accused can be used to expose conspiracy and

perjury, to identify errors and inaccuracies in the testimony of witnesses

and victims, as well as in expert opinions. In the testimony they may

If in explanations or in testimony, as well as in a cassation appeal

the accused brought any arguments in his defense, then the investigator and the prosecutor

V indictment, and the court in the verdict or cassation ruling

cannot ignore them in silence. The condition for the accusation to be proven is complete

refuting the arguments of the accused who denies guilt. Arbitrage practice

proceeds from the fact that if in the indictment and indictment

the verdict does not refute the arguments given by the accused in his justification,

then the case should be returned for further investigation. Participation of the accused in

proof can be expressed in the presentation of evidence, which

carried out in the form of a petition for the inclusion of objects and

documents available to the accused. After this it is fixed

the fact of transfer and signs of objects and documents, the accused’s message about

circumstances of discovery and storage, signs indicating

the need to get involved. Recording the fact of transmission and message can

be carried out by drawing up a special protocol (or protocols

interrogation and seizure) and making a decision in accordance with Art. Art. 84, 131 Code of Criminal Procedure

RSFSR 2. By presenting an object or document to the court, the accused petitions for

adding it to the case as evidence. The court examines

presented item or document and determines whether it can be used

as evidence, then hands over the item or document for

familiarization with the participants in the trial and listens to their opinions. ABOUT

adding evidence to the case (rejecting the accused’s motion)

is noted in the protocol and a ruling is made. The accused has the right

present evidence throughout the trial. If

evidence is presented in court pleadings or when pronouncing

the last word, the court must consider the issue of reopening the trial

investigation so that this evidence can be examined by the court and

other participants in the trial. The accused has no right

"take back" the evidence presented by him, he does not use and

the exclusive right to refer to the evidence presented by him. IN

stages cassation proceedings the convict (and his defense attorney) enjoy

the right to submit so-called new materials to a higher court. On

based on them, the higher court checks the validity of cassation claims

the accused (defender) or their objections to the cassation prosecutor's protest,

but has no right to recognize as established facts that have not been recognized

such by the court of first instance. We believe that the court supervisory authority

the convicted person (and his defense attorney) has the right to present new materials; these

materials can help verify the validity of the verdict and

correcting a miscarriage of justice.

Without being able to present evidence, but knowing where it is

are located or who have information about the circumstances under investigation

case, the accused has the right to request evidence or conduct

procedural actions to discover them But the fact that the accused could not

cannot provide evidence of innocence or point to it

be considered as evidence of his guilt. Execution by the accused

the right to file petitions is one of the forms of his participation in evidence.

Petitions may be made, in particular, for inclusion in the case

evidence presented; requesting evidence; carrying out

investigative or judicial actions for the purpose of collecting and verifying

evidence; investigation of versions, etc. The investigator and the court have no right

refuse the accused to take actions to collect evidence,

if the circumstances for which he seeks to establish may have

significance for the case (Article 131, 276 of the Code of Criminal Procedure of the RSFSR). Unfortunately that's right

the accused is not always respected, which serves as one of the sources of judicial

errors. Thus, when studying the causes of judicial errors corrected by repealing

convictions, it turned out that in 30% of such criminal cases there were no

the circumstances specified were checked or not checked enough

accused in their own defense. Rejection of the accused's motion may be

carried out only by a reasoned decision of the investigator or

by a court ruling (Articles 131, 276 of the Code of Criminal Procedure of the RSFSR). The accused has the right

participate in the manner prescribed by law in the conduct of procedural

actions aimed at detection, procedural consolidation and verification

evidence. Carrying out some procedural actions in general

impossible without the fate of the accused (examination of the accused, interrogation and

presentation to identify the accused, obtaining samples for research

etc.). In other cases, the decision on the participation of the accused in

investigative action depends on the prosecutor and investigator (in court the accused

has the right to participate in the judicial investigation from beginning to end, for

except for the cases provided for in Part 1 of Art. 263, part 3 art. 280 and art. 401

