The Lawyer’s Errors While Decision Application

Abstract

The purpose of the article is to outline the tactical and procedural sins of a lawyer while participating in resolving the issue of criminal prosecution being applied to his client, suggesting ways to prevent, minimize, and eliminate criminal procedural means. Methodology. The methodological basis of the scientific article is a set of philosophical, general scientific and special methods of scientific cognition, in particular: the dialectical method of cognition – to deepen the conceptual apparatus, to clarify the nature of such categories as preventive measures, mistakes of the lawyer; historical and legal – during the characterization of the state of scientific research the problems of the application of preventive measures in criminal proceedings; systemic – to characterize the typical mistakes of a lawyer in deciding whether criminal proceedings should be ensured by the protective measures; dogmatic (formal and legal) – during the analysis of the procedural procedure for submitting, reviewing and resolving requests for the application of preventive measures; questionnaire – in the process of interviewing lawyers, investigators, prosecutors and judges. Scientific novelty. Given the special nature of the precautionary measures that limit the suspect’s subjective rights during the pre-trial investigation, it emphasizes the initiative of the defense lawyer, who is empowered in the interests of the client: to refute the investigator’s, the prosecutor’s arguments about the precautionary measure, or to choose the measure sought by the prosecution. The tactical expediency of using the powers conferred on the defense counsel in the interests of the client has been proved, in particular: seeking the cancellation of the decision on the application of the preventive measure; to challenge in this part the decisions, actions, omissions of the authorized subjects of criminal proceedings. In order to avoid the possibility of deterioration of the position of the client, caused by the strategic error of his defender, it is recommended to refuse to testify as a suspect in exchange for guarantees of the use of a softer precautionary measure. It is argued that when deciding whether to take precautionary measures for a minor, the defender should emphasize their psychological and age characteristics, type of occupation, point to the expediency of transferring the minor to the care of parents, guardians or guardians, and to juvenile, child-rearing children their transfer to the administration of that institution. Conclusions. The main task of the lawyer at the stage of election regarding the suspected preventive measure is to prove the feasibility of applying the mildest preventive measure, the inappropriate use of restrictive measures in the interests of the victim of a crime related to domestic violence. The absence of a defense counsel during the consideration of the petition in court, should not be unconditionally attributed to his mistakes, because the content of part 1 of art. 193 of the Code of Criminal Procedure, such participation is not obligatory, although desirable. The nature and specific content of the lawyer’s actions will depend on the type of criminal offense, the features of the pre-trial investigation of the particular criminal proceedings, and the status of the principal. When a measure of protection is already chosen for a client, it is important in the activity of the defender to apply certain tactical techniques, strategically aimed at improving the position of the suspect, to use the possibilities of filing a request for change, to cancel the measure of protection, to challenge the actions of authorized persons.

Keywords: criminal proceedings; lawyer; defender; error; precautionary measures; pre-trial investigation; protection tactics; petition.