Defense In Criminal Proceedings Research Articles

DIFFERENCES BETWEEN "SPECIALIST'S OPINION" AND "EXPERT RESEARCH OPINION" IN CASES OF FORENSIC MEDICAL EXAMINATIONS ON A CONTRACTUAL BASIS

The article presents topical issues related to the appointment of forensic medical examinations and research at the request of the defense in criminal proceedings, as well as procedural features of the participation of specialists in expert work at the pre-trial investigation stage. Similarities and differences of subjects using special knowledge, namely specialist and expert, were studied. Ways to improve the participation of specialists in the pre-trial process are proposed.
 Aim of the work. The purpose of the work is to determine the differences between the "Specialist's Opinion" and the "Expert Research Conclusion" in cases of forensic medical examinations on a contractual basis.
 Results. It was established that "Expert's opinion", "Specialist's opinion", "Consultation" cannot correspond to the expert's opinion according to the following criteria: the qualification requirements for persons with special knowledge are different, and the qualification requirements for a specialist at the regulatory level are not defined at all. Similarities and differences of subjects using special knowledge, namely specialist and expert, were studied. Ways to improve the participation of specialists in the pre-trial process are proposed.
 Conclusions. If, in order to obtain a specialist's opinion, all the requirements inherent in an expert's opinion must be followed, then the question arises of the feasibility of obtaining such an opinion, instead of evaluating the evidence in a method proven by practice, namely, conducting a forensic medical examination. "Expert's opinion", "Specialist's opinion", "Consultation" cannot correspond to an expert's opinion according to the following criteria: the qualification requirements for persons with special knowledge are different, and the qualification requirements for a specialist at the regulatory level are not defined at all. It is expedient to amend Article 102 of the Criminal Procedure Code of Ukraine on the procedure for warning an expert about responsibility for a knowingly false conclusion and refusal without valid reasons to perform the duties assigned to him in the case of providing the conclusions of an expert study, on a contractual basis. Article 243 of the Criminal Procedure Code of Ukraine should be supplemented with paragraph 71 of the following content: "A copy of the agreement with the expert institution on conducting the examination, a copy of the receipt for payment of the appointed examination shall be attached to the decision of the investigating judge on the commission of the examination. In Article 71 "Basics of the legislation of Ukraine on health care" it is necessary to introduce a provision on the possibility of conducting a forensic medical examination at the request of the defense party or the victim.We consider it expedient to: 1) create in higher education institutions (medical universities) advisory groups of scientific and pedagogical workers (docents, professors), 2) have them undergo thematic improvement cycles in medical jurisprudence and the basics of forensic medicine.

Criminal Procedural Protection of Human Rights in Conditions of an Armed Conflict

The purpose of the research is to disclose criminal procedural protection (defense) of human rights in conditions of an armed conflict. Interpretation of Article 45 of the Criminal Procedure Code of Ukraine in terms of limiting the constitutional right to choose a defense lawyer has been analyzed. A comparative analysis of current and European legislation in the sphere of access to legal aid is presented. Decisions of the ECtHR in the cases “Brusco v. France”, “Talat Tanci v. Turkey”, “Katz and others v. Ukraine” have been researched. The main issues related to participation of the defense party in criminal proceedings are highlighted. It has been theoretically established that an efficient implementation of the right to defense in criminal proceedings requires the application of the ECtHR practice, which serves as an additional effective mechanism for effective defense of human rights and representation of human interests in criminal proceedings. Scientific approaches to the introduction of a new system of legal aid and defense have been researched. A comparative analysis of current and European legislation in the sphere of access to legal aid is presented. Decisions of the ECtHR in the cases “Brusco v. France”, “Talat Tanci v. Turkey”, “Katz and others v. Ukraine” have been researched. The main issues related to participation of the defense party in criminal proceedings are highlighted. It has been theoretically established that an efficient implementation of the right to defense in criminal proceedings requires the application of the ECtHR practice, which serves as an additional effective mechanism for effective defense of human rights and representation of human interests in criminal proceedings. A conclusion has been drawn on the need to improve Ukrainian legislation in terms of determining the legal status of a defense attorney in criminal proceedings and bringing Ukrainian legislation closer to generally recognized international standards.

