Право на захист: регламентація, прогалини, зарубіжний досвід

The author of the article examines the problems of ensuring the right of a person to defense during pre-trial investigation, since the right to defense is a key element of the fairness of the criminal process. The article analyzes the provision of the accused (suspect) with the opportunity to effectively defend himself against the accusation with the involvement of a defense lawyer (advocate), which is a necessary condition for guaranteeing fair justice and respecting the rights of the person. The article examines the norms of domestic and international law designed to ensure the right of any person suspected of committing a criminal offense to defense. The role of a defense lawyer in defending a person suspected of committing a criminal offense and receiving such assistance free of charge is examined. The practice of the ECHR is studied, which convincingly demonstrates that “suspects in criminal proceedings have the right to access legal assistance no later than from the moment of arrest or detention or from the moment when the circumstances in which the person finds himself begin to significantly worsen his situation. The article examines numerous aspects of the right of a person to defense, mechanisms for its provision. the principle of early access to legal aid, including the right to defense during the first interrogation. The best foreign experience is studied and analyzed, which demonstrates the priority of the rule of law during the exercise of the right to defense. The main violations related to the participation of a defense lawyer in criminal proceedings are also investigated. At the same time, examples of neglect of their duties by law enforcement agencies (the prosecution) and their passivity regarding compliance with the procedure of equality of parties in the trial are given. The participation of a defense lawyer in criminal proceedings allows the accused to ensure confidentiality and observance of his right to innocence, avoid pressure from law enforcement agencies, and also prevent abuse by investigators, prosecutors and even the court. The defense lawyer is a guarantee of personal protection and fair justice. Everyone accused of committing a criminal offense is presumed innocent until his guilt is proven in accordance with the law.