When courts ignore the guarantee of free choice of defense counsel

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.