Few more words about the violation of the right of the accused to use the help of a lawyer

Markova Tatiana PhD in Law Associate Professor of the Department of Criminal Procedure Law of the Moscow State Law University named after O.E. Kutafin (MSUA) 125993, Russia, Moscow, Sadovaya Kudrinskaya str., 9 markovat@bk.ru Other publications by this author

The Constitution of the Russian Federation establishes the basic principle of building all forms of legal proceedings – adversarial and equal rights of the parties (Part 3 of Article 123). In development of this constitutional provision, Article 15 of the Criminal Procedure Code of the Russian Federation establishes that criminal proceedings are conducted on the basis of adversarial proceedings between the parties. The functions of prosecution, defense and resolution of a criminal case are separate from each other and cannot be assigned to the same body or the same official. It follows from section II of the CPC of the Russian Federation that the procedural function of protection in criminal proceedings is performed by participants on the part of the defense, including the defender.

In accordance with Part 1 of Article 49 of the CPC of the Russian Federation, a defender is a person who, in accordance with the procedure established by the CPC of the Russian Federation, protects the rights and interests of suspects and accused and provides them with legal assistance in criminal proceedings. Formally, the suspect and the accused have the right to use the help of a defender from the moment of their first appearance in a criminal case in this capacity (for example, from the moment of initiation of a criminal case against a particular person – Part 3 of Article 49 of the Code of Criminal Procedure of the Russian Federation). However, according to the legal positions of the Constitutional Court of the Russian Federation, the constitutional right to use the help of a defender arises for a particular person from the moment when the restriction of his rights becomes real, since the Constitution of the Russian Federation does not link the provision of assistance to a defender with the formal recognition of a person as a suspect or accused, and therefore with the moment when the body of inquiry, investigation or prosecutor's office accepts any a special procedural act (Resolution of the Constitutional Court of the Russian Federation dated 06/27/2000 No. 11-P "On the case of checking the constitutionality of the provisions of Part one of Article 47 and Part Two of Article 51 of the Criminal Procedure Code of the RSFSR in connection with the complaint of citizen V.I. Maslov"). This means that any person against whom criminal prosecution is being carried out has the right to use the help of a qualified specialist, who is allowed to participate in a criminal case as a defender, in order to protect himself from prosecution, as well as his rights and freedoms.

The suspect and the accused have the right to use the help of a defender during the entire criminal proceedings. Paragraph 6, part 3 of Article 49 of the Code of Criminal Procedure provides for the participation of a defender at the stage of initiation of a criminal case from the moment of commencement of procedural actions affecting the rights and freedoms of the person against whom the verification of a crime report is carried out in accordance with Article 144 of the Code of Criminal Procedure (paragraph 6 part 3 of Article 49 of the Code of Criminal Procedure of the Russian Federation). At the same time, the Constitution of the Russian Federation (Part 2 of Article 48) defines the initial, but not the final moment when the accused exercises the right to the assistance of a defender, and therefore this right must be ensured to him at all stages of the criminal process, including during proceedings in a supervisory authority. By itself, the transition from one procedural stage to another cannot entail a restriction of the right to defense; this right cannot be made dependent on the discretion of the official or body in whose proceedings the criminal case is (Ruling of the Constitutional Court of the Russian Federation dated 06/24/2008 No. 453-O-O "On refusal to accept to consider the complaint of citizen Alexey Vasilyevich Prokhorov for violation of his constitutional rights by the provisions of part two of Article 49 and part one of Article 402 of the Criminal Procedure Code of the Russian Federation").

The activity of the defender in criminal proceedings consists in refuting the suspicion or accusation put forward against the person represented by him, searching and presenting to the inquirer, investigator or court information justifying the suspect, the accused, establishing circumstances that exclude criminality and punishability of the act, may entail the release of the principal from criminal liability and punishment or mitigate possible punishment. At the same time, the defender-lawyer is obliged to honestly, reasonably and in good faith defend the rights and legitimate interests of the principal by all means not prohibited by the legislation of the Russian Federation (sub-item 1, paragraph 1, Article 7 of the Federal Law of 05/31/2002 No. 63-FZ "On Advocacy and Advocacy in the Russian Federation"). Improper performance by a defender of his professional duties deprives suspects and accused persons of qualified legal assistance guaranteed by law and entails violation of their rights to defense both at the preliminary investigation and in court (Ruling of the Supreme Court of the Russian Federation dated 10/20/2010 No. 20-D10-12).

