Participation of a defense lawyer in the collection and verification of evidence

Авторами було з'ясовано, що значна роль у кримінально-процесуальному доказуванні з притаманною йому методологією пізнання об'єктивної істини, особливостями прояву структурних елементів на окремих стадіях кримінального провадження належить адвокату-захиснику. Адвокати-захисники залучаються до кримінального провадження з метою надання допомоги затриманим, підозрюваним, обвинуваченим, підсудним та засудженим для захисту їх законних інтересів, надання їм кваліфікованої правової допомоги, унеможливлення фальсифікації доказів, використання незаконних засобів і методів забезпечення слідства, нейтралізації обвинувального упередження попереднього слідства, сприяють винесенню судом законного та обґрунтованого вироку. Адвокат-захисник повинен не тільки бути присутнім, але й активно брати участь у слідчих діях. Проблематика доказів у кримінальному провадженні завжди привертала увагу науковців і практиків у багатьох країнах. Оскільки теорія доказів і законодавство припускають виникнення проблем в зазначеній сфері, слідча та судова практика породжує все нові й нові питання.

Конституція України, проголошуючи право громадян на судовий захист, значно посилила та розширила обсяг прав обвинуваченого, підозрюваного на отримання кваліфікованої правової допомоги. Удосконалення кримінально-процесуального законодавства є надзвичайно важливим, ці зміни, які відбулися, стосувалися процесуального становища захисника. Принцип змагальності нині є основою не лише судових стадій, а й досудового провадження у кримінальних справах. Дискусійними залишаються питання щодо можливості здійснення доказової діяльності, її завдань та цілей, прав та обов'язків, змісту та можливостей. Ці та інші обставини роблять розробку теми цього дослідження актуальною та своєчасною.

Ключові слова: адвокат, захисник, кримінальне судочинство, докази, обшук.

Annotation. The authors note that the legal basis for the participation of a defence attorney in criminal proceedings is based on norms of the constitutional guarantee of everyone a citizen to receive qualified legal assistance, which in his turn follows from the obligation of the state to ensure reliable protection of rights and freedoms of citizen. In addition, the legal status of a defence lawyer is based on the norms of moral and ethical content, which in their totality form the professional ethics of a lawyer. The defence attorney is the most important participant in legal proceedings against whom the law functions are assigned to provide legal assistance and protect the rights and interests of protected persons. This means that in order to fulfil your assignment in criminal proceedings to the defender must be the necessary powers have been granted.

Complex, contradictory, but the gradual movement of Ukraine on the way to a state of law, logically and inevitably causes the need to fully ensure and protect the constitutional rights and freedoms of the individual. First of all, it concerns criminal proceedings, in which the most important issues for any person are solved - his criminal responsibility, freedom, further life. Decision-makers increasingly incorporate “evidence of rehabilitation” into criminal background checks [1]. Lawyers must be available early and often in the legal process so that they can provide assistance for the full scope of their client's legal problem and prevent further legal troubles. A right to civil counsel should encompass proceedings where basic needs are at stake, and not be influenced by inadequately informed judgments of who is worthy of representation [2].

It is logical to the above that the Criminal Procedure Code of Ukraine defines the purpose of criminal proceedings as protection of the legitimate rights and interests of natural and legal persons affected by crimes, protection of persons from unlawful and unjustified charges, convictions, restrictions on their rights and freedoms. It is the need to implement this purpose of criminal proceedings objectively caused by the role of a lawyer defending the person against whom the criminal prosecution is carried out.

Scientific and practical analysis of the problems of advocacy in criminal proceedings are devoted to the works of V.D. Bernaz, T.V. Varfolomeieva, V.I. Halahan, Ya.P. Zeikan, O.V. Kaplina, L.M. Loboiko, Ye.D. Lukianchykov, M.M. Mykheienko, M.A. Pohoretskyi, D.B. Serhieieva and other.

