When courts ignore the guarantee of free choice of defense counsel

Advocacy
15:32 Tue 26.03.24 475 Reviews
Print

If the defense in criminal proceedings is successful, the prosecution sometimes tries to «replace» the defense counsel in certain procedural actions with the support of the court. For this purpose, lawyers from the FLA system are appointed.

The abuses related to the involvement of a lawyer for a separate procedural action were analyzed in the Report on topical issues of the functioning of the free legal aid system in Ukraine. The UNBA presented the document on March 19.

The institute of appointing a lawyer to participate in a separate procedural action is currently one of the most powerful mechanisms for violating the right to defense and equality of the parties to criminal proceedings.

The Constitution of Ukraine provides for a guarantee of free choice of defense counsel for every person (Article 59). At the same time, according to part 1 of Article 53 of the CPC, the investigator, prosecutor, investigating judge or court has the right to engage a defense counsel to conduct a separate procedural action. But only in urgent cases, when there is a need to conduct an urgent procedural action with the participation of a defense counsel, and the previously notified defense counsel cannot arrive to participate in the procedural action or ensure the participation of another defense counsel, or if the suspect or accused has expressed a desire but has not yet had time to engage a defense counsel or the arrival of the chosen defense counsel is impossible. The problem is that the law does not define what kind of action should be considered urgent. It is also an open question whether the validity of the reasons for the defense counsel's absence affects the application of the mechanism of engaging a defense counsel.

«The courts, knowing that their ruling on the engagement of a defense lawyer is binding, use their powers too broadly, - says Olena Demyanova, secretary of the UNBA Legal Aid Committee. - And a whole arsenal of abuses has already been formed in the context of considering the extension of the term of detention».

She said that in order to engage a lawyer from the FLA system, the court sets the time for consideration of the relevant petition without agreeing with the contracted defense counsel. For this purpose, sometimes the time is selected in such a way that the defense counsel is busy with other cases. At the same time, the deadlines for proper notification of the defense are not met. This is evidenced by existing complaints from lawyers who report that in this way the prosecution, with the assistance of the court, is trying to eliminate inconvenient lawyers.

There are also blatant cases when the investigator tries to involve a FLA lawyer in familiarizing himself with the criminal proceedings, or the court - to participate in court debates.

«In such cases, the suspect or accused is usually hostile to the appointed lawyer. The person does not want to work with him or her because they already have their own defense lawyer and are satisfied with his or her work. The latter is also concerned about the situation, because the defense strategy is breaking down. And the court and the prosecution insist on the participation of a FLA lawyer. So he finds himself in an extremely uncomfortable position, - explains O. Demyanova. - And we receive a large number of complaints and appeals about this».

The main way to solve the problem is to improve legislation. At the same time, joint activities with representatives of the judiciary are possible to develop a common understanding of the rules.

Popular news

Without the protection of advocates, there will be no fair trials in Ukraine — forum in Odesa

Discussion

Without the protection of advocates, there will be no fair trials in Ukraine — forum in Odesa

Identifying an advocate with their client undermines the foundations of justice, as it deprives individuals of the opportunity to exercise their right to defense, forces advocates to avoid participating in high-profile cases, and ultimately renders procedural guarantees meaningless. Without this, fair trial is impossible.

14:42 Fri 29.08.25 107
What data is sufficient to initiate an investigation – UNBA comments on draft law No. 12439

Legislation

What data is sufficient to initiate an investigation – UNBA comments on draft law No. 12439

The problem of law enforcement pressure on business remains one of the most acute for the Ukrainian economy. The lack of regulation of certain procedures in the Criminal Procedure Code leads to abuses, as a result of which entrepreneurs find themselves in a state of legal uncertainty.

19:41 Fri 22.08.25 111
The Verkhovna Rada is waiting for the Minister of Justice to take action on signing the Convention on the protection of the profession of advocate

Guarantees of the practice of law

The Verkhovna Rada is waiting for the Minister of Justice to take action on signing the Convention on the protection of t…

Ukraine, which was directly involved in the preparation of the world's first Council of Europe Convention on the protection of the profession of advocate, has still not signed it. There appear to be no formal objections, but no real steps have been taken towards accession either.

13:51 Thu 21.08.25 144
Australian advocate apologizes in court for fake AI quotes

Abroad

Australian advocate apologizes in court for fake AI quotes

In Australia, a royal advocate apologized to a judge for submitting documents in a criminal case against a teenager accused of murder that contained fabricated quotes and non-existent court decisions generated by artificial intelligence.

13:46 Tue 19.08.25 109
Support for the defense industry should not upset local budgets, - UNBA

Legislation

Support for the defense industry should not upset local budgets, - UNBA

It is necessary to create additional incentives for enterprises in the defense and industrial complex, while ensuring the balance of the budget system and the predictability of both revenues and expenditures of local self-government.

11:27 Fri 15.08.25 125
UNBA warns of extreme financial risks for defense industry companies

Legislation

UNBA warns of extreme financial risks for defense industry companies

The lack of transparent control over the activities of the Ministry of Defense as a regulator, as well as excessive sanctions for leaving the Defense City regime, create risks for defense enterprises that could lead to their bankruptcy.

13:04 Wed 13.08.25 132
BCU reports interference by a member of the High Council of Justice in the activities of a lawyer and submits official appeals

Guarantees of the practice of law

BCU reports interference by a member of the High Council of Justice in the activities of a lawyer and submits officia…

The Bar Council of Ukraine, having considered the statement of advocate Oleksandr Vikhrov, established the fact of interference by Roman Maselko, a member of the High Council of Justice, in the advocacy activities, violation of attorney-client privilege, and exceeding his powers in evaluating a candidate for the position of judge.

10:41 Wed 13.08.25 145
Consent to arrest advocates must be given by bar self-regulatory bodies

Legislation

Consent to arrest advocates must be given by bar self-regulatory bodies

Granting the High Council of Justice the power to give consent to the detention of an advocate or to keep him in custody would be a direct interference in the activities of the Ukrainian advocacy. This contradicts the principle of independence of the advocacy guaranteed by the Constitution and laws.

15:23 Tue 12.08.25 121

Надішліть файл із текстом публікації у форматі *.doc, фотографію за тематикою у розмірі 640х400 та Ваше фото.

Оберіть файл