scholarly journals The right to receive qualified legal assistance in criminal proceedings: The concept, the relationship with the right to defense

2021 ◽  
Vol 21 (2) ◽  
pp. 198-205
Author(s):  
Galina I. Sedova ◽  
◽  
Vasilina Yu. Gromak ◽  
Keyword(s):  
International Standards ◽  
Criminal Prosecution ◽  
Legal Assistance ◽  
Legal Aid ◽  
Criminal Proceedings ◽  
Scientific Representations ◽  
Legitimate Interests ◽  
Definition Of ◽  
The Right ◽  
To Receive

Introduction. An important achievement of modern criminal procedure legislation and law enforcement practice is the implementation of international standards and democratic legal institutions concerning the strengthening of guarantees of respect for the rights, freedoms and legitimate interests of participants in criminal proceedings. Among them is the right of a person to receive qualified legal assistance. In this regard, it becomes important to analyse the system of scientific views and studies on the issue of qualified legal assistance and its relationship with the right to protection determined by the Constitution of the Russian Federation, and to determine the main characteristics to which such assistance should correspond. Theoretical analysis. The mechanism of procedural support of the right of a person against whom criminal prosecution is being carried out to receive qualified legal assistance is identified, and proposals are formulated to improve the legal guarantees of ensuring legal activity in its implementation. Empirical analysis. A definition of the right to qualified legal assistance has been developed, which represents the rights of a suspect, accused, or victim to use the help of a lawyer with legal education, who is part of the professional legal community, with a confirmed status, in order to ensure the implementation of the purpose of criminal proceedings – in terms of protecting the rights of victims of crimes – and all components of the right to protection from criminal prosecution and prosecution, which are enshrined in the current legislation at all stages of criminal proceedings. Results. The authors carried out a study on scientific representations of the right to qualified legal aid and the distinction between the right to protection and the right to qualified legal aid.

scholarly journals THE PROBLEMS OF THE REFORM OF CRIMINAL JUSTICE

2019 ◽  
pp. 207-213 ◽  
Author(s):  
V. M. Tertyshnyk
Keyword(s):  
Criminal Prosecution ◽  
Conceptual System ◽  
Legal Assistance ◽  
Criminal Proceedings ◽  
Applicable Law ◽  
Procedural Law ◽  
Criminal Procedure Law ◽  
Third Person ◽  
Definition Of ◽  
The Right

The article covers the problem of optimization of regulatory and criminal proceedings in terms of the implementation of the principle of the adversarial parties. Analysis of the positive stories and shortcomings of the current CPC of Ukraine. Disclosed the problem to run the investigation and legal assistance and protection. The submitted proposals concerning improvement of the norms of the criminal procedure law. The principle of admissibility of intervention in human rights and the application of coercive measures in establishing the objective truths only in case of extreme urgency has become a basic principle of the criminal process. According to the applicable law of Ukraine “on advocacy and its activities” (p. 7 article 20) advocate in their activities has the right to “remove things, documents, copy them”. That is, it can only go about getting published, and not about “deleting”, without the consent of the holder of the document or thing. “Extract” is commonly understood as forced extraction, and side protection, by definition, its function may not to have establishing the authority. Finally, to protect enough of getting copies of documents, not delete documents, especially the absence of a duty to Act laid them in the proper way to store and share the Court. At first glance, insignificant legislative inaccuracy may only have character problem definitions, but in reality these “trivia” smear Vaseline give opportunity not so much for a parallel legal investigation, how, in practice, for the active counteraction to the inquest by hiding or destroying evidence. In today’s criminal counsel may participate in criminal proceedings in three different status: 1) as a defender of the suspect, accused, convicted, justified; 2) as a representative of the victim of physical persons; a legal entity that is affected civil plaintiff, civil respondent; third person; 3) as legal assistant to the witness. Prescription of the Constitution that exceptionally lawyer carries out representation of another person in court, as well as protection from criminal prosecution does not mean establishing the monopoly of lawyers to perform the function of protection. Wise will introduce a new conceptual system of legal assistance and protection: 1. Protection of the suspect can make as lawyers and other professionals in the field of law, for which there is no reason for removal. 2. Defendant and defendant in court should carry only a lawyer who offered to appoint judicial agent. 3. Legal assistance to victims, civil plaintiffs, civil and for third parties (art. 63 of the CPC of Ukraine) can make as lawyers and other specialists in the field of law, which can act in the procedural status of the representatives of the respective parties. 4. Legal assistance to witnesses, applicants to other participants of the process can make as lawyers and other professionals in the field of law. Implementation of the constitutional principles of legal assistance and protection in criminal proceedings requires a clear definition of the procedural status of the Defender, therepresentative and law agent, development and adoption of the law on the independent Institute the investigation, which has become an independent institution of the criminal procedural law.

