Problematic aspects of involvement and participation of a defense attorney during a special pre-trial investigation (in absentia)

Abstract

The article examines the problems that arise with the involvement and participation of a defense attorney during a special pre-trial investigation. It has been established that there is an inconsistency in the legislation between the general procedure for the involvement of a defense attorney in criminal proceedings and special regulations regulating the participation of a defense attorney during a special pre-trial investigation (in absentia). In order to eliminate this inconsistency and ensure the suspect’s right to defense, it is proposed to make appropriate changes to the Criminal Procedure Code.The position of scientists regarding the need to involve a defense attorney is supported from the moment the investigator, in agreement with the prosecutor, or the prosecutor appeals to the investigating judge with a request to carry out a special pre-trial investigation. At the same time, based on the analysis of court decisions, it was concluded that usually the investigator or prosecutor turns to the secondary legal aid center to attract a defense attorney in the time between the notification of suspicion and the application to the court with a request for a special pre-trial investigation. It was established that such actions of the prosecution are positive, as the defense attorney has time to review and analyze the materials of the criminal proceedings, reports of suspicion and other procedural documents.The position of scientists is supported, who point out that the defender, in the absence of acquaintance and communication with the client, should choose a position that is opposite to the side of the prosecution. It is proposed to deny the decision, actions or inaction of the prosecution on procedural grounds, which ensures the activeness of the actions of the defense attorney regarding the defense of the suspect and the implementation of the principle of competition in criminal proceedings.It was established that during the adoption of a decision to conduct a special pre-trial investigation, violations of the rights of suspects to defense and the principles of competition are allowed, which consists in the non-involvement of the defense counsel, the passive participation of the defense counsel, the defense counsel’s support of the prosecution’s position. This indicates a violation of the suspect’s rights to defense and may lead to the appeal of all subsequent decisions.