The right of the victim to receive a qualified legal assistance as one of the guarantees for the protection of his private interests

Abstract

Article 48 of the Constitution of the Russian Federation guarantees everyone the right to a qualified legal assistance, including a free one. There is an imbalance in the domestic criminal proceedings in terms of establishing the guarantees to receive a qualified legal assistance by those participants who protect private interests (suspects, accused persons, victims). Based on the analysis of legislation, judicial practice, and scientific literature, the authors have identified the main manifestations of this imbalance. These manifestations include, in particular, the absence of requirements for the qualification of a person providing qualified legal assistance as a representative of the victim, as well as the absence of the victim's right to have a representative "by appointment" (except for the case provided for in Part 2.1б, Article 45 of the Criminal Procedure Code of the Russian Federation). Thus, under Article 45 of the Criminal Procedure Code, the victim's representatives may be lawyers, close relatives or other persons whose admission is requested by the victim. The Criminal Procedure Code does not contain any requirements for the professional or personal qualities of "other persons", which does not make it possible to fully ensure that victims receive qualified legal assistance, which, as a result, does not allow us to talk about the full possibility of protecting their private interests. In this regard, the authors formulated proposals to establish requirements for the qualification of persons who are not lawyers who can be admitted to take part in the case as a representative of the victim. In particular, it is proposed to enshrine in the Code of Criminal Procedure that the representative of the victim may be lawyers and other persons providing legal assistance who have a higher legal education or an academic degree in a legal specialty by analogy with the requirements for a representative established in Part 3, Article 59 of the Arbitration Procedure Code of the Russian Federation. The possibility of recovering the costs of paying for the services of a representative as legal costs under Articles 131 and 132 of the Code of Criminal Procedure currently compensates the victim's lack of the right to receive a free qualified legal assistance. However, such a procedure does not solve the problem of ensuring the participation of the victim's representative where the latter does not have the financial means to pay for his services, and also in most cases does not allow compensating fully the costs incurred by the victim, as evidenced by judicial practice. In this regard, the authors formulated proposals to amend Article 45 of the Code of Criminal Procedure of the Russian Federation and to enshrine in legislation the obligation of officials, the court, at the request of the victim, his legal representative, to ensure the participation of a lawyer as his representative, including at the expense of the federal budget. The authors declare no conflicts of interests.