The right to Defense Counsel and its implementation according to the Criminal Procedure Code of Kosovo

AuthorArmend Podvorica
PositionUniversity 'Ukshin Hoti', Prizren
Pages58-64
Vo
l.
6
N
o
.
3
N
ovem
b
er
,
2020
A
cademic Journal o
f
Business,
A
dministration, Law and Social Science
s
II
PCCL Publishin
g
, Graz-
A
ustri
a
I
SSN 2410-391
8
A
cces online at www.ii
p
ccl.or
g
58
The right to Defense Counsel and its implementation according to the
C
r
i
m
i
n
a
l Pr
oce
d
u
r
e
C
o
d
e
of
K
oso
v
o
Pr
f.
ss. Dr.
rm
nd P
dv
r
c
U
niversity
"
Ukshin Hoti
"
, Prizren
Ab
str
a
ct
This paper aims to address the normative aspect of determining the right to defense counsel
and the importance of this right in practice as a guarantee for a fair trial under the Criminal
Pr
o
c
e
d
u
r
e
C
o
d
e
o
f K
o
s
o
v
o
.
This paper will address two dimensions.
I
n the rst dimension, the researcher will address the
meaning and importance of the right to defense counsel, including the analysis of the right
to mandatory defense and the right to defense counsel at public expense, and the re ection
that this right has in the implementation of criminal procedural principles regarding with
the position of the defendant as an equal party. The second dimension will address the
implementation of the right to defense counselby judicial bodies by analyzing the powers o
f
the defense counsel at each stage of criminal proceedings, in order to guarantee a fair criminal
tr
ia
l
.
K
e
y
words:
d
efense counsel, fair trial, defendant, Criminal Procedure Code of Kosovo
(
CPCK
)
.
I
ntr
odu
ct
io
n
The discussion o
f
the right to de
f
ense counsel in criminal
p
roceedings is a ver
y
crucial
issue which is directl
y
related to the
p
osition o
f
the de
f
endant in criminal
p
roceedings.
The se
p
aration o
f
criminal
p
rocedure
f
unctions and the treatment o
f
the de
f
endant
a
s a subject o
f
criminal
p
roceedings re
p
resents an im
p
rovement o
f
the de
f
endant's
p
osition in criminal
p
roceedings (Sahiti & Murati, 2016). The im
p
lementation o
f
modern criminal
p
rocedure is based on
p
rinci
p
les which aim to ensure a
f
air criminal
trial. Within the
p
reconditions
f
or ensuring a
f
air trial, the right to de
f
ense counsel,
a
s a basic right
f
or the de
f
endant in criminal
p
roceedings, undoubtedl
y
has a ver
y
cr
u
c
ial
r
ole
.
The im
p
ortance o
f
en
f
orcing the right to de
f
ense counsel lies in the
f
act that through
this right, the de
f
endant, is
p
rovided with
p
ro
f
essional
p
rotection b
y
law
y
ers who
have the a
pp
ro
p
riate
p
ro
f
essional training to
p
rovide legal aid.
O
therwise, regarding
the im
p
ortance o
f
de
f
ense counsel, it is estimated that in addition to being in the
interest o
f
the individual against whom the
p
rocedure is conducted, it is also in the
interest o
f
societ
y
not to judge innocent
p
eo
p
le (Sahiti, Murati &
E
lshani, 2014)
.
The right to de
f
ense counsel is guaranteed b
y
international documents such as
t
h
e
E
CHR (
A
rtic
l
e 6,
p
arag.c) an
d
t
h
e PNDCP (
A
rtic
l
e 14), an
d
at t
h
e same time,
it is a right which is guaranteed b
y
the Kosovo Constitution.
I
n the Constitution o
f
K
osovo,
A
rticle 30 de
nes the minimum rights o
f
the accused, while
p
aragra
p
h 5
de
nes the ri
g
ht o
f
the accused to:
have the assistance o
f
a de
f
ence counsel o
f
his choice,
to communicate
f
reely with him and, i
f
he has no means su
cient, to be provided with
f
ree

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