In response to the EU's policy agenda, both academic studies and practitioners have examined to which extent the divergent national rules on admissibility and exclusion of evidence pose a problem as to whether or not to use evidence obtained through legal assistance at trial. All these studies acknowledge that the national laws of criminal procedure of the Member States attach differing consequences as to the unlawful gathering and/or use of evidence and that several national laws do not contain any specific rules at all as to where the evidence was obtained (i.e., no special rules for evidence obtained abroad [3]. It should be noted that the process of harmonization and adaptation of Ukrainian legislation to the legislation of the European Union has also affected the sphere of legal regulation of criminal proceedings. The most important changes are those relating to the implementation of the Constitution of Ukraine, judicial reform, which is taking place in our country, the recognition of the priority of personal protection, increasing the admissibility of evidence, increasing the rights of the parties, ensuring their real, not declarative, procedural equality and adversarial.

Novelties that emerged as a result of the amendments to the Criminal Procedure Code provide, first of all, additional procedural opportunities for the defense. Among the most important changes should be highlighted the obligation of the investigator, the prosecutor regarding the admission of a lawyer to the place of the search at any stage of the investigation.

However, the amendments to the Code of Criminal Procedure of Ukraine have not eliminated all the problems related to this type of advocate-defender activity but created certain difficulties, both at the stage of preliminary investigation and at the stage of the trial. We are talking about the lack of appropriate amendments to the Law of Ukraine “On Free Legal Aid”, which would have allowed the involvement of pro bono counsel to participate in the search as well. Ideally, justice is a universal good: the law protects equally the rights of the rich and powerful, the poor and marginal. In reality, the major share of legal services goes to business entities and wealthy people and the prestige and prosperity of the lawyers who serve them. In the last century, legal professionals and others have taken small steps to provide access to legal processes and legal advice to people who could not otherwise afford them [4]. We found that the type of defense counsel mattered more in sentencing compared with previous decision points. Cases handled by private attorneys were less likely to experience charge reductions at screening and be dismissed. However, decision patterns are reversed post arraignment, where charges start to decrease at a higher rate for cases represented by private counsel. Defendants represented by private lawyers were less likely to plead guilty, but they were also markedly less likely to face incarceration [5].

New challenges of our time require updating and legal regulation of social relations, this phenomenon is typical not only for our country. Thus, the new Criminal Procedure Code of the Republic of Azerbaijan in 2001 contains a different definition of the very concept of the defender, his powers, his role to the prosecutor, some of his duties, etc., then in the previously existing normative and legal acts. However, several provisions of the present code, providing for the right of the accused to a defense, show that the regulation of these norms requires further specification, so that the constitutional principle of the right of every citizen to defend against criminal prosecution through the defense by a special person - a defense lawyer, could and was realized in full by every citizen. The Criminal Procedure Code of the Republic of Azerbaijan defines the procedural position of the defense counsel in criminal proceedings, in particular, as the defense counsel in criminal proceedings may participate only the lawyer who has the right to carry out advocacy in the territory of the Republic of Azerbaijan.

It is necessary to dwell in more detail on the consideration of issues being considered in the light of Azerbaijan's international legal obligations to protect human rights and international standards of independence lawyers. The recent history of the College dates back to 1980, when it began to function on the basis of the Law "On the regulation of the legal profession" of the Azerbaijan Soviet Socialist Republic. After the collapse of the Soviet Union in 1991 and before the adoption of new legislation on the reform of the legal profession in 1999, Azerbaijan, as well as in many other Commonwealth of Independent States countries, there was no single institution that was responsible for the management of the legal profession. Prior to the 1999 reform, lawyers received licenses to practice law in the Ministry justice and practiced as part of specialized lawyers offices. In 1999, with the adoption of the new Law "On Lawyers and Advocates' Activity", the Bar was created, providing for compulsory membership in the Bar Association as a condition for granting a lawyer status with all accompanying legislative guarantees. According to the law, the Bar Association of Azerbaijan is an independent legal institution that professionally carries out activities on legal protection. The 1999 law provided the Bar Association with a number of important functions, including the obligation to select potential lawyers, the development of ethical standards and the implementation of disciplinary proceedings against lawyers.

According to Article 26 of the Constitution of the Republic of Azerbaijan, everyone has the right to defend in ways not prohibited by law and by means of their rights and freedoms. The state guarantees the protection of the rights and freedoms of everyone. In addition, in accordance with Articles 60 and 61 of the Constitution of the Republic of Azerbaijan, the protection of the rights and freedoms of everyone in court is guaranteed, everyone has the right to receive qualified legal assistance, in cases stipulated by law, legal assistance is provided free of charge, for state account. One of the most important provisions of the Constitution of the Republic of Azerbaijan is the provision that every person, from the moment of detention, arrest, the commission of a crime by the competent state authorities is the right to use the assistance of a defense attorney, the right to defense of everyone is guaranteed at any stage of the proceedings [6].