scholarly journals LEGAL PRINCIPLES OF ATTORNEY’S PARTICIPATION IN INTERNATIONAL COOPERATION DURING CRIMINAL PROCEEDINGS

2020 ◽  
pp. 374-383
Author(s):  
В. Ю. Монастирська
Keyword(s):  
Civil Rights ◽  
International Cooperation ◽  
International Standards ◽  
General Nature ◽  
Professional Activity ◽  
Scientific Article ◽  
Legal Assistance ◽  
Legal Aid ◽  
Criminal Proceedings ◽  
The Right

The legal basis for the participation of a lawyer in international cooperation in criminal proceedings are international standards based on the provisions of international legal acts on human rights and freedoms and the implementation of criminal justice, guaranteeing the right to defense and the functioning of the bar. The view is supported that international legal acts regulating the activities of the bar can be divided into several groups, namely: international legal acts that ensure the realization of human and civil rights and freedoms of a general nature; international legal acts guaranteeing the realization of human and civil rights and freedoms of a special nature; international legal acts establishing general principles for the provision of legal aid and the activities of lawyers. A lawyer in criminal proceedings during international cooperation is involved to perform the function of protection in case of certain procedural actions within the framework of international legal assistance, extradition of persons who have committed a criminal offense, the implementation of criminal proceedings subject to its adoption. However, on a general basis, a lawyer in criminal proceedings for the protection of the rights, freedoms and legitimate interests of participants in criminal proceedings has the status of defense counsel. It is concluded that international legal acts provide for the exercise of the right to legal assistance of a lawyer in the implementation of international cooperation in criminal proceedings by: ensuring timely access of the lawyer to the client; confidentiality of the lawyer’s contacts with the client; enshrining in the legislation such a scope of professional rights of a lawyer, which in modern conditions of development of the state and society is sufficient for the effective implementation of legal aid; non-interference in the lawful professional activity of a lawyer, etc. The provisions formed in the scientific article can be used with the participation of lawyers in international cooperation in criminal proceedings in order to ensure human protection in pretrial investigation and judicial institutions, representation, participation in certain procedural actions.

PROBLEMS OF GRANTING VISITATIONS TO ATTORNEYS WITH THE SUSPECTS AND DEFENDANTS DETAINED IN CUSTODY

2021 ◽  
pp. 29-33
Author(s):  
Сергей Владиславович Владимиров
Keyword(s):  
Law Enforcement ◽  
Penal System ◽  
Legal Assistance ◽  
Positive Experience ◽  
Legal Aid ◽  
Detention Centers ◽  
The Law ◽  
The Right ◽  
To Receive

В статье рассматриваются правовые и правоприменительные проблемы посещения адвокатами подозреваемых и обвиняемых, содержащихся под стражей. Проанализирована правоприменительная практика нарушений права подозреваемых и обвиняемых на получение своевременной квалифицированной юридической помощи. Обоснована необходимость наличия отлаженного государственного механизма реализации предусмотренных законом прав подозреваемых и обвиняемых. Перечислены проблемы, связанные с предоставлением свиданий адвокату с подозреваемыми и обвиняемыми, находящимися в следственных изоляторах уголовно-исполнительной системы. Проанализированы основания предоставления свиданий адвокату с подозреваемыми и обвиняемыми, содержащимися под стражей, в соответствии с действующим законодательством и нормативными актами ФСИН России. Исследован порядок посещения адвокатами подзащитных, содержащихся в следственных изоляторах уголовно-исполнительной системы, регламентированный как ведомственными нормативными актами ФСИН России, так и решениями адвокатских образований. Приведен механизм работы центра субсидируемой юридической помощи по вопросу организации посещений адвокатами подзащитных, содержащихся в следственных изоляторах. Раскрыт положительный опыт ФСИН России организации дистанционных свиданий адвокатов с подзащитными с использованием систем видеоконференц-связи. На основе рассмотренных проблемных вопросов сформулированы выводы и предложения по совершенствованию правоприменительной деятельности органов и учреждений уголовно-исполнительной системы. The article examines the legal and law enforcement problems of visits by lawyers to suspects and accused in custody. The law enforcement practice of violations of the right of suspects and accused to receive timely qualified legal assistance is analyzed. The need for a well-functioning state mechanism for the implementation of the rights of suspects and accused provided by law is substantiated. The problems associated with granting visits to a lawyer with suspects and accused persons who are in pre-trial detention centers of the penal system are listed. The author analyzes the grounds for granting visits to a lawyer with suspects and defendants in custody, in accordance with the current legislation and regulations of the Federal Penitentiary Service of Russia. The procedure for visiting by lawyers of clients held in pre-trial detention centers of the penal system, regulated by both departmental regulations of the Federal Penitentiary Service of Russia and decisions of lawyers' associations, has been investigated. The mechanism of work of the center for subsidized legal aid on the issue of organizing visits by lawyers to clients held in pre-trial detention centers is presented. The positive experience of the Federal Penitentiary Service of Russia in organizing remote meetings between lawyers and clients using videoconferencing systems is disclosed. On the basis of the considered problematic issues, conclusions and proposals were formulated to improve the law enforcement activities of the bodies and institutions of the penal system.

