What to do when the court tries to remove an inconvenient lawyer?

One of the most frequent violations experienced by participants in criminal proceedings is an encroachment on the free choice of defense counsel. Thus, the court can remove the chosen lawyer and engage a more «convenient» one. The accused cannot influence this in any way.

This problem was drawn to the attention Hanna Kolesnyk, Chairman of the UNBA Committee on Human Rights Protection, who is organizing a round table on «Preparatory meeting: involvement of a legal aid defender in a separate procedural action».

According to Art. 59 of the Constitution, everyone is free to choose a defender of their rights. At the same time, Art. 53 of the CPC allows the involvement of a defense counsel for a separate procedural action. According to Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, every accused person has the right to defend himself or herself or to use legal assistance of a defense counsel of his or her own choosing. Or - in the absence of sufficient funds to pay for legal assistance - to receive such assistance free of charge, when the interests of justice so require.

«The accused are often deprived of the opportunity to refuse the assigned FLA defense counsel, even if the latter supports this refusal and declares that it is impossible to provide defense, - says H. Kolesnyk. - This raises the question of how realistic are the provisions of Article 54 of the CPC, which give the accused the right to refuse a defense counsel».

The lawyer refers to the case law of the European Court of Human Rights, according to which the formal appointment of a defense counsel to act on behalf of the accused is not enough. After all, the right to legal aid must be exercised in a practical and effective manner to ensure sufficient protection (decisions in Artico v. Italy, Imbriosha v. Switzerland). «So, is the provision of inadequate (ineffective) legal aid evidence of a violation of the rights of the accused?», - H. Kolesnyk asks another question.

These and other issues will be discussed at the roundtable scheduled for 14:00 on May 10. Participants will give practical advice on the procedure for the contractual defense counsel to act when his client is forced to accept legal aid from a FLA defender and is prohibited from refusing to accept legal aid in accordance with the procedure established by law. The appointed defense counsel will also receive a legal position on how to act in such situations in order not to violate the law and the oath of an attorney.