ACTIVITY OF A LAWYER-DEFENDER IN THE PRE-TRIAL STAGES OF THE CRIMINAL PROCEDURE AND BORDERS HER IMMUNITY

Abstract

. A balanced balance between public and private interests helps to build a reasonable model of criminal proceedings. It is based on the principle of favor defensionis, which presupposes the obvious advantages and privileges of a defense attorney. The CPC of the Republic of Kazakhstan provides for a system of such guarantees both in the evidentiary process and in the field of procedural coercion. In this regard, the questions are: about the limits of non-interference of criminal prosecution authorities in the activities of a defense lawyer, does it all fall under the widely interpreted concept of attorney-client privilege? The issues are considered through the prism of one of the most effective ways of collecting evidence – secret investigative actions against a defense lawyer in the context of Part 8 of Article 232 of the Criminal Procedure Code of the Republic of Kazakhstan. Meanwhile, the legislator allowed the unjustified transfer of guarantees of the inviolability of a defense lawyer from the sphere of procedural coercion to the field of criminal procedural evidence. According to the Criminal Procedure Code of the Republic of Kazakhstan, no participant in the process has such guarantees of inviolability (similar to consular), even those endowed with constitutional privileges from criminal prosecution. The authors have formulated well-founded recommendations on preserving and strengthening criminal procedural guarantees at the risk of disclosure of attorney-client privilege. It is necessary to legislatively allow secret investigative actions against a defense lawyer in exceptional cases, only when preparing and committing a criminal offense. At the same time, the criminal prosecution authorities are required to substantiate before the investigating judge the grounds for conducting a secret investigative action against a lawyer with sufficient, reliable and acceptable evidence about his criminal activities. It is advisable to narrow down the material and legal grounds for conducting secret investigative actions against a lawyer to the provisions of paragraph 1) of Part 4 of Article 232 of the Criminal Procedure Code of the Republic of Kazakhstan in cases of crimes sanctioned by imprisonment for more than one year. A prerequisite for authorizing any investigative action against a defense attorney is the exclusion or minimization of disclosure of the circumstances of attorney-client privilege.