The right of the suspect and the accused to the assistance of a defender is considered as their basic inalienable right, on the full realization of which depends the possibility of exercising other rights (for example, the right to file petitions and complaints, present evidence, participate in the trial of a criminal case in the courts of the first, second, cassation and supervisory instances, etc.). That is why consideration of a criminal case without the participation of a defender, when his participation is mandatory in accordance with the Code of Criminal Procedure of the Russian Federation, or with another violation of the right of the accused to use the help of a defender, is considered as a violation of the criminal procedure law, which entails the cancellation of a court decision (paragraph 4, part 2 of Article 389.17 of the Code of Criminal Procedure of the Russian Federation).

It should be noted that the violation of the right of the suspect and the accused to the assistance of a defender is recognized as a significant violation of the law not only in the Russian Federation. Thus, according to paragraph 4 of part 2 of Article 391 of the CPC of the Republic of Belarus, the sentence is subject to cancellation in any case if the criminal case is considered without the participation of a defender in cases where his participation is required by law. In accordance with paragraph 4, part 3 of Article 436 of the Code of Criminal Procedure of the Republic of Kazakhstan, the sentence and the decision are subject to cancellation in any case if the case was considered in court without the participation of a defender, when their participation is legally mandatory, or the defendant's right to defense was violated in another way. Similar provisions are contained in paragraph 4, Part 3 of Article 398 of the CPC of the Republic of Armenia; paragraph 416.1.18 of Article 416 of the CPC of the Republic of Azerbaijan; paragraph 8 of Article 497.22 of the CPC of the Republic of Uzbekistan, etc.

An analysis of the provisions of paragraph 4, part 2 of Article 389.17 of the Code of Criminal Procedure of the Russian Federation allows us to draw the following conclusions:

1) the legislator considers the violation of the right of the suspect and the accused to the assistance of a defender to be so-called unconditional violations of the criminal procedure law. Unconditional violations are always recognized as significant, affecting the outcome of the case, and in any case entail the cancellation of the verdict or other final decision.

2) this provision includes two independent grounds for revoking the decision: consideration of a criminal case without the participation of a defender, when his participation is mandatory in accordance with the CPC; another violation of the right of the accused to use the help of a defender.

The first reason is quite understandable and its application should not cause difficulties.  Cases of charming participation of the defender are defined by Part 1 of Article 51 of the Criminal Procedure Code of the Russian Federation. According to Part 3 of Article 16 of the Criminal Procedure Code of the Russian Federation, when a suspect or accused cannot invite a defender themselves, the mandatory participation of a defender is ensured by officials conducting criminal proceedings. This norm is of a guarantee nature and is aimed at ensuring the constitutional rights of citizens in the field of criminal proceedings (Ruling of the Constitutional Court of the Russian Federation dated 09/29/2020 No. 1987-O "On refusal to accept for consideration the complaint of citizen Ageev Vitaly Gennadievich for violation of his constitutional rights by part three of Article 16, paragraphs 1 and 5 of Part One and Part Three of Article 51, paragraph 4 of Part two of Article 389.17 of the Criminal Procedure Code of the Russian Federation"). However, the second reason does not carry such certainty.

3) there is no exhaustive list of violations of the right of the accused to use the help of a defender in the legislation. The legislator used the phrase "other violations" in the formulation of the grounds, thereby pointing out the possible variety of these violations, which are quite difficult to predict in advance and register in the Criminal Procedure Code of the Russian Federation in full.

4) the application of the grounds for the cancellation of the sentence "other violations" largely depends on the discretion of the law enforcement officer (in this case, the court of appeal). This conclusion follows directly from the previous one. Since there is no closed list of violations in the Code of Criminal Procedure of the Russian Federation, the identification of such violations is entrusted to the court of appeal. The only criterion that the legislator has defined is that other violations should be related to the defendant's right to use the help of a defender.

When considering paragraph 4 of Part 2 of Article 389.17 of the Criminal Procedure Code of the Russian Federation as grounds for revoking a court decision, it is necessary to focus on two more aspects:

1. Within the meaning of Part 2 of Article 389.24 of the Code of Criminal Procedure, the cancellation of an acquittal based on a violation of the defendant's right to defense is not allowed. In accordance with Part 3 of Article 389.26 of the Criminal Procedure Code of the Russian Federation, an acquittal may be changed for these reasons only in part concerning the grounds for acquittal, upon the complaint of the acquitted person, his defender, legal representative and (or) representative (Resolution of the Plenum of the Supreme Court of the Russian Federation dated 30.06.2015 No. 29 "On the practice of Courts applying legislation ensuring the right to protection in criminal proceedings"). One of the components of the right of the suspect and the accused to defense is the right to use the help of a defender in criminal proceedings. Therefore, from the above provision of the Plenum of the Supreme Court of the Russian Federation, it can be concluded that the application of paragraph 4 of Part 2 of Article 389.17 of the Code of Criminal Procedure for the cancellation of acquittals is not allowed.

