When the State Stands Opposite the Individual
“Give me six lines written by the most honest man, and I will find in them something to hang him” — the words attributed to Cardinal Richelieu sound cynical, yet they contain a truth familiar to every seasoned criminal lawyer. Criminal law is a domain where the distance between innocence and guilt may sometimes reduce to a matter of interpretation, and a person’s fate depends upon who shapes that interpretation.
- Further reading: The Boomerang: How Instruments of Repression Turn on Their Makers
The Inequality of Arms
Michel Foucault, in “Discipline and Punish,” described how the modern state assumed a monopoly on the administration of justice. Today, that monopoly takes the form of prosecutors with their resources, police with their powers, an entire apparatus capable of devoting months to assembling evidence against a single individual.
The accused stands before this machinery often unprepared — torn from daily life by detention, bewildered by terminology he does not comprehend, terrified by consequences he cannot gauge. This is a fundamental asymmetry that only the presence of someone who knows the rules of this game as well as those who conduct it can redress.
Niccolò Machiavelli wrote that fortune is like a raging river — it destroys everything when it meets no prepared dykes and embankments. In criminal proceedings, defence counsel is that embankment. He cannot halt the river, but he can redirect its course.
The Psychology of the Suspect
The first hours after detention are decisive — and most perilous. Robert Cialdini described the mechanism of commitment and consistency: once a statement is made, it creates psychological pressure to stand by it. Testimony given under stress, without understanding of its gravity, becomes an anchor that drags one down throughout the entire proceedings.
Philip Zimbardo’s celebrated Stanford experiment demonstrated how rapidly people internalise assigned roles — guard or prisoner. The dynamics of interrogation activate similar mechanisms. The interrogator knows that time works in his favour. That fatigue, uncertainty, isolation from loved ones — all erode the capacity for rational assessment.
Defence counsel interrupts this dynamic. His presence alters the structure of the situation. He reminds the suspect that he possesses rights. That silence is not an admission of guilt. That every word may wait until emotions subside and the capacity for thought returns.
The Art of Doubt
Criminal law recognises the principle of in dubio pro reo — doubt must be resolved in favour of the accused. But doubt does not arise of its own accord. It must be extracted from the evidence, constructed from the prosecutor’s apparent certainties.
Karl Popper argued that science consists not in confirming hypotheses but in attempting to falsify them. A hypothesis that survives attempts at falsification gains credibility. The indictment is the prosecutor’s hypothesis of guilt. The task of defence counsel is to subject that hypothesis to the most rigorous possible test.
Every witness has his own perspective, his own memory — and memory, as Elizabeth Loftus demonstrated across decades of research, is reconstruction, not recording. Every document arose in a particular context that may alter its meaning. Every piece of circumstantial evidence admits alternative explanations. Defence counsel seeks these fissures in the wall of accusation.
Sun Bin, the Chinese strategist who lived two generations after Sun Tzu, advised: “Attack where defence is impossible.” In criminal proceedings, this means finding points where the prosecutor’s certainty is illusory, where evidence does not fit together as seamlessly as the indictment suggests.
The Victim and the Recovery of Agency
Crime leaves its victim in a state of powerlessness. Someone violated her rights, her property, her dignity — and departed unpunished. Criminal proceedings offer a chance to restore equilibrium, but only for those who know how to seize that chance.
The prosecutor represents the public interest, not the private one. His aim is conviction of the perpetrator, not necessarily satisfaction of the particular victim’s claims. Counsel for the auxiliary prosecutor fills this void — ensuring the victim’s voice is heard, that her loss is compensated, that justice does not remain an abstraction.
Alfred Adler, founder of individual psychology, maintained that a fundamental human need is the sense of agency — the conviction that our actions matter. For the victim of crime, active participation in criminal proceedings through professional counsel may be a path toward reclaiming that agency.
Time as a Weapon
In criminal proceedings, time moves strangely — too swiftly for some, too slowly for others. Limitation periods run inexorably. Pre-trial detention stretches toward infinity. Preparatory proceedings may last years before a case reaches court at all.
Miyamoto Musashi, the legendary samurai and author of “The Book of Five Rings,” wrote of the importance of sensing rhythm in combat: “You must know the opponent’s rhythm and use a rhythm he does not expect.” In criminal proceedings, this means the ability to accelerate when delay harms the client — and to slow when time works in his favour.
Defence counsel knows when to move for release from detention to maximise the chances of success. He knows when to request suspension of proceedings. He knows how to deploy the passage of time as an argument for reduction of sentence.
What Defence Counsel Truly Protects
Kafka, in “The Trial,” depicted the nightmare of a man accused of something he does not understand, by a system whose rules he does not know. This is literary exaggeration, yet it contains truth about how criminal law may appear to someone who suddenly finds himself caught in its gears.
Defence counsel protects not only against wrongful conviction. He protects against the client harming himself through ignorance. He protects against disproportion between punishment and offence. He protects the accused’s right to be treated as subject, not object, of proceedings. He protects human dignity in circumstances that test it.
Hannah Arendt wrote of the “banality of evil” — of how ordinary people, acting within a system, may inflict harm without sense of responsibility. The justice system, despite its best intentions, is a system composed of people who may err, succumb to routine, lose sight of individual fate in the mass of cases. Defence counsel is the voice that reminds: this is not a file number, this is a human being.
When an Entrepreneur Becomes an Accused
Commercial activity intersects with criminal law at numerous points: invoices, settlements, relationships with counterparties, decisions made under uncertainty. What an entrepreneur perceives as normal business practice, a prosecutor may classify as a criminal offence.
Charges under Article 299 of the Penal Code — money laundering. Under Articles 270a and 271a — invoice fraud. Under Articles 300 and 301 — acts to the detriment of creditors. Each of these provisions has its own history of interpretation, its own line of case law, its own nuances that may determine everything.
The entrepreneur knows his business. Defence counsel knows the map of legal hazards that lie in wait across that business. Together, they can build a defence grounded in commercial reality, not in abstract legal qualifications divorced from context.
Skarbiec Law Firm
Since 2006, we have represented the accused and the injured in criminal proceedings — from the first minutes after detention, through preparatory proceedings, to the final court of appeal. We know criminal procedure not from textbooks but from hundreds of cases in which the stakes were liberty, property, and the good name of our clients.
We understand that a telephone call bearing news of a loved one’s detention is a moment when the world turns upside down. We therefore act swiftly, matter-of-factly, without superfluous words. We explain what is happening and what will happen. We assume a burden the client need not carry alone.
“Justice without force is powerless; force without justice is tyranny” — wrote Blaise Pascal. Criminal law is the arena where these two forces collide. Our task is to stand on the side of justice — and to possess the strength to defend it.
