Removal of a Lawyer by the Court at Different Stages of the Criminal Procedure
The Criminal Procedure Code regulates the implementation of removal of a lawyer by the court only in relation to the pre-trial stage. Due to the lack of legal regulation, the article raises a question of the possibility and proper procedure for challenging a lawyer by the court on other stages and phases of the criminal proceedings: the preliminary investigation and the preparation for the trial, and after the start of the trial. With regard to the pre-trial stage of criminal proceedings, Criminal Procedure Code mentions the possibility of removal of a lawyer by the court only in the cases under Art. 165 of Code of Criminal Procedure (Part 2, Art. 72, Part 1, Art. 69 Code of Criminal Procedure). The author concludes that removal of a lawyer by the court can be carried out in all forms of judicial control, not only according to Art. 165 Code of Criminal Procedure and Articles 108, 125 of the Code. The Court's decision on removal of a lawyer in this case involves the need to comply with the procedural order of removal inherent of legal procedure: parties have the right to file a motion for removal, to express their position and objections. The article reveals the problem of gaps in legal regulation of actions and decisions of the judges when revealing new facts which exclude the participation of a lawyer in criminal proceedings at the pre-trial stage. The author emphasizes and analyzes the likely form of resolution of this situation by the judge. The author concludes that from a position of maximum guarantee for the rights of participants in the process a better decision would be for the judge to appointment a preliminary hearing in order to decide if the lawyer is to be removed. It was revealed that in the science of criminal proceedings on the removal of a lawyer they often apply a rule set forth in Art. 64, Part 2 of Code of Criminal Procedure. This rule limits the overall statement of objection to the judge beyond the start of the trial. The author concludes that this provision of the law of criminal procedure against a lawyer should not be used. The judge shall make a decision in case of lodging removal of a lawyer after the beginning of the trial, regardless of the time when the party has become aware of a reason for it. Not considering the removal, rendering a decision on the removal alongside with sentencing should be recognized as a violation of the criminal procedure law.