Some problems of appointment of expertise by the defense in Criminal Justice of Ukraine

The aim of the work is, based on the analysis of current criminal procedural legislation, special literature, investigative and judicial practice, to identify criminal procedural and organizational problems in the appointment of forensic experts by the defense in criminal proceedings and to formulate proposals for their elimination.
 The methodological basis of the study is based on dialectical method of scientific cognition. Formal- logical, formal-legal, comparative and modeling methods helped the author to identify and try to solve problems of appointment of expertise by the defense in the criminal justice of Ukraine.
 Results. It is noted that according to the current Criminal Procedure Code of Ukraine, parties to criminal proceedings have equal rights to collect and submit to the court things, documents, other evidence, motions, complaints, as well as to exercise other procedural rights provided for by this Code. However, as a study of the investigative and judicial practice shows, the defense party does not always have the opportunity to exercise the right to appoint expert examinations at its own discretion by engaging an expert on contractual terms. It was established that most often the defense side is deprived of the opportunity to obtain the originals of the objects necessary for referral to the disposal of the expert, and, accordingly, it becomes difficult for the defense side to exercise the right to conduct an examination. Therefore, in reality, in practice, the defense side can only apply to the investigator, the prosecutor in accordance with Article 220 of the Criminal Procedure Code of Ukraine with a request to appoint a specific examination. Most often, the defense side is deprived of the opportunity to obtain the originals of the objects necessary for referral to the disposal of the expert, and, accordingly, it becomes difficult for the defense side to exercise the right to conduct an examination. Author thinks that the content of the request of the defense to the investigator, the prosecutor for the involvement of an expert, as well as the procedure for its consideration should be additionally regulated in the Code of Criminal Procedure of Ukraine.
 Conclusions. The author concludes that the procedural rights of the defense party to appoint an expertise declared in the CPC of Ukraine do not fully correspond to the general principles of adversariality of the parties and freedom in providing their evidence to the court and proving their persuasiveness before the court. Therefore, this issue requires further study, generalization, refinement and legal improvement, which must be provided by clearly formed norms that determine the set of rights of the prosecution and the defense in relation to the involvement of an expert to conduct an examination.

Problematic issues of collecting evidence by the defense in criminal proceedings

The genesis, legislative enshrining in the norms of international legislation and the Constitution of Ukraine of the national process regarding the provision and implementation of the right to professional legal assistance in the criminal proceedings of Ukraine, as well as the state of the procedural mechanism for collecting evidence by the defense party, have been studied. The method of comparison has been applied with respect to the previous criminal procedural legislation of 1960 and the current Criminal Procedure Code of Ukraine of 2012 on the issues raised. At the retrospective level, existing problematic issues of the procedural mechanism for collecting and obtaining evidence by the defense at the stage of pre-trial investigation have been investigated. For this purpose, it has been clarified the powers of the defense party, including defense counsel, suspect, accused, convicted, acquitted person, person in respect of whom the use of compulsory medical or educational measures are envisaged or the issue of their use has been decided, as well as person in respect of whom the issue of extradition to a foreign state is to be considered, to collect evidence. At the same time, the scientific positions of scientists and representatives of scientific schools, the results of the existing discussion on the raised problematic and promising issues have been investigated.
 Based on the results of the research, a number of proposals and recommendations for improving theoretical and applied issues in the researched direction have been developed and proposed. Attention has been drawn to the fact that the Criminal Procedure Code of Ukraine enshrines provisions according to which the defense is granted the right to collect factual data significant for criminal proceedings, but at the same time, the procedural form of implementing this right is not fully provided for, which is the subject to legislative clarification. In the course of discussion, the suggestions of the scientists regarding the elimination of the inconsistency between the use and application of the phrase “the right to professional legal assistance”, which is enshrined in the Basic Law of Ukraine, but not implemented and used in the current Criminal Procedure Code of Ukraine and other legislative acts, have been supported. It has been proposed to eliminate the indicated inconsistencies in a legislative manner.

