Commentary by Martin Zarbabayan in the Nezavisimaya Gazeta
Counsel and Attorney of White Collar Defense & Investigations Practice at Infralex, advocate Martin Zarbabyan commented on the tendency for courts to prohibit the Defense from fully participating in the examination of evidence presented by the state prosecutor: commenting, making comments and objections, or otherwise drawing attention to the imperfection of the evidence.
This right is not directly provided for in the Criminal Procedure Code of the Russian Federation, therefore, in some courts the defense is allowed to participate in evidence examination by virtue of the general provisions of the Criminal Procedure Code, while in other courts - not.
Some judges proceed from the fact that if one party reads out some documents, the other should not interfere in this process; any comments are allowed only at the stage of debate.
The lawyer does not agree with this approach.
- Firstly, the systemic interpretation of the law says that defense lawyers do have such right.
- Secondly, brief statements during the examination of evidence at the stage of judicial investigation and the assessment of this evidence at the stage of debate are different procedural tasks.
"The main purpose of the active participation of the defense attorney in the examination of the prosecution evidence is to draw the court's attention to certain features and factual data of the evidence presented. <…> It is not always advisable to postpone such a procedural action to a later stage of the debate," the lawyer explained.
There is no uniformity on this issue; the defense has to justify its right to do so in each individual case.
"...In one of the criminal cases, we had the opportunity to draw the presiding judge's attention to the content of the documents being read out: somewhere, to note that the signatory of one of the contracts was not the defendant, but another person; somewhere, to indicate the date of signing the acts of work performed, which, based on the scope of the charges brought, was extremely important.
And in another criminal case, the presiding judge, refusing to satisfy the motion for the defense attorney's participation in the examination of the prosecution evidence, argued that this right was not directly stated in the Criminal Procedure Code. And it was noted that if the defense attorney were to comment, this would significantly increase the time period for considering the case, taking it beyond reasonable limits,” Martin shared.
The problem can be solved in various ways, the most obvious of which, according to the lawyer, is to adjust the wording of the provisions of Article 248 of the Code of Criminal Procedure: “the defense attorney participates in the examination of evidence, including expressing his opinion regarding the prosecution’s evidence.”
More details on the Nezavisimaya Gazeta