On the right of the accused to defend themselves against criminal prosecution and its restrictions

The purpose of this publication is to identify the components of ensuring the right of every accused to defend themselves against criminal prosecution and the limits of its restrictions. The analysis of provisions of criminal procedure law has allowed the authors to conclude that the right of the accused to defend him and the right to defend himself with the help of the elected counsel for the defence are autonomous rights. Meanwhile, the right to defend oneself through the elected counsel for the defence does not eliminate the right to defend oneself in person. The analysis of provisions of criminal procedure law, decisions of the Supreme Court, the Constitutional Court of the Russian Federation, the European Court of human rights has led to the conclusion that important components of ensuring the right to defend oneself in person are the explanation of rights and duties. Attention is drawn to the fact that information on the rights must be sufficient to ensure that a person charged with a crime had a real chance to choose a way to defend himself. The rights have to be explained prior to the implementation, or at the very beginning of implementation of actions aimed at the identification of persons involved in the commission of crime. The refusal to protect oneself with the assistance of a counsel for defence is an expression of personal freedom. The analysis of the law of criminal procedure and practice of its application enabled us to conclude that such freedom of disposal of right may be restricted in the interests of justice, for the purpose of providing additional safeguards for its protection and to promotion of the practice when investigators (inquiry officers) use this rule in favour of preliminary investigation, warning, thus, about the possibility of abusing the right and this, in its turn, in certain situations leads to violation of the right to qualified legal aid. The second component of ensuring the right to defend oneself personally is familiarization with the criminal case materials. It is lawful to restrict the accused in familiarization with the criminal case materials until the end of preliminary investigation except the cases provided by the law and this can be explained by the secrecy of the preliminary investigation. The authors concluded that the right to defend oneself in person will be real, if copies of documents specified in the law are handed to the accused in due time so that he could take actions and make decisions aimed at his protection. The third component of ensuring the right to defend oneself in person is the motivation of procedural decisions made by the official who is conducting preliminary investigation. It is noted in conclusion that the right of the defendant to defend himself in person in criminal trial is not absolute and can be limited in public interests, for the benefit of justice, and also for providing additional guarantees for its protection. At the same time, particularly important is the balance of both private and public interests.

Keywords

Authors

References