The fulfilment of the defender’s trial functions is guaranteed by the procedural rights set out in the Be. It is primarily the duty of the defence lawyer to protect and make use of these rights at all times; in other words, all the rights contained in the Code of Civil Procedure are also obligations in principle.

 

The duties of the defender in connection with the taking of evidence are classified by the Criminal Code as follows: the defender is obliged to (1) use all legal means and methods of defence in the interests of the accused in due time, (2) seek the discovery of facts that save the accused or mitigate his responsibility, and (3) exercise his rights and fulfil his obligations in such a way that he does not hinder the timely conduct of the criminal proceedings.1 In the light of the above, how can the duties of the defence be described, and in general, what criteria can be applied to the work of the defence in a trial at first instance? Well, in this connection, criteria such as decisiveness, impeccable communication skills, moderate persuasiveness, adaptability, or professional preparation in keeping abreast of current legislation and judicial practice are commonly mentioned. In addition to these qualities, there is a specific requirement for an adequate level of knowledge of the factual and legal basis of criminal cases, based in particular on a thorough knowledge of the substance of the documents issued by the authorities. I would add that there is no rule governing the precision with which, when and in what form a lawyer must deal with a given case. A file can be very voluminous, sometimes running to thousands of pages. In such cases, it is impossible to read them in their entirety, but there is no substitute for general knowledge of the case, even if the accused (defendant) recalls the facts of the case with complete accuracy. I believe, moreover, that a detailed study of the indictment is the minimum that can be expected of any defence lawyer (public defender or agent).

 

For this reason, it is common practice for the defender to use a “negative” form of evidence instead of “positive” (active) evidence, which does not consist in obtaining evidence, but in questioning the credibility or sufficiency of the means of proof indicated in the indictment.5 Therefore, the legal requirement that the defendant is obliged to use the legal means of defence in the interest of the accused does not in itself mean that they can be understood as an absolute and automatic obligation of the defence. In relation to the provisions of the CPC, it can only be stated that what is a duty of the defender under the law of the subject matter is always also a right, but the reverse is not true.6