Algorithm for Introducing the Appointed Defense Lawyer into the Criminal Process: how to Avoid a “Double Defense” Situation
Konin V.V. Algorithm for introducing the appointed defense lawyer into the criminal process: how to avoid a “double defense” situation. Penitentiary Science, 2024, vol. 18, no. 3 (67), pp. 256–262. doi 10.46741/2686-9764.2024.67.3.004.
the right to receive qualified legal assistance is enshrined in Article 48 of the Constitution of the Russian Federation. It is the right of everyone who is subject to criminal prosecution, regardless of the financial situation of the person. In the system of criminal law and criminal procedural relations, this right is imperative, and violation of this right entails negative consequences for the results of the criminal case investigation and its consideration on the merits. At the same time, in practice, situations occur when a lawyer participating in the process, for one reason or another, disrupts the production of pre-planned investigative actions or court hearings, thereby delaying the investigation and consideration of the criminal case on the merits. In this situation, the investigation and the court can appoint another defense attorney despite objections of a defendant and his/her lawyer, thereby giving rise to a “double defense situation”. At the same time, the legal community recognizes the participation of an appointed defense lawyer in the “double defense” situation as a violation of the Code of Professional Ethics of a Lawyer. In this article, the author continues the previously started research on this topic, and, taking into account the established disciplinary practice, proposes an algorithm of actions that will allow the lawyer to act within the framework established by the criminal procedure legislation and internal corporate regulatory legal acts in order to avoid possible violations, including preventing the emergence of a “double defense situation”. Purpose: to continue the study of controversial issues arising at the current stage of the implementation of the constitutional right to defense in criminal proceedings, affecting the problems of interaction between the defense lawyer and the defendant and other lawyers participating in the case, and to propose an algorithm of actions for lawyers entering into criminal proceedings by appointment of the inquiry officer, investigator or court in order to avoid possible violations of the Code of Professional Ethics of a Lawyer and the situation of “double defense”. The task of the study is to develop an algorithm for the entry of a appointed lawyer into criminal proceedings in order to prevent violation of the right to defense of a person brought to criminal liability and, at the same time, to prevent violations of internal corporate regulatory legal acts and avoid the emergence of a situation of “double defense”. Methods: general dialectical method of cognition of socio-legal phenomena, general scientific research methods (analysis and synthesis, deduction and induction, system-structural and others), private scientific methods of cognition (logical-formal and system analysis). The results of the study are both theoretical and applied in nature and have elements of scientific novelty. The author studies issues of entry of an appointed defense lawyer into criminal proceedings, proposes an algorithm of the lawyer’s actions in order to avoid possible violations and emergence of “a double defense situation”. At the same time, the author suggests considering “double defense” not as an institution of criminal procedural law, but as a significant violation of the norms of advocacy in criminal proceedings. Conclusion: discussion of the identified problems will draw attention of the scientific community and the legislator to the development of solutions to eliminate the identified gaps in the implementation of defense in criminal proceedings and will protect appointed defense lawyers from possible violation and subsequent accusation of violating internal corporate regulatory legal acts and creating “a double defense” situation.
Keywords: criminal proceedings; lawyer; defendant; entering into a case; “double defense”; algorithm.
series: History and Law, 2020, vol. 10, no. 2, pp. 68–80. (In Russ.).
2. Gladysheva O.V. Double and subsidiary protection in criminal proceedings. Yuridicheskii vestnik Kubanskogo
gosudarstvennogo universiteta = Legal Bulletin of the Kuban State University, 2022; no. 14 (3), pp. 95–104. (In Russ.).
3. Barygina A.A. On the issue of participation of a subsidiary defender in criminal proceedings. Rossiiskaya yustitsiya =
Russian Justice, 2020, no. 8, pp. 46-48. (In Russ.).
4. Bersenev E.M. The category of subsidiary defenders in criminal proceedings of the Russian Federation. Istoriya
gosudarstva i prava = History of the State and Law, 2014, no. 10, pp. 50–54. (In Russ.).
5. Zubkov S.B. Certain aspects of the appointment of a lawyer as a defender in the context of digitalization of criminal
proceedings. Advokatskaya praktika = Advocate’s Practice, 2024, no. 1, pp. 56–60. (In Russ.).
6. Revina I.V., Pashutina O.S., Chebotareva I.N. Manipulation of the right to defense from the position of ensuring the right of
the accused to freedom of choice of a lawyer. Advokatskaya praktika = Advocate’s Practice, 2021, no. 1, pp. 33–39. (In Russ.).
7. Obzor distsiplinarnoi praktiki za vtoroe polugodie 2020 goda i 2021 god po voprosam, svyazannym s poryadkom
raspredeleniya del po naznacheniyu i “dvoinoi zashchitoi” NNO “Advokatskaya palata goroda Moskvy” [Review of
disciplinary practice for the second half of 2020 and 2021 on issues related to the order of assignment of cases and
the “double defense” of the NGO “Moscow Bar Association”]. Available at: https://www.advokatymoscow.ru/upload/
disciplinary-practice/Obzor%20DP%202020-2021,%20raspred.%20del%20po%20naznach.,%20«dvoinaya%20
zashchita».pdf (accessed February 1, 2024).
8. Barbir I.P., Potapov V.D. Generalization of the practice of consideration by the Qualification Commission of the Bar
Chamber of the Komi Republic of disciplinary proceedings on the presence in the actions (inaction) of lawyers of violations
of the current legislation on advocacy and advocacy in the Russian Federation for 2022. Vestnik. Gosudarstvo i pravo =
Bulletin. State and Law, 2023, no. 1 (36), pp. 23–41. (In Russ.).
