This publication is devoted to problems of improper interpretation by the law enforcement authorities of provisions of the Code of Criminal Procedure of Ukraine during the conduct of investigative actions. The author explains the need for the compulsory admission of an advocate for participation in the conduct of a search of the client’s premises through the implementation of the right to legal assistance and criminal liability for obstructing this right.
Admission of an advocate for participation in conduct of search
Recently, cases of categorical refusal by the law enforcement authorities, and even physical obstacles to the admission of advocates to participate in conducting the search of their clients’ homes or offices have increased in number. Usually, this happens in the course of representation of a legal entity, which formally has no relation to the ongoing criminal proceedings. In this respect, the Committee for the protection of advocates’ rights and professional guarantees of the Bar Council of the Kiev region receives a large number of the relevant complaints from the advocates.
The issue of whether such "non-admission" is legitimate and justified is analyzed through the prism of the provisions of current legislation of Ukraine.
According to Article 59 of the Constitution of Ukraine, everyone has the right to legal assistance. The advocate’s professional right to perform his duty to provide such assistance has to correspond with a duty of the law enforcement authorities to enable advocates to participate in the investigative actions in respect of his client. Otherwise, rendering legal assistance will not be possible, and the access to legal assistance as the constitutional right of every person will be forcibly limited.
At the same time, it appears from the provisions of the CCP of Ukraine and the practice of its application that a person - an owner or tenant of a premise in which the search is conducted is not always the party and even a participant to the criminal proceedings (suspect, accused, injured party, etc.). Therefore, he does not have the full range of relevant criminal procedural rights within the specific criminal proceedings – for example, to challenge a number of actions/omissions/decisions of the investigator before the investigating judge, to file certain procedural petitions and so on. However, the right to legal assistance by an advocate is vested to every person, including those who do not have the status of a party to criminal proceedings, this right being undisputed by virtue of the constitutional norms of direct effect.
However, the CCP of Ukraine, which defines the procedure for search and lists persons who can be present during it, does not contain a direct provision about the obligatory invitation/ admission of an advocate in every case of provision of legal assistance, in order for him to participate directly in the relevant procedural action.
Moreover, in accordance with part 1 of Article 236 of the CCP of Ukraine, an injured party, suspect, defense counsel, representative and other participants of criminal proceedings may be invited to participate in the conduct of search.
Accordingly, the law prima facie provides for the right, but not for the obligation, of the investigator to "allow" an advocate, and only the participants of criminal proceedings. Arguably, this provision "inspires" investigators to obstruct advocates’ access to clients during the search.
But the content of this provision clearly does not mean that the law enforcement authorities have the right not to allow an advocate, who came to provide legal assistance to a client. After all, the advocate is obliged to provide legal assistance to his client by virtue of his professional duties, and the client is entitled to such assistance by virtue of his constitutional right. This is confirmed, in particular, by criminal liability for putting any kind of obstacles to the legitimate activities of the defense counsel or a person’s representative concerning the provision of legal assistance (Article 397 of the Criminal Code of Ukraine). Disposition of part 1 of Article 236 CCP of Ukraine only evidences that an investigator is not always obliged to call (invite) an advocate and to postpone an investigative action in case of his non-appearance or to involve another advocate for a separate procedural action (Article 53 CCP of Ukraine). However, the advocate’s own initiative to participate in the procedural action concerning his client does not entitle the investigator to interfere with the implementation of the relevant rights.
The analysis of the CCP demonstrates that the investigator is obliged to invite the following persons for the participation in the conduct of search:
- at least two eye witnesses (paragraph 2 of part 7 of Article 223 CCP of Ukraine);
- persons whose rights and legitimate interests can be restricted or breached (owner, landlord, etc. - part 3 of Article. 223, part 1 of Article 236 CCP of Ukraine);
- certain participant of the criminal proceedings who has initiated the relevant investigative action and/or his legal counsel or representative (part 6 of Article 223 CCP of Ukraine);
- legal counsel of the suspect, - in the case of a search as a procedural action involving the participation of the suspect or the accused (part 5 of Article 46 CCP of Ukraine);
- representative of the regional bar council (if a search is conducted in the advocate’s premises - Article 23 of the Law of Ukraine "On the Bar and Practice of Law").
Thus, an advocate has an unquestionable right to be called - and respectively admitted - to participate in the appropriate investigative action if:
- a search is conducted upon the request of an advocate or his client as a specific participant of the criminal proceedings (regardless of the status of an advocate as a defender or a representative), or
- the advocate is a defender of the suspect or the accused, and the latter is directly involved in the relevant procedural action.
At the same time, according to the constitutional provision and principles of the criminal procedure, even the advocate who was not invited but who has actually arrived, also has the right of access to the client in any case, both during the search and during other investigative (procedural) actions - the arrest of a client, interrogation, identification of a person or objects, etc. (Articles 46, 208, 224, 228, 229 CCP of Ukraine).
After all, the CCP of Ukraine does not provide for the investigator’s right not to allow an advocate to participate in a search. Having the right to invite (call) an advocate does not mean having the right not to allow him, in case the latter arrived upon his own initiative and without a separate invitation to participate in the procedural action. Given the constitutional obligation to ensure, and constitutional right to have, legal assistance, an investigator is obliged not to interfere with their implementation.
