It is proposed to expand the concept of «protector»
A lawyer representing the interests of a legal entity should also be considered a defense counsel within the meaning of Article 45 of the Criminal Procedure Code.
The relevant clarification of this article is proposed by the Draft Law No. 11443 of 25.07.2024 «On Amendments to the Criminal Code of Ukraine, the Criminal Procedure Code of Ukraine and Other Legislative Acts of Ukraine on Bringing Legal Entities' Liability for Corruption Criminal Offenses in Line with International Standards».
The draft law itself aims to fundamentally change the approach to holding a legal entity liable for committing a criminal offense on its behalf or in its interests. For this purpose, among other things, certain amendments are introduced to the CPC, which regulate the possibility of organizing criminal proceedings for the application of criminal law measures to legal entities in a special procedure, i.e. separately from the criminal prosecution of individuals.
To this end, it is proposed to enshrine in a separate Article 483-2 of the CPC the specifics of participation of a representative or defense counsel in criminal proceedings regarding the application of criminal law measures to legal entities in a special manner.
According to the authors of the initiative, the participation of a legal entity's representative in such proceedings is mandatory. Representatives should enjoy the rights and obligations of persons belonging to the defense in criminal proceedings. The representative may not be a person who has or has had any procedural status in the criminal proceedings. The representative has the right to use the remedies provided for by the CPC and other laws in order to ensure the realization of the legal interests of the legal entity.
It is proposed to define that no more than five representatives of a legal entity may simultaneously participate in the pre-trial investigation and trial.
A representative may be engaged by a legal entity to participate in criminal proceedings from the moment the prosecutor, investigator in agreement with the prosecutor, issues a resolution on criminal proceedings to apply criminal legal measures to legal entities in a special manner.
In addition, in the absence of a representative, the draft law provides for a procedure for engaging one in such cases. The investigator, prosecutor shall issue a resolution, and the investigating judge and court shall issue a ruling instructing the relevant body (institution) authorized by law to provide free legal aid to appoint a defense counsel to provide defense as assigned and ensure his or her arrival at the time and place specified in the resolution (ruling) to participate in the criminal proceedings. The resolution (ruling) on the instruction to appoint a defense counsel shall be immediately sent to the relevant body (institution) and shall be binding for immediate execution. No refusal from a defense counsel will be accepted.
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