THE POSITION OF THE DEFENSE COUNSEL AND THE CONFIDANT — IS THE DISCREPANCY ADMISSIBLE?

Abstract

The article is devoted to theoretical issues and practice of expressing the inconsistency of defense positions among the participants of criminal proceedings represented by the lawyer and the accused (defendant), at various stages of criminal proceedings, which entails the violation of the right to defense and the limits of the trial as a whole. The manifestation of the lack of agreement in the positions of the defense counsel and the defendant is most often a different interpretation of the factual circumstances (the charge), which is reflected in a change in the qualification of the act committed by the accused (defendant), often leading to the worsening of the situation of the latter. The study considers situations of possible discordance of positions of the defender and his client, leading actually to violation of the right to defense, presented the approach of judicial instances to respond to such significant violations of criminal — procedural law on the part of the defense, both at the trial stage and during the consideration of motions of preliminary investigation bodies in accordance with Article 108 of the Criminal Procedural Code of the Russian Federation, actually in these cases indicating the refusal of the lawyer — defender from the assumed defense and implementation of the right to defense