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Current issues of lawyer's participation in criminal proceedings
According to the Criminal Procedure Code of Ukraine and the Law of Ukraine "On Advocacy and Advocacy", lawyers have the right to defend the suspect, accused. Lawyers can also represent the interests of victims, third parties, witnesses, and so on. However, the exclusive right to act as a defense counsel have persons who, in accordance with Article 45 of the CPC of Ukraine, information about which is entered in the Unified Register of Advocates of Ukraine, and their advocacy is not suspended or terminated.In addition, the defense counsel enjoys the procedural rights of the suspect or accused, except for those exercised exclusively by the suspect or accused. It should also be noted that when a lawyer enters criminal proceedings as a representative of the victim, a third party or a witness, he enjoys the rights of these participants in the process.
The CPC of Ukraine establishes a clear list of documents that a competent person has the right to demand from a lawyer to confirm his authority in criminal proceedings. These requirements are enshrined in Article 50 of the CPC of Ukraine and contain an exhaustive list of documents, including a certificate of the right to practice law, a warrant, a contract with a lawyer or a power of attorney (institution) authorized by law to provide free legal aid. This article also stipulates that it is prohibited to request any other or additional documents to prove the authority of a lawyer.
Thus, the legislator has established that only a lawyer has the right to protect the rights and interests of a suspect or accused person, witness, victim, third party, etc. At the same time, for example, not only lawyers have the right to represent the interests of the injured legal entity.
Turning to the issue of participation of a lawyer in criminal proceedings, it should also be noted that in some cases established by the CPC of Ukraine, the participation of a lawyer is mandatory, ie, even if the client is unable to use paid qualified legal aid, the state guarantees proper protection of his rights. interests through free legal aid.
The first major problem faced during the criminal proceedings is the abuse of his procedural rights by the defense counsel, which may be expressed in the deliberate delay of the proceedings beyond the reasonable time limits set by the CPC of Ukraine, the implementation of procedural "diversions" to create artificial conditions. to violate the right to defense of the suspect, accused.
Thus, one of the most common forms of abuse of the procedural right of a defense counsel, which is expressed in the deliberate delay of the process, is the omission of court hearings during the trial of criminal proceedings. If the client does not show a desire for another defense counsel to participate in the hearing, it is extremely difficult for the court to remove or even replace the defense counsel for one hearing.
This situation is due to the existence of a number of conflicts in the criminal procedure legislation, because the CPC of Ukraine does not establish such a concept as abuse of procedural rights, and therefore there is no responsibility for such abuse, and no legal and effective measures to combat it.
Given the problem highlighted, overcoming it is possible through the active position of the accused, the representative of the victim and the will of the court, as well as through the improvement of the current Criminal Procedure Code of Ukraine.
01.03.2021
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