Scientific and methodical approaches to the defense strategy in criminal proceedings
Journal Title: Альманах права - Year 2018, Vol 9, Issue 9
Abstract
The article is devoted to the peculiarities of the actions of the defense party (the accused and his professional advocate – lawyer) in the criminal proceedings of Ukraine. In particular, the specifics of the development and implementation of the protection strategy are disclosed. The author points out that protection in criminal proceedings is a natural reaction to suspicion, and subsequently – an accusation. The author identifies the zero, first, second and third stages of the formation of the defense strategy, their inherent legal features and forms of implementation. It is determined that the defense strategy in criminal proceedings is based on the scientific and practical principles of the defense party’s action system (the accused and his professional advocate, advocate) at each stage of criminal proceedings. In a number of cases, protection begins even before the opening of such proceedings and is aimed at achieving the goal of protection – avoiding or minimizing the effect of criminal law measures on the accused. Such a goal can be realized either in the form of a complete or partial denial of guilt and other signs of the crime, or in the form of confessing guilt with a mitigation of responsibility, or silence – since the burden of proving guilt lies precisely on the side of the charge. It should be noted that, unlike the prosecution’s strategy, the defense strategy is more adaptive. It can be reviewed depending on the procedural situation, evidence collected by the party, evidence of the preventive measure or other measures taken to ensure criminal proceedings (arrest of property, removal from office, temporary restriction in the use of special law), etc. At the same time, it is necessary to take into account the real, and not the declarative, situation in the legal proceedings of Ukraine – when the whole state apparatus, vested with power functions, opposes the side of defense. This obliges the court to take a more careful approach to the legal position of the defense side, and not to consider it exclusively as an attempt to avoid criminal liability.
Authors and Affiliations
Armen Nersesian
Keywords
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