Recusal of Defence Lawyer in Case of Use of Illegal Remedies. The Concept and the Problem of Proportionality

Abstract

The article analyses an issue that has not been examined more extensively either in the judicial practice or in legal theory so far, namely the problem of the proportionality of the institute of of the procedural coercive measures applied to the defence lawyer. In the article, the authors first discuss the nature of the right of defence and the right to a particular defence lawyer, the absoluteness and relativity of this right. It is recognised that the right to choose a defence lawyer is not absolute. And this is explained by the fact that in the cases provided for by law, a defence lawyer who uses illegal means of defence may be suspended from further participation in criminal proceedings. Accordingly, another – essential problem – the question of proportionality of this procedural coercive measure applied to the defence lawyer – is raised here. This problem is caused by the fact that the law does not provide at all for the extent to which this coercive measure may be applied to a particular defence lawyer and what the process of reviewing such recusal should be. At the same time, the issues such as whether the defence lawyer can be immediately removed from the defence of two defendants in the same case are not regulated, if it is not established that the illegal defence measures were applied only for the specific benefit of the defendant, etc.