Legal regulation of the participation of defence counsel in criminal proceedings and its significance for ensuring the constitutional right to qualified legal assistance

Abstract

The constitutional guarantee of qualified legal assistance (Article 48 of the Constitution of the Russian Federation) is implemented in criminal proceedings mainly through the institution of defence counsel, whose normative design reveals a divergence between two independent legal values – the right to defence and the right to qualified legal assistance – which law-applying authorities tend to treat as identical. The study aims to establish how the current regulation of counsel participation secures the constitutional standard of qualification and where a gap arises between the formal admission of counsel and the substantive quality of defence. Formal legal and comparative-legal methods, systemic and teleological interpretation, and generalisation of higher-court clarifications are applied. The procedural form of admission, invitation and replacement of counsel is detailed, whereas the criterion of qualification remains predominantly doctrinal and is not expressly fixed in law. The obligatory participation of counsel under Article 51 of the Criminal Procedure Code performs the function of a procedural guarantee but does not by itself predetermine the quality of defence. Substantive qualification is secured not by expanding the list of obligatory participation but by normatively fixing minimum requirements for the standard of defence and the procedural consequences of their non-observance.