Defense as an Obligatory Element of the Defense Lawyer’s Status Emergence in Criminal Proceedings

Abstract

The paper analyses a defense lawyer’s status shaping and differentiates its main stages, determining the moment of the emergence of the status of a defense lawyer, as well as the significance of the formalizing procedural actions necessary for this. The paper pays attention to the emergence of the protection function, the acceptance of an order and the entry of a lawyer into a criminal case as procedurally significant events that do not coincide with the moment the defense lawyer’s status arises, although it occupies a certain place in the process of its formation. The author substantiates the impossibility of a simultaneous acquisition of a defense lawyer powers. This is due to the need to implement some of them to ensure the right of a criminally prosecuted person to defense and a lawyer’s task to find out circumstances that prevent the acceptance of an order for defense or exclude his participation in criminal proceedings. It is shown that it is inexpedient to establish the emergence of the status of a defense lawyer, as well as to word a conclusion on the observance of the right to defense only on the basis of a formal sign of the provision by a lawyer of a certificate and a warrant, provided for in part 4 of Art. 49 Code of Criminal Procedure of the Russian Federation. The significance of the actual implementation by a lawyer of protection from accusatory activity as an external procedural manifestation of the emergence of the status of a defense lawyer is determined.