PARTICIPATION OF DEFENDER IN THE APPLICATION OF MEASURES TO ENSURE CRIMINAL PROCEEDINGS IN THE PRE-TRIAL INVESTIGATION OF CRIMINAL OFFENSES

Abstract

Practices of defense counsel’s participation in pre-trial investigation of criminal offenses when applying measures to ensure criminal proceedings. The purpose of the article is to study the problematic issues of defense counsel’s participation in the pre-trial investigation of criminal offenses when applying measures to ensure criminal proceedings and to substantiate scientific proposals for their solution. It is proved that participation of a defense counsel in the pre-trial investigation of criminal offenses during the application of measures to ensure criminal proceedings is one of his/her main powers to implement the criminal procedural function of defense in criminal proceedings. The author emphasizes that the current CPC of Ukraine clearly defines the system of application of measures to ensure criminal proceedings, the grounds and procedure for their application. However, defense counsels, while exercising the defense function in the pre-trial investigation, in practice do not always take into account the specifics of application of each of such measures, do not always properly substantiate their legal position with evidence, and do not fully implement the theoretical developments of criminalists regarding the organization and tactics of defense counsel’s participation in the pre-trial investigation of criminal offenses when applying measures to ensure criminal proceedings. Based on the analysis of the results of the study of criminal proceedings, the author concludes that some defense counsels do not sufficiently substantiate their legal position when applying measures to ensure criminal proceedings with appropriate and sufficient evidence, which objectively does not allow the investigating judge to satisfy the defense counsel’s motion to apply certain measures of ensuring, change or cancel them. The author substantiates the position that in order to fully realize the defense function in the pre-trial investigation of criminal offenses when applying interim measures of criminal proceedings, the institute of attorney’s investigation should be introduced into the current CPC of Ukraine, which has already successfully functioned in various legal models of the world and has proven to be effective and an important tool for strengthening the adversarial principles of criminal proceedings at the pre-trial investigation.