The legislator creates certain conditions for the guaranteed equality of the lawyer’s rights with other participants in the proceedings and compliance with the principles of adversarialness and freedom in providing evidence and proving their persuasiveness, as declared in para. 5 of Article 23 of the Law of Ukraine “On Advocacy and Legal Practice”. In addition, according to part 1 of Article 47 of the Criminal Procedure Code of Ukraine, the defender is required to use all defense means provided by the laws of Ukraine in ensuring the rights and legitimate interests of the suspect and the accused.
This necessitates the effective use of existing legislative mechanisms, including the provisions of Article 93 of the Criminal Procedure Code of Ukraine and the institution of a lawyer’s request.
Defense side request: what is the peculiarity?
According to Article 93 of the Criminal Procedure Code of Ukraine, the defense side has the right to independently collect evidence, including by sending requests to individuals and legal entities for information, objects, documents, etc. Such a request can be initiated by the defender (lawyer) or the suspect themselves. This mechanism allows obtaining necessary materials that were not collected by the prosecution side and thus building an effective defense line. However, in fact, the request under Article 93 of the Criminal Procedure Code of Ukraine may or may not be the only way for the defense side to collect evidence.
A lawyer can make a lawyer’s request to state authorities, local self-government bodies, their services, officials, public organizations, as well as to individuals (with the consent of individuals) to obtain certain things, documents or their copies, responses to their requests, complaints, etc., and they are obliged to comply with the lawful demands of the defender (part 7 of Article 46 of the Criminal Procedure Code, paras. 1,4–6, 7 of part 1 of Article 20 and Article 24 of the Law of Ukraine “On Advocacy and Legal Practice”). Thus, in this case, there is a duality in the nature of the request under Article 93 of the Criminal Procedure Code of Ukraine and the lawyer’s request.
Lawyer’s request tool: nature and scope
The lawyer’s request, provided for by the Law of Ukraine “On Advocacy and Legal Practice,” is a tool for obtaining information for professional purposes. It is submitted in writing and obliges the recipient to provide the requested information within the legally defined period. In case of unjustified refusal or failure to provide an answer, the law provides for administrative liability.
Judicial practice shows that a refusal to provide information in response to a lawyer’s request may be deemed unlawful.
However, essentially, the lawyer’s request is an extrajudicial method of collecting information and evidence. Although there is currently no judicial practice regarding the admissibility of evidence obtained through lawyer’s requests, if we talk about the compliance of the defense side’s actions with the requirements of current criminal procedural legislation, I believe that the request under Article 93 of the Criminal Procedure Code of Ukraine is the tool that meets the legal requirements.
Challenges in practical application
In practice, both instruments do not always work properly. For example, recipients of lawyer’s requests often refuse to provide information, citing “confidentiality” or referring to other formal grounds. Regarding requests under Article 93 of the Criminal Procedure Code, there is no established response procedure — the response to such a request is often ignored, especially by private entities. In addition, investigators and prosecutors sometimes question the admissibility of such evidence obtained by the defense, as according to Article 86 of the Criminal Procedure Code of Ukraine, evidence is considered admissible if obtained in the manner established by the Criminal Procedure Code of Ukraine. Thus, the current Criminal Procedure Code provides for information gathering precisely through a request under Article 93 of the Criminal Procedure Code of Ukraine, which raises doubts about the admissibility of evidence obtained through lawyer’s requests.
Therefore, the prosecution side may question the admissibility of evidence obtained through lawyer’s requests, as the criminal process is a separate branch of law and the norm regarding the procedure for collecting evidence by a lawyer is specific to the provisions of the law regulating the submission of lawyer’s requests.
Conclusions and recommendations
In my opinion, during pre-trial investigation, it will still be procedurally correct to request information by sending requests under Article 93 of the Criminal Procedure Code of Ukraine. In turn, during a court hearing or within the scope of providing legal assistance to a client who does not have the status in criminal proceedings, a lawyer’s request will be a more effective and appropriate way to collect documents and information.
It is important for the defender to skillfully use both evidence collection tools. A request under Article 93 of the Criminal Procedure Code should be accompanied by documentation of the submission (for example, through registered mail or email with a receipt), and responses should be attached with explanations to the case materials. Lawyer’s requests should be formulated clearly, justifying the need for information within the scope of defense. It is also recommended to initiate accountability of persons who unjustifiably refuse to provide answers.
The development of an effective mechanism for exercising the right to collect evidence is a guarantee of fair justice and equality of parties in criminal proceedings.