The results of the CISA cannot be used in disciplinary proceedings against advocates – BCU

Materials obtained through covert investigative (search) activities involving interference in private communications cannot be transferred or used in disciplinary proceedings against advocates. This is because the Code of Criminal Procedure does not allow investigators or prosecutors to use such materials outside of criminal proceedings.

The relevant clarification regarding the inadmissibility of using materials obtained through covert investigative (search) activities in disciplinary proceedings against advocates was provided by the Bar Council of Ukraine during its meeting on December 12-13.

BCU noted that this issue is particularly relevant in view of the guarantees of attorney-client privilege enshrined in the Constitution and the Law «On the advocacy and the practice of law». There are also guarantees of confidentiality of correspondence, as defined in Article 31 of the Constitution.

According to the Criminal Procedure Code, wiretapping is carried out solely for the purpose of preventing the commission of a serious or particularly serious crime, if it is impossible to obtain information by other means (Article 246). At the same time, information obtained as a result of interference in communications may not be used for any purpose other than to resolve issues in criminal proceedings (Article 14). Information about a person's private life obtained in accordance with the procedure provided for in the Criminal Procedure Code of Ukraine may also not be used for any purpose other than to resolve issues in criminal proceedings (Article 15). If, as a result of conducting CISA, signs of a criminal offense that is not being investigated in the current criminal proceedings are discovered, the information obtained may be used in other criminal proceedings only on the basis of a ruling by an investigating judge (Article 257).

No provision of law provides for the possibility of transferring the results of CISA obtained as a result of interference in private communications for use in disciplinary proceedings against an advocate.

Instead, in practice, written permissions from an investigator or prosecutor referring to Article 222 of the CPC are used to legalize such actions.

It should be recalled that, according to this article, information from a pre-trial investigation may only be disclosed with the written permission of the investigator or prosecutor and to the extent that they deem possible.

However, such «permissions» should be viewed critically, the BCU stated. This is because Article 222 of the CPC does not give the investigator or prosecutor the right to transfer the results of CISA obtained as a result of interference in private communications for use in disciplinary proceedings. The provisions of this article must be interpreted in conjunction with other provisions of the CPC, which clearly prohibit the use of CISA results outside of criminal proceedings.

Based on the analysis, the BCU explained that the transfer of the results of CISA obtained as a result of interference in private communications and their use in disciplinary proceedings against advocates has no legal basis in the national legislation of Ukraine.

The use of such data in disciplinary proceedings against an advocate contradicts Article 31 of the Constitution and violates the right to respect for private life and correspondence guaranteed by Article 8 of the Convention for the protection of human rights and fundamental freedoms.

On the other hand, if the QDCB uses CISA materials as evidence, it violates the right to a fair trial guaranteed by Article 6 of the Convention.

And if the advocate's actions are so shameful and socially dangerous that they justify interference with the right to privacy of correspondence, the advocate, if there are grounds for doing so, must appear before a court authorized by law to establish the truth in a criminal case, in accordance with due legal procedure.