scholarly journals right to receive legal assistance in criminal proceedings in Russia and in foreign countries

2021 ◽  
Vol 5 (S3) ◽  
Author(s):  
Elena A. Kupryashina ◽  
Dmitry V. Boev ◽  
Anna A. Gileva ◽  
Anzhelika I. Lyakhova ◽  
Sergey F. Shumilin
Keyword(s):  
Integrated Approach ◽  
Legal Assistance ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Scientific Methods ◽  
Foreign Countries ◽  
Analysis And Synthesis ◽  
The Right ◽  
To Receive

The paper analyses the legislation of the Russian Federation and some foreign countries on the right of citizens to provide them with legal assistance in criminal cases, as well as the problems arising in its implementation. The paper also summarizes the experience of the studied countries in order to improve their legislation in this area of criminal justice. Methodologically, the work uses scientific methods of analysis and synthesis, as well as historical and comparative methods; all are given in an integrated approach. Among the conclusions, we underline the fact that some countries are introducing norms and tendencies from international law into their legal systems; the basic international principles of lawyer's activities, including principles for defenders, are fixed in the basic principles on the role of lawyers, which describe the right to receive free legal aid for those who are the poor; also that citizens have the right to choose a representative of their interests in the judiciary and have the opportunity to contact with their defenders at any time.

scholarly journals Some Problems of Free Legal Aid in Criminal Proceedings

2020 ◽  
pp. 332-336
Author(s):  
Oksana Krushnitska
Keyword(s):  
Access To Justice ◽  
Legal Aid ◽  
Criminal Proceedings ◽  
Effective Manner ◽  
The Creation ◽  
The Right ◽  
To Receive

The article deals with some problems of providing free legal aid in criminal proceedings. It has been identified and shown that the main prerequisite for ensuring the right of a person to legal aid can be considered to be the creation of reliable legal and organizational grounds for its actual provision. It is proved that the correspondence of a prisoner sentenced to imprisonment with the centers of free legal aid is, firstly, subject to review by the administration of the penitentiary institution, secondly, such letters will not necessarily be sent as a whole, and thirdly if such letters are sent wherever possible and there is no legal deadline for sending them. Some issues are outlined, such as the right to receive legal aid in a timely and effective manner to prisoners in prison. Alternatively, the right to amnesty, the right to pardon, and the right to review a judgment in newly discovered or exceptional circumstances, and other rights and freedoms that are not necessarily related to giving a person access to justice may be violated or inaccessible to the sentenced person. Therefore, the right to receive legal aid in a timely and effective manner to prisoners in prison may be violated. Alternatively, the right to amnesty, the right to pardon, and the right to review a judgment in newly discovered or exceptional circumstances, and other rights and freedoms that are not necessarily related to giving a person access to justice may be violated or inaccessible to the sentenced person.

scholarly journals The current issues of the protection of the rights, freedoms of participants of criminal proceedings at the stage of judicial consideration

2020 ◽  
pp. 71-82
Author(s):  
Oleksandr Omelchenko ◽  
Vladislav Rebezyuk
Keyword(s):  
Human Rights ◽  
International Experience ◽  
International Standards ◽  
Criminal Proceedings ◽  
Independent State ◽  
Legal Norms ◽  
Control Functions ◽  
Legitimate Interests ◽  
Court Proceedings ◽  
The Right

