Unspoken actions against an advocate: who should go to court?

The granting of permission by an investigating judge to conduct covert investigative (search) activities in relation to an advocate at the request of an investigator, which has only been approved by the head of the regional prosecutor's office, is a violation of the guarantees of legal practice.

This conclusion was reached by the Bar Council of Ukraine in its decision No. 121 of October 18, 2025, which approved the relevant clarification.

The basis for considering the issue was an appeal by an advocate regarding the application of paragraph 3 of part 1 of Article 23 of the Law «On the advocacy and legal practice», according to which:

«operational-search measures or investigative actions against an advocate, which may be carried out only with the permission of a court, shall be 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, and the city of Sevastopol».

BCU requested clarification as to whether the situation where permission for CISA in relation to an advocate is granted by a court on the basis of a motion by an investigator, agreed with the regional prosecutor, and not directly on the basis of a motion by such a prosecutor, complies with this provision.

The bar self-government body proceeded from the assumption that, as a general rule under Article 246 of the CPC, the decision to conduct a special investigative measure is made by an investigator, a prosecutor, and in certain cases, an investigating judge at the request of a prosecutor or investigator, agreed with the prosecutor. At the same time, paragraph 7 of part 1 of Article 480 of the CPC refers to advocates as persons to whom a special procedure for criminal proceedings applies.

In cases where the legislator establishes enhanced guarantees for special subjects, such guarantees must be clearly enshrined in the rules governing the procedure for conducting the relevant procedural measures. And paragraph 3 of part 1 of Article 23 of the relevant Law provides for a non-alternative mechanism: a court decision must be made at the request of the head of the prosecutor's office.

At the same time, the BCU drew attention to paragraph 10 of part 2 of Article 36 of the CPC, which distinguishes between two forms of exercising the powers of a prosecutor: approval of a request by an investigator to an investigating judge to conduct investigative or covert actions, and independent submission of such a request. Approval of the request is considered as permission to implement the investigator's initiative, while the submission of the request by the prosecutor is the implementation of his own initiative. At the same time, Article 480 of the CPC, in the context of a special subject – an advocate – attaches a special procedure specifically to the heads of the prosecution authorities who hold administrative positions and may not be part of the group of prosecutors in a particular proceeding.

Therefore, the powers of the heads of the prosecution authorities in this regard are exceptional and cannot be delegated to other prosecutors or investigators. It is this approach that provides an additional guarantee of protection of the rights of an advocate as a person with special status in criminal proceedings.

In view of the above, the BCU concluded that the granting of permission by an investigating judge to conduct covert investigative (search) actions against an advocate on the basis of a request by an investigator, which has been agreed with the prosecutor (the Prosecutor General, his deputy, the prosecutor of the Autonomous Republic of Crimea, the region, the city of Kyiv, and the city of Sevastopol) is a violation of the guarantees of advocacy established by paragraph 3 of part 1 of Article 23 of the Law of Ukraine «On the advocacy and legal practice».

The full text of the decision of the BCU No. 121 of October 18, 2025, can be viewed at this link.