Code of Criminal Procedure of the RSFSR). By participating in procedural actions aimed at obtaining

his testimony (interrogation, confrontation), the accused has the right to: provide information,

which he has; require accurate recording of reported information in

protocol; record your testimony with your own hand: submit petitions;

make recordable statements regarding illegal actions

investigator, prosecutor, court; certify the protocol with your signature

investigative action (Articles 151, 152, 131, 141 of the Code of Criminal Procedure of the RSFSR). By participating in

procedural actions aimed at discovering traces of a crime,

other material evidence and documents, the accused has the right to: turn

the investigator's attention to the presence (absence) of factual data that has

significance for the case, and ask to have them entered into the protocol; petition for

seizure and inclusion of objects and documents; inspect traces, objects and

documents discovered during the investigative action; make statements

subject to inclusion in the protocol of the investigative action; certify

the protocol with your signature (Articles 141, 151 of the Code of Criminal Procedure of the RSFSR). When conducting

procedural actions during which the state of health is examined

the accused (examination), his body is examined (examination),

Experimental actions are being carried out with his participation ( investigative experiment),

It is unacceptable to endanger the life and health of the accused, as well as

humiliate his dignity. It is unacceptable to involve the accused in participation in those

investigative actions during which the presence of third parties

prohibited by law (interrogation of a witness, confrontation between witnesses, etc.).

The accused has the right to become acquainted with the evidence collected by the time

completion of the preliminary investigation This gives him the opportunity

petition to supplement the investigation or to dismiss the case. WITH

the accused is familiarized with some evidence and before it is presented to him

finished investigative proceedings(upon reading the resolution on

appointment of an examination and expert opinion, when conducting investigative

actions in which he participated). As already noted, the investigator has the right

present to the accused any evidence available in the case and until the end

investigation When reviewing the evidence, the accused has the right to state

to the investigator your explanations and submit requests arising from the assessment

evidence collected in the case. The accused has the right to participate in

examination of evidence by the court, in particular asking questions of witnesses,

victims, experts, other accused, examine together with the court

material evidence and the scene of the incident, get acquainted with the documents,

attached to the case, file petitions.

Statements of the accused in connection with the examination of evidence are recorded in

protocol of the court session Speaking with the last word, and in the absence

defense lawyer - and in court debates, the defendant evaluates the evidence than

not only protects its legitimate interests, but also helps the court deeper

understand the circumstances of the case and come to the right conclusions. Accused

has the right to challenge persons carrying out evidence, as well as persons

participating as an expert, translator, court secretary and

etc. Persons disposing of evidence or having access to it do not

must be interested in the outcome of the case. The right of the accused to bring complaints

on the actions of the investigator, prosecutor, court ensures compliance with the principle

legality in evidence, serves as a guarantee against accusatory bias in

research and evaluation of evidence. The right to participate in evidence

preliminary investigation The suspect also uses it. -He participates in

proof in the same procedural forms as the accused, with some

exceptions due to the peculiarities of its procedural position (in

in particular, he has no right to demand familiarization with the subject of the accusation,

since the latter has not yet been formulated). Like the accused, he has the right not to

participate in proof, bearing in mind that the burden of proof is on

preliminary investigation lies with the investigator and prosecutor, but he is obliged

obey them legal requirements aimed at detecting

evidence. Comprehensiveness, completeness and objectivity of preliminary and

judicial investigation, rendering a lawful and reasonable verdict

the participation of the defense attorney in proving the case significantly contributes. Actions of the defender

in the process of proof are determined by the purpose established by law:

the need to clarify the circumstances justifying the accused or

mitigating his responsibility (Article 51 of the Code of Criminal Procedure of the RSFSR). It follows from this that

the defender has no right to do anything that could worsen the situation

the accused, in particular, insist on clarification of the circumstances,

confirming guilt or aggravating responsibility (Article 23 of the Fundamentals).