This article explores the issues of protecting of the rights, freedoms of participants in criminal proceedings at the stage of judicial consideration. Consequently, examines of the current state and prospects of protecting the rights, freedoms of participants in criminal proceedings at the stage of judicial consideration is carried out. The current problems and ways of solving the issue of protecting the rights and freedoms of participants in judicial proceedings are considered. This article deals with the issues concerning of the protection of rights and freedoms in criminal proceedings. An indicator of the availability of justice is a component of the right to a fair trial, the existence of an optimal system of court costs and developed mechanisms for providing legal assistance to the poor. Meanwhile, all court judgments should be based on the current Constitution of Ukraine, as well as on the current legislation, without contradicting with them. The International experience in protecting the human rights and freedoms is very important and has a significant impact on the domestic legislation of both our state and other democratic states as a whole. The International standards of fundamental human rights and freedoms and their legitimate interests is the basis that fills the international experience in protecting human rights, freedoms and legitimate interests. The main provisions of the Constitution of the community of democratic states on human rights and freedoms must comply with all international standards, since the protection of rights, freedoms and legitimate interests ensures the sovereign, democratic and independent state. Each civilized state must ensure the implementation of legal guarantees for the protection of the rights, freedoms and legitimate interests of its citizens, this will become the key to the democratic development of the state. To summarize, the public is interested in ensuring that the rule of law is guaranteed through fair, impartial and effective administration of justice. The prosecutors and the judges ensure at all stages of the trial the guarantee of human rights and freedoms, as well as the protection of public order. This covers respect for the rights of the accused and the victims. Protecting the human rights in criminal proceedings at the trial stage is one of the main challenges facing the courts, prosecutors and lawyers. The opportunities of judicial protection through a system of various forms of judicial review is not only an additional guarantee of rights and freedoms, but also a condition for their speedy restoration. Key words: court proceedings, organizational and legal mechanism, protection of the rights, court decision, court control functions, The European Court of Human Rights, legal decisions, legal norms, court proceedings, protection of freedoms, availability of the justice.

scholarly journals Verification by the prosecutor of the legality and validity of the decisions made by the investigating judge regarding the applied security measures

2021 ◽  
pp. 341-345
Author(s):  
I.О. Merimerina
Keyword(s):  
Criminal Procedure ◽  
Appellate Court ◽  
Security Measures ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
Legitimate Interests ◽  
Precautionary Measures ◽  
Characteristic Features ◽  
Definition Of ◽  
The Right

The article is devoted to clarifying what the stage of an appeal in criminal proceedings is. During the investigation, the decisions of the investigating judge concerning the application of measures to ensure criminal proceedings are con-sidered to be appealed in accordance with the requirements of the Criminal Procedure Code of Ukraine. It was empha-sized that appealing the decisions of the investigating judge during the pre-trial investigation is an important guarantee of ensuring the protection of the rights and legitimate interests of the participants in the criminal proceedings. The list of persons who have the right to file an appeal is covered. The normative regulation of appealing against the decisions of the investigating judge is analyzed. The problematic issues of this activity and the definition of ways of normative regulation are considered. In the course of the research the works of scientists on the outlined issues are analyzed.The article examines the role of the prosecutor in verifying the legality and validity of decisions made by the investigating judge on the election, change, cancellation of measures to ensure criminal proceedings. Attention is drawn to the peculiarities of the prosecutor’s appeal of certain precautionary measures. Emphasis is placed on the peculiarities of the prosecutor’s filing of appeals, the quality of preparation of response documents. The peculiarities of appealing the decision of the appellate court, ruled on the results of the review of the decision of the investigating judge on the application of certain precautionary measures, have been studied. The characteristic features of appealing certain measures to ensure criminal proceedings have been identified and investigated.It is concluded that it is expedient to supplement the Criminal Procedure Code of Ukraine with provisions on the possibility for the prosecutor to appeal the decisions of the investigating judge on seizure of property, refusal, full or partial revocation of seizure of property, revocation of seizure of property, return of temporarily seized items and documents. measures in the form of a personal obligation or refusal to apply it, application of a precautionary measure in the form of a personal guarantee, application of a measure of restraint in the form of transfer of a juvenile suspect or accused under the supervision of parents, guardians, trustees or administration of a child care institution.

scholarly journals Current Issues of Qualified Legal Assistance in the Post-Soviet Space

2020 ◽  
Vol 2020 (3) ◽  
pp. 257-263
Author(s):  
Nurana Gurbanova ◽  
Semen Raspopin ◽  
Nikolai Iurtaev ◽  
Dmitrii Bardokin
Keyword(s):  
Law Firms ◽  
Legal Assistance ◽  
Legal Analysis ◽  
Legal Aid ◽  
Public Authorities ◽  
Eurasian Economic Union ◽  
Economic Union ◽  
The Republic ◽  
Definition Of ◽  
The Right

