Dispute Resolution |

Angelika SITSKO ,
Partner, GOLAW

One for all

The attorney, who takes to defend an aggrieved person in criminal proceedings, should be prepared to fulfill not only his or her duties, but also the functions of investigator and prosecutor. Moreover, it is also necessary to be able to force law-enforcers to work



Obstacles on this long distance begin immediately, from the stage of registration of criminal proceedings. You may be surprised, but, according to the official version provided by law-enforcers, there is no such phenomenon in our country as raiding, and if something like that does happen, then such actions are called either "fraud" or otherwise. The applicant is only allowed to find out what qualification in procedural fantasies of law-enforcement officers is given to an application submitted on committing raiding after registration of criminal proceedings (if registered, of course). No matter how the qualification of events made by law-enforcers have shocked you, don't even think about discussing that with the prosecutor. Unlike you, the prosecutor knows that raiding is a so-called control crime, so reckless actions can result in a large number of unpleasant moments in communicating with superior management. The right option is to submit an appeal to a court.

Even if the court still ordered the investigation body to register the application in the Unified Register of Pre-Trial Investigations under the article "Raiding", to attain the execution of such a court decision is no easy task. Narrative about the absence of raiding has its logical continuation here. But you will be told directly in this way: no text of a court decision means no execution. It is necessary to know that the path taken by the court’s decision to its addressee for execution is passing through the court office and, accordingly, to the investigative body (the document submitted by the attorney will not be accepted), and this means that its transfer can take a month or two.

The only procedural way of influencing an investigator's actions is through a petition. But whatever you ask, the investigators have one answer: it is not allowed, it is impossible, refusal! One is not allowed to familiarize oneself with the proceeding records, carrying out an examination is not permitted, refusal to provide defense with notice of suspicion! (and this is despite the fact that the notice of suspicion was not properly handed in, but is available in the case records). The necessity of such procedural correspondence can get an incompetent person involved in a maze from which it will be difficult to get out of. The defender should not be surprised by the absence of a signature from the authorities, which decided to deny the petition, on the forwarded responses. And even if a signature is put, it may be that the signature belongs to a person who has no connection to this proceeding. The task of an experienced attorney is to find such inconsistencies so as to draw the attention of the court to them.

Well, there is a need to bring law-enforcers back to legal reality with the help of investigative judges. But, as everyone knows, to win a case and to execute the court’s decision are two very different things. Here the attorney will not only need the excellent knowledge of the Special Part of the Criminal Code, but a great deal of patience. Those endowed with power only have regard for  strong ones. It is necessary to be prepared to really seek criminal responsibility for failure to execute the court decision.

Personal meetings with procedural leaders may be effective to some extent. But getting an appointment is not so easy, as the ingenuity of law-enforcers to rebuff unwanted visitors deserves separate articles. Therefore, the attorney should apply all of his or her knowledge and show creativity. And with a properly developed and implemented tactical combination, the attorney can get, in the guise of the procedural chief, a faithful, influential (in procedural terms) supporter who complies with the legality of the client's interests.




Things are even worse with protection of the rights of an aggrieved person. The victim of a crime may suffer further from the unprofessionalism of law-enforcers. All victims of economic crimes must be compulsorily represented in criminal proceedings by an attorney, otherwise the restoration of rights will not be easy. It is simply not necessary to rely on a qualitative investigation. This may be due to the lack of both qualifications of investigators and staff in general. Surely, practitioners understand that investigators today work in conditions of inhuman exertion, but inertia, failure to perform minimum investigative actions, and so a lick and a promise cannot be justified. The attorney, having agreed to represent the aggrieved person, should clearly understand that he or she will have to deal with absolutely everything, including establishing the place of residence of the person involved and relatives, not to mention that it will be necessary to collect almost all the evidence base for the prosecution, and then to describe in steps, why it this was done and which component of the objective element of the crime is confirmed by each particular piece of evidence.

If the attorney wishes to seek protection of the aggrieved person's rights, then he or she should draw up an investigation plan, potential witness interrogation plans, define a list of evidence required for prosecution and the way to obtain it. The defender needs to determine the necessary expertise and correctly word the questions to the experts. It is also important to verify the correctness of procedural documents drafted by investigators, if necessary, to subject them to severe criticism and to require their errors to be corrected. Well, while defending the injured client, the attorney actually should become the investigator.

And yet, how can the law-enforcer be forced to work? There are no universal methods. However, there are some techniques, the success of which in communicating with law-enforcement agencies is proven in practice.

First: only act in a lawful manner. It is not a quick way, but it is very reliable. Ensuring that law-enforcers work in the legal field will result in receipt of a guaranteed result. The result that is obtained in a legal manner is extremely difficult to cancel.

Secondly: be competent. Think over each of your actions, pay attention to every detail in the preparation of documents. Demonstration of incompetence on your part will never force a law-enforcer to work.

Thirdly: do not lie to your client and do not enter yourself into an uncontrollable framework of obligations. An angry, disgruntled client, forced to seek direct communication with law-enforcers is unlikely to force them to work.

And lastly: be persistent. Perseverance will enable all obstacles to be overcome.