The defense attorney is obliged to indicate to the investigator, prosecutor, and court the circumstances

speaking in favor of the accused, alleging violations rights of the accused,

demand that these violations be eliminated. Contesting the presented

accusation or raising the question of mitigation of responsibility, the defense lawyer uses

established by law methods of proof Being bound by the requirements

law to prove only circumstances exculpatory to the accused, or

circumstances mitigating his responsibility, the defender is not bound by the point

the defendant’s views on the ways, methods and means of achieving this goal B

In theory and in practice, the question of whether a defender has the right to

admit that his client committed a crime and ask only for

mitigation of punishment, i.e. shift the center of gravity of the defense to participation in

proving circumstances mitigating responsibility, although the accused himself

denies guilt. In essence, this is a question about the limits of the defender’s connection in

proving the position of the defendant, arising from more general issue O

legal nature judicial protection. According to some, protection has

public law nature and therefore the defender is completely independent in

determining the real and not the imaginary interests of the accused and his means

protection and, according to others, is a type of judicial

representation in which the representative is completely bound by the position

represented In the evidentiary aspect of the problem we are talking about

the relationship between the defender’s internal convictions based on evidence,

and the position of the accused, very often determined only by desire

avoid responsibility. Defender, like the court, prosecutor, investigator

evaluate evidence according to their inner conviction, guided by

law and socialist legal consciousness. The difference, as noted in Chap.

VII, - in the procedural consequences of the assessment and in the approach to it only from the standpoint

protection. The result of such an assessment is the defender’s inner conviction in

guilt or innocence of the defendant. If it's a belief of innocence,

then no theoretical difficulties arise: the defender determines his position

in strict accordance with his conviction and defends it before the court. At

In this case, the inner conviction and position of the defender are completely independent, not

bound by the will and position of the defendant. There are, in particular, not so

rare cases when the accused pleads guilty to the crime

crime, and the defense attorney is convinced that his client did not commit

crimes or committed less serious crime. There may be discrepancies and

on the issue of punishment: the accused, in a fit of remorse, may ask for

applying to him a more severe punishment than what he actually

in fact deserves In relation to both of these cases, it is important to emphasize that

that if there is a belief in innocence, less guilt and necessity

apply a less severe punishment, the defense lawyer has the right to separate from the accused without

only in opinions, but also in positions in court. This shows

public legal nature of judicial protection, its independence,

unbound by the will of the accused. The situation is different in situations

when the accused denies his guilt, and the defense lawyer, based on the research

evidence is internally convinced of his guilt or greater guilt than

the one that the client admits. Of course, the defense attorney is not at all obliged to repeat

circumstances, use evidence obtained in violation of the law, and

etc. But at the same time, the defense attorney does not have to prove the guilt of the accused,

if the latter denies his guilt. This would undermine the very idea of ​​protection,

which, with such conduct, would turn into its opposite -

accusation. Such actions by the defender would mean an actual refusal of defense,

prohibited by law. In particular, the defender can, without focusing on

question of guilt, focus in these cases on the moments

positively characterizing the personality of the defendant; can ask for more

deep examination by the court of the arguments brought by the accused in his

justification, etc. In other words, specific techniques and means of defense and

In these cases, the defense attorney himself determines, but the defendant’s denial of his guilt is not

allows the defense attorney to assert this guilt before the court. With such a position

the defender is not deprived of the opportunity to prove mitigating liability

circumstances. If these circumstances in the case are not clarified, then not all

elements of the subject of proof are established and, therefore, indictment

no verdict can be passed. The law imposes a duty on the defender

use all acceptable means and methods of protection to find out

circumstances exonerating or mitigating the accused

responsibility. However, if the defense attorney has not positively proven his innocence

his client, this does not mean that his guilt has been proven.