Today, lawyers in Azerbaijan face all sorts of difficulties in the process of their daily professional activities. These include barriers to accessing detained clients, as well as harassment of lawyers, who actively defend the interests of their clients. These problems are associated with a more general flaw in the judiciary, which does not provide reliable protection in relation to the right to a fair trial. A staggeringly low percentage of excuses sentences are indicative of the challenges that lawyers face in defending the right to an effective defense and a range of standards fair trial, including the right to the presumption innocence towards their clients. Along with judges and prosecutors, lawyers play a critical role in terms of protecting the rule of law and providing guarantees against human rights. Their ability to carry out their professional functions freely and independently largely determines the ability of the judicial systems to protect human rights, including the right to fair 11 Resolution of the UN Human Rights Committee, Independence and impartiality of the judiciary bodies, jurors and assessors and the independence of lawyers, legal proceedings enshrined in Article 14 of the International Covenant on Civil and Political Rights (ICCPR) and Article 6 of the European Convention for the Protection of Human Rights (ECHR).

According to the Law on Lawyers and Advocate Activity, lawyers in Azerbaijan are independent and obey only the requirements of Law. The law provides that in the exercise of their professional duties, lawyers have the right to be defenders of their clients (individuals and legal entities); represent their interests in various bodies and organizations, including in foreign countries and organizations; use all methods and means that are not prohibited by law and do not contradict advocate ethics; lead independent investigation, demand evidence from various organizations; get expert opinion for investigation in criminal cases; use "technical means" (these may include digital and other technologies used during dating with his client); and also freely meet and talk with the client in the manner prescribed by law. At the same time, it should be noted that information constituting an advocate secret cannot be regarded as evidence in criminal, civil and administrative cases in which a lawyer provides legal assistance, as well as at a trial with the participation of this lawyer [7].

Defense lawyers must be actively involved in the collection of evidence. This can be explained from the position that any cost savings associated with decreased pretrial detention rates could be reallocated to members of the courtroom workgroup to help reduce court backlogs [8]. Other studies have found that although people who are detained pretrial are less likely than released people to be rearrested in the shortterm--due to the incapacitation effect of incarceration--they are more likely to be rearrested in the future due to a criminogenic effect of time in custody[9]. The more time prosecutors spend on a case post-filing, the more likely defendants are to receive custodial sentences and longer sentences. Case screening time, although not affecting the imposition of custodial sentences, is also positively associated with sentence length. These findings are discussed through the lens of instrumental and expressive functions of punishment [10].

Thus, the above circumstances led to the need to study the role of a defense lawyer in the collection and verification of evidence in modern criminal proceedings.

It should be noted that evidence plays an important role for all participants of criminal proceedings. Thus, independent, corroborative evidence that can be used in such cases includes a 911-call recording; visible injuries photographed by a police officer or observed by a person other than the victim; physical evidence at the crime scene such as a weapon, broken furniture, victim's torn clothing, or a telephone ripped out of the wall; medical testimony that documents injuries or statements made by the victim; eyewitnesses who saw or heard the event; transcripts of prior testimony by the victim; statements that fall under exceptions to the hearsay rule; and admissions by the defendant [11].

If at the stage of the trial the parties enjoy equal rights to convince the court of the correctness and validity of their positions, at the stage of preliminary investigation the prosecution has priority. One argument made in defense of peremptory challenges is that the prosecution and the defense counteract each other, and “cancel out” each other's impact [12]. Defendants charged with more serious crimes, person crimes, crimes with victims, and represented by private attorneys were more likely to go to trial than to be pleaded out [13], therefore, the role of evidence mitigating or exculpating the guilt of an accused is invaluable. Criminal defendants who are convicted at trials are given harsher sentences than those who plead guilty. However, it remains unclear how legally relevant case characteristics might moderate this relationship [14]. Therefore, the interaction between the person charged and the defense attorney is important.

