4 March 2019

Defender office and the attorney in a criminal trial

Provisions of the Code of Criminal Procedure [ “NCP”] provide for the parties to the proceedings in criminal cases, do not have counsel or attorney of choice, a representative of the contracting process before the authorities conducting the criminal proceedings. However, it does not establish for themselves the principal by legal action (power of attorney), but by the judicial authority of official activity – Ordinance on his appointment, for a site that is not able to bear the cost of his salary. These provisions are the implementation of the requirements set by the rules of international law governing the protection of human and civil rights, which involve the right of everyone who does not have sufficient (sufficient) funds to cover the costs of defense, to free counsel from office if the public interest so requires . The ability to use “the terms of the Act,” the defense counsel also assumes Art. 42 paragraph. 2 of the Constitution of 1997.

The rules say about defense or plenipotentiary of the office, because the basis of the authorization to act for or on behalf of the represented hand is connecting him with the body process the ratio of public law, not civil law agreement with the entity authorized to enlist the help of such a representative. Hence owed wages, which are in fact costs unpaid by the party or another person, in whole or in part, legal aid granted ex officio, admits court from the Treasury. The height of the salary is adjusted in relation to lawyers and legal advisers for the appropriate regulation of the Minister of Justice.

Procedural representatives in criminal proceedings are defender and attorney. Who can request counsel and legal aid?. The Act states that the accused in criminal cases is in fulfillment of its rights of defense authorized to establish a defense (Art. 6 in connection NCP. Article. 82 NCP), which can now be a lawyer. In accordance with Article. 87 § 1 of the CIC, party other than the accused may appoint a proxy, which pursuant to art. 88 NCP may be a lawyer, legal adviser or counselor Attorney General of the Republic of Polish in cases where the entity participating in the proceedings Treasury is unrepresented by właściweg public administration bodies, eg. The Prime Minister and members of the Council of Ministers.

Parties other than the accused are in the process of criminal prosecution and the victim other than a public prosecutor-prosecutor, so the auxiliary, private proceedings in compensation for wrongful conviction, arrest or provisional arrest of the person requesting compensation. Legal aid can be established also for those non-parties, if the law authorizes them, eg. An entity obliged to return the material benefit or undue benefit, arrested a suspect who is not, to file a complaint to stop and recover damages for wrongful arrest; person busy to pursue any legal claims the object or thing from which it received (art. 228 § 3 CIC, Art. 323 § 2 CIC, Art. 342 § 5 NCP). All of these entities may request the designation of legal aid in criminal proceedings.

The provisions of the NCP does not sweep any term process, which must be requested with a request to establish a professional representative from the office, hence this decision remains at the discretion of the authorized entity which, taking care properly for their interests, you should try if need be, with the fastest of his appointment especially at the stage of przygotowaczego. Request appoint counsel or legal aid may cover the entire procedure, its specific stage (preliminary proceedings before the Court and the second instance proceedings in a particular case after a final verdict) and make certain procedural action, especially appealing, both covered adwokacko coercion-legal training, and without that rigor).

Judicial body authorized to appoint a representative from the office of the process, both in the preparatory proceedings and the court, in accordance with Article. 81 § 1 in conjunction NCP. Article. 93 § 2 of the NCP president of the court competent to hear the case or referendary court, which seems to rule on the designation in the form of an ordinance. For matters falling under the jurisdiction of military courts competence of Art. 81 presidents are entitled to the right of military courts (art. 671 § 5 NCP). The order to refuse the designation is in the current legal actionable. At the reasoned request of the accused or his counsel you can appoint a new defender in place of the current. Defender shall be designated from the listed defenders in the Court, and the request for appointment recognizes immediately.

The rationale for the designation of a representative office in accordance with Article. 78 § 1 of the NCP demonstration by the applicant by means of the evidence that it is not able to bear the costs of the representative, without prejudice to the necessary support oneself and family. Sentence of Article 2. 78 1 2 NCP states that the refusal to appoint defense counsel can not be use by the accused with free legal aid or free counseling civil referred to in the Act of 5 August 2015. On free legal aid, free of counseling, civic and education legal (Dz. U. of 2017. pos. in 2030 and 2018. pos. 1467).

The rationale for such a request is therefore a situation where the applicant did not have the resources to cover the costs of representation, as well as when some agents have, however, due to the incumbent on the commitment to cover these costs would mean that he would not be able to provide livelihood for himself and his family at a basic level. To take into account not enough so unsubstantiated claims about their difficult financial situation and family, but it is necessary to demonstrate that “duly”, ie. Using all legally permissible means of proof, notably the relevant certificates, contracts, administrative decisions concerning the financial situation or the health of members families. The scope of the present circumstances may include in particular.