The court hearing on the motion for selecting a pretrial detention measure is not just one of the stages of criminal proceedings. It is a test of maturity and integrity of the justice system. It is at this point that the principles of the rule of law collide with the reality of a potential loss of freedom by an individual. This is the moment when the state must demonstrate that its intention to restrict the most valuable right is not an act of arbitrariness, but a justified necessity. And it is here that the right to defense undergoes its first and most crucial test.
However, very often this process turns into what can be called a ‘procedural fiction’ — an illusion of proper legal procedure, where formal legal requirements are met (though not always), but the essence of the right to defense is undermined. When rights are declared but opportunities for their realization are absent, justice becomes a ritual rather than a process of seeking truth.
The fairness of such a judicial process, when issues of restrictions are being considered, is the litmus test of the entire system. How it overcomes the inevitable imbalance between the prosecution side, sometimes preparing for weeks, and the defense side, having only a few hours, shows its true priorities. Is its goal simply to satisfy the prosecutor’s motion, or is it conscientiously verifying the grounds for such a radical intervention in a person’s life? The answer to this question defines the character of the entire justice system — whether it serves the law or just the convenience of the system.
When Time Becomes a Weapon
The principle of equality is the cornerstone of the adversarial process. However, it is often simplified, reducing it to the formal right of parties to present evidence and make motions. In reality, an important and often ignored component of this equality is time. Providing the defense access to the materials of the motion for selecting or extending a pretrial detention measure without giving sufficient time for their analysis and preparation of objections is not the exercise of a right but its subtle denial.
The problem lies not so much in conscious abuse by the prosecutor as in a systemic imbalance that allows the factor of time to become decisive. The prosecution side controls the timing of submitting the motion and, accordingly, the time frame for the defense. In practice, this leads to absurd situations. For example, when a motion for applying a pretrial detention measure in six volumes (about 2000 pages) is handed to the defense attorney at 9 a.m., and the court hearing is scheduled for 2 p.m. on the same day. Or another, no less illustrative case: the prosecutor hands over a volume of materials (about 350 pages) immediately before the hearing, and after lengthy persuasions, the investigating judge announces a 2.5-hour break. Is this time sufficient for studying, analyzing evidence, and forming a well-founded legal position? The question is rhetorical.
The formal three-hour norm, which was supposed to be a guarantee, turns into an instrument of the same ‘procedural fiction.’ It creates the appearance of complying with the law while depriving the defense of a real opportunity to prepare properly. This situation puts the defense at risk of acting in a purely reactive mode, prompting superficial objections instead of developing its own evidence-based strategy. It is at this point that the line is drawn between formal participation and the real skill of the defender: the ability to transform a chaotic reaction into a thoughtful counterattack in an extremely short time.
The European Court of Human Rights consistently emphasizes that the right to legal assistance must be ‘practical and effective,’ not ‘theoretical or illusory.’ It is not enough to just have a lawyer; it is necessary to have a lawyer who has a real opportunity to prepare for providing defense. When the state puts the defender in conditions where proper preparation is impossible, it violates the right to defense.
In its decisions, the ECtHR directly links the effectiveness of defense to the time for preparation. The Court has found violations of the Convention in cases where a lawyer was appointed at the last moment and physically did not have time to study the case materials, making his assistance ineffective.
In the context of selecting a pretrial detention measure, time is not a neutral resource but a form of procedural power. The prosecution side controls the timing, preparing its motion for days or weeks and carefully selecting evidence (at least it should carefully select relevant evidence). By squeezing the time for defense preparation, it maintains a strategic advantage that can influence the court’s decision on the motion. This forces the defense to act in a purely reactive mode, offering only superficial objections instead of developing its own evidence-based strategy. As a result, equality turns into an uneven competition, where one side clearly controls the situation, and the other operates in conditions of information deficit. The lack of time becomes a weapon that neutralizes the defense’s ability to participate substantively.
Appointed Defender — Not a Luxury
The right to freely choose a defender is not a privilege but a fundamental element of effective defense. Its philosophical essence lies not so much in procedural possibility as in trust — an integral component that enables genuine relations between the lawyer and the client and, as a result, the construction of a comprehensive defense strategy, including during the consideration of a motion for applying or extending a pretrial detention measure.
When administrative haste or judicial indifference to the suspect’s choice often justifies the need to meet tight procedural deadlines, it leads to replacing a freely chosen defender with an appointed (in fact, imposed) one, disrupting this trust relationship. Instead of a trusted advisor, a formal procedural stranger comes in. It is not just a substitution of one figure for another; it is the destruction of the very foundation on which effective defense is built. A client deprived of the opportunity to work with a trusted lawyer may become closed, distrustful, and unprepared for full openness, which is crucial for developing a joint effective defense position.