In the course of the judicial investigation, the defense attorney participates in the examination of evidence. The evidence in criminal proceedings is the result of human thinking operations and can be represented by the methodological construction `composition of criminal-judicial evidence', which includes regulatory-procedural, knowledge, fact-finding, and judicial-interpretation segments [15]. The term “investigation” in the criminal procedural legislation is used as a synonym of proof, and in this sense absorbs all elements of proof. This conclusion is legitimate, investigation of evidence at the stage of the judicial investigation includes the collection (questioning of witnesses, victims, etc.), verification (finding out the truth content of testimonies, victims, etc.), and evaluation of each of them in terms of relativity, admissibility, and reliability. Therefore, the identification of the term “investigation” with the term “verification” of evidence, which is one of the elements of proving, cannot be recognized as correct. Participation of a defense lawyer in the collection of evidence during the judicial investigation takes place in three forms:

a) participation in the conduct of investigative actions;

b) presentation of evidence;

c) presentation of motions;

d) presentation of evidence.

The identification of four different approaches to understanding the essence of criminal procedural proof is possible: cognitive (wherein two types of interpretation are distinguished: logical (rational) and rational-empirical); active; integrated; complex and systemic [16], a the evidence verification is aimed at clarifying their reliability, relevance, and admissibility [17].

A defense attorney has the authority to collect and present evidence necessary to provide legal assistance, which means exclusively that he collects and presents factual data concerning the case, which will probably later serve as evidence. In a judicial investigation, it is the court that has such authority. It is to him that the defense attorney provides evidence, i.e., documents and items of evidence.

The presentation of each of them by the lawyer-defender on the judicial investigation has its procedural form. Thus, when presenting an object, the defense counsel must make an oral (recorded in the record of the court session) or written (attached to the materials of the criminal case) request to attach the object as physical evidence to the materials of the criminal case. The court record of the examination of the object shall record the characteristics of the material evidence. The court shall issue a determination and the judge shall issue a ruling to add the object as physical evidence to the criminal case file.

The belonging of an object is indicated in a petition to bring it to the materials of the criminal case as physical evidence: where, when, by whom, under what circumstances the object was found, its significance for a correct resolution of the case. The rest of the attributes are recorded in the record of the court session. Upon submission of the document, the defense counsel shall state an oral or written request for its inclusion in the materials of the criminal case. The document based on a determination or ruling of the court shall be examined and attached to the materials of the criminal case. During the judicial investigation, the defense counsel may file substantiated motions to summon new witnesses, experts, and specialists, to request material evidence and documents to establish the circumstances relevant to the criminal case. The protection of the rights and legitimate interests of the defendant.

The grounds for such motions and the presentation of evidence at the trial may be:

a) his participation in the judicial investigation;

b) collecting evidence by:

- obtaining objects, documents, and other information;

- interviewing persons with their consent;

- obtaining references, characteristics, other documents from public authorities, local selfgovernment bodies, public associations, and organizations obliged to provide the requested documents or copies thereof;

c) a set of actions under cl. “a” and cl. “b” both separately and in any combination thereof.

At the trial, defense attorneys usually make a motion and present evidence in cases such as:

a) by the judicial investigation, the respective motions for procedural actions and attachment of documents or (and) items as physical evidence to the criminal case file were denied;

b) in the process of examining the evidence during the judicial investigation, they conclude that it is possible to establish the circumstances in favor of the defendant.

The Constitution of Ukraine, proclaiming the right of citizens to judicial protection, significantly strengthened and expanded the right of the accused, a suspect to receive qualified legal assistance. Improvement of the criminal procedure law is the most essential thus reflecting on the procedural position of the defender. Have been exposed to change many of the formerly traditional powers of a lawyer-defender. Many fundamental provisions of the criminal legal proceedings. So, the adversarial principle now forms the basis of not only judicial stages but also pre-trial proceedings in criminal cases. This aspect of the activities of the defender is especially important, as his participation in the proof in criminal cases. Questions about the possibility of carrying out the evidentiary activity, its tasks and goals, rights and obligations, content, and opportunities remain debatable, despite the previous and ongoing research time in this direction. These and other circumstances make the development of the topic of the present research is relevant and timely.

