Explanation on access of relatives as defense lawyer in criminal case

Appeals Extracts for legal literacy Legislation

The Ombudsman continues to receive requests for assistance in clarifying the norms of the current legislation for the implementation the right of an investigator-arrested person to protection. In this regard, we inform.

The norms of the DPR criminal procedure legislation provide for the possibility of accessing a relative as a defense lawyer in a criminal case.

In accordance with Clause 4 of Article 44 of the DPR Criminal Procedure Code, a defender is allowed to participate in the case at any stage of the process. However, we draw attention to the fact that close relatives of the accused, his/her guardians or trustees as defense lawyers are allowed to participate in the case from the moment the accused is informed with the materials of the preliminary investigation by the operation of Article 44 of the DPR CPC.

In addition, according to paragraph 3 of Clause 3 of Article 44 of the DPR CPC, the powers of a defender in the person of close relatives, guardians or trustees are certified by the application of the accused, defendant, convict, acquitted for their admission to participate in the case as defenders. However, according to Clause 5 of Article 44 of the DPR CPC on the access of a defense attorney to participate in a case, the person conducting the inquiry, the investigator, the prosecutor, the judge shall issue a decision, and the court shall issue a ruling.

A person has the right to act as a defender, provided that there are no circumstances precluding the impossibility of his/her participation in the case. According to paragraphs 1-5 of Clause 1 of Article 66 of the DPR CPC, a defender cannot be a person:

1) who participated in this case as an inquiry officer, investigator, prosecutor, judge, court clerk, expert, specialist, translator, attesting witness, representative of the victim, civil plaintiff, civil defendant;

2) in accordance with this Code is a witness and in this connection has been interrogated or is subject to interrogation;

3) who is a relative of the person conducting the inquiry, the investigator, the prosecutor, someone from the composition of the court, the victim, the civil plaintiff;

4) against whom a criminal proceeding has been initiated;

5) recognized as disabled or limited dispositive.

In accordance with paragraphs 1.2 of Clauses 2,3,4 of Article 66 of the DPR CPC, a person cannot participate in the case as a defense attorney also in the following cases:

1) if in this case he/she provides or previously provided legal assistance to a person whose interests contradict the interests of the person who applied for legal assistance;

2) suspension of the certificate of the right to practice law or the right to provide legal assistance or its cancellation in accordance with the procedure established by the law of the Donetsk People’s Republic.

The same person cannot be a defense lawyer for two or more suspects, accused or defendants if the interests of protecting one of them are contrary to the interests of protecting another.

A person who, abusing his/her rights, obstructs the establishment of the truth in the case, prolongs the inquiries or trial of the case, as well as a person who violates the order in the court session or does not follow the orders of the presiding judge during the trial, cannot be a defender.

One of the most common cases of the impossibility of a relative’s participation in the case as a defense lawyer is the circumstance when a person previously has already been questioned in the case as a witness. Therefore, applicants frequently, not knowing about the existing restrictions, mistakenly state that a human’s right to protection has been violated.

In this regard, we inform citizens about the possibility to receive clarifications in the order of legal education by contacting the “Ombudsman’s hotline” (071-301-73-52) or by processing and sending an appeal to the address (Donetsk, Pushkin Blvd., 34, email address: ombudsman_dnr@mail.ru). Also, everyone has the opportunity to get a quick answer to a query, using the heading “Ask the Ombudsman”.