ФУНКЦІЇ АДВОКАТА В КРИМІНАЛЬНОМУ ПРОЦЕСІ

Abstract

The article examines the problematic issues of the lawyer’s functions in the criminal process. The purpose of the article is the doctrinal definition of the lawyer’s functions in the domestic criminal process based on the results of the analysis of the doctrinal interpretation of the concept of function in the criminal process, the doctrinal understanding of the status of the lawyer and defense and their functions in the criminal process. On the basis of the analysis of scientific sources, as well as the provisions of the national procedural legislation, the concept, content and types of functions of the lawyer in the criminal process were investigated. The author’s definition of the concept of criminal procedural functions is formulated. It has been proven that a lawyer performs three functions in a criminal trial: defense; representation; advisory and legal assistance. These functions are defined and their content is disclosed. The function of protection as a type of advocacy consists in ensuring the protection of the rights, freedoms and legitimate interests of a suspect, accused, defendant, convicted, acquitted, a person in relation to whom the use of coercive measures of a medical or educational nature is expected or the question of their use in criminal proceedings is being decided, a person, in relation to which the question of extradition to a foreign state (extradition) is being considered, as well as a person who is criminally liable in criminal proceedings. The function of representation as a type of lawyer’s activity is to ensure the implementation of the rights and obligations of the client in the criminal process, namely the implementation of the rights and obligations of the victim, civil plaintiff, civil defendant and witness. The function of advisory and legal assistance as a type of advocacy consists in providing legal information, consultations and clarifications on legal issues, legal support of the client’s activities, drafting statements, complaints, procedural and other documents of a legal nature, aimed at ensuring the realization of rights and freedoms and legitimate interests of the client, preventing their violations, as well as assisting in their restoration in the event of a violation. It is proved that in comparison with Art. 48 of the Criminal Procedure Code of Ukraine of 1960, in the Criminal Procedure Code of Ukraine of 2012 (Articles 46–54), the legislator significantly expanded the list of grounds for which a defense attorney, after being involved in criminal proceedings, has the right to refuse to perform his duties. It is emphasized that the current Code of Criminal Procedure of Ukraine significantly improved the legal status of the defender, compared to the Criminal Code of Ukraine of 1960, which is manifested, in particular, in the establishment of additional procedural rights and a special procedure for his entry into criminal proceedings.