LEGAL ASSISTANCE AND PROTECTION IN CRIMINAL PROCEEDINGS: INTERNATIONAL STANDARDS AND INTEGRATIVE DOCTRINE

Volodymyr TERTYSHNIK
D.Sc. in Law, Professor, Academician (Academy of political Sciences of Ukraine, University of Customs and Finance), Ukraine
ORCID iD: orcid.org/0000-0002-2993-0450
kreativlad@i.ua

Andrii FOMENKO
D.Sc. in Law, Associate Professor (Dnipropetrovsk State University of Internal Affairs), Ukraine
ORCID iD: orcid.org/0000-0003-3755-4130
mail@dduvs.in.ua

UDC 342.57

DOI :10.31733/2786-491X-2021-2-123-133

Keywords: international standards of protection, the legal doctrine, protection, legal aid, an independent human rights inquiry

Abstract. The article analyzes the international standards of legal aid and protection institutions in criminal proceedings, reveals doctrinal aspects of these institutions, highlights ways to improve legislation taking into account the case-law of the ECHR, discloses the issues of eliminating legal collisions, ensuring the effectiveness of institutions of protection and legal assistance.

When deciding on the circle of persons who can perform the function of protection in criminal proceedings, it is necessary to be guided by the provisions of international legal acts. In particular, the national legislation should enshrine the main provisions of such an act as “Principles and Guidelines of the United Nations regarding access to legal assistance in the criminal justice system” (UN Economic and Social Council Resolution 2012/15, July 26, 2012).

The solution of the problem is seen in the need to supplement the criminal procedure doctrine with a theoretical model of the legal counsel (legal counsel, legal attorney) and, accordingly, to consolidate it to supplement the CPC of Ukraine with the norm “Legal assistance to legal attorneys”. Legal assistance to witnesses, applicants, representatives of the legal entity in respect of which the proceedings are carried out, taken, pledges, translators, experts, specialists, is provided by their chosen legal attorneys (legal attorney).

Legal assistance – multiple-aspect bar activities, aimed at ensuring the rule of law, which constitute the exercise of legal advice, assistance in drafting legal documents, initiating and participating in the conduct of procedural action, evaluation of the appropriateness, reliability and admissibility of evidence, the analysis of the legitimacy of legal decisions, the implementation of measures for the restoration of violated rights.

Institute of protection – it is a holistic system of relatively isolated and independent and joint special subject of regulation of specific legal norms that regulate an important part of public relations in the State to ensure the rule of law and the protection of rights and freedoms of members of the criminal justice.

In todayʼs criminal counsel may participate in criminal proceedings in three different status 1) as a defender of the suspect, accused, convicted, justified; 2) as a representative of the victim of physical persons; a legal entity that is affected civil plaintiff, civil respondent; third person; 3) as legal assistant to the witness.

Prescription of the Constitution that exceptionally lawyer carries out representation of another person in court, as well as protection from criminal prosecution does not mean establishing the monopoly of lawyers to perform the function of protection.

Wise will introduce a new conceptual system of legal assistance and protection: 1) Protection of the suspect can make as lawyers and other professionals in the field of law, for which there is no reason for removal. 2) Defendant and defendant in court should carry only a lawyer who offered to appoint judicial agent. 3) Legal assistance to victims, civil plaintiffs, civil and for third parties (art. 63 of the CPC of Ukraine) can make as lawyers and other specialists in the field of law, which can act in the procedural status of the representatives of the respective parties. 4) Legal assistance to witnesses, applicants to other participants of the process can make as lawyers and other professionals in the field of law.

Implementation of the constitutional principles of legal assistance and protection in criminal proceedings requires a clear definition of the procedural status of the Defender, the representative and law agent, development and adoption of the law on the independent Institute the investigation, which has become an independent institution of the criminal procedural law.

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