Representative of the bar chamber and his access to criminal proceedings: modern problems and ways to solve them

Modern criminal proceedings are unthinkable without the provision of qualified legal assistance. This assistance is in demand practically by all participants whose interests are affected by this production in one way or another. The effectiveness and efficiency of the provision of qualified legal assistance is ensured, along with other means, by the stability of the procedural position of the lawyer performing the function of defender, representative, lawyer of the person whose premises are being searched, in a different status. Stability means the immutability and invulnerability of his procedural status from the point of view of obstructing his legitimate activities. And the means of ensuring stability are rules that allow timely elimination of created or emerging obstacles to the implementation of legitimate advocacy. Among such rules, the procedure and conditions for admission to criminal proceedings of persons capable of eliminating or effectively influencing the obstacles that arise in the exercise of legal advocacy and to establish the provision of legal assistance at a high professional level should be provided. The purpose of this study is to develop a criminal procedure mechanism for the access of a representative of the Bar Chamber to criminal proceedings in cases defined in art. 450.1 of the Criminal Procedure Code of the Russian Federation (hereinafter referred to as the Code of Criminal Procedure of the Russian Federation), as an independent participant whose procedural position is determined by the need to ensure the provision of qualified legal assistance by lawyers.
Tasks to be solved: the study of modern conditions for the provision of qualified legal assistance; the study of means and methods of the legal activity of a lawyer; clarification of scientific trends on the interpretation of the conditions for the provision of qualified legal assistance, the legality of advocacy; analysis and generalization of the trends of practical criminal procedural activities related to the interaction of lawyers with the preliminary investigation bodies and the court; substantiation of the need for legal regulation of the admission of a representative of the bar chamber to criminal proceedings and determination of his procedural status; search and proposal for the legal model of such a mechanism.
The study was conducted on the basis of a set of general, general scientific and private-legal methods of cognition, including theoretical (dialectics, various types of analysis, synthesis, generalization, logical, system-structural, modeling, formal-legal, comparative-legal), as well as empirical (monitoring, criteria for evaluating the performance of representatives of Chambers of Advocates of various regions of the Russian Federation; statistical) methods.
The study led to the following results: theoretically, the need for the participation of a representative of the Bar Chamber as an independent subject of criminal procedural relations and granting him a procedural status sufficient to fulfill his mission was proved; an approach to solving problems accompanying the admission of a representative of the Bar Chamber to criminal proceedings was determined in cases specified in art. 450.1 of the Code of Criminal Procedure of the Russian Federation, a set of rules has been developed and proposed to ensure the admission of a representative of the Advisory Chamber as a participant in criminal proceedings in its pre-trial stages.
The theoretical results became the basis for the formation of a set of proposals for improving legislation (in particular, the Criminal Procedure Code of the Russian Federation, the Federal Law "On Advocacy and Advocacy in the Russian Federation").

1. Bar Chamber of the Magadan region [website]. Official website of the Magadan Region Chamber of Advocates; 2021. Available: https://apmagadan.fparf.ru/about/revision/

2. Archive of the Tverskoy District Court of Moscow. Case № 89073 [website]. Lawyers need protection; 2012. Available: http://www.buroadvokat.ru/index.php/2010-02-15-20-35-09/1946-2012-01-23-03-23-51

3. Baev A.A. [The concept and essence of qualified legal assistance in criminal proceedings]. Izvestiya Tul'skogo gos. un-ta. Ehkonomicheskie i yuridicheskie nauki = News of the Tula State University. Economic and legal sciences. 2013;(3-2):62–68. (In Russ.)]

4. The Basmanny court of Moscow declared illegal the refusal of the investigator to make copies of the documents in the criminal case [website]. Official website of the Moscow Chamber of Advocates; 2021. Available: https://www.advokatymoscow.ru/press/news/9628/

5. Boer V.M., Glushchenko P.P. [Legal aid: the right, the responsibility, an opportunity and reality of receiving, the role and place in the mechanism of human rights activity]. Sotsiologiya i pravo = Sociology and Law. 2017;(1):98–106. (In Russ.)]

6. Zakomoldin A.V. [Qualified legal assistance in the system of guarantees of individual rights in criminal proceedings]. Vestnik Samarskoi gumanitarnoi akademii = Bulletin of the Samara Humanitarian Academy. 2008;(2):28–35. (In Russ.)]

7. Krause S.V., Larionov V.N., Mokhorov D.A. [On the status of the representative of the Regional Chamber of Advocates in the Criminal Procedure Code of the Russian Federation]. Evraziiskii yuridicheskii zhurnal = Eurasian Law Journal. 2020;10(149):288–290. https://doi.org/10.46320/2073-4506-2020-10-149-288-290 (In Russ.)]

