The paradoxes of urgency: is it possible to investigate a crime before it is committed?

On September 24 in Kyiv, National Police officers detained an advocate during an emergency search, having caught him in the act of committing a crime. At the time, the pretrial investigation in this case had already been ongoing for more than four months.

A representative of the Committee for the protection of advocates’ rights and guarantees of legal practice of the UNBA Oleksandr Levadnyi, who was present during the investigative action and submitted his observations, drew attention to the inconsistent application of the law.

The search was initiated without a prior ruling from an investigating judge, citing Part 3 of Article 233 of the Code of Criminal Procedure and the need for urgent entry into the premises to secure property considered to be physical evidence. During the search, the advocate’s cell phone was seized, even though it was stated that the device contained client information protected by attorney-client privilege. Objections to the seizure of the phone and remarks regarding the violation of professional safeguards were included in the search report.

It is noteworthy that the information was entered into the Unified Register of Pre-trial Investigations in this case as early as May 21. Law enforcement officials cited paragraph 1 of Part 1 of Article 208 of the Code of Criminal Procedure as the basis for the detention, pursuant to which an authorized official has the right, without a ruling from an investigating judge or a court, to detain a person suspected of committing a crime punishable by imprisonment, provided that the person was caught in the act of committing the crime or attempting to commit it.

However, the protocol did not explain which specific criminal act was taking place at the exact moment of the detention. Furthermore, as the Committee’s representative noted in his remarks, no traces or signs of unlawful conduct by the advocate were found at the time of the detention.

«Under these circumstances, the grounds for the advocate’s arrest appear contrived, - O. Levadnyi shared his thoughts. - It seems that the exceptional procedure for arrest without a court order was applied not because of a real need to immediately prevent or stop a crime, but to circumvent the special procedural safeguards for the practice of law».

As a reminder, Article 29 of the Constitution establishes the general rule: no one may be arrested or detained except by a reasoned court decision and only on the grounds and in the manner prescribed by law. An exception is permitted in cases of urgent necessity to prevent or stop a crime. This exception is specified in paragraph 1 of Part 1 of Article 208 of the Code of Criminal Procedure.

The law does not provide for a separate prior authorization for the detention of an advocate. At the same time, Article 480 of the Code of Criminal Procedure classifies advocates as persons subject to a special procedure in criminal proceedings. Pursuant to Article 481 of the CPC, written notification of suspicion to an advocate is issued by the Prosecutor General, his or her deputy, or the head of the regional prosecutor’s office. Furthermore, in accordance with Article 23 of the Law «On the advocacy and the practice of law», the relevant regional bar association must be immediately notified of an advocate’s detention.