Modern processes of regulation of the legal market in Russia and other post-Soviet countries take place in the context of the right to qualified legal assistance. The authors used a set of such comparative legal methods as synchronous and intra-system comparison, as well as problem-chronological and formal legal methods. The paper focuses on the definition of qualified legal assistance and its criteria. The research involved a group of entities that provide qualified legal assistance: public authorities, civil society institutions, i.e. bar, notary, legal clinics, public associations, etc., commercial organizations, and individual lawyers. The comparative legal analysis featured qualified legal assistance in the countries of the Eurasian Economic Union. A key aspect of the right to qualified legal assistance is the state system of legal aid. The article describes Russian and Belarusian models. The authors believe that there is no appropriate definition of qualified legal aid and that the bar holds the dominant position in the professional lawyers' community. Some countries of the Eurasian Economic Union preserved Soviet experience of bar associations. These countries demonstrate some specific traits of advocacy activities. For instance, institutions of legal consultants function as an alternative to the bar. The Republic of Armenia declared legal practice a business activity. The Republic of Belarus legally regulates specialized bar associations, e.g. legal counseling and law firms that specialize in a particular branch of law. As for free legal assistance, Russian model proved to be more advanced than that of Belarus, as Russia has no statutory mechanisms for obliging legal firms to provide free legal assistance at their own expense. In addition, Russia has a wider range of population categories entitled to receive free legal aid. Another advantage of the Russian free legal aid system is a detailed regulation of the status of legal clinics.

scholarly journals Problematic issues of replacement or waiver of the right to accept a defense lawyer's services who provides free secondary legal aid in criminal proceedings

2021 ◽  
pp. 9-14
Author(s):  
Alina BUNINA
Keyword(s):  
Legal Aid ◽  
Criminal Proceedings ◽  
New Approach ◽  
Defense Lawyer ◽  
European Court ◽  
The Law ◽  
Definition Of ◽  
The Right ◽  
State Defense

The paper raises the issue of waiver (replacement) of a state defense lawyer by a suspect (accused) who provides free legal aid in criminal proceedings. The author analyzes the provisions of the current legislation in Ukraine, which regulates the provision (replacement) of a lawyer, compares and analyzes the practice of courts in the application of the law, focuses on the issue of determining the criteria for the quality of services provided by a lawyer, studies the view on this problem through the decisions of the ECHR (European Court of Human Rights), and also suggests ways to solve this problem by amending the current legislation and presents a fundamentally new approach to the procedure of waiver (replacement) of a lawyer in criminal proceedings. In the paper, the author notes the problem in the legislative definition of the possibility of waiver (replacement) of the lawyer and, as a result, the uneven application of the law occurs in practice by the courts; it is proposed to amend the specific procedural rules that regulate these relations, namely, to detach the issue of waiver (replacement) of the lawyer into a separate process, the author justifies the need for such detachment and decision-making by the investigating judge. The author notes that the issue of refusal (replacement) of a lawyer during a pre-trial investigation with a legally defined adversarial proceeding is decided by the prosecution-the investigator (prosecutor), which is in itself wrong and can affect the choice of a lawyer, his tactics and methods of defense. The proposed changes, in the author's opinion, solve the problem of inconsistency in the application of the law in terms of waiver (replacement) of a defense lawyer by a suspect (accused), determine the unity of approach in solving these issues, preserving the defendant's right to choose freely a lawyer and protecting him from disclosing the chosen line of defense to the prosecution.

scholarly journals International Standards for Ensuring the Right to Liberty and Personal Security in Criminal Proceedings of Ukraine

2020 ◽  
Vol 9 (29) ◽  
pp. 250-257
Author(s):  
Valeriy Dmytrovych Pcholkin ◽  
Olena Valeriivna Fedosova ◽  
Liubov Vyacheslavna Kotova ◽  
Valentina Alexandrovna Merkulova
Keyword(s):  
System Analysis ◽  
International Standards ◽  
Criminal Proceedings ◽  
Personal Security ◽  
Legal Standards ◽  
European Court ◽  
European Values ◽  
Legitimate Interests ◽  
The Subject ◽  
The Right

The purpose of this research is to analyze international legal standards that guarantee the right to liberty and personal security in criminal proceedings. The subject of the study was the requirements of international acts, the decision of the European Court of Human Rights and the provisions of the current criminal procedural legislation of Ukraine on the issues of guaranteeing and securing of that right. The authors of the article used the following methods: dialectics, comparative legal, system analysis, formal logic. The relevance of the topic of this article depends on the fact that the current direction of the reform of the criminal procedural legislation is aimed at strengthening the legal guarantees for the protection of a person, protection of his rights, freedoms and legitimate interests in criminal proceedings. Such a fundamental right of every human being as the right to liberty and personal security is no exception to this. In this context, the legal mechanisms for the application of coercive measures need to be reviewed, re-evaluated and adjusted. This, of course, reflects the approximation of national law to international legal standards, European values, the establishment of the rule of law, and so on.

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