The question of evidence and proof in criminal proceedings has always attracted the attention of processors in many countries. As Evidence theory and legislation allow emerging in this area, problems, investigative and judicial practice raises more and more new questions. A defender is a person exercising in the established code of procedure for the protection of the rights and interests of suspects and accused and providing legal assistance in criminal proceedings. First of all, lawyers are allowed as defenders. The assistance of a lawyer is not limited to procedural and time frames criminal cases during the investigation and trial and may include preliminary legal advice, giving oral and written information on legislation, drawing up various statements, and other legal documents.

This is especially important in the conditions of modem Ukraine, which is characterized by growth and the professionalization of crime. The interests of protecting citizens, society, and the state from criminal encroachments, as well as strengthening the guarantees of the rights of a person in criminal proceedings require development, updating of some institutions and rules of evidence, increasing their efficiency. This is all the more relevant since a new Criminal Procedure Code has been adopted, the norms of which are necessary to understand and apply correctly.

Significant role in criminal procedural proving with its inherent methodology of cognition of objective truth, features of manifestation structural elements at certain stages of criminal proceedings belongs to a defense attorney. Defense lawyers are involved in the criminal legal proceedings to help detainees, suspects, accused, defendants, and convicted persons in the defense of their legal interests, to provide them with qualified legal assistance, to make it impossible falsification of evidence, use of illegal methods of maintenance investigation, to neutralize the accusatory bias of the preliminary investigation, contribute to the ruling by the court of a lawful and well-grounded verdict. The defender should not only be present but also actively participate in investigative actions. He must help the accused navigate the nature of his testimony, talking with him before the interview above), determine the correctness of the tactical techniques used by an investigator from the point of view of their compliance with the real provision of law the accused to the defense.

The practical development of the research topic, along with its relevance, determined the purpose and objectives of the study. The main purpose of the work is to comprehensively research the participation of a defense attorney in criminal procedural proof and forms of such participation. In addition, as a research target identified the problems of forensic support of procedural proof of the defense lawyer. Also, the authors considered as the purpose of the study the development of recommendations for improving the legal regulation of the activities carried out by a lawyer to collect evidence that mitigates the responsibility of the person or justifies it.

This goal is concretized in the formulation and solution of the following tasks:

- to define the concept of proof in criminal proceedings, taking into account changes in the criminal procedure law;

- to identify signs of evidentiary activity of the defender;

- to establish the goals, objectives, and limits of the defender's evidentiary activities;

- demonstrate potential procedural and forensic the possibility of a defense lawyer participating in proving at various stages criminal proceedings;

- disclose the specifics of proving exculpatory circumstances and indicate the main ways to identify them.

The object of the study is the activities of a defender to participate in proof in criminal cases as an element of defensive activity, aimed at achieving a favorable outcome for the accused (the suspect) through a legal dispute with the prosecution. Subject studies are criminal procedure norms and jurisprudence on the implementation by the defender of proof in criminal proceedings, taking into account ethical standards.

The methodological basis of the work was formed by such methods as dialectical, system-structural, comparative-legal, logical-legal, and others.

According to the results of the study, the issue of participation of a defense attorney in the evidentiary process in criminal cases was analyzed, as well as how they are carried out. In the article, the authors analyze the factors that allow us to consider a defense attorney a full participant who participates in the collection and verification of evidence.

Results

The improvement of democratic institutions and their implementation is a topical issue in Ukraine in the process of laying the foundation of the rule of law. Also, the participation of a lawyer-defender in the criminal procedure law plays an important role in ensuring the protection of the rights and freedoms of an individual.

The current legislation gives more authority to the prosecution in the collection of evidence than to the defense, thereby violating the adversarial principle in pre-trial proceedings.

The basis of criminal procedural evidence is a dialectical path of knowledge of objective reality, which goes from living contemplation to abstract thinking and from there to practice. In relation to the proof in criminal proceedings, such a formulation allows stating the presence in the considered variety of cognition of reality of such levels as:

a) live contemplation of traces on the objects of the material world and sense-object perception of the circumstances of the case under study;

b) logical thinking, in which based on feelings and sense-object perception the incidents of the criminal case under study are reconstructed, their essence and content are disclosed;

c) making appropriate practical decisions and committing based on their procedurally significant actions.