This practice transforms defense from a trust-based strategic partnership into an impersonal, and often, as a result, ineffective formality. Limiting the right to freely choose a defender is not just a procedural flaw but a significant violation that calls into question the fairness of the entire proceeding. The right to choose a lawyer is not a luxury but a necessity, the disregard of which undermines the essence of defense. After all, the client should trust the lawyer, not defend against him as well.
Appointed Defender — a Constitutional Guarantee of Rights?
The system of free legal aid is an important constitutional guarantee aimed at ensuring access to justice for everyone. However, the problem of ineffective defense, which sometimes arises in this context, is not so much a question of individual incompetence of lawyers as a consequence of systemic flaws that create objective obstacles even for the most conscientious professionals.
A lawyer from the legal aid system often enters a case ‘cold,’ inheriting all the problems mentioned above but in an exacerbated form. Firstly, he faces an even more acute time deficit, having no prior knowledge of either the client or the nature of the suspicion or accusation. Secondly, he has to overcome informational inequality and potential distrust from the client, who may perceive the ‘state-appointed’ lawyer as part of the system opposing him. Add to this a heavy workload and other structural problems, and passive behavior in a court hearing becomes not the cause but the consequence of violating the suspect’s or accused’s right to defense, a fair judicial review.
The problems of lack of time and ignoring the free choice of defender converge and intensify precisely in the institution of the appointed defender. Often, a lawyer from the legal aid system is involved precisely to ‘resolve’ the procedural dilemma when the chosen defender cannot arrive on time. As a result, the appointed lawyer becomes the final point in the chain of previous violations of rights. He inherits both problems: he has no time for preparation and no pre-established trust relationship with the client.
Therefore, the passivity of the appointed defender is often not the cause of an unfair judicial review but the result of a process that was fundamentally unfair even before his appearance in the courtroom. This significantly shifts the focus from criticizing individual lawyers to analyzing the imperfect system that puts even conscientious professionals at a disadvantage and turns the guarantee of defense from the state into a mere formality.
Investigating Judge as a Guardian of Rights
In conditions of procedural inequality between the parties, the role of the investigating judge should go beyond that of a passive arbitrator. He becomes an active guarantor of ensuring real justice. Undoubtedly, the investigating judge also acts under strict procedural deadlines, including the notorious 72 hours from the moment of a person’s detention or the submission of a relevant motion. However, this duty transforms his obligation to ensure real, not formal adversarialness, into a key element of justice. He has a positive duty to ensure that the right to defense is realized ‘practically and effectively.’
Judicial inertia, when a judge, for the sake of process speed, leans towards the prosecution’s evidence and ignores the defense’s complaints about lack of time, is a refusal of this mandate. In such a situation, the judge is not just ensuring compliance with the law but effectively becomes a participant in the ‘procedural fiction,’ legitimizing an ’empty’ process.
The principles set out by the ECtHR, for example, in the case ‘Ovsiannikov v. Estonia,’ are particularly relevant here. Although the case concerned access to case materials, its fundamental principle lies in the duty of the court to ensure genuine adversarialness, where the defense has a real opportunity to effectively challenge the prosecution’s evidence.
Refusing to provide the defense with a reasonable time to analyze the materials is functionally equivalent to denying access to them, as both actions prevent an effective rebuttal of the prosecutor’s position. When a judge, despite the defense’s obvious lack of preparedness, continues the hearing, he chooses formality over substantive justice. This choice sends a powerful signal to the entire system: the appearance of justice is more important than its substance. This creates a negative feedback loop, encouraging the prosecution to continue abusing time pressure, knowing that the judicial authority will tolerate it. Thus, the judge’s actions or inaction set the standard of justice for all future cases.
Real, effective defense, and therefore, a legitimate justice system, are characterized not by speed and volume but by thoughtfulness, preparation, and strategic calm. Ensuring this right is not an obstacle to justice but a source of its authority. A decision to take into custody or apply any other preventive measure that has undergone careful scrutiny with the participation of a prepared defense side is incomparably more significant than one made in haste.
The true power of justice emerges when its key elements work in harmony. When effective defense receives sufficient time for preparation, not just formal access to materials. When the free choice of defender is seen as an unshakable condition of trust and fair process. And when the investigating judge fulfills his duty actively to ensure real equality of the parties, not just passively observe the procedure.
It is in this combination — of time, trust, and judicial responsibility — that quiet but unwavering confidence in justice is born. It, like true defense, does not need to be loud. It just needs to be right.