2. Consideration of a criminal case without the participation of a defender, when his participation is mandatory in accordance with the CPC, or with other violation of the right of the accused to use the help of a defender, is the basis for both cancellation and modification of the court decision. At the same time, the Plenum of the Supreme Court of the Russian Federation directs the courts of appeal to the fact that the verification of appeals and (or) representation of the legality, validity and fairness of a verdict or other court decisions should be aimed primarily at eliminating violations and considering the criminal case on the merits with the final court decision (except in cases where provided for in Part 1 of Article 389.22 of the Code of Criminal Procedure of the Russian Federation). This should be done in cases where violations of the criminal procedure law can be eliminated in the court of appeal.

If the court of appeal overturns the verdict or other decision of the court of first instance and transfers the case to a new trial or returns the criminal case to the prosecutor, then he must indicate the reasons why the court of appeal cannot eliminate the violation. This is allowed in the presence of such significant violations of the criminal procedure law that cannot be eliminated by the court of appeal, for example, in cases of consideration of the case by an illegal composition of the court or in violation of the rules of jurisdiction (Resolution of the Plenum of the Supreme Court of the Russian Federation dated 11/27/2012 No. 26 "On the application of the Norms of the Criminal Procedure Code of the Russian Federation Governing the proceedings in the court of appeal").   

The Plenum of the Supreme Court of the Russian Federation does not consider the grounds provided for in paragraph 4, Part 2 of Article 389.17 of the CPC of the Russian Federation separately. But it affects violations of the right of the accused to a defense, part of which are violations of the right to use the help of a defender. It follows from the explanations of the Plenum that he divides violations of the accused's right to defense into those that can and cannot be made up by the court of appeal, without specifying what specifically applies to each of the groups of violations and which group includes the consideration of a criminal case without the participation of a defender, when his participation is mandatory in accordance with the CPC, or with other violation of the right of the accused to use the help of a lawyer.

In the legal literature, paragraph 4 of Part 2 of Article 389.17 of the CPC of the Russian Federation is included in the list of fundamental (irremediable) violations of the criminal procedure law, on the basis of which it is possible to cancel a court decision and return a criminal case to the court of first instance, since the court of appeal cannot eliminate violations in every criminal case provided for in paragraph 4 of part 2 of Article 389.17 The Code of Criminal Procedure of the Russian Federation ^[1]. According to A.V. Kudryavtseva and V.P. Smirnov, for example, the consideration by the court of first instance of a criminal case against a minor without a defender (lawyer) should entail the cancellation of the verdict and the referral of the criminal case for a new trial to the court of first instance, since in such cases not only the verdict, but also the entire activity of the court of first instance according to the consideration of the criminal case, the examination of evidence is initially clearly illegal. In such circumstances, there are, in principle, no grounds for verifying evidence in the court of appeal ^[2].

The position of A.V. Kudryavtseva and V.P. Smirnov certainly deserves support, but the position of G.Ya. Borisevich raises certain doubts. Of course, the proceedings in the court of appeal are similar in many criteria to the procedure for considering criminal cases by the court of first instance. However, there are certain differences. In the court of first instance, the first evidence is always presented by the prosecution so that the defense side can challenge them in ways not prohibited by the CPC of the Russian Federation. But in the court of appeal, the first party to present evidence is the party that appealed the court decision (in order to substantiate the arguments that were set out in the appeal or appeal submission). And if this is the defense side (which most often happens when the defendant's right to use the help of a defender is violated), then in such a situation she is deprived of the opportunity to present evidence to the latter, after the prosecution, that is, she loses her advantage guaranteed in the court of first instance. Compensate (replenish) the court of appeal is unlikely to be able to deprive the defense of such deprivation, since the procedure for judicial investigation is established by the CPC of the Russian Federation and cannot be changed by the court itself. Therefore, contrary to the opinion expressed in the literature, even a full consideration of the case on the merits by the court of appeal will not be able to restore the defendant's right to use the help of a defender ^[3].

In addition, each accused should be guaranteed the right to have his case heard by at least two ordinary judicial instances (first and appellate), and in each of these instances the accused should be able to fully defend himself against the charges, including with the help of a lawyer chosen by him or appointed by him, who provides qualified legal assistance to the accused. If the court of appeal, in violation of the defendant's right to use the help of a defender in the court of first instance, does not send the case to a new trial, but independently makes up for the violation, it thereby deprives the defendant of the opportunity to exercise proper protection in two judicial instances. The defendant receives the right to exercise protection only in the court of appeal, and in conditions that are different (one might say worse) from those established in the court of first instance. This can also be considered a violation of the right to protection, as well as the principle of equality of all before the law and the court.

