| Owing to a shortfall in the cash required to pay for the
qualified aid of a barrister, the victims I shall talk about found themselves
in an extremely difficult situation and lost the legal aid of a professional
lawyer.
Vagueness in the interpretation of Part One of Article 45 of the Criminal
Procedural Code of the Russian Federation regulating the procedure for
allowing representatives of the victim to take part in criminal proceedings
facilitated the emergence of such a situation. In compliance with this
article only members of the barrister community enjoyed the right to the
unimpeded provision of qualified paid legal services. Other professional
lawyers, including from non-governmental human rights organisations who
rendered such aid to the victims on a gratuitous basis had to undergo
a
special procedure to be admitted to the criminal proceedings.
The rights of the victims, including the right to obtain legal aid,
are guaranteed by the Constitution of the Russian Federation and are recognised
under universal principles and norms of the international law. In particular,
in compliance with the International Pact on Civil and Political Rights,
aimed at protectng rights that have already been violated, every individual
should be provided efficient means of legal protection. Thus implementation
of such a right should depend only on the volition of the victim and the
ability of the person he chooses to protect his lawful interests, rather
than membership of the lawyer in barrister associations.
This naturally implies that professional lawyers from non-governmental
organisations can unimpededly participate in the criminal proceedings
as representatives of the victim. Implementation of the demands of the
aforementioned international agreement is mandatory and does not depend
on other rules set by federal law.
The Constitution of the RF guarantees the freedom of operation of public
associations, including non-governmental human rights organisations that
enjoy the right to represent and protect in the state executive authorities
(legislative, executive and judiciary) both the rights and legal interests
of their members and the rights of other citizens. Restrictions to this
right are permitted only towards public associations created by foreign
citizens and persons without citizenship or with the participation of
such persons. Thus, Part One of Article 45 of the Criminal Procedural
Code of the RF setting non-constitutional restrictions on the freedom
of operation of public organisations impeded the realisation of their
proxies to protect the rights and lawful interests of citizens who turn
to them for assistance.
The Constitutional Court of the RF agreed with these arguments and in
its definition formulated a position wherebythe right of the victim to
legal aid does not involve his obligation to use the legal services of
barrister associations only. From now on the norm of Part One of Article
45 of the Criminal Procedural Code of the RF should not be interpreted
in such a way asto exclude participation of any professional lawyers,
including those from non-governmental human rights organisations, as representatives
of the victim in the criminal proceedings. Any other
interpretation of Part One of Article 45 of the Criminal Procedural Code
of the Russian Federation should be ruled out.
In a bid to ensure uniform practice in the application of Part One of
Article 45 of the Criminal Procedural Code of the Russian Federation,
I forwarded the definition of the Constitutional Court of the RF to the
Chairman of the Supreme Court of the RF and Public Prosecutor General
of Russia with a request to inform the courts, the bodies of inquest and
preliminary investigation and prosecutor's offices of such a definition.
Human rights commissioners in the subjects of the Russian Federation and
human rights organisations have already been informed of the definition.
See also:
Human
Rights
| 