Consent to arrest advocates must be given by bar self-regulatory bodies

Granting the High Council of Justice the power to give consent to the detention of an advocate or to keep him in custody would be a direct interference in the activities of the Ukrainian advocacy. This contradicts the principle of independence of the advocacy guaranteed by the Constitution and laws.

This conclusion was reached by the UNBA Committee on legislative initiatives on advocacy following an analysis of draft law No. 13453 of 07.07.2025 «On amendments to the Criminal Procedure Code of Ukraine and certain other laws of Ukraine to strengthen guarantees for advocacy».

The document proposes to provide that the detention of an advocate or his or her remand in custody shall be carried out with the consent of the High Council of Justice, given on the basis of a submission by the Prosecutor General of Ukraine or his or her deputy, except in cases of detention of a lawyer during or immediately after the commission of a serious or particularly serious crime, if such detention is necessary to prevent the commission of a crime, avert or prevent the consequences of a crime, or ensure the preservation of evidence of that crime.

The UNBA emphasized that any mechanism for protecting the rights of advocates and establishing additional guarantees for the practice of law must be based on the Constitution and laws of Ukraine.

Part two of Article 3 of the Constitution stipulates that human rights and freedoms and their guarantees determine the content and direction of the state's activities. Article 59 guarantees everyone the right to professional legal assistance.

To provide such assistance, there is an advocacy system, which is guaranteed independence (Article 131-2 of the Basic Law). Therefore, any influence, obstruction, or interference in the activities of an advocate or in the functioning of the advocacy system will have negative consequences not only for advocates but also for the realization of the constitutional right of individuals to professional legal assistance.

Granting the High Council of Justice, which is by its nature a constitutional body of state power and judicial administration, the power to grant consent to the detention of an advocate or to keep him in custody would be contrary to the principle of independence of the advocacy.

The advocates also noted that the UNBA supports the idea of eliminating cases of unlawful detention and arrest of advocates and avoiding arbitrariness on the part of law enforcement officials in the course of such procedures. At the same time, consent to such detention or arrest should be given by bodies of advocate self-government that are independent of state influence.

In view of the above, the UNBA considers it appropriate to send draft law No. 13453 for further revision. The full comments and proposals can be viewed at the link.