The suspension of judicial proceedings under Article 335 of the Criminal Procedure Code is provided only in cases where the accused is called up for military service, but this provision does not apply to the mobilization of a defense attorney.
This conclusion was reached by the Cassation Criminal Court, upholding the decisions of the lower courts in case No. 127/2822/18, as reported by “Law and Business“.
In this criminal case, the lower courts found guilty and sentenced one defendant under Part 3 of Article 299, Part 4 of Article 187, paras. 6, 9 of Part 2 of Article 115, Part 2 of Article 194 of the Criminal Code, and the other – under Part 3 of Article 299, Part 4 of Article 187, paras. 6, 13 of Part 2 of Article 115, Part 1 of Article 396 of this Code. Both were sentenced to life imprisonment with property confiscation.
In the cassation appeal, the defense of one of the convicts argues that the right of their client to defense was violated, as the trial court unjustifiably replaced the mobilized lawyer for the convicted person.
The SCC pointed out that from the materials of the criminal proceedings, it is evident that the lawyer who was defending the convicted person was mobilized to the Armed Forces of Ukraine. During the court session, the local court gave the convicted person time to conclude a contract with another defense attorney or appoint a defense attorney through the center for the provision of free secondary legal aid. However, the convict did not avail himself of this opportunity. Subsequently, the court appointed a lawyer to him, who provided defense from the moment of appointment until the court’s removal to the deliberation room.
The SCC noted that Article 335 of the Criminal Procedure Code provides for the suspension of judicial proceedings only in cases where the accused was called up for military service during mobilization, but this provision does not apply to the mobilization of a defense attorney.
Under these circumstances, the appointment of a defense attorney from the Regional Center for the Provision of Free Secondary Legal Aid, who actively participated in the hearings during the court proceedings, complies with the law, and the right to defense was not violated due to the replacement of the attorney.