The Right to Defence in Criminal Proceedings: International Law Aspects

The article deals with the right to defence in criminal proceedings in accordance with international law norms. It is proved that ensuring the right to defence is one of the basic principles of criminal justice and is a prerequisite for the achievement of a fair trial. Particular attention is paid to the right to self-defence (defence in person), the right to defence through choosing legal assistance, the right to assigned legal assistance. Attention is drawn to the fact that the right to defence in the international human rights courts and the international criminal courts is based on the same principles, respectively its understanding is the same in these international courts.

Problems of the Realization of the Right of the Suspect or the Accused to Learn about the Composition of the Investigative-Operative Group as the Violation of the Procedural Right to Defense in Criminal Proceedings

The article is devoted to the issue of the realization of the right of the suspect or the accused to know what employees of the preliminary investigation and operative investigation bodies compose the investigative-operative group responsible for the preliminary investigation on the criminal case. It is shown that uses of the criminal procedure legislation of the Russian Federation provide in sufficient regulation of the work of the investigative-operative group in criminal proceeding, the opinions and positions of different scholars regarding the concept and the organizational procedure of investigative-operative groups are presented. The author identifies the priorities regard in the violate on soft he procedural right of the suspect or the accused to protection in criminal proceedings, which are connected with the fact that these participants of criminal proceedings do not have the procedural opportunity to learn about the composition of the investigative-operative group involved in investigative actions and operative search activities on the criminal case. The author also presents some provisions for the improvement of criminal procedure legislation by supplementing the norms which regulate the opportunity, provided for by criminal procedure law, for the suspects and the accused to learn about the composition of the created investigative-operative group.

Exercise of the Right to Defence in Criminal Proceedings during the COVID-19 Pandemic with Particular Reference to the Relation Between the Accused and the Defence Counsel

Abstract The aim of this article is to present the legal solutions adopted in criminal proceedings during the COVID-19 pandemic and their impact on the implementation of the right to defence, focusing, in particular, on the relation between the accused and the defence counsel. During the pandemic, online trials and hearings became widespread and communication with the courts via email developed. Issues of confidentiality between the accused and his/her defence counsel, as well as access of the defence counsel to files, were analysed, particularly in cases related to pretrial detention. The new solutions have been evaluated, possibilities of their use after the end of the pandemic have been indicated and postulates as to the desired directions of changes have been formulated. The issues addressed are relevant today and extremely important in the sphere of public law, as criminal liability is proved during criminal proceedings. In general, it should be assessed positively that the COVID-19 pandemic has become an opportunity to introduce new legal solutions for the modernisation of criminal proceedings. However, some of these regulations do not fully meet the objectives set for them, hindering, through the adoption of specific solutions and practices, the proper implementation of certain key procedural principles, primarily the right to defence.

УЧАСТЬ ЗАХИСНИКА ПІД ЧАС ЗАСТОСУВАННЯ ЗАХОДІВ ЗАБЕЗПЕЧЕННЯ КРИМІНАЛЬНОГО... ПРОВАДЖЕННЯ У ДОСУДОВОМУ РОЗСЛІДУВАННІ КРИМІНАЛЬНИХ ПРАВОПОРУШЕНЬ

