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Publication date: 23.05.2024
LAWYER'S PARTICIPATION IN INVESTIGATIVE ACTIONS
Investigative actions in criminal proceedings
are actions of a pre-trial investigation body, which are carried out in order to obtain or verify evidence to confirm the circumstances of criminal proceedings, which must be proven in order to fulfill the task of criminal proceedings.
The moment of acquiring the rights of a defense attorney in criminal proceedings
From the moment the defense attorney confirms his powers in a criminal case, he acquires the procedural rights of the suspect he is defending. This includes the right to participate in procedural actions, ask questions, provide comments, suggestions or objections during the procedural action, which must be recorded in the protocol, as well as use technical means during these actions, complying with the requirements of the Criminal Procedure Code.
It is the duty of the investigator and the prosecutor to inform the defense attorney about the conduct of the procedural action
The investigator or prosecutor is obliged to take measures to ensure the presence of persons whose rights and interests may be limited or violated during investigative actions. This also applies to the defense attorney, who plays an important role during investigative actions, providing legal assistance to the client and ensuring compliance with the law. The activity, qualification and experience of the defender can influence the behavior of the investigator and the method of conducting the investigative action, which increases the effectiveness of its results.
In accordance with Part 5 of Art. 46 of the Criminal Procedure Code, the defense attorney, together with the suspect, participates in interrogations and other procedural actions.
Control by a lawyer of the execution of all necessary procedural actions in case of finding evidence of innocence
It is important to note that if during the investigative (search) action, evidence appears that may indicate the innocence of a person in committing a criminal offense, the investigator and the prosecutor are obliged to conduct the corresponding investigative (search) action in full. These actions include attaching the prepared procedural documents to the materials of the pre-trial investigation and providing them to the court in the case of an indictment, a request for the application of coercive measures of a medical or educational nature, or a request for the release of a person from criminal liability.
The investigative (search) action, which is carried out at the request of the defense party or the victim, is carried out with the participation of the person who initiated it and (or) his defender or representative. Exceptions are cases when, due to the specifics of the investigative (search) action, this is impossible or such a person has refused to participate in it in writing.
General duties of a defense attorney during investigative actions:
- The defender must ensure compliance with legal requirements during the investigative (search) action.
- He must control that the participants of the action meet the requirements of the law in terms of age, gender, and qualifications.
- He is also responsible for recording the progress and results of the investigative action by technical means.
At the initial stage of the investigation:
- The main goal of the defender is to explain to the client the essence and meaning of this action.
- He must determine the position of defense during its implementation.- He must ensure the participation of persons who do not have a prejudiced negative attitude towards the suspect.
Avoiding conflict situations:
- The defender must avoid conflict situations, as they always complicate the investigation and do not contribute to the achievement of objective results.
Leadership in investigative action:
- In an investigative action, the procedural manager is the investigator (prosecutor) who conducts it.
- However, the lawyer should try to take informal leadership in the circle of participants of the investigative action.
- The purpose of informal leadership is to take the initiative in formulating questions that need to be clarified. In the proposal, the sequence of finding out the circumstances and other details of the case, choosing the means and techniques that must be used.
- The lawyer must direct his actions to the maximum protection of the suspect.
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