On the Possible Role and Status of the Defender in the Future Estonian Criminal Procedure
| Author | Meris Sillaots |
| Position | Lecturer of Procedure Law |
| Pages | 132-141 |
Page 132
In view of the forthcoming reform in the Estonian criminal procedure, a principal discussion is necessary, amongst other things, on the role and status of the defender in the criminal procedure.
An important aspect to be considered when establishing a new order for criminal procedure is the guaranteeing of subject status for the suspect, the defendant and the accused, and the strengthening of their subject status through the right of defence. Attention should also be paid to the fact that the reform acts and draft acts of European countries concerning criminal procedure are aimed at strengthening the defendant's subject status1.
It cannot be said that according to legal regulation of the inquisitorial criminal procedure currently in force in Estonia, the suspect, the defendant and the accused are in the status of an "object" in the procedure. It would also be a mistake to believe that the subject status of these persons couldn't and shouldn't be strengthened in the future.
A principal decision to the benefit of one or another model of procedure should be made from the premise that the specific weakness of our inquisitorial procedure is in the fact that the investigating court leading the procedure may be impartial to the disadvantage of the accused and the accused may be viewed as an "object", not a subject of the procedure2. The tendency to view the suspect or the defendant as an "object" rather than a subject may be clearly revealed already in the pre-court procedure stage.
Considering the above, solutions have to be found in choosing a procedural model and in its specific essential designing, which help to prevent the above shortcoming as much as possible.
When speaking about strengthening the subject status of the suspect, defendant and accused, it should naturally be taken into account that an optimum balance should be reached between public and private interests.
Criminal procedure law must, on the one hand, enable the guilt of the defendant to be established and implement the state's obligation to punish. On the other hand, legal regulation has to guarantee that an innocent person is not sentenced guilty and the rights of a person are limited as little as possible through the procedure3.
A certain conflict in the criminal procedure between public interests and the private interests of the suspect, defendant and accused is, and probably will be, inevitable. It is therefore all the more important that the order for criminal procedure provide good grounds for the realisation of fair procedure.
An inevitable element of a fair procedure is that the participants are not objects of the procedure, but have aPage 133chance to defend their rights to influence the course and result of the procedure4.
According to the fairness principle, equal opportunities must be guaranteed for the prosecutor and the defendant in the criminal procedure (in German special literature, Waffengleichheit)5. These opportunities, however, do not imply equal rights, but a balancing of these, taking into account the difference in procedural roles6. Since in the criminal procedure of a state governed by the rule of law, an accused is defined as a procedure subject "able for dialogue", he must have a clear understanding of the meaning of his behaviour in the context of substantive and procedure law. The accused (as well as the suspect and the defendant) must understand his procedural situation7.
The criminal procedure can be called a fair procedure only if the rights of the suspect, defendant and accused to essentially contribute to the procedure and prevent the misuse of state power are not merely laid down on paper, but if such persons are able to exercise them effectively8.
As a rule, the suspect, defendant and accused do not know their procedural rights and their exercise of these rights is difficult without the help of an expert (defender).
The suspect, defendant, and accused, who know their case only from their subjective viewpoints, can defend themselves only in a dilettantish way, and are not able to achieve a full subject status in the procedure9. Due to the defendant's lack of understanding of the procedure, and caused by his partiality, his inability to turn the weaknesses in the accusation to his benefit, it is necessary that the defender help him with advice so that the defendant (accused) may be a serious opponent to the prosecutor10.
The defender can perform his function the more effectively, the more the principle of guaranteeing equal opportunities for the prosecutor and the defender has been followed in establishing the order for procedure.
The principle of equal opportunities does not require that the procedure-specific differences in the role distribution of the prosecutor and defender be levelled off in all respects. The principle does, however, require that more or less equal rights be provided for all litigating parties to make their impact within the procedural framework11.
The actual degree of the prosecutor's and defender's equal opportunities much depends on the specific procedural structure.
Let us ask now against the background of the above, which is more preferred from the aspect of equal opportunities - the continental European inquisitorial model, or the Anglo-American accusatorial model of criminal procedure?
As we know, the defending of human rights in a criminal procedure much depends on whether each defendant (suspect, accused) in each criminal proceeding is equipped with a well-taught, effective and "equal-with-the-prosecutor" defender or not. In the case of accusatorial procedure, it is chiefly up to the suspect, defendant and accused to defend themselves12. Contradiction is essential to this type of procedure. The presentation and investigation of evidence is the duty of the parties. The parties govern the procedure and may dispose of the object of procedure by dropping the charge13.
Thus, when the defender, in an accusatorial procedure, is for some reason relatively ineffective, the suspect, defendant and accused are likely to remain without real protection.
The inquisitorial procedural structure suggests, at first glance, that the shortcomings in the defence are compensated for by the objectivity of the prosecutor and the active participation of the court in clarifying the truth. It should be said though that the effectiveness of the latter is limited in compensating for weaknesses in the defence.
Namely, the objectivity of the prosecutor, in its real form, cannot be of much help from the aspect of defending the defendant. This is supported by the experience that in the continental criminal procedure, the main question of the prosecutor's status is if and how one person can psychologically contain a prosecutor (as an inevitably one- sided performer) and an objective investigator14.
Help from the judge may also often prove to be questionable from the aspect of defending the accused. The joining of two procedural roles (investigator and adjudger) in one person - the judge - is another case of psychological overload, due to which his impartiality may suffer15.
The role of the court in compensating for shortcomings in defence may be effective only in the sense that the court has to stand for the exercise punishing power of the state in accordance with the provisions of law. This duty of the court, of course, may be viewed as a defence aspect for the accused.
So, if one is to presume that the duty of the defender is merely to stand for the exercise of the punishing power of the state in accordance with the provisions of law, then, considering that this is also the duty of the court, it may indeed be concluded that the court can, through its activity, compensate for shortcomings in the defence.
We must, however, admit that such an approach to the defence duty would limit the defence to presenting only the evidence which lightens or relieves the defendant of guilt, and would therefore cover only one aspect of defence. As a result of such a limitation, the defence would be a mere control instance. Such an approach would deny defence as the institution of the criminal procedure in which the autonomy of the defendant is realised and in which his subject status is founded16.
While stressing the need to realise the autonomy of the suspect, defendant and accused in the criminal procedure and to strengthen their subject status, it is not essentially correct to view the judge as the performer of defence as an independent duty, especially if we proceed from the position that a judge might not be related to the investigation principle in the future Estonian procedure.Page 134
Taking into account the rather largely acceptable need to increase the accusatorial element in our criminal procedure, the activity of the court in collecting evidence should be considerably reduced when compared to the present situation17. The complete detachment of the judge from collecting evidence would, however, contradict our established legal tradition18.
The fact that the Estonian legal order has belonged and belongs now to the continental European legal system,19suggests that it would not be justified to reform the Estonian criminal procedure entirely based on the model of Anglo-American accusatorial criminal procedure. This does not imply, however, that the share of accusatorial elements should not...
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