Ensuring the right of defense to the suspect and the accused is laid down in the Constitution and laws, mainly in the CPC. It cannot be said that it is unlimited, but at the same time, its competent use can seriously help.
The principle of law, its feature
According to the Constitution, everyone has the right to protect themselves in all accessible and legal ways, no one can limit a person in this. First of all, you should understand what the principles of law are. These are the ideas on which the law is based. People often try to interpret them themselves and come to the wrong conclusions.
The fulfillment of the principle is ensured primarily by law, a certain role is played by the Constitutional Court and the Supreme Court of the Russian Federation, which give clarifications on certain issues or cases. They are often changed or supplemented, although the law sometimes remains unchanged.
The principle of ensuring the suspect, the accused the right to a defense is, first and foremost, the idea of the availability of qualified legal assistance. Lawyers who are supposed to have the appropriate level of knowledge and practice are required to provide it.
What is the right to defense
The right to defense is a set of means and mechanisms that provide an opportunity to defend oneself against charges. Of the mechanisms, one can point to advocacy, a system of free assistance to the population in criminal matters.
To some extent, the system of prosecutorial supervision and judicial control is working.
Securing the right of defense to the suspect and the accused includes:
- giving explanations or testimonies or, conversely, refusing them;
- filing applications (for example, request to make a request, appoint an examination);
- complaints about police officers to the prosecutor's office, court, other law enforcement agencies;
- taking part in investigative actions in a court session.
Mechanism of action
According to the law, any restriction of a citizen’s rights entails the automatic appearance of the right to demand a lawyer. Most often this concerns the detention of a person. Law enforcement officers often try to ignore this rule, so that in fright, a person says too much. Words spoken under psychological pressure at the first interrogation then have a serious role.
Therefore, immediately after learning about your detention, declare a desire to get the help of a lawyer. Providing the suspect, accused with the right to defense valid in two versions:
- the right to call your lawyer is granted;
- a lawyer is provided at the expense of the budget.
The second option applies to everyone without exception. Moreover, in some cases, for example, if the case is being conducted in relation to a mentally ill person, a minor, a defender must be present. Any actions of the investigator or inquiry officer in case of non-compliance with this rule are considered illegal.
Clarification of Rights
The restriction of human rights and freedoms is strictly regulated. First of all, a protocol is written, the police or the FSB are obliged to tell something. In particular, they are responsible for ensuring the suspect and the accused the right to defense, the Code of Criminal Procedure of the Russian Federation says just that. The participation of a lawyer is considered mandatory in a number of situations, one of them is the absence of a refusal of legal assistance, i.e. until a citizen gives a written statement. In court, the refusal is recorded in the minutes of the meeting. It is always worth insisting on the invitation of a defender as soon as they talk about detention. Perhaps, after an urgent request to invite a lawyer, a person will be released.
Understanding that a person knows his rights makes law enforcement officers act more carefully.
An explanation of the rights during interrogation, during the investigation or during the period of inquiry is recorded in a separate protocol.
Who has the right to be a defender
Provision of the right to defense to a suspect, accused, defendant carried out through a lawyer. It acts either by agreement or on the basis of an order. It is issued by an association of lawyers to one of them who is engaged in free affairs or as intended. Together with a lawyer, a close relative or another person may act as a defender at the request of the accused. If a lawyer is refused or replaced, the second defense attorney - not the defense attorney - loses his authority.
If the case will subsequently be considered by the justice of the peace, it is allowed to bring any person at the request of the accused, a lawyer is not necessary. The maximum sentence for such cases is 3 years in prison.
The role of the court
The provision of the right to defense to the suspect, accused, defendant falls most of all on the court.
The judge checks the legality of the actions of the investigator, interrogating officer, prosecutor.
It turns out whether the person had the opportunity to get a lawyer, to get acquainted with the case file. If time is insufficient, the court may postpone. Some judges ignore these points, so you should send written petitions.
In practice, it happens that the defendants are not informed of the time of the trial, there are no receipts that they were informed of the time of the trial, then the meeting must be rescheduled. A video conferencing system is now being introduced in the courts. People take part in the process without leaving home or in custody.
The judge finds out the reasons for the absence of a lawyer, whether she is forced, whether the person understands that the state will provide him with a lawyer if necessary.
Are there any circumstances showing the inability of the lawyer to perform the tasks in accordance with the law (the defense of two defendants whose interests differ, his behavior clearly violates the rights of the defendant).
Providing the suspect and the accused with the right to defense as a principle obliges the court to check whether all conditions have been created for the defendant to use his rights or not.