Double and subsidiary protection in criminal proceedings

The constitutional provision on ensuring that everyone receives qualified legal assistance in criminal proceedings is accompanied by the establishment of a set of regulatory rules and requirements, including the rules for the entry of a lawyer into the status of a defender, a representative of the principal. These rules are constantly in the sphere of close attention of scientists. Its reason is the constant variability not so much of federal legislation as of law enforcement practice, which testifies to many cases of both misinterpretation and intentional distortion of legal prescriptions, equally generating erroneous law enforcement, illegal actions against lawyers by investigative and judicial authorities. These cases are an alarming signal of the general situation in criminal proceedings and serve as an obstacle in ensuring the receipt of qualified legal assistance to its participants. The question of the possibilities of implementing subsidiary or double protection is due to the severity of the emerging procedural problems that require the immediate formation of a set of proposals for their resolution.

The purpose of this work is to identify some of the most interesting and relevant, as it seems, aspects of the procedural mechanism of the participation of several defenders.

The achievement of this goal led to the formulation and solution of the following tasks: selection and analysis of scientific sources on the definition, types and consequences of violations of the procedural rights of lawyers to participate in criminal proceedings; search and generalization of judicial and other law enforcement practice on the same issues; analysis of emerging situations in the practical sphere and the allocation of the most significant gaps in criminal procedure and other legislation; development of the author's approach and specific proposals for solving problems related to ensuring the effective participation of a lawyer in criminal proceedings.

The main methods of the research: various types of analysis (system, semantic, functional, etc.), synthesis, generalization, modeling, formal legal, comparative legal. Lawyers, employees of investigative bodies and the Prosecutor's Office took part in the study.

The results of the study were author's proposals aimed at improving law enforcement and methodological recommendations on the interpretation of existing provisions of federal legislation on the solution of ambiguous situations involving the participation of two or more lawyers (by agreement and by appointment), as well as in the presence of a subsidiary defender in accordance with the purpose of the corner court proceedings.

1. Aleksandrova O.P., Budanova L.Yu. [Ensuring the right to defense of persons subjected to criminal proceedings to incriminate them]. Vestnik Tverskogo gosudarstvennogo universiteta. Seriya: Pravo = Bulletin of Tver State University. Series: Law. 2021;(3(67)):30–38. DOI: 10.26456/vtpravo/2021.3.030. (In Russ.)]

2. Artamonova E.A. [Is it necessary to have a nonadvocate during the investigation?] Vestnik Tomskogo gosudarstvennogo universiteta. Pravo = Bulletin of Tomsk State University. Law. 2019;(33):60–68. DOI: 10.17223/22253513/33/6. (In Russ.)]

3. Barygina A.A. [On the Participation of the Subsidiary Defender in Criminal Proceedings]. Rossiiskaya yustitsiya = Russian Justice. 2020;(8):46–48. (In Russ.)]

4. Vasil'ev D.V. [Procedural guarantees of the implementation of the powers of a lawyer-defender in criminal proceedings]. Legality in modern society: a collection of abstracts and articles. Vladivostok: Periscope-Volga LLC; 2017. (In Russ.)]

5. Grigor'ev V.N. [Results of a paradigm shift in criminal justice research]. Vestnik Vserossiiskogo instituta povysheniya kvalifikatsii sotrudnikov Ministerstva vnutrennikh del Rossiiskoi Federatsii = Bulletin of the All-Russian Institute for Advanced Training of the Ministry of Internal Affairs of the Russian Federation. 2017;(2(42)):С. 38–46. (In Russ.)]

6. Ivanchenkov Yu.V. [The procedure and the moment of admission to the criminal case of a defense lawyer at the stage of the preliminary investigation]. Advokatskaya praktika = Advocacy Practice. 2012;(5):13–16. (In Russ.)]

7. Kalinkina L.D. [The defendant's right to free choice of counsel and the legal consequences of violating it]. The right of the suspect, accused, defendant, convicted person to a defense: Proceedings of the IV International Scientific-Practical Conference. Saransk: National Research Mordovian State University N.P. Ogarev; 2014. (In Russ.)]

8. Luk'yanchikova E.F., Lyakhova A.I., Mel'nikov P.A. [Problematic aspects of the procedure for admitting an attorney to participate in a search]. International Law Journal. 2022;5(3):38–41. (In Russ.)]

9. Mirzoev G.B. [On some problems of implementation of the rights of a defense lawyer in criminal proceedings]. Uchenye trudy Rossiiskoi akademii advokatury i notariata = Scientific Proceedings of the Russian Academy of Advocacy and Notaries. 2019;(4(55)):7–11. (In Russ.)]

10. Nedobor A.N. [To the discussion on the forms of the exercise of powers by a lawyer in criminal proceedings]. Novaya nauka: sovremennoe sostoyanie i puti razvitiya = The New Science: Current State and Ways of Development. 2016;(9):283–288. (In Russ.)]

11. Perova E.A. [Provision of unqualified legal assistance as a form of violation of a defendant's right to counsel]. Advokatskaya praktika = Advocacy Practice. 2020;(4):22–29. (In Russ.)]

12. Revina I.V., Pashutina O.S., Chebotareva I.N. [Manipulation of the right to defense from the position of ensuring the defendant's right to freedom of choice of counsel]. Advokatskaya praktika = Advocacy Practice. 2021;(1):33–39. DOI: 10.18572/1999-4826-2021-1-33-39. (In Russ.)]

13. Sementsov V.A. [Powers of an advocate to participate in the collection (formation) of evidence in criminal proceedings]. Voprosy pravovedeniya = Issues of jurisprudence. 2010;(4(8)):359–381. (In Russ.)]

14. Chigirev P.M. [Practical problems arising in connection with the refusal of a defender by appointment with the simultaneous participation of a defender by appointment. Position of the Constitutional Court of the Russian Federation]. Ehkonomika i sotsium = Economy and Society. 2020;(12(79)):429–433. DOI: 10.46566/2225-1545_2020_2_79_429. (In Russ.)]

15. Chupilkin Yu.B., Pirozhenko Ya.L. [Removal and replacement by the court of an attorney-defender participating under the agreement]. State, Law and Society: Issues of Theory and Practice: Proceedings of the Second All-Russian Scientific and Practical Conference. Sochi, 2020.

16. Shashkova A.N. [Interaction between the investigator and the lawyer at the stage of admission of the latter as a defender to participate in criminal proceedings]. Law and the rule of law in the third millennium: materials of the International Scientific-Practical Conference. Kaliningrad: Kaliningrad branch of St. Petersburg University of the Ministry of Internal Affairs of Russia; 2019.

17. Macnair M. Equitable protection of legal professional privilege: a commentary. Cambridge: Cambridge University Press; 2016.