Leonid Sivakov, head of the Committee for the Protection of Guarantees of Advocacy of the Council of Advocates, told Legal Practice about the practical challenges in ensuring the rights and guarantees of advocacy, typical violations of pre-trial investigation bodies, preservation of attorney confidentiality and changes in the courts' position regarding evidence obtained during a search of a lawyer. Kyiv region.
— Did the war affect the relationship between lawyers and law enforcement agencies?
— From the very beginning of the full-scale war, I was in Kyiv. I remember how the city was emptied, only roadblocks. I didn't even notice the representatives of law enforcement agencies, only soldiers, SBU, TRO. Then it was somehow not up to searches. The activation of search operations falls somewhere at the beginning of May 2022. And actually, I can state that precisely since that time, the number of searches, detentions, investigative and procedural actions against lawyers accompanying certain clients has been constantly increasing. This does not apply to the affairs of ordinary citizens. We are talking about deputies, businessmen, people who had or have influence on politics. Together with these persons, their lawyers are also searched, because lawyers are trusted the most. Law enforcement agencies have chosen for themselves a strategy of investigating criminal proceedings, according to which it is easiest to come and take everything necessary from a lawyer, those materials that are protected by lawyer's secret.
— How widespread is the opening of criminal proceedings specifically against lawyers?
— If the lawyer has been searched, then the next steps of the law enforcement authorities should obviously be to announce suspicions to the lawyer, an indictment, referral of the case to court, a verdict. So, despite hundreds of searches, at most a dozen suspicions were handed over to lawyers, indictments, and even more so, no verdicts at all.
— How do pre-trial investigation bodies justify their interest in lawyers and materials that must be protected by attorney-at-law secrecy?
— Decisions on conducting searches are non-public, you will not find them in the USSR. The investigator probably tells the prosecutor that he has reason to believe that the lawyer may have information about certain facts and circumstances that may confirm the fact of committing a criminal offense. Then they receive the approval of the investigating judge. In this process, the lawyer does not take part.
Law enforcement agencies shoot without warning: instead of demanding the necessary information from persons who may have it, they come with a search to a lawyer who definitely has such information. And in this I see their certain professional deformation.
We are trying to change such approaches, we conduct explanatory work during official meetings with law enforcement agencies. We emphasize that a search of a lawyer, obtaining access to information protected by lawyer's secrecy, is an extreme measure. The lawyer keeps information not only about the person against whom a specific pre-trial investigation is being conducted, but also about other clients, not to mention his own work — all of this is protected by attorney secrecy.
This strategy and tactics of law enforcement agencies must be changed, otherwise there will be not only lawyer secrecy in Ukraine, but also any other. The right of citizens to protect their information should be treated with utmost care.
Currently, pre-trial investigation bodies are exaggerating their right to search. They follow the path of searching the lawyer as soon as possible and extracting the data protected by the lawyer's secret, in order, apparently, to investigate the criminal proceedings sooner.
— Do the lawyers who are members of your committee manage to effectively protect professional rights and guarantees of advocacy during such searches?
– It works. I must state that, when a representative of the committee arrives for a search, the law enforcement officers behave somewhat more politely, are more scrupulous about complying with the requirements of the law and fulfilling their own powers. But this does not always happen.
By chance, I would like to draw attention to the widespread practice of informing law enforcement officers about "exposure" even before the end of the same search. You should not call someone a criminal prematurely, and then deny such a report. Therefore, we ask the law enforcement agencies not to make unnecessary publications in advance, when nothing has yet been established.
— What violations of the rights and guarantees of advocacy can be classified as the most typical?
— Among the most typical are notifications from the regional bar council about a planned search at the last moment (usually late at night about a search that is planned for the morning). My colleagues and I work in the committee on a public basis, we have cases that we lead for other clients, we speak in courts. The law says about advance notice, and it should not be "today for tomorrow", but at least a day in advance.
Another common situation is seizure of a lawyer during a search of his computer and/or phone. Nowadays, almost all information is digitized. The law stipulates that a certain episode may be copied and the medium must be retained by the owner. Investigators often motivate the seizure by the need to carry out an examination. Accordingly, the lawyer is left without his equipment, which does not cost 5 kopecks. If it is to be seized, then there must be an "exchange fund" from which the lawyer will be issued with similar devices instead of the seized ones. The investigation can last for years, so why does the lawyer have to buy a new computer or phone every time?
This is primarily a problem of law enforcement, the law is written quite well. Currently, in almost half of the cases, we manage to "fight back" the equipment, leaving it with a lawyer.
— What position do the courts take when considering accusations based on evidence obtained during searches of the lawyer?
— The use of attorney confidentiality as an evidentiary basis was for some time considered a procedural violation and affected the assessment of the propriety of the relevant evidence. Currently, this practice is already, unfortunately, broken. There are decisions of the Supreme Administrative Court, in which it is written that even certain violations of a procedural nature, with which evidence was obtained from a lawyer, do not matter if these facts are obvious, so such evidence should be accepted as evidence of the guilt of a person who has undergone criminal prosecution. I believe that this is a serious violation of the procedural guarantees of a pre-trial investigation.
— What is necessary for the real protection of the lawyer's secret?
— In my opinion, it would be expedient to clearly prescribe in the law certain requirements for consideration by an investigating judge of a request for a search of a lawyer. Provide adequate justification for the need for such investigative action, taking into account the adoption of all necessary measures to obtain information without violating attorney's confidentiality.
— What does the committee do, apart from participation in investigative actions?
— Our main function is to ensure the protection of lawyers in accordance with Article 23 of the Law of Ukraine "On Advocacy and Advocacy", at least during a search, obtaining access to things and documents, detention, interrogation of a lawyer, etc. This is actually a very large amount of work.
We also conduct seminars, communicate with representatives of pretrial investigation bodies, and publicly advocate for the protection of lawyers' rights. We are constantly learning and improving our professional level.
— Finally, what recommendations can you give to lawyers?
— The first and most important recommendation is to never hesitate to ask for help from fellow lawyers. In particular, the Kyiv Region Bar Council operates a hotline to which a violation of a lawyer's rights can be reported. And the second: gain experience, do not pander to customers. If, from your point of view, the client has violated the law, you can always terminate the contract with him – the law allows this and it will not be a violation of the rules of lawyer ethics. The most you will lose is the fee. During the war, it is necessary to show civic consciousness and contribute to the cleansing of our country from those who have always worked against Ukraine and Ukrainians.
( The interview was led by Oleksiy Nasadyuk, "Legal practice" )