Witness Attorney in Criminal Proceedings: Current Issues

The article is devoted to the investigation of a legal status of a defense lawyer while giving a professional legal assistance to a witness in criminal proceedings. The pretrial investigation is the most extensive and important stage in criminal proceedings; moreover, the most common procedure at this stage is the interrogation of the witness. In 2009, the Constitutional Court of Ukraine defined that according to the Constitution of Ukraine a witness has the right to have a professional legal assistance. Consequently, a participant like witness's defense lawyer in criminal proceedings was needed to be embodied in the articles of the Criminal Procedure Code of Ukraine. In 2012, the Criminal Procedure Code of Ukraine was updated, and now it still contains some provisions about the right of a witness to a have an attorney. But there used to be the Criminal Procedure Code of Ukraine from 1960 which defined the legal status of a witness defense lawyer much wider. This participant of the criminal proceedings was determined as a counsel and was entitled with a wide range of opportunities. Unfortunately, starting with the CPC's updating in 2012, this institute has undergone considerable narrowing, and the attorney has lost all of the rights that were given to him before, as well as being deprived of any procedural status. The article analyzes the provisions of the Criminal Procedure Codes of 1960 and 2012 and gives their comparing. The authors focus on the legal status of the witness's defense lawyer, because the opinions of the scholars integrity of this kind of issue. Some of them consider the importance of leaving the status of attorney as a defense lawyer, others think of establishing it as a counsel, and there are also some opinions of giving the defense lawyer a separate status for a separate reasons remaeked in the article. The advantages and disadvantages of each approach of determining the legal status of a defense lawyer are outlined. The mechanism of involving a lawyer for the witness and the prosecution side are analyzed and also the disadvantages of this procedure are given. Foreign experience (regulation of the same issue in Germany) has been analyzed in order to understand ways to solve the existing problem