Participation of defense counsel in criminal proceedings involving persons with mental disorders

The participation of defense counsel in criminal proceedings is one of the key mechanisms for ensuring an individual’s right to legal defense, as guaranteed by both national legislation and international human rights standards. This issue becomes particularly relevant in cases involving individuals with mental disorders. The limited capacity of such persons to comprehend the nature of the charges, understand the essence of procedural actions, provide explanations, or exercise their rights significantly increases the risk of violating the principle of a fair trial. It should be emphasized that what matters is not merely the formal involvement of defense counsel, but their actual ability to provide effective legal representation—which requires specialized knowledge, the ability to interact with persons with mental impairments, competence in medical matters, and a willingness to actively influence the course of criminal proceedings in the best interest of the client. Despite the existence of clear legal provisions mandating the participation of defense counsel in cases involving individuals with mental disabilities, the practice of applying these rules remains inconsistent. Difficulties arise both in identifying the moment when the obligation to provide mandatory defense arises and in the mechanism for ensuring the implementation of this guarantee. This article examines the issue of defense counsel’s participation in criminal proceedings involving persons with mental disorders, as such individuals constitute a distinct and vulnerable category of participants in the criminal process, and therefore require additional procedural safeguards. The analysis focuses on the content and legal significance of the relevant provisions of the Criminal Procedure Code of Ukraine governing the participation of defense counsel in such proceedings, as well as on the legal positions of the Supreme Court and the practice of national appellate courts. The author analyzes the circumstances under which the participation of defense counsel becomes mandatory and draws attention to the complexity of assessing an individual’s mental state at the pre-trial stage. The study explores various scholarly perspectives regarding the procedural point at which counsel must be involved, particularly in the context of applying compulsory medical measures. Particular emphasis is placed on the role of the attorney during the initial stages of the case, including at the moment of arrest, the first meeting with the client, and the collection of confidential information regarding their mental condition. The article also analyzes judicial practice illustrating the importance of mandatory defense counsel participation in cases where there are grounds to doubt a person’s sanity, and substantiates the conclusion that effective legal assistance in such proceedings is not merely a formal requirement, but a genuine guarantee of adherence to the principle of fair trial.