Subjects of such activity are the investigator, investigator, prosecutor, and court. The lawyer- defender, on the other hand, participates in proving, and this provision is indisputable since, unlike the above-mentioned officials, he is not endowed with the necessary authority necessary to collect evidence, by carrying out investigative and other procedural actions provided for the procedural registration and provision of evidence admissibility.

The participation of the defender in the verification of evidence during the judicial investigation is carried out by such means:

a) by comparing them with other evidence in the criminal case file;

b) establishing the sources of evidence;

c) obtaining other evidence confirming or refuting the evidence being checked.

Thus, the lawyer-defender participates in establishing the truthfulness of the content of the evidence, and the accused, the evidence is checked by him in terms of their unreliability and acquitted - reliability.

The defense counsel participates in the assessment of evidence during the judicial investigation because, firstly, he does not have the power necessary to prove in criminal proceedings; secondly, his activity is one-sided, he assesses evidence to protect the rights and legitimate interests of the defendant; thirdly, the results of his activities to assess evidence are expressed in petitions, statements, etc., which seek to convince the investigator, prosecutor and court of the correctness of his position, and the results of their activities receive.

The lawyer confirms his position regarding the unfoundedness or unprovenness of the defendant the prosecution uses all the procedural requirements provided by law opportunities. This expects a positive impact on perception and understanding jurors of the lawyer's position on his client. The tactics of defense at the trial are different from the tactics of the prosecution because the defense counsel is not obliged to find out the facts exposing the defendant or aggravating his guilt. The defender's task is limited to using the means and methods of protection specified in the law for clarification of circumstances, acquitting or mitigating the accused, and rendering the accused needs legal assistance.

The proof is the meaningful side of criminal procedural activity, which creates the basis for the adoption of procedural decisions, including those that restrict or impede in a certain way, the rights of participants in criminal proceedings. Character criminal procedural activity and its focus are such that these restrictions are primarily applied to persons against whom the criminal prosecution. This means that the participation of a defense attorney in the criminal procedural activities without empowering him to participate in proving becomes pointless. Authors make an entry that participation in proving is necessary for the defender. Based on this, the authors consider it necessary to clarify the definition of proof in criminal legal proceedings. The criminal procedural proof is the activity of subjects of criminal legal proceedings carried out in the form prescribed by law and in the limits determined by him, to understand and establish the circumstances of a criminal event and ensure the achievement of the goals of other participants criminal proceedings. These other goals are specific to each participant. To achieve them the law defines the totality of their rights and obligations. However, it is impossible to achieve no procedural objectives of the participants, except based on establishing circumstances of the crime. Without knowing these circumstances, not a single subject process cannot solve its procedural tasks. So, the authors came to the conclusion that proof is the basis of the criminal procedural activity of any subject of criminal proceedings and means a defender. The stages of the process of collecting evidence are regulated in detail by the criminal procedure law. The basis of evidentiary activity is the adversarial principle, in which functions charges, defense, and resolution of the criminal case are separate from each other and not can be assigned to the same body or the same official. This means that each of the parties independently, based on their own internal conviction, based on the procedural powers carries out evidentiary activities.

The stages of the process of collecting evidence are regulated in detail by the criminal procedure law. The basis of evidentiary activity is the adversarial principle, in which functions charges, defense, and resolution of the criminal case are separate from each other and not can be assigned to the same body or the same official. This means that each of the parties independently, based on their own internal conviction, based on the procedural powers carries out evidentiary activities. Information about the circumstances to be proved or relevant to a criminal case, acquire a certain form, that is, they become evident only after they procedural consolidation in criminal proceedings, which may occur only at the stage of collecting evidence (since at the next stage the verification already existing evidence, procedurally fixed is exposed). Appointment of criminal proceedings in the form of 1) protection of the rights and legitimate interests of persons and organizations victims of crime; 2) protection of the person from illegal and unfounded accusation, conviction, restriction of his rights and freedoms, it becomes clear that the severity of the question of the professional activities of defense counsel in criminal proceedings is extremely important.

