The Supreme Court examined the limits of admissible behavior of a lawyer in court

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The Supreme Court examined the limits of admissible behavior of a lawyer in court

In order to effectively confront the prosecution in court, defense lawyers are sometimes forced to resort to non-standard measures, which even contain signs of a violation of the Rules of Lawyer Ethics.

What is allowed to a lawyer in criminal proceedings? The conditions and limits of proper procedural conduct were investigated by the Cassation Administrative Court of the Supreme Court in case No. 826/11330/17 at the suit of the National Anti-Corruption Bureau of Ukraine against the disciplinary bodies of the Bar.

In 2016, when a preventive measure was chosen in one of the capital's courts, a suspect lost consciousness. His defenders filed a motion to suspend the hearing, which the investigating judge rejected. Then the defenders declared the impossibility of further defense (the client was in a helpless state, which did not allow him to take an independent part in the hearing) and left the hall. In addition, after that, the investigating judge was forced to call a break in the session.

The detective of NABU, who was an opponent in the criminal case, assessed this behavior as a violation of the Rules of Lawyer Ethics and filed a complaint with the Qualification and Disciplinary Commission of the regional bar.

However, there, after examining the circumstances, they came to the conclusion that the actions of colleagues corresponded to the principle of the dominance of the interests of the client. The goal is to prevent violation of the suspect's rights, and the method is not prohibited by law. Therefore, the case was closed. Since this decision was also supported by the Higher Qualification and Disciplinary Commission of the Bar, NABU filed a claim with the court.

The case made it to the Supreme Court. The cassation instance agreed that the actions of the lawyers were aimed at protecting the rights of the client, therefore there were no grounds for bringing lawyers to disciplinary responsibility.

Along the way, the high judges recalled that the implementation of justice on the basis of respect for honor and dignity, equality before the law and the court should be ensured not only by the provisions of the law, but also by all judicial activity. The court is obliged not only to respect the honor and dignity of all participants in the process, but also to prevent violations of these rights by the participants in the process.

And in order to ensure the effective operation of the court, the participants in the process require a certain level of legal behavior and an appropriate culture of legal practice and professional legal culture, primarily from the side of the court, lawyer, prosecutor. At the same time, the court must have mechanisms of some coercion to maintain order in the court session.

Thus, according to Article 321 of the Criminal Procedure Code, the presiding judge, among other things, directs the course of the court session, ensures compliance with the sequence and procedure for performing procedural actions, ensures that the participants in criminal proceedings exercise their procedural rights and fulfill their duties.

In case of non-observance of the order of the presiding officer by the prosecutor or defense lawyer, the presiding judge gives them a warning about responsibility for contempt of court (part 2 of article 330 of the CCP) For contempt of court, the guilty persons are held accountable in accordance with the law. The question of bringing a person to justice for contempt of court is decided by the court immediately after the violation has been committed, for which a break is announced in the court session (part 4 of article 33 of the CCP).

As for the boundaries of the behavior of lawyers, then within the meaning of Art. 329 of the Code of Criminal Procedure, a defense lawyer who is present in the courtroom is obliged to file motions, to file objections only after the presiding judge has given him the floor, and is also obliged to observe order in the court session and unquestioningly obey the relevant orders of the presiding judge.

By virtue of the provisions of Article 47 of the CCP, a defender is obliged to use the remedies provided for by the CCP and other laws in order to ensure the observance of the rights, freedoms and legitimate interests of the suspect, the accused and to clarify the circumstances that refute the suspicion or accusation, mitigate or exclude the criminal liability of the suspect, the accused.

A lawyer must arrive to participate in the performance of procedural actions with the participation of the suspect, the accused. If it is impossible to arrive at the appointed time, the defense lawyer is obliged to notify the investigator, prosecutor, investigating judge, court of such impossibility and its reasons in advance.

And the general rule is that the parties and participants in criminal proceedings, as well as other persons present in the courtroom, are obliged to obey the orders of the presiding judge without question.

The defenders really left the court session, however, the presiding judge did not commit any procedural actions that would indicate the unlawful behavior of the defenders, - the Supreme Court noted. - After all, the investigating judge did not consider it necessary to raise the issue of bringing lawyers to disciplinary responsibility before the Qualification Disciplinary Commission of the Bar.

For these reasons, the Supreme Court refused the National Anti-Corruption Bureau to satisfy its demands to punish lawyers.

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