CRIMINAL CASES. DEFENSE AND REPRESENTATION.

Without disregarding the significance of other fields of law, the notion persists that unlike civil or commercial litigation, criminal jurisdiction deals with the fate of individuals. We agree with this notion, as decisions in this category of cases can profoundly alter a person’s present and future at various points in time. It is evident that being deprived of the right to property or being mandated to pay a substantial sum as compensation may seem like a hopeless situation for an individual; however, it is precisely criminal jurisdiction that is capable of fundamentally transforming their life in the truest sense of the word.

Of course, punishment for a criminal offense is not limited solely to imprisonment, but since the majority of articles in the current Criminal Code provide for this punishment, any accusation carries such a prospect.

Criminal jurisdiction is the lawful infringement by the state on an individual’s constitutional rights, deeming them subject to exceptions such as arrest, detention, conviction, thereby restricting their constitutional rights. These measures may be taken if state representatives have reasonable suspicion of an individual’s involvement in a criminal offense. It is worth noting that these exceptions may violate the rights and freedoms of individuals who are not even suspected or accused by the state, but are believed to have assets relevant to the case, which may be seized and frozen. There are numerous examples of such cases.

Therefore, in our opinion, no category of cases requires legal assistance as acutely as this one.

The only entity capable of procedurally standing up for a person who is suspected or accused, or whose rights are being restricted under the pretext of criminal proceedings, is the legal profession. It is no coincidence that in criminal justice, the status of a lawyer is referred to as a defender, unlike other categories of cases. Although in specific instances, this may be a representative of the victim or applicant.

Criminal lawyer (defense attorney) is endowed with certain immunity, namely — without it, investigative (search) actions and judicial review of particularly grave cases, as well as less serious ones, if requested by suspects, accused, convicted (acquitted), cannot be conducted. The legal assistance of a lawyer may also be engaged with regard to witnesses and other persons whose rights may be or have been violated by criminal proceedings. Essentially, the role of a defense attorney in criminal cases boils down to three directions of work: achieving minimal punishment, or requalification of the crime incriminated to the client to a softer one, if he admits guilt; case closure or acquittal if the client denies involvement; case closure, reaching an agreement with the prosecutor, or obtaining an acquittal, regardless of whether the client is guilty or not. The representative of the victim’s involvement is somewhat different and essentially comes down to punishing the guilty party and claiming compensation for the damage caused to his client.

A criminal defense attorney can be involved at any stage of criminal proceedings, whether to defend a person long before the state officially declares its claims against them. Thus, legal assistance from an attorney can be utilized during questioning, searches, property seizures, declaration of an individual as wanted, arrests, detention, bail hearings, or extension of preventive measures, and so on.

After all, if a person is detained or informed of suspicion, a criminal lawyer can not only challenge such notification but also initiate questions about their immediate release, etc. At this stage, the lawyer also has the right to familiarize themselves with the materials of the case, participate in investigative (search) actions, and initiate them, make statements, and file complaints.

After the pre-trial investigation body determines that the evidence collected is sufficient to prove guilt in court, the suspect is formally notified of the conclusion of the pre-trial investigation and is granted access to the case materials for review and copying. This right is also extended to their defense counsel.

After reviewing all defense materials, the defender forms a position in the case and, while coordinating with the client, determines the defense tactics and ways of implementation by submitting appropriate requests to the court (such as returning the indictment to the prosecutor, closing the criminal case, summoning and interrogating witnesses, obtaining evidence, etc.).

During the judicial process, the work of a criminal defense attorney involves preparing for it and actively participating in court hearings. In the first case, the attorney prepares the client for interrogation, formulates questions for witnesses, submits motions to declare evidence inadmissible, etc. In the second case, the defense attorney presents the prepared work in court in the form of exercising their right to cross-examination, submitting prepared motions, and persuading the court of their validity, providing explanations and comments on the essence of the case, specific evidence, or motions of the prosecution.

Upon completion of the investigation, the court proceeds to judicial debates involving both the prosecution and defense. At this stage, the participation of the defense attorney is crucial, as it is during these debates that the lawyer can present their perspective to the court and substantiate the defense position in the case by referring to the evidence examined during the court session.

The fate of a court process is such that rarely does a decision satisfy both sides, so most likely one of the parties will appeal it. The role of a criminal defense attorney at the stage of appellate review of a court’s sentence is to analyze it and depending on the situation, prepare either an appeal, a response to the prosecutor’s appeal, or the victim’s statement. Presenting arguments in the form of an appeal or response, the attorney prepares a defense strategy for the appellate proceedings, identifying the mistakes made by the lower court in examining evidence, overlooking crucial circumstances and evidence, etc. Additionally, the attorney participates in the appellate court session, presenting their position, initiating new witness testimonies, making motions, and expressing their views on others’ motions. Just like in the first instance trial, during the debate in the appellate court, the attorney relies on the evidence presented and expresses their opinion on their validity from the standpoint of the appealed case.

Although a court verdict gains legal force on the day the appellate court announces its decision and must be enforced (if it is a guilty verdict), parties have the right to seek a review by the Supreme Court in cases of decisions from the first and appellate instances by filing a cassation appeal and responding to the cassation appeal of the party whose claims were satisfied by previous instances. Therefore, the work of a criminal defense lawyer will continue and resemble the work during the appellate proceedings with some minor differences typical of cassation proceedings.

Even if the decisions of the first-instance and appellate courts find the client guilty and the review in the cassation procedure does not bring the desired result, the legal assistance of the lawyer does not cease. During the stage of executing the court’s verdict, the defense lawyer can submit a petition for pardon to the president, apply to the court for release from serving the punishment through amnesty, or a petition for the substitution of an unexecuted punishment for a softer one, and so on.

At this stage, the work of the victim’s representative does not cease, as the court’s award of compensation is not identical to its actual payment, and therefore it is not excluded that the victim’s representative may be forced to take certain measures to ensure the prompt execution of the awarded compensation for material or moral damage, or to initiate civil proceedings if the criminal court did not address these issues, starting from filing a lawsuit and ending with participation in enforcement proceedings.

It is evident that the participation of a defender or a representative of the victim in criminal cases is crucial at all stages, starting from notifying the investigator about the need to accompany the client to investigative actions, and ending with the execution of the court’s verdict, regardless of the type of verdict and which side of the criminal process the defense attorney is on. Equally important is timely defense because what could have been done yesterday is not a guarantee of being able to do it tomorrow.

The conclusion of this publication is intentionally not very optimistic, as we still advise, as M. Huskov does, to have a criminal lawyer not only when you need one.

With this in mind, it is worth emphasizing that the Constitution of Ukraine guarantees everyone the right to choose their defender freely, and this right cannot be restricted, as trust in one’s defender is the key to a successful defense.

Therefore, we respect your right to choose your own defense attorney, but if you decide on our lawyers, you will undoubtedly receive high-quality professional defense, confidentiality, individual approach, and proper treatment. The results of our work speak for themselves and are confirmed by existing court decisions in many criminal cases of various complexity and significance, as well as by grateful client feedback.

Be sure – we have protected others – we will protect you too!