Conclusions

The special role of a lawyer-defender in the collection and verification of evidence is due primarily to the fact that he serves as a professional participant in the process, which has special legal knowledge. This fact is reflected in the consolidation of the status of the lawyer in several legislative acts of Ukraine. Taking part in the proving, the lawyer-defender is an active party to the appeal proceedings. At this stage, he performs activities such as the examination of case materials, the submission of new evidence to the court, additional materials, participation in the examination of witnesses, inviting specialists and experts with the help of petitions.

The lawyer-defender needs to analyze the totality of the evidence presented in the first instance, as a result of which to form a position and identify a violation of procedural norms or disagreement with the assessment of the court, to appeal this decision. The activity of a lawyer-defender assumes participation in the process of preparing an appeal, in which he reflects his position on the examination of evidence, providing the following data and arguments:

1) the expediency of listing additional materials (documents, references, etc.) describing the convicted person and the living conditions of his family and close relatives;

2) the necessity and validity of re-examination of evidence;

3) the repeated request to examine the evidence rejected by the court of the first instance;

4) the list of witnesses, specialists, experts, and other persons to be summoned for questioning to confirm those or other circumstances of the case, which were wrongly evaluated by the court;

5) the need to examine “new” evidence, which was not considered by the court of the first instance, with the justification of its impossibility to provide it earlier, for reasons independent of the counsel for the defense.

The examination of evidence is the responsibility of the court, and the main task of the lawyer- defender is to initiate these actions by submitting statements and motions, justifying and arguing their appropriateness. First of all, the evidence referred to by the parties in support of their position shall be subject to verification. For example, defense counsel should indicate what circumstances in the case are confirmed by reexamination or initial examination of certain evidence. The significance of this judicial action is great because the court allows the motion to be filed based on inner conviction, guided by law and conscience.

One of the important circumstances in the exercise of defense counsel during the judicial investigation is the correct timing of certain motions and the presentation of evidence to the court. In such cases it is necessary to take into account, which moment of the stated motion will be the most effective, will receive the pleasure of the court. Premature or untimely statement of this or that motion, including the submission of evidence to the court, can disrupt the further line of defense. Thus, the lawyer-defender, as a subject of proof in the appeal, it is important to take into account the order of provision and (or) reexamination of evidence, that is, he must choose tactics, prepare in advance.

During the consideration of the complaint, the lawyer gives explanations about the arguments outlined in the complaint. A legally correctly drafted complaint, as well as the provision of explanations by the lawyer and his speech in the debate, can cause for the convicted (acquitted) the necessary result.

Thus, the lawyer-defender in appeal proceedings is a special subject of evidence, which is due, above all, due to the presence in the criminal procedural legislation of procedural rights in the field of evidence. Professional duties of the defense counsel include both knowledges of criminal procedural norms and possession of skills to apply the tactical peculiarities of the order of re-examination of the evidence. The defender should pay special attention to the procedure for submitting “new” evidence to the court with the mandatory criterion ofjustification of the failure to submit such evidence by the first instance.

Actions of a defense lawyer in the appeal instance, taking into account the possession of special knowledge and skills, should be assessed as significant and necessary to ensure the observance of all the rights of the accused in court, including in terms of evidence. We believe that he is an active subject of evidence, initiating appellate proceedings, carried out solely to protect the rights and interests of the defendant. Advocate's activity in proving can have a positive impact on the practical implementation of the adversarial principle in the courts and lead to its harmonization in the future.

The law of criminal procedure does not provide for the compulsory participation of a defender in the cassation instance. The only basis for the participation of counsel in appeal proceedings is an invitation by the defendant, his legal representatives, as well as other persons by proxy or consent of the defendant. Such an assignment is formalized through the conclusion of an agreement between the defendant and the defender, as well as the availability of the defender's authority to participate in appeal proceedings, - the relevant bar association.

Counsel, in particular, may request:

- the court's verdict be overturned and the proceedings discontinued;

- to change the court's verdict; to exclude such an episode from the verdict and reduce the defendant's sentence;

- to reclassify the defendant's actions from one article to another article and reduce the degree of punishment; to reduce the measure of punishment;

- to overturn the court's verdict and send the case for a new trial to the first-instance court from the stage of preliminary hearing or trial.

The prospect of further studies is to further analyze and clarify the provisions on the participation of the lawyer-defender in the collection and verification of evidence, the study of the legal nature and characteristics of proof in criminal proceedings.

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