If there is insufficient evidence to substantiate the prosecution's version, the thesis

“not guilty” is proven by pointing out the unfoundedness of the thesis

"guilty" as stated by the prosecution. Thus, the defender can: a)

refute an allegation by criticizing the evidence underlying it; b)

positively prove facts incompatible with the facts incriminated

the accused; c) indicate unexplored versions that refute the version

accusations; d) point out the insufficiency of the underlying evidence

accusations Being obligated to participate in evidence to protect legal

interests of the accused, the defense attorney enjoys the same rights in evidence,

as well as his client. Participating in clarifying all the circumstances speaking in

in favor of the accused, the defense attorney has the right to: a) file motions for recovery

and attaching evidence to the case, present documents and objects,

which may have evidentiary value; b) petition before

the investigator and the court to establish circumstances in favor of

the accused, and ask for the necessary procedural proceedings to be carried out for this

actions; c) participate in provided by law cases in production

investigative and judicial actions to collect and verify evidence and

make statements to be recorded in the protocol; d) challenge

participants in the process; e) appeal their actions and decisions Implement these

the defender can only defend his rights if he has an idea of

the identity of the accused and know the essence of the accusation, as well as all the evidence,

which are collected on the case. Only the study and assessment of the latter from the standpoint of defense

will allow him to determine the correctness of the legal conclusions regarding his

client and decide what circumstances need to be checked,

additionally establish or refute and by what means. Therefore on

The investigator, prosecutor and court are obliged to provide the defense lawyer with

the moment of entry into the case, the opportunity to familiarize yourself with the materials of the case and

write out of it necessary information about the evidence collected, and

also have meetings with the accused. When meeting with him, the defender not only

clarifies the position that he will take in the process of proof, and

communicates its position, but also seeks to identify the circumstances

characterizing the personality of the accused: character, inclinations, condition

health, abilities, attitude towards the environment, i.e. everything that

to some extent may be related to the reasons and motives for committing

crimes and used in the interests of the defense through petitions for collection

additional evidence. The right to see the accused may be

also used to familiarize the accused with the position that

assumes to take the defender, and to find out how he imagines

accused circumstances of the case. The defense attorney can find out from the accused who

Witnesses other than those questioned must be summoned to court in order to

confirm circumstances justifying or mitigating it

responsibility, whether he or his close objects and documents are missing,

which could be presented as evidence refuting

accusation (mitigating liability). Giving the defense lawyer the right to represent

evidence, the criminal procedure law does not indicate in what

limits, in what way and by what methods he can collect them.

There are often cases when documents or objects that could be evidence

in the case, the defense lawyer receives from the accused himself or his relatives.

In addition, the defender may have various types of

documents requested through legal advice, if the defense lawyer is

Member of the Bar Association. In accordance with Art. 26 Regulations on the Bar

RSFSR " legal consultation V necessary cases has the right to request from

government and public organizations certificates, characteristics and other

documents related to the provision of legal assistance by lawyers." Documents

can also be claimed through the organization that allocated its

representative as a defender.

The required certificates may be of a different nature, for example certificates with

place of work of the client, certificates from medical institutions in good condition

health, etc. It seems that certificates and characteristics may be

requested also in relation to other persons participating in the case, if necessary

to reinforce defense (for example, a negative characteristic

victim, certificate of illness of a witness, etc.). The question is what

materials must be presented as evidence to the authority

investigation and trial, the defender himself decides. Neither the investigator nor the court has the right

entrust him with collecting materials that he himself does not consider necessary

introduce. If such materials are presented by the defense attorney, the question of

which of the presented data should be included in the case, decides

investigator (court). Range of evidence that can be collected and

represented by counsel, limited. These are documents and objects, perhaps

being material evidence. Interrogation of a witness or victim

at the request of the defense lawyer, as well as the conduct of an examination, is not covered

concept of presentation of evidence. Collect any information by

interviewing private individuals, conducting “preliminary conversations” with witnesses,

victims and experts, the defense attorney has no right. It should be noted that the question of

within the limits of the rights of defense when requesting and presenting documents caused

certain difficulties in judicial practice. In this regard, it presents

interest resolution of the Presidium Supreme Court Latvian SSR from 13

February 1958 The Presidium canceled the private ruling of the Judicial Collegium on

criminal cases of the Supreme Court of the Republic, which indicated

inadmissibility of the actions of the lawyer who photographed the scene of the incident and

who presented photographs to the court as evidence. "Petition

there is no basis for the lawyer to include the mentioned photographs in the case

be considered as carrying out actions within the competence of

investigator," the resolution states. The position taken by the Presidium

of the Supreme Court of the Latvian SSR does not seem indisputable. The law is not

grants the defender the right to independently collect and consolidate

evidence in return for the investigator and the court.

