Implementation of the Defense by a Lawyer at the Stage of Execution of the Sentence

Abstract

The article deals with problematic issues in the determination by the legislator of the procedural status of a lawyer participating in criminal enforcement proceedings to consider issues arising in the process of execution of final court. An analysis of the norms of criminal procedure legislation on the powers of a lawyer and his functions to protect the rights of convicts was carried out. Attention is drawn to the imperfection of the regulatory regulation of the procedural position of a lawyer when carrying out his activities in the enforcement process to protect the rights of convicts. Differences in the legislative norms on the name of a person who protects the rights of a convicted person in a penitentiary dispute have been established, which require improvement of the current legislation. The article presents various points of view of process scientists regarding the legal status of a person providing qualified legal assistance to convicted persons in court proceedings to resolve issues of execution of a sentence. The scientific position defining the exercise of representative functions by a lawyer in executive proceedings has been criticized, since the main function of a lawyer, regardless of the type of legal proceedings, is to provide qualified legal assistance during criminal proceedings, the purpose of which is to protect violated or disputed rights, freedoms and interests of a person in need. The article reflects some positions of the Constitutional Court of the Russian Federation on the regulation of the provisions of the penal enforcement proceedings, including issues of the participation of a lawyer, which have a significant impact on the criminal process as a whole and ensuring the implementation of general legal principles of judicial proceedings, including ensuring the right to defense. The procedural norms of the legislation regulating the powers of the defense counsel in the implementation of the protection of the rights of convicts in the courts of the first, appeal and cassation instances are analyzed. Attention is drawn to the lack of legislative regulation of cases of mandatory participation and the procedure for appointing a lawyer in enforcement proceedings. The results of the study lead to the conclusion that it is necessary to endow a lawyer who protects the rights of convicts at the stage of execution of a sentence with the procedural status of a defender with legally fixed powers.