Practices of defense counsel’s participation in pre-trial investigation of criminal offenses when applying measures to ensure criminal proceedings. The purpose of the article is to study the problematic issues of defense counsel’s participation in the pre-trial investigation of criminal offenses when applying measures to ensure criminal proceedings and to substantiate scientific proposals for their solution. It is proved that participation of a defense counsel in the pre-trial investigation of criminal offenses during the application of measures to ensure criminal proceedings is one of his/her main powers to implement the criminal procedural function of defense in criminal proceedings. The author emphasizes that the current CPC of Ukraine clearly defines the system of application of measures to ensure criminal proceedings, the grounds and procedure for their application. However, defense counsels, while exercising the defense function in the pre-trial investigation, in practice do not always take into account the specifics of application of each of such measures, do not always properly substantiate their legal position with evidence, and do not fully implement the theoretical developments of criminalists regarding the organization and tactics of defense counsel’s participation in the pre-trial investigation of criminal offenses when applying measures to ensure criminal proceedings. Based on the analysis of the results of the study of criminal proceedings, the author concludes that some defense counsels do not sufficiently substantiate their legal position when applying measures to ensure criminal proceedings with appropriate and sufficient evidence, which objectively does not allow the investigating judge to satisfy the defense counsel’s motion to apply certain measures of ensuring, change or cancel them. The author substantiates the position that in order to fully realize the defense function in the pre-trial investigation of criminal offenses when applying interim measures of criminal proceedings, the institute of attorney’s investigation should be introduced into the current CPC of Ukraine, which has already successfully functioned in various legal models of the world and has proven to be effective and an important tool for strengthening the adversarial principles of criminal proceedings at the pre-trial investigation.

Some problematic aspects of the realization of the right to defense in criminal proceedings

Some problematic aspects of the realization of the right to defense in criminal proceedings

Suspect’s access to a lawyer at an early stage of criminal proceedings in view the case-law of the European Court of Human Rights

Access to a lawyer at the pre-trial stage of proceedings is an essential component of the right to defense in criminal proceedings and the right to a fair trial. Access to a lawyer enables the accused to make a good decision for his her defence. At present, there is no doubt that prompt access to a lawyer constitutes an important counterweight to the vulnerability of suspects in police custody, ensures equality of arms and provides a fundamental safeguard against coercion. This study analyses a suspect’s right to access to a lawyer at the initial stage of criminal proceedings in the case law of the European Court of Human Rights. The first part of the article provides an analysis of the understanding of the right to a lawyer at the pre-trial stage as applied by the ECtHR prior to the Salduz case. This period in the ECtHR’s case law was characterized by a lack of precision as to the temporal limits of the right laid down in Article 6 § 3 (c) of the ECHR. The next part shows the changes brought about by the judgment in the Salduz case regarding the protection of suspects and ensuring their right to counsel. It is argued that the Salduz doctrine not only covered the suspect’s access to a lawyer at the initial stage of the pre-trial proceedings, but also stressed the obligation to inform the suspect of his or her rights, including the right to remain silent. An important element of the Salduz doctrine was the possibility to eliminate evidence obtained during an interrogation conducted at an early stage of the pre-trial proceedings in the absence of a defense counsel. Further, the paper argues that the standard set out in the judgment in the Salduz v. Turkey case was confirmed in a number of rulings. The fourth part of the paper draws attention to the erosion of the Salduz standard that occurred with the judgment in the Ibrahim and Others v. the UK case. The article also brings into focus recent judgments of the ECtHR which have reinforced the view expressed in the Ibrahim and Others v. the UK case concerning a test of fairness of a trial as whole. It is underlined in the conclusions that recent ECtHR’s case law does not provide any cause for optimism regarding legal assistance at an early stage of criminal proceedings.

The criminal responsibility for defamation of knowingly innocent

The scientific article analyzes the acute discussion in law enforcement practice and procedural science of the problem of the possibility of criminal prosecution of a suspect, accused of defaming a knowingly innocent person in the commission of a crime. The theoretical basis of the article are scientific works on criminal law and criminal procedural law (both domestic researchers and foreign experts). A set of general scientific, special scientific and philosophical methods of scientific knowledge has been used while preparing the scientific article, in particular dialectical, historical, comparative, dogmatic (formal-logical), system-structural analysis, modeling. It is substantiated in the article that the behavior of the suspect, accused, which is manifested in slandering of a knowingly innocent person, does not constitute the right to freedom from self-disclosure. It is also proved that both freedom from self-disclosure and the right to defense in criminal proceedings must have certain limits, in particular, it is rights and interests of other subjects protected by criminal law. We stated that the suspect or accused should be liable for misleading the court and pre-trial investigation bodies even if such deception was used to protect against the suspicion (or accusation), to avoid criminal liability.