In turn, a physical obstacle put to an advocate who provides legal assistance to his client, including during the search, is considered a crime under Article 397 of the Criminal Code of Ukraine (interference with the activities of a defense counsel or person’s representative) and often under Article 398 of the CCU (inflicting bodily injuries on a defense counsel or representative in connection with activities related to provision of legal assistance).
Thus, although the CCP provisions do not directly oblige the investigator to allow an advocate to participate in a search in all cases, this does not negate the constitutional provision of a direct effect which defines every person’s right to legal assistance regardless of his procedural status in the particular criminal proceedings. An investigator has the right to invite an advocate to participate in the search; this is perhaps the reason for the abuse. However, he is obliged to ensure this right, being guided by the objectives and principles of criminal proceedings. The abuse by law enforcement agencies of their rights and absence of any legal control as well as the risk of potential abuse on the part of the pre-trial investigation bodies of the rights of any person as a result of the absence of their advocate is unacceptable. Accordingly, advocates should be able to fully perform their constitutional duty, i.e. to provide legal assistance.
The foregoing is confirmed by the judgment of the Constitutional Court of Ukraine on the constitutional request made by Mr I.V. Golovan for the official interpretation of Article 59 of the Constitution of Ukraine (case on the right to legal assistance), case no. 1-23/2009 of 30 September 2009, no. 23-рп/2009. Despite the absence in the old CCP (1960) of direct norms concerning the right of a witness to receive legal assistance during the interrogation, the Court provided interpretation in favour of the existence of such right, based on the constitutional right to legal assistance and the need to ensure the implementation of this law by the law enforcement agencies.
Thus, according to said judgment, "enjoyment by everyone of the right to legal assistance cannot depend on the status of a person and the nature of his relations with other persons. The constitutional right of everyone to legal assistance is essentially a guarantee of implementation, protection and preservation of other rights and freedoms of a person and a citizen, and here lies its social significance. Among the functions of such a right in society, the preventive function should be separately identified; this function not only facilitates a lawful exercise by a person of his or her rights and freedoms, but, above all, it is aimed at preventing possible violations or unlawful restrictions on the rights and freedoms of a person and a citizen by public authorities, local governments, their officials and officers. Legal assistance is multifaceted, varying in content, scope and types; it may include consultations, explanations, drafting claims and appeals, issuing certificates, drafting applications, complaints, performing representation, particularly in courts and other State bodies, providing defense and so on. The choice of subject and form of such assistance depends on the will of a person who wishes to receive it. The right to legal assistance is each person’s possibility, guaranteed by the State, to receive such assistance to the extent and form determined by him or her, irrespective of the nature of his or her legal relations with other persons.
The Constitutional Court of Ukraine also held that guaranteeing to everyone the right to legal assistance in the context of part 2 of Article 3, Article 59 of the Constitution of Ukraine imposes on the State corresponding duties - to provide a person with legal assistance of an adequate level. Such duties call for the necessity of defining in the laws of Ukraine and other legal acts of the terms and ways of providing this assistance. However, not all branch laws of Ukraine, notably procedural codes, contain provisions for the implementation of this right, which may lead to the restriction or narrowing of the content and scope of the right of everyone to legal assistance. Besides, guaranteeing to everyone a right to legal assistance is not only a constitutional and legal duty of the State, but also compliance with the commitments taken by Ukraine under the international legal instruments, namely, the Universal Declaration of Human Rights of 1948, the Convention on Human Rights and Fundamental Freedoms of 1950, the International Covenant on Civil and Political Rights of 1966 and so on. Under the terms of Article 64 of the Constitution of Ukraine, a constitutional right of everyone to legal assistance may by no means be limited. According to the Constitution of Ukraine, "everyone has the right to legal assistance" (part one of Article 59); this provision is directly applicable (part 3 of Article 8), and even if this right is not provided for by the laws of Ukraine or other legal acts, a person may not be restricted in its enjoyment. This applies, in particular, to the right of a witness to legal assistance during the questioning in the criminal proceedings and the right of a person in the case of his/her giving explanations in the State bodies...".
It is therefore necessary to call the investigation authorities to avoid creating artificial barriers to the advocate’s professional activities, especially taking into account that this may entail for them a criminal liability by virtue of Article 397 of the Criminal Code of Ukraine. As the central character of the famous novel by Ilf and Petrov said, “I am certainly not a cherub. I do not have wings, but I respect Criminal Code. This is my weakness...”.
Certainly, for investigators who usually browse rather than analyze the law, it would perhaps be necessary to add in the CCP a direct provision about the duty of law enforcement authorities to provide any client with an access to an advocate, including the clients who are not parties to criminal proceedings, during the conduct of search of the premises belonging to him or her. Yet, taking into account the traditional approaches, there is no guarantee of compliance by investigators even with such a direct provision, as they can say, for example, that they do not understand the meaning of the term "law enforcement authorities"... This is their "weakness".
This article “Admission of an advocate for participation in the conduct of search”, written by Mrs Maria Ostrovska, advocate, Head of the Analytical group of the Committee for the protection of advocates’ professional rights and guarantees of the Bar Council of the Kyiv region, was published in the legal journal “Legal Week” (no. 24-26, 29.12.2015).
ABOUT THE AUTHOR