On the defender's rights in criminal proceedings

The article deals with the problem of ensuring the defendant's (suspect's) right to defense in the court practice of the Altai Territory. The authors propose to create additional guarantees for the implementation of this right by amending the Criminal Procedure Act, so that the bodies and officials conducting criminal proceedings are made responsible for collecting evidence to rebut or mitigate the accusation. The provisions of Article 49 of the Russian Federation Code of Criminal Procedure enshrine the defender's procedural status in the criminal proceedings as that of the person engaged in the defendant's (suspect's) defense in the preliminary investigation and/or trial. The implementation of the rights of the defender and the person involved in the criminal proceedings are stated in the provisions of the relevant parts of Art. 15, 16, 47, 49, 53, and 86 of the Russian Federation Code of Criminal Procedure. The lawyer (defender), unlike their client, is obliged to carry out all the necessary legal actions under the Russian Federation Code of Criminal Procedure to protect the defendant and take an active part in proving the criminal case. It is an active defender's position that helps the investigation or court to establish the circumstances that can rebut the conclusions made by the investigation or mitigate the defendant's responsibility. As a rule, in the course of the investigation, the defender, in accordance with the law, is actively involved in the formulation of questions, additional to those asked by the investigator, submits applications for additional investigatory actions, including the application for the necessary expertise or the formulation of additional (clarifying) questions raised by the investigator for the expert to decide. However, in practice the defender can face the counteraction from the prosecution bodies, the latter demonstrating resistant to the collection and consolidation of evidence that may refute the prosecution. The present procedural law fails to provide the adversarial character in criminal proceedings. In fact, the adversarial principles, stated in Art. 15 of the Russian Federation Code of Criminal Procedure, is still more of a declarative nature. The above-mentioned article does not provide the defender with the right to exercise their rights in the present criminal proceedings, particularly in its pre-trial stages. The problem stems from an imperfect version of Art. 15 and 38 of the Russian Federation Code of Criminal Procedure and from an ambiguous interpretation of the provisions of the Federal Law "On the Russian Federation Prosecutor's Office,while the definitive interpretation would make the prosecutor's office responsible for supervision of by the prosecution (investigation) bodies of the defender's right to collect and procedurally preserve the evidence in support of a person under investigation. It is necessary to provide for such rights, much less to make them equal to those of the prosecution.

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