In connection with the above, the consideration of a criminal case without the participation of a defender, when his participation is mandatory in accordance with the CPC, or with another violation of the right of the accused to use the help of a defender, should always be considered as a significant violation of the criminal procedure law, which entails the cancellation of the decision and the referral of the criminal case to a new trial in the court of first instance instances.

If we turn to judicial practice, we can see a variety of cases that have been recognized by higher courts as a violation of the right of the accused to use the help of a defender. Thus, in one of the Rulings of the Supreme Court of the Russian Federation, it was stated that the minutes of the court session did not contain data on whether the defenders were present in court or not and whether the defendants agreed to consider the case in the absence of lawyers. In addition, there was no record in the protocol that the court decided to consider the case in the absence of defenders. Moreover, it was impossible to establish from the receipt of the accused's refusal of defenders available in the case materials when and under what circumstances it was drawn up. In this regard, the Supreme Court of the Russian Federation concluded that the court of first instance, when considering the case, did not really provide the convicted with defenders when their participation was mandatory, and this violation of the criminal procedure law is significant and entails the cancellation of the sentence (Definition of the Judicial Board for Criminal Cases of the Supreme Court of the Russian Federation dated 01/31/1995). The conclusion was also reached by the Krasnoyarsk Regional Court in the Leshchenko case, in respect of which there was a court hearing without the participation of a defender. In the criminal case, there was no information about the summoning of the defender to the court session, as well as about the reasons for his absence. Leshchenko's statement on the refusal of a defender, whose real participation was not actually ensured, was not considered by the court (Resolution of the Presidium of the Krasnoyarsk Regional Court dated 01/22/1996).

In addition to the above cases, the following cases were also the basis for the cancellation of court decisions:

- participation in the court session as a defender of the accused lawyer, whose position did not coincide with the position of his client (Review of judicial practice of the Supreme Court of the Russian Federation for the fourth quarter of 2011; Appeal ruling of the Supreme Court of the Udmurt Republic dated April 19, 2016 in case No. 22-823/2016; Appeal ruling of the Moscow City Court dated March 5, 2019 G. in case No. 10-1397/2019);

- the lawyer's actual evasion from defending the defendant, that is, from exercising his professional duties, throughout the proceedings (Appeal ruling of the Moscow Regional Court of May 28, 2015 in case No. 22-3312/2015);

- the implementation of improper protection, expressed in the fact that the lawyer in the debate asked to qualify the actions of the defendant under the article, the sanction of which provided for a punishment greater than the sanction of the article under which the defendant was accused (Appeal ruling of the St. Petersburg City Court of June 30, 2014 No. 22-4546/2014 in case No. 1-258/2014);

- the absence of data in the minutes of court sessions that the court discussed the issue of replacing the defender and made this decision taking into account the opinion of the defendant and with his consent, and there is no information in the case materials that the defenders who entered the case got acquainted with the materials of the criminal case, including the minutes of previous court sessions, in during which the court of first instance examined the evidence in the case (Resolution of the Presidium of the Moscow Regional Court dated January 21, 2015 No. 30 in case No. 44u-23/2015; paragraph 5 of the Bulletin of Judicial Practice of the Moscow Regional Court for the first quarter of 2017, approved by the Presidium of the Moscow Regional Court on June 28, 2017);

- protection by a lawyer whose status was terminated by a decision of the Council of the Chamber of Advocates of the subject due to a violation by the lawyer of the norms of legislation on advocacy and advocacy (Resolution of the Presidium of the Samara Regional Court dated September 6, 2018 No. 44u-257/2018), as well as by a lawyer who did not receive in accordance with the procedure provided for by the Federal Law "On Advocacy and Advocacy in the Russian Federation Of the Russian Federation", the status of a lawyer, and therefore the right to practice law on the territory of the Russian Federation (Definition of February 10, 2014 No. 14-APU14-3 "Review of the practice of the Judicial Board for Criminal Cases of the Supreme Court of the Russian Federation for the first half of 2014", approved. By the Presidium of the Supreme Court of the Russian Federation on 07/02/2014).

The above examples confirm the position that the consideration of a criminal case without the participation of a defender or other violation of the right of the accused to use the help of a defender cannot be compensated by the court of appeal when reviewing the verdict. In such cases, the session of the court of appeal cannot "turn back the clock" and fully replace the proceedings in the court of first instance. That is why higher courts, when detecting violations of the right of the accused to use the help of a defender, cancel the sentences imposed with the referral of the criminal case for a new trial. Such practice should be recognized as correct, consistent with the constitutional provisions on the right of everyone to receive qualified legal assistance and in the future supported in the courts of appeal, cassation and supervisory instances.