On restricting of the defendant's (suspect's) right to defense in criminal proceedings

The article dwells on restricting the defendant's (suspect's) right to defense. The author assumes that the right of the individual to be defended in the criminal proceedings is not absolute and may be restricted in the public interest. It is noted that it is essential to observe the balance between private and public interests. The author proposes measures aimed at improving the mechanism to ensure the right to defense considering both private and public interests. The individual's right to defense in criminal proceedings is not absolute and may be restricted in the public interest, in the interests of justice. It is important to observe the balance between private and public interests at that. The present criminal procedure legislation provides for the right of people in relation to whom public authorities and officials carry out the actions aimed at accusing them of committing a crime to defend themselves by all means and ways not prohibited by law. In order to exercise the right to defense, people accused (suspected) of committing a crime, shall be informed by public bodies and officials of their rights, duties and responsibilities, including the right to defend themselves in person or through legal counsel, since the initial stages of the crime investigation. The information about rights shall be sufficient for the people accused (suspected) of committing a crime to have a real possibility to defend themselves in person or through legal counsel. For the right to defense through legal counsel to be exercised since the moment set forth in the law, the person shall be notified in advance, before the commencement or at the very beginning of the criminal proceedings, with the beginning of the proceedings postponed until the defense counsel selected by the person or appointed to them, which shall be provided by law. However, the moment of the criminal proceedings when the person should be informed of their right to defend themselves through the legal counsel, for which they are to take the necessary measures, is not clearly stated by the law. For example, the counsel for the defense is entitled to participate in the case from the moment of actual detention of a person suspected of committing a crime, if the case fits under Articles 91 and 92 of the Russian Federation Code of Criminal Procedure and when a preventive measure in the form of detention is applied to the detainee in accordance with Article 100 of the Russian Federation Code of Criminal Procedure. In accordance with Part 1.1 Article 92 of the Russian Federation Code of Criminal Procedure introduced by Federal Law № 437-FZ of December 30, 2015, if the counsel for the defense is involved in the criminal proceedings from the moment of actual detention of the suspect, their participation in executing the detention protocol is mandatory.

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