Issue 2 (16) 2012

Makhov PROVIDING THE RIGHT FOR THE ACCUSED TO DEFENSE IN CRIMINAL PROCEEDINGS OF THE RUSSIAN FEDERATION AND THE REPUBLIC OF TAJIKISTAN

PROVIDING THE RIGHT FOR THE ACCUSED TO DEFENSE IN CRIMINAL PROCEEDINGS OF THE RUSSIAN FEDERATION AND THE REPUBLIC OF TAJIKISTAN

V.N. Makhov

Peoples’ Friendship University of Russia
6, Miklukho-Maklaya st., Moscow, Russia, 117198
E-mail: This email address is being protected from spambots. You need JavaScript enabled to view it.

I.A. Bakhromov

Peoples’ Friendship University of Russia
6, Miklukho-Maklaya st., Moscow, Russia, 117198
E-mail: This email address is being protected from spambots. You need JavaScript enabled to view it.

The article notes significant similarities of the criminal-procedural legislation of the Russian Federation and the Republic of Tajikistan, including the legal status of the accused as well as providing their right to defense. 

As the Code of Criminal Procedure (CCP) has been adopted by the Republic of Tajikistan after the CCP of the Russian Federation, the legislation of Tajikistan has taken into account some criticisms about the content of the CCP of the Russian Federation, in particular, the CCP of the Republic of Tajikistan has principles such as comprehensiveness, completeness and validity studies of the case prosecutor, investigator and inquiry officer. 

The main similar provisions about providing the rights of the accused to defense are enshrined in the Constitution of the Russian Federation and the Constitution of the Republic of Tajikistan. 

On the basis of constitutional provisions in the CCP of the Russian Federation and Tajikistan CCP have formulated the principle of the right of the accused to defend, namely the right to a timely explanation of his rights and defending against charges by not prohibited ways and means in the CCP. It is proved that this responsibility rests with the investigator, the inquiry officer (representatives of the defense), it is quite logical, since these individuals are simultaneously members of the government, who are responsible for a criminal case. 

According to the authors’ opinion, ensuring the protection of personal and property rights of the accused is not under consideration but several other principles of criminal procedure. However, they do not consider it appropriate way to delete the reference about providing the mentioned rights from the text of the analyzing principle of the CCP of the Republic of Tajikistan. There is an argument that the legislation of the Republic of Tajikistan gives a more comprehensive understanding of this principle than the legislation of Russia. 

It is paid attentions to the implementation in practice in Russia and Tajikistan the responsibilities of investigator and inquiry officer, which are connected with providing the right by appointed defenders to the accused (free), especially in a matter of urgency.

Lawyers are not subordinate to investigators. Another important cause of the problem with calling a lawyer for defending the accused intended: a paltry payment of the state for appointed defenders. The solution is to take account the experience of the United States and other countries, it is proposed to consolidate the law creating attorney’s office, which is offering the protection of appointed defenders to the accused. Funding for this service is carried out in abroad, not only the state but also from other sources listed in the law. 

Moreover, it is proposed to indicate persons who may be recognized as legitimate representatives of juvenile defendants in the CCP of the Republic of Tajikistan as in the CCP of the Russian Federation. 

It is considered the problem of providing the right to defense a person against whom the proceedings are conducted in a criminal case on the application of compulsory medical measures.

Keywords: accused; the inquiry officer; investigator; prosecutor; defender of the accused; providing the right to defense; legal representative; an appointed lawyer; Code of Criminal Procedure; personal and property rights

Bibliograficheskij spisok

1. Galoganov A. Advokatura Rossii segodnja // Ros. justicija. 2000. №9 [Jelektronnyj resurs]. Dostup iz sprav.-pravovoj sistemy «Konsul'tantPljus».

2. Kulakov V. Zawitim avansom // Ros. gazeta. 2012 g. 20 marta.

3. Smirnov A.V., Kalinovskij K.B. Kommentarij k Ugolovno-processual'nomu kodeksu Rossijskoj Federacii. 5-e izd. M.: Prospekt, 2009. 992 s.