Independent oversight is necessary before using CISA materials against an advocate – Lidiya Izovitova

Before the prosecution uses information obtained during covert investigative actions and related to an advocate’s activities, independent procedural oversight must be conducted. It is necessary to determine whether such information is covered by attorney-client privilege and whether it may be disclosed.

The President of the UNBA, BCU Lidiya Izovitova made this statement on September 25 during a meeting of the Bar Council of Ukraine.

She drew attention to situations where covert investigative operations are formally conducted against one person but are used to gain access to that person’s communications with an advocate. Subsequently, this material is used to build a case and bring charges against the advocate himself.

According to L. Izovitova, if the information obtained concerns an advocate, there must be a point at which special professional safeguards take effect. That is why the UNBA has developed a position on the need to implement appropriate safeguards during the exercise of procedural oversight before the prosecution uses such information.

As part of this oversight, it must be determined whether the information constitutes attorney-client privilege and whether its disclosure is permissible.

The President of the UNBA, BCU emphasized that evidence may be deemed inadmissible a year or even several years later. However, it is impossible to restore attorney-client privilege after the relevant materials have already been read, disclosed, or listened to.

Separately, as one of the most recent examples of a violation of professional safeguards, L. Izovitova cited a search conducted by NABU detectives in early September at one of the capital’s law firms. Although the investigating judge’s ruling specified the guarantees for the practice of law, during the search, investigators examined equipment not listed in the court order and gained unauthorized access to materials from attorneys’ cases.

Back in June, the UNBA had appealed to the Office of the Prosecutor General and the State Bureau of Investigation regarding the searches, as well as the installation of covert surveillance devices on advocates. These appeals emphasized that attorney-client privilege is not a personal privilege of the advocate, but a guarantee for the person seeking protection of their rights.

The President of the UNBA, BCU also drew attention to the European Court of Human Rights’ decision in the case of «Vykhor v. Ukraine», which assessed the proportionality of interference during covert operations targeting an advocate. This decision should serve as a guideline for Ukrainian judges and law enforcement agencies.