Therefore no investigative actions in this direction he will make

can not. If, in his opinion, it is necessary to carry out such actions, he

must file a petition with the investigator or the court. Of course, the law does not prohibit

the defender, like any person, should photograph the terrain, objects and

submit photographs to the court. However, these photographs cannot be viewed

the defense lawyer's request for a re-examination is more than justified

as a procedural action, they do not have independent significance of evidence

have. Evidence requested by the defense lawyer, or

the facts he insists on finding out must be relevant to the case.

The inclusion of evidence in the case and the establishment of new circumstances must

fill in the gaps in the investigation and supplement the case materials. This is exactly what

the stated request is substantiated, which the defense attorney is obliged to motivate,

indicating, “to establish what specific circumstances are necessary

additional evidence"(Article 276 of the Code of Criminal Procedure of the RSFSR). If the defender

is allowed to participate in the case from the moment the charge is filed, he can

be present during individual investigative actions and ask questions

the investigator's resolution of questions to the accused, witness, victim and

expert, as well as make written comments regarding the correctness and

completeness of records in the protocols of investigative actions. When the defender is involved

in the case from the moment the preliminary investigation was completed, he, with permission

The investigator may be present during interrogations of the accused and during the proceedings

other investigative actions carried out at the request of a defense lawyer or

accused. Participating in the judicial investigation, interrogating persons summoned to court,

examining material evidence attached to the case, etc.,

the defender also exercises the right to participate in the collection and inspection

evidence. The defense attorney evaluates the evidence according to his own internal

conviction. The intermediate result of his assessment of the evidence may be

be a petition, complaint. A complete and comprehensive statement of your findings on

The defense attorney gives the basis for evaluating the evidence in his speech at the trial, as well as in

explanation when considering a case in cassation or supervisory procedures.

Referring to the participation in the proof of the legal representative of the accused,

criminal procedure codes union republics not currently

subject of proof Legal representative is a person under guardianship or

in whose care there is a minor or a citizen who is not in

able to independently protect their rights and legitimate interests Legitimate

the representative is obliged to participate in criminal proceedings to the extent that

as required by the protection of the interests of the represented person. He is independent

participant in the evidentiary process and is not bound by the position of the person represented and

defender The participation of a defense lawyer does not exempt the legal representative

the accused from performing his functions and vice versa. For legal

representative is characterized by the fact that he, participating in proof, in the majority

cases combines this procedural function with another - witness,

civil defendant In these cases, he simultaneously enjoys the rights and

bears the responsibilities of a participant in criminal proceedings. On

During the preliminary investigation and inquiry, the legal representative has the right to declare

petitions and present evidence, be present with permission

investigator during investigative actions, participate in

familiarization minor accused with finished materials

investigative proceedings. He has the right to discuss with the defense lawyer and

minors in certain circumstances - draw their attention to

evidence, help the minor get acquainted with the case materials,

submit petitions. At the same time, the investigator is obliged to promptly stop

attempts by the legal representative to abuse the rights granted to him.

In court proceedings, the legal representative participates in evidence

on an equal basis with its other participants - the defender, the victim, etc.; He

has the right to appeal the verdict and participate in the consideration of the case

by a higher court. The court must, on its own initiative, find out the opinion of the legal

representative on emerging issues along with the opinions of other participants

judicial trial. Considering possible legal ignorance

legal representative, the court actively

promotes the use of his rights to participate in evidence.

Of course, it should be remembered that the legal representative is the person

interested in the outcome of the case. This obliges the court to take a critical look

his explanations and position taken. Legal representative, as well as

the victim is not removed from the hall along with the witnesses and during the entire

trial is considered both as a participant and as

witness. At any moment he can ask questions, and questions can be

given to him, he can make motions, and motions can be filed

about his testimony.