Ensuring the Right of a Person Placed in a Psychiatric Care Hospital to Defense in Criminal Proceedings

The involvement of persons suffering from mental disorders into criminal court proceedings requires additional procedural guarantees of ensuring their rights. The procedural status of a person involved in proceedings regarding the application of compulsory medical treatment is not sufficiently well-defined in Russian criminal procedure. Such a normative construct makes it harder for this person to exercise their right to defense. The author examines some problems of ensuring a right to defense when making a decision on placing a mentally ill person in a psychiatric care facility. Based on a systemic analysis of current criminal procedure norms and international law standards of ensuring a just and fair court hearing in the category of criminal cases under consideration, the author presents ideas on improving the criminal procedure law and the practice of its enforcement. It is suggested that a special norm of procedural compulsion consisting in the forceful placement of a person in a psychiatric care hospital should be incorporated in law.

Ensuring the right to protection at the stage of appeal proceedings in criminal case: problems of theory and practice

Introduction. The right of the accused to a defense in criminal proceedings is a prerequisite for the effective administration of justice, since it minimizes possible errors in the final decision in a case, which may result in the conviction of innocent persons, which contradicts the purpose of criminal proceedings and undermines citizens confidence in the judicial system.
 The purpose of the article is to identify systemic problems that impede the effective implementation of the right to defense at the stage of appeal, as well as to suggest ways to resolve them.
 
 
 
 
 Main results. The authors come to the conclusion that the structural and logical elements of ensuring the right of the accused to a defense at the stage of appeal proceedings in a criminal case are: subjects defending the accused; duties of a defense lawyer to exercise the right of the accused to defense at the stage of appeal proceedings in the case; subjects who, in accordance with the requirements of the criminal procedure law, are obliged to ensure the right of the accused to defense; the duties of the courts of first and appellate instances imposed on them by the criminal procedure law, corresponding to the rights of the accused, his defense lawyer and legal representative and forming in their totality a system of interim measures necessary for the realization of the accuseds right to defense; the powers of the accused, his defense counsel and legal representative, through which the constitutional right to defense is exercised; guarantees of the accuseds right to defense. The only ground for limiting the right to defense is abuse of the right by the defense. The fact of abuse of the right can only be established by the court, the abuse of the right cannot be evidenced exclusively by the external expression of the actions of participants in the process. The question of the presence or absence of abuse of the right to defense should be decided by the court on the basis of the totality of factual circumstances and procedural features of each individual situation. The system of powers that make up the content of the defendants right to defense at the stage of appeal proceedings in the case consists of two interrelated elements, including powers exercised at the stage of filing an appeal and before the start of the court session of the court of appeal, as well as the powers that the defense side has directly in consideration of a criminal case in a court session of the court of appeal.
 
 
 
 
 Conclusion. Thus, the effective provision of the right to defense at the stage of appeal proceedings requires a change in approaches on the part of legislator and law enforcement officers.

