Use of legal remedies is not pressure – BCU

Lidiya Izovitova, the President of the UNBA, BCU appealed to the Prosecutor General's Office and the Council of Prosecutors of Ukraine regarding the inadmissibility of pressure on lawyers who use legal means of defense in the framework of providing legal aid.

Earlier, the Bar Council of Ukraine considered the appeal of a lawyer who, on behalf of his clients, filed a motion for temporary access to documents containing legally protected secrets, a motion for a search, and sent lawyer's requests related to the prosecutor's service in the case. Based on these documents, a motion was filed to disqualify the prosecutor due to circumstances that raise reasonable doubts about his impartiality (the court dismissed the motion).

At the same time, the prosecutor appealed to the Council of Prosecutors of Ukraine with a report on the threat to his independence. He pointed to unlawful influence and pressure in the exercise of his powers and failure to comply with the limits of reasonable criticism by the lawyer.

After reviewing the materials, the CPU confirmed the fact that the prosecutor's independence was threatened by the lawyer's actions, and informed the regional bar council of the decision.

The BCU paid special attention to the fact that the prosecutor initiated the issue of assessing the validity and appropriateness of the tactics, methods and techniques of advocacy used by the advocate who was his procedural opponent before the CPU. And the CPU asked the lawyer to provide explanations on these issues. This poses a threat of violation of the principles of independence and confidentiality of the practice of law, as well as the risk of disclosure of information constituting the attorney-client privilege. Moreover, such actions undermine the fundamental principles and foundations of the legal profession. Therefore, the conclusion of the CPU regarding the failure of the advocate to comply with the limits of reasonable criticism of the prosecutor negates the right of the advocate to participate effectively in the process when practicing law in court, since the position of the CPU is actually reduced to the fact that the defense counsel should be passive and predictable for his procedural opponent, the prosecutor, and not respond to the shortcomings of the latter's procedural activities.

As a result, the Bar Council of Ukraine condemned and recognized as unacceptable the violation of the advocate's right to effective participation in the process in the course of advocacy in court, including by providing an assessment of tactics, methods and techniques of advocacy by unauthorized bodies and persons.

In addition, the practice of certain law enforcement officials aimed at narrowing and restricting the professional rights of attorneys to file an attorney's request in order to obtain information and copies of documents necessary for the attorney to prepare the attorney's legal position in the case, to provide proper defense of the client and to strengthen the client's adversarial (other) legal position was recognized as unacceptable, illegal and violating the rights of attorneys and guarantees of the practice of law.

It also emphasized the inadmissibility of actions aimed at restricting the independence of the legal profession, honor, dignity and business reputation of their colleagues, undermining the prestige of the Bar and the practice of law.

The full text of the decision of the UNBA dated 07.06.2024 No. 24 «On Appeal to the Office of the Prosecutor General and the Council of Prosecutors of Ukraine on Compliance with the Guarantees of the Practice of Law» is available at the link.