Приобретение и прекращение статуса защитника: сравнительный анализ Устава уголовного судопроизводства 1864 года и современного законодательства

Abstract

The paper covers the issues of acquisition and loss of the status of a defense lawyer in a criminal case in the period of the Statute of Criminal Proceedings of 1864 (the Statute) and in the current Criminal Procedure Code of the Russian Federation. Since the Statute was and remains an outstanding monument of domestic criminal procedure legislation, an appeal to its provisions in view of their comparison with the current legislation seems to have high theoretical significance and relevance. Moreover, the analysis of the actual legislative regulation of certain provisions of the Statute is significantly expanded in the paper by referring to the law enforcement practice of the Governing Senate, which both acted as a mechanism for the formation of uniform judicial practice and often filled in the gaps of legislative regulation. The paper presents an analysis of the grounds and conditions for the acquisition and loss by a defense lawyer of his procedural status in a historical and comparative aspect in order to determine the possibilities of improving this procedural institution in modern legislation. Within this goal, in general, a tendency has been identified towards a more detailed and elaborated procedural regulation of the acquisition and loss by a defense lawyer of his status in modern criminal procedural legislation in comparison with the provisions of the Statute. At the same time, there are examples of the opposite – the Statute regulated the possibility of the defense lawyer’s participation in a case in a conflicts defense in a much more flexible and balanced manner. In contrast to the current legislation, the Statute properly regulated the institution of replacing a defense lawyer at the client’s initiative. The Statute allowed for the possibility of a defense lawyer’s refusal to undertake the defense if there were compelling reasons, which is strenuously not allowed by current legislation, contrary to the logic of properly ensuring the right to defense. These and other aspects demonstrate the directions for improving the modern procedural regulation of the acquisition and loss of the status of a defense lawyer as suggested by the provisions of the Statute.