8. Kudryavtseva A.V., Popov V.S. [Participation of a defense lawyer at the stage of preliminary investigation and in the court of first instance]. Chelyabinsk: Poligrafmaster; 2006. (In Russ.)]

9. Lenkautsan D.V. [Problems of interpretation of the concept of qualified legal assistance]. Molodoi uchenyi = A young scientist. 2018;7(193):133–136. (In Russ.)]

10. Methodological recommendations for the representative of the Chamber of Advocates during the search, inspection and seizure of a lawyer: approved by the decision of the Council of the FPA of the Russian Federation (Protocol № 2 of May 16, 2017) [website]. Official website of the Federal Chamber of Advocates; 2021. Available: https://fparf.ru/documents/fparf/?PAGEN_1=3

11. Nevskaya O.V. [What is qualified legal assistance?] Advokat = Lawyer. 2004;(11):37–39. (In Russ.)]

12. Review of the work of the Commission for the Protection of Professional Rights of Lawyers of the Krasnodar Territory Chamber of Advocates for 2020 [website]. Official website of the Krasnodar Territory Chamber of Advocates; 2021. Available: https://apkk.ru/documents/attorneys/apkk/obzor-rabotykomissii/

13. Definition of the Supreme Court of the Russian Federation № 83-UD20-1: Review of judicial practice of the Supreme Court of the Russian Federation No. 2 (2020): approved. By the Presidium of the Supreme Court of the Russian Federation on July 22, 2020 [website]. Official website of the Supreme Court of the Russian Federation; 2021. Available: https://www.vsrf.ru/documents/practice/29143/

14. Regulations on the Commission for the Protection of the Rights of Lawyers of the Chamber of Advocates of the Orel region [website]. Official website of the Orel Region Chamber of Advocates; 2021. Available: http://www.advokat57.ru/index_p_24.html

15. Regulations on the Commission for the Protection of Professional Rights of Lawyers under the Council of the Novosibirsk Region Chamber of Advocates: approved by the decision of the Council of the Novosibirsk Region Chamber of Advocates dated March 29, 2016 (Protocol № 3) [website]. Official website of the Novosibirsk Region Bar Association; 2021. Available: https://advpalatanso.ru/komissia_prav_advokatov

16. Regulations on the Commission of the Council of the Moscow Chamber of Advocates for the Protection of the Rights of Lawyers: approved. By the decision of the Council of August 8, 2017 [website]. Official website of the Moscow Chamber of Advocates; 2021. Available: https://www.advokatymoscow.ru/about/rights-protection/

17. Regulations on Authorized Representatives of the St. Petersburg Chamber of Advocates for the Protection of Professional Rights of Lawyers: approved by the decision of the Council of the St. Petersburg Chamber of Advocates (Protocol № 15 of December 06, 2018, as amended. dated August 15, 2019, Protocol No. 9) [website]. Official website of the St. Petersburg Chamber of Advocates; 2021. Available: http://apspb.ru/4560310/18082019_02.pdf

18. A representative of the bar chamber should become a full-fledged participant in criminal proceedings [website]. Official website of the Federal Chamber of Lawyers of the Russian Federation; 2021. Available: https://fparf.ru/news/fpa/predstavitel-advokatskoy-palatydolzhen-stat-polnotsennym-uchastnikom-ugolovnogosudoproizvodstva-/

19. Gulchehra T. The importance of the participation of a lawyer with the judiciary and law enforcement in criminal proceedings. European Journal of Molecular and Clinical Medicine. 2020;7(2):2169–2173.

20. Khalikova Y., Kazun A. Should I stay, or should I go? self-legitimacy of attorneys in an authoritarian state. Crime, Law and Social Change. 2021;75(4):1–23.

21. Macnair M. 'Equitable protection of legal professional privilege: a commentary' in P.G. Turner (ed), Equity and Administration. Cambridge University Press; 2016. https://doi.org/10.1017/CBO9781316529706.025

22. Opgenhaffen T., Put J. Searching and Seizing Evidence at Lawyers' and Doc-tors' Premises: Belgium, France and the Netherlands Put to the European Court of Human Rights Test. European Journal of Crime, Criminal Law and Criminal Justice. 2015;23(4):359–382. https://doi.org/10.1163/15718174-23032078

23. Petr M. Legal professional privilege in international, European and Czech law. Czech Yearbook of Public and Private International Law. 2019;(10):151–164.

24. Tynybekov S., Nurmaganbet E.T., Duysenova L.M. The concept, value, and the procedural position of defense attorney at the preliminary investigation. Life Science Journal. 2014;11(spec. issue 5):239–247.