CRITERIA FOR RECOGNIZING THE EFFECTIVENESS / INEFFECTIVENESS OF PROVIDING LEGAL ASSISTANCE IN CRIMINAL PROCEEDINGS ACCORDING TO THE JUDICIAL PRACTICE OF THE SUPREME COURT

The article is devoted to the problems of practical implementation of the guaranteed right to defense in criminal proceedings. In particular, it emphasizes the relevance of the issue of the effectiveness of legal assistance, and thus the quality of such assistance in criminal proceedings. To study this issue, a comparative method of legal research was used, since empirical data from international judicial practice were used; as well as a scientific and practical method that provides for the processing of data from domestic judicial practice with subsequent analytical and generalizing processing of the selected examples of legal situations. The publication states the sufficiency of regulatory guarantees for the provision of legal assistance in criminal proceedings, which is declared by international documents and implemented in the national legal system at the level of general and sectoral legislation. First of all, the study considers the recommendations of the European Court of Human Rights on the content of Legal Aid and indicates the vectors of understanding its quality and effectiveness, formulatedin numerous decisions of this international judicial institution, which is considered wellestablished international judicial practice. Theoretical aspects of determining the effectiveness of legal assistance in criminal proceedings are also presented, as well as retrospective and modern understanding. Further, the criteria of this concept are summarized, and subsequently, attention is focused on domestic judicial practice, in particular the Criminal Cassation Court as part of the Supreme Court, as the highest court that ensures the unity of judicial practice. Based on this, criteria for the effectiveness of legal assistance were also generated, guided by specific examples from typical criminal proceedings. At the same time, legal situations are considered in practice, when legal assistance was recognized as ineffective, as well as cases of refutation of false allegations of the parties to criminal proceedings regarding the inadequate quality of legal assistance at various stages of criminal proceedings. As a result, within the scope of current judicial practice, an indicative list of criteria that can be used to determine the quality of legal

Гарантии независимости при осуществлении защиты в уголовном процессе

The article is devoted to the issues of the institution of independence in the implementation of defense in criminal proceedings. On the basis of general laws of activity, the goals and objectives of a lawyer are formulated in criminal proceedings. Participants in criminal proceedings, in accordance with their sense of justice, interpret the legislative goals depending on the specific legal situation. Today, the development of the legal profession is the center of large-scale reforms carried out in the judicial system. In particular, significant work is being carried out to strengthen the role and significance of the legal profession as one of the effective institutions for the protection of the rights, freedoms and legal interests of individuals and legal entities. Particular attention is paid to the development of this area in a number of normative legal acts adopted in recent years, as well as in the form of new legislative acts being developed today.

The essence and goals of the defense in the criminal procedure

The article investigates questions about the essence of criminal defense, its goals and properties. The authors note that, for all its specifi city, criminal procedural protection has a number of properties inherent in any type of defensive activity, but at the same time its independence is the defi ning property of protection in criminal procedure. The article is devoted to the problems of scientifi c and legislative refl ection of the defense in the criminal procedure. Comparing the history of legal regulation of the defense in criminal proceedings in various European states, the authors come to the conclusion on the lack of the consistent and structural approach in those legislative attempts. At the same time, the article tries to classify scientifi c approaches to the goals and properties of the criminal defense. Based on the analysis of the current legislation, as well as literature, fi ve fundamental properties of the criminal defense (independence, aleatory, proficiency, sub legislative character, efficiency) are identified.

Ensuring The Right of The Suspect And The Accused For Defense

Authors study the issues of providing the suspect and the accused with the right for defense in criminal proceedings through the prism of the provisions enshrined in international normative legal acts and the Constitution of the Russian Federation. The relevance of this article is substantiated by the authors by the fact that the consideration of the problems of the procedural status of the suspect and the accused in the criminal case should start with this basic provision of the principle of criminal proceedings, such as ensuring the right for protection to the suspect and the accused under article 16 of the Criminal Procedure Code of the Russian Federation. In the context of the modern legal state and the requirements of the Constitution of the Russian Federation, which establishes the basic rights and freedoms of the person and the citizen. The solution to this problem becomes extremely important in the field of criminal justice, which is inevitably associated with the restriction of the constitutional rights of the individual within the limits allowed by law. In this regard, the problems of ensuring the right of the suspect and the accused to a defense require special attention. Based on the results obtained, the authors conclude that compliance with the guarantees of the right to defense of suspects and accused persons has a significant impact on the domestic and foreign policy image of the Russian Federation, being directly proportional to the legal insinuations of international organizations and attempts to influence the Russian legal system.

