Document from CIS Legislation database © 2003-2019 SojuzPravoInform LLC

RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF UKRAINE

of October 24, 2003 No. 8

About application of the legislation providing right of defense in criminal trial

According to provisions of Art. 59 and p. 2 of Art. 63 of the Constitution of Ukraine the suspect, the person accused, the defendant have the right to legal assistance and protection. In the cases provided by the law, this help is provided free of charge.

Having discussed materials of generalization of practice of application of the legislation providing right of defense in criminal trial, the Plenum of the Supreme Court of Ukraine specifies that bodies of inquiry, pretrial investigation and courts generally fulfill relevant requirements of the law. At the same time in some cases in case of application of the existing criminal procedure legislation mistakes which involve violation of the specified right are made and negatively influence quality of implementation of justice.

For the purpose of the correct and identical application by courts of the legislation providing to the suspect, the person accused, the defendant, the convict, justified right of defense, the Plenum of the Supreme Court of Ukraine DECIDES:

1. Draw the attention of courts that providing to the suspect, the person accused, the defendant condemned and acquitted rights of defense according to Art. provisions 59, of the p. 2 of Art. 63 and item 6 of the p. 3 of Art. 129 of the Constitution of Ukraine and the existing criminal procedure legislation is one of the basic principles of legal proceedings, important guarantee of objective consideration of the case and prevention of criminal prosecution of innocent persons.

On the case of application of enforcement powers of medical nature the defender can take part from the moment of factual determination of availability at person of sincere disease (receipt of the corresponding conclusion of forensic-psychiatric examination, medical documentation, the certificate of stay on accounting and so forth), and on the case of application of enforcement powers of educational nature - from the moment of the first interrogation of the minor or its room in the receiver distributor.

Close relatives of the person accused, his guardians or custodians are allowed to participation on case as defenders from the moment of presentation to the person accused for acquaintance of materials of pretrial investigation.

4. According to p.1 Art. 44 of the Code of Criminal Procedure in case of criminal proceeding as defenders of the suspect, the person accused, the defendant, the convict, justified are allowed persons who in the procedure established by the law are authorized to perform protection of their rights and legitimate interests and to provide necessary legal aid.

According to the p. 2 of this Article treat them:

- persons having the certificate on the right to occupation lawyer activities in Ukraine (lawyers);

- other specialists in the field of the right who based on the special law have the right to provision of legal assistance;

- close relatives of the person accused, his guardians or custodians.

Courts need to mean that according to the p. 4 of Art. 44 of the Code of Criminal Procedure in cases when according to requirements of Art. 45 of this Code participation of the defender is obligatory, close relatives of the person accused, the defendant, the convict, justified, his guardians or custodians can take part on case as defenders only along with the defender lawyer or other specialist in the field of the right.

The issue of the admission of the defender during production of case in Trial Court is resolved in the judge's ruling on purpose of case to consideration or the resolution or determination of the court considering case.

As a rule, it occurs at the beginning of court investigation, and according to the petition of the defendant - and during it. At the same time consideration of the case continues, but is not started anew. After the end of court investigation permission of the specified question is not allowed.

5. Powers of the defender on participation on case shall be confirmed:

a) the lawyer who is member of lawyer consolidation, the certificate on the right to occupation lawyer activities and the order of lawyer consolidation about availability of the agreement or power of attorney on participation for case;

b) the lawyer who is not member of lawyer consolidation, - the certificate on the right to occupation lawyer activities and the agreement or the power of attorney on participation for case;

c) other specialists in the field of the right who under the law have the right to provision of legal assistance personally or by proxy the legal entity, - the documents determined by the special law by which these persons are granted the right to take part in criminal trial as to defenders, and also the agreement or the power of attorney of the legal entity;

d) close relatives, guardians or custodians - the documents confirming family relations or the fact that they are guardians, custodians, and the statement of the person accused, defendant, the convict acquitted about the admission of these persons to participation on case as to defenders.

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