National Police conducted searches of advocates without permission from investigating judge

A search of an advocate's home is not just an investigative measure, but a potential interference with attorney-client privilege, which is protected by law and international standards. It is all the more alarming when such actions are carried out without a court order, at night, and without clear justification of urgency. This new case once again raises the question: are exceptions becoming the rule and guarantees becoming a formality?

On May 29, the UNBA Committee for the Protection of Lawyers' Rights and Guarantees of the Legal Profession received another notification (this time from the Chief Investigator of the National Police) about the need to involve representatives of the bar in four investigative actions at the places of residence and professional activity of lawyers. Representatives of the UNBA Committee, Oleksandr Levadnyi, Oleksii Kalinichenko, Artem Parshin, Artur Voloshin, and Pavlo Savchenko, went to the addresses where the searches were conducted.

In the search reports, they recorded numerous violations of guarantees of the legal profession, including the lack of proper justification for the urgency of the investigative actions (one of them was even conducted at night), as well as the inspection by law enforcement officers of lawyers' files containing attorney-client privilege, which is expressly prohibited by law.

We would like to remind you that, according to the general rule of Part 2 of Article 234 of the Code of Criminal Procedure, a search is conducted on the basis of a ruling by an investigating judge. And in accordance with Article 23 of the Law «On the Bar and the Practice of Law», investigative actions against an advocate, which may be carried out only with the permission of a court, are carried out on the basis of a court decision adopted at the request of the Prosecutor General, his deputies, the prosecutor of the Autonomous Republic of Crimea, the region, the city of Kyiv, or the city of Sevastopol. At the same time, in the event of a search of the lawyer's home, the investigating judge must indicate in his decision a list of items and documents that are planned to be found, identified or seized during the investigative action, and also take into account the guarantees of protection of lawyer-client privilege.

Thus, in order to conduct a search of a lawyer's home, two conditions must be met:

• a ruling by an investigating judge authorizing the search;
• a special entity submitting a request for a search.

Part 3 of Article 30 of the Constitution and Part 3 of Article 233 of the CPC allow an investigator to enter the home or other property of a person before a ruling by an investigating judge only in urgent cases related to saving lives and property or the immediate pursuit of persons suspected of committing a criminal offense. In such a case, the prosecutor is obliged to apply to the investigating judge for a search warrant immediately after taking such action.

The Supreme Court emphasized that the urgent circumstances referred to by the authorities in deciding to conduct a search without a court order must be confirmed by the case file and specific circumstances. They must also generally justify the urgency on the part of law enforcement agencies (decision of the Joint Chamber of the Supreme Court of 7 October 2024 in case No. 466/525/22).

The European Court of Human Rights, analyzing cases of searches of lawyers and seizure of correspondence, emphasized that such actions constitute a serious interference with the rights guaranteed by Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms and must therefore be based on particularly precise law. It is essential that there are clear and detailed rules on this matter, establishing safeguards against possible abuse or arbitrariness. And since the persecution and harassment of members of the legal profession is a threat to the very heart of the Convention system, searches of lawyers' premises must be subject to particularly strict control (para. 43 of the judgment in the case of Heino v. Finland). Failure to observe procedural guarantees during a search and seizure of items in a lawyer's home or other premises constitutes a violation of Article 8 of the Convention (paras. 66-68 of the judgment in the case of Wiser and Bikos Betailigungen GmbH v. Austria).