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New CPC restricts right of choice of defender

13.03.2013    source:

Volodymyr Batchaev

Volodymyr Batchaev from the Ukrainian Association of Human Rights Monitors of Law Enforcement considers that the new Criminal Procedure Code seriously restricts a person’s choice of defender in court proceedings.

He explains that previously a relative, friend, a lawyer, person versed in the law or a defence lawyer could act as a person’s defender (zakhysnyk).  Now defence lawyers have the exclusive right to represent a person. He warns that this is likely to result in an increase in defence lawyers’ fees since they now have a monopoly.  He believes it can also adversely affect the quality of a person’s legal defence since there are more methods available for putting pressure on defence lawyers.

“Some defence lawyers have reached tacit agreements with the court and Prosecutor’s office and shut their eyes to a lot of things. There was nothing wrong with a system where relatives could act as defenders. That was an opportunity for a mother to find out how her son was being treated in detention, how the police had acted, what the Prosecutor’s people had done, in order to protect him from unlawful actions by the police.” The position of formal defence lawyers, like the police, the Prosecutor’s office, the courts, was that the person should basically sit in the docks and not get in the way.  Batchaev says that he knows cases where so as to be able to see their sons, studied up the Criminal Procedure Code better than any defence lawyer.

According to the new CPC you can have five defence lawyers.  “What’s the problem if there’s one relative among that number in the role of defender?”

The Deputy Head of the Cherkasy Regional Court of Appeal, Ihor Bavriv does not consider the new regulations a restriction on the right to defence. He asserts that they couldn’t provide professional assistance and in the majority of cases simply wanted the chance to have unrestricted opportunity to see a person held in detention.

Maxim Polishkevych, partner in the Result Law Firm in Cherkasy agrees that the new CPC restricts the right of choice and says that this runs counter to some norms of the Constitution, judgements of the Constitutional Court and of provisions of the European Convention on Human Rights.

“If a person doesn’t have the money to get a good lawyer, the state in no way guarantees that a lawyer provided free of charge will do his or her work at a high level.  Who will be more motivated to held a defendant- a free lawyer or his own mother?” 

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