9. Baeva K.M. Fundamental principles of counteracting and neutralizing the abuse of the right by the defense in Russian
criminal proceedings. Sudebnaya vlast’ i ugolovnyi protsess = Judicial Authority and Criminal Process, 2019, no. 3,
pp. 54–59. (In Russ.).
10. Abuse of the right to protection. Zakon = Law, 2015, no. 7, pp. 24–31. (In Russ.).
11. Kalinovskii K.B. Early appointment of a defender to a suspect. Ugolovnyi protsess= Criminal Trial, 2018, no. 10 (166),
p. 11. (In Russ.).
12. Obzor distsiplinarnoi praktiki za pervoe polugodie 2022 goda po voprosam, svyazannym s poryadkom raspredeleniya
del po naznacheniyu i “dvoinoi zashchitoi” NNO “Advokatskaya palata goroda Moskvy” [Review of disciplinary practice for
the first half of 2022 on issues related to the order of assignment of cases and “double defense” of the NGO “Moscow Bar
Association”]. Available at: https://www.advokatymoscow.ru/upload/disciplinary-practice/2022/Obzor%20DP_dela%20
po%20naznacheniyu,%20dvoinaya%20zashchita_pervoe%20polugodie%202022.pdf (accessed February 1, 2024).
13. Obzor distsiplinarnoi praktiki za pervoe polugodie 2022 goda po voprosam, svyazannym s ispolneniem advokatom
professional’nykh obyazannostei NNO “Advokatskaya palata goroda Moskvy” [Review of disciplinary practice for the first
half of 2022 on issues related to the performance of professional duties by a lawyer of the NGO “Moscow Bar Association”].
Available at: https://www.advokatymoscow.ru/upload/disciplinary-practice/2022/Obzor%20DP_ispolnenie%20prof.
obyazannostei_pervoe%20polugodie%202022.pdf (accessed February 1, 2024).
14. Volchetskaya T.S., Osipova E.V. Kriminalisticheskoe modelirovanie v ugolovnom sudoproizvodstve: ucheb.-metod.
posobie [Criminalistic modeling in criminal proceedings: educational and methodological guide]. Kaliningrad, 2020. 126 p.
15. Volchetskaya T.S. Criminalistic situationology: current state and prospects. In: Volchetskaya T.S. (Ed.). Situatsionnyi
podkhod v yuridicheskoi nauke i praktike: sovremennye vozmozhnosti i perspektivy razvitiya: materialy Mezhdunar. nauch.-
prakt. konf., posv. 15-letiyu nauch. shkoly kriminalist. situalogii BFU im. I. Kanta [Situational approach in legal science
and practice: modern opportunities and prospects for development: materials of the International scientific and practical
conference dedicated to the 15th anniversary of the scientific criminologist schools]. Ed. by Volchetskaya T.S. Kaliningrad,
2017. Pp. 11–16. (In Russ.).
16. Kim D.V. On the question of the structure of the criminalistic situation. In: Volchetskaya T.S. (Ed.). Situatsionnyi podkhod
v yuridicheskoi nauke i praktike: sovremennye vozmozhnosti i perspektivy razvitiya: materialy Mezhdunarod. nauch.-prakt.
konf., posvyashch. 15-letiyu nauchnoi shkoly kriminalisticheskoi situalogii BFU im. I. Kanta [Situational approach in legal
science and practice: modern opportunities and prospects for development: proceedings of the International scientific and
practical conference, dedicated to the 15th anniversary of the scientific school of criminalistic situalogy]. Kaliningrad, 2017.
Pp. 51–57. (In Russ.).
17. Ryabinina T.K., Petrova O.V. Violations of the right to protection: as evidenced by judicial practice (on the example
of judicial decisions of the courts of the Kursk region). In: Protsessual’nye garantii sovremennogo pravosudiya: sb. st. k
100-letiyu Sudebnoi sistemy v Udmurtskoi Respublike [Procedural guarantees of modern justice: collection of articles on
the 100th anniversary of the judicial system in the Udmurt Republic]. Izhevsk, 2023. Pp. 258–266. (In Russ.).
18. Reznik G. Our differences. Novaya advokatskaya gazeta = New Advocate Newspaper, 2015, no. 17 (202). (In Russ.).
19. Mar’ina E.V. Professional ethics of a lawyer: traditions and innovations in Russian legal education. Sudebnaya vlast’ i
ugolovnyi protsess = Judicial Power and Criminal Procedure, 2021, no. 4, pp. 24–31. (In Russ.).
20. Konin V.V. The right to protection: some theoretical issues. Rossiiskaya yustitsiya = Russian Justice, 2013, no. 4,
pp. 34 – 36. (In Russ.).
21. Andreeva O.I. The right to defense should be real, feasible and not illusory. Zakony Rossii. Opyt. Analiz. Praktika = Laws
of Russia. Experience. Analysis. Practice, 2016, no. 4, pp. 10–14. (In Russ.).
22. Tishutina I.V. On the issue of lawyers as subjects of countering the investigation. In: Rassledovanie i protivodeistvie
emu v sostyazatel’nom ugolovnom sudoproizvodstve: protsessual’nye i kriminalisticheskie voprosy [Investigation and
countering it in adversarial criminal proceedings: procedural and forensic issues]. Moscow, 2007. Pp. 395–398. (In Russ.).
