The Moment of Arising of Criminal-Law Protection of the Activities of a Defence Counsel or a Representative of a Person (Articles 397–400 of the Criminal Code of Ukraine): Approaches in Legal Theory and Law Enforcement Practice

Abstract

The article examines the problem of determining the moment when criminal-law protection of the defender’s professional activity arises in crimes against justice provided for in Articles 397–400 of the Criminal Code of Ukraine. Attention is drawn to the dominance in law enforcement practice of a formal approach, according to which criminal-law protection of the defender’s activity is linked exclusively to the procedural formalization of the lawyer’s powers. It is shown that such an approach does not fully take into account the functional nature of адвокатська activity and may create a risk of a “zone of impunity” at the initial stages of criminal proceedings.
Based on the analysis of the provisions of criminal and criminal procedural legislation, the Law of Ukraine “On the Bar and Advocacy”, as well as the scholarly views of Ukrainian legal scholars, emphasis is placed on the fact that the defender performs a publicly significant function of ensuring the implementation of the principles of adversarial proceedings and equality of the parties in criminal justice. In this regard, interference with the defender’s activity causes harm not only to the defender’s professional rights but also to the interests of justice as a whole.
The article presents additional arguments in support of the conclusion that criminal-law protection of the defender’s activity should arise from the moment the lawyer actually begins to perform the function of defense, regardless of the completeness of the formal procedural confirmation of his or her powers. This approach is consistent with the public-law nature of the institution of defense and the objectives of criminal law to safeguard the proper administration of justice.