The ways to improve the participation of the attorney in the preliminary investigation

According to the Russian law the counsel for the accused (for the suspect) can participate in the criminal case at the early stages of proceedings and is vested with broad rights. The Code of Criminal Procedure of the Russian Federation treats counsel for the defense among the subjects of evidence collection (Part 3 of Article 86 of the Code of Criminal Procedure) and gives them the opportunity to perform cognitive activity (to interview people with their consent, to involve experts). However, despite the significant changes in the legislation, the situation in practice has hardly changed. The pre-trial proceedings in fact has not become adversarial, and the participation of the defense counsel in criminal proceedings is ineffective, according to the statistics of acquittals. The reasons for the low activity of defense counsels are multifaceted, which requires a comprehensive solution. One of the reasons for the low activity of the defense during the preliminary investigation is the imperfect legislation, particularly the declarative nature of the rights granted to the defense. In recent decades there has been a tendency to expand the rights of the accused (suspect) and the defense counsel; however the new law is not implemented in practice. There are two major problems associated with the implementation of the rights of the defense counsel to gather evidence. The first problem is the difficulty in obtaining information necessary to defend the accused. The second problem concerns transformation of the information obtained by the counsel into the evidence. Another reason for not using the rights granted to the counsel for the defense at the stage of preliminary investigation is of an economic nature. In Russia, the large proportion of criminal cases in which defenders are involved as intended. Meanwhile, the current legislation does not provide for the payment for such important actions of the defense counsel as the compilation of petitions, complaints and other legal documents, etc. Such rights of the defense counsel as the involvement of experts, photocopying materials of the criminal case are not available for poor defendants. The third reason that affects the efficient participation of the defense counsel in criminal proceedings is the lack of training on the part of defense counsels. Over the last decade the criminal proceedings has been radically reformed. It is obvious that the lawyers, prosecutors, investigators turned to be not ready for the adversarial principle in the criminal process. The appropriate skills of debate, argumentation and conflict resolution are to be fostered at the university. It seems that only a comprehensive resolution of the above stated issues can help revitalize the defense counsels and increase the effectiveness of their participation in criminal proceedings. Otherwise, the adversarial principle, the right for the defense and the principle of equality before the law and courts will remain declarative.

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