Improving the Tactics of the Prosecution and Defense during Temporary Access to Things and Documents

The article contains the main recommendations for improving the activities of the prosecution and the defense in criminal proceedings during the security measure – temporary access to things and documents. During the investigation, the prosecutor, investigator, in almost every proceeding there is a need to seize any media evidence of the crime. In turn, defenders are also increasingly using their powers to provide temporary access to things and documents. The practice of applying this measure to ensure criminal proceedings shows a large number of mistakes made by the parties to the criminal proceedings, as a result of which this measure is not carried out, the court refuses to make a decision and, accordingly, the goal is not achieved. The purpose of the article is to improve the quality of temporary access to things and documents by the parties to criminal proceedings, to obtain a positive practice of court decisions on its conduct and to obtain results to ensure the tasks of criminal proceedings. Methodology. To achieve this goal, the formal-logical method, system-structural, comparative-legal and statistical methods are used. Scientific novelty. A comparison of procedural and tactical capabilities of different parties in the field of criminal proceedings – prosecution and defense. The characteristic mistakes made by them in carrying out their activities during temporary access to things and documents are highlighted. In view of this, proposals have been made to improve both the general tactics inherent in both sides of the process and specific tactical and procedural actions and techniques specific to each individual. Conclusions. A number of recommendations have been received for prosecutors, investigators and lawyers whose purpose is to improve the quality of activities of the parties to criminal proceedings during temporary access to things and documents

ON THE ROLE OF THE STATE IN ENSURING EFFECTIVE DEFENSE IN CRIMINAL PROCEEDINGS FOR THE PURPOSES OF THE PRACTICE OF THE EUROPEAN COURT OF HUMAN RIGHTS

The article presents the issues on ensuring effective defense in criminal proceedings. Analysis of international legal documents, generalization of the practice of the European Court of Human Rights give grounds to divide international legal standards, that have been formed to facilitate the enforcement of the right to defense, into the following groups: 1) standards designed to facilitate the effectiveness of the defense by the accused him- or herself; 2) standards facilitating effective defense by the defense counsel; 3) standards, the adoption of which contributes to the effective defense maintained by the defense (when the defense is conducted jointly by the accused and the defense counsel) 4) standards that contain requirements for the state or its bodies and compel them to ensure the possibility of effective defense. The latter group of standards is important among others because the conduct of defense seems impossible without imposing certain requirements on the state and its bodies, and fixed guarantees of effective defense will turn into a declaration. The study of the case law of the European Court of Human Rights on maintaining effective defense in criminal proceedings allows us to state the lack of unity in its legal positions, since the issue of the effectiveness of ensuring the human right to defense in criminal proceedings depends on the specific circumstances of the case. The court notes that, on the one hand, the state can only intervene in the activities of defense counsel within the limits of public interests, given the independent nature of the legal profession. On the other hand, it cannot stand aside in the event of the discovery of violations of the standards for the conduct of defense in criminal proceedings, which assigns it a special role in maintaining effective defense for the suspect, the accused in criminal proceedings. Based on the analysis of the decisions of the European Court of Human Rights, standards are identified that contain requirements for the state or its bodies and compel them to ensure the possibility of effective defense: 1) the obligation of the state to conduct real (not illusionary or formal) defense for the suspect, the accused, since the appointment of a defense counsel does not ensure maintaining effective legal services; 2) the obligation to provide the defense team with the time and opportunity to conduct effective defense.

Challenging a Community Protection Notice: A Defence in Criminal Proceedings for Its Breach? Stannard v CPS [2019] EWHC 84 (Admin)

Challenging a Community Protection Notice: A Defence in Criminal Proceedings for Its Breach? <i>Stannard v CPS</i> [2019] EWHC 84 (Admin)