PARTICIPATION OF LAWYER IN JUDICIAL DEBTS
Decisive is the protective defense counsel’s speech in criminal proceedings. In the special literature it is noted that the protective speech is a speech in court debates, in which from the point of view of protection of the defendant is given an analysis of the evidence, the arguments are provided on the merits of the charges, qualifications of the crime, proposals on the measure of punishment, other issues that are relevant for the correct resolution of the case.
Speaking with a protective speech in court, the lawyer, first of all, must cover the circumstances envisaged by the criminal procedural law, the establishment of which is necessary for the resolution of a criminal case, as well as for the adoption of procedural preventive measures in the case.
Advocate’s speech in the debates of the parties is the result of all his previous activities to defend the defendant. If the accusatory speech is the procedural means of realizing at the stage of the debate of the parties the function of maintaining the state prosecution, the main direction of which is the burden of bringing the prosecution and refuting the arguments provided for the defense of the suspect or accused (part 2 of Article 14 of the CPC), then a protective speech , is a procedural means for implementing the protection function. In the course of the debate of the parties, the main direction of protection is connected with the bringing of arguments to defend the defendant. Advocate’s protective arguments have a justifiable orientation.
Protective advocate’s speech is a speech in court debates in which, from the point of view of protecting the accused, an analysis of evidence is given, arguments are provided on the merits of the charges, qualifications of the offense, sentences, other issues of importance for the correct resolution of the case.
Protective speech, namely, its persuasiveness is based on the following determinative points: 1) what to say; 2) how to speak; 3) who to speak; 4) who is speaking.
The content of the protective speech is determined by the subject and subject of the statement, the materials of the criminal proceedings, the position taken by the defender in it. As a rule, its content consists of two groups of main elements – facts and valuations.
Since the defender declares his speech after the prosecutor, he must make something new in the light of the facts, to re-examine the evidence and characteristics of the accused person. But the defender should not forget the rule of law, legality and objectivity, not distort the facts and do not resort to falsehood.
Protective speech should contain the following elements:
an account of the actual circumstances of the case;
analysis of evidence through a principled critique of the prosecution, fully demonstrating the role of his client in the case;
arguments about the qualification of the act or the absence of a crime or the lack of evidence of the accusation, substantiating its position by generalized, theoretical provisions on legal literature and judicial practice of the Supreme Court of Ukraine;
the description of the person of the client, the study of psychological moments that matter to the cause;
analysis of the causes and conditions that caused the crime;
Considerations on the degree of punishment and civil action;
The lawyer must emphasize in the speech the actual circumstances of the case, which will prove to the benefit of the defendant. The analysis and evaluation of the evidence gathered is the main part of the defense counsel’s defense. In this case, it is not necessary to repeat the criminal case file. It is worth expressing its version, analyzing and evaluating procedural evidence and substantiating their arguments with their help. Arguments should be sufficient to substantiate the conclusions. The lawyer must analyze the work of the pre-trial investigation bodies, and indicate the violations and shortcomings of the investigation conducted against him in relation to the defendant. In fact, the defender must “break” the system of evidence put forward by the prosecutor.
The role of a lawyer is decisive in ensuring the right to protection against prosecution and the provision of legal assistance in dealing with cases in the courts and other state bodies of Ukraine, including in the court of first instance. Getting each person legal aid is an important value in every democratic society. Today, legal aid actually acquires the status of a special social legal good.
The exercise of a defense function by an attorney is an important guarantee and form of the implementation of the constitutional right of everyone to legal aid, which, in turn, is one of the elements of the right of access to justice. In this case, the provision of qualified legal aid is of particular importance, which is made possible by the provision of it by lawyers. Hence, the participation of a lawyer in a court of first instance is important and decisive for ensuring a reliable defense of the accused.
Summing up, it is important to say that, while performing a statutory protection function, the lawyer, like the prosecutor, must ensure that the truth of the evidence is established in court.
Author: Ivan Ishchuk