Restrictions on the right to legal assistance in pretrial detention centers are unacceptable – statement by the BCU

The Bar Council of Ukraine has stated that it is unacceptable to restrict the right to professional legal assistance, the guarantees of legal practice, and the confidentiality of communications between advocates and clients in pretrial detention facilities operated by the State Criminal-Executive Service of Ukraine.

The basis for the extraordinary meeting and the BCU’s statement was Order No. 1209/5 of the Ministry of Justice of Ukraine dated May 11, 2026 «On amendments to certain regulatory acts of the Ministry of Justice of Ukraine», registered with the Ministry of Justice on May 11, 2026, under No. 647/46041.

This order amends the Internal rules of procedure for detention centers of the State Criminal-Executive Service. According to the amendments, during the period of martial law, persons providing legal assistance to detainees and convicts who are suspected or accused of criminal offenses against the foundations of Ukraine’s national security are prohibited from bringing in computer equipment. To exercise the relevant powers, as well as to familiarize such detainees and convicts with documents on electronic media, the use of computer equipment owned by the detention centers is provided for.

The BCU emphasized that ensuring security in detention centers is a legitimate goal of the state, however, this objective cannot be achieved by restricting the scope of the right to defense, interfering with the confidentiality of advocate-client communications, creating risks of third-party access to advocate-client privilege, or establishing a reduced scope of procedural guarantees for a specific category of suspects and defendants.

Legal assistance in criminal proceedings includes working with electronic case files, analyzing evidence, preparing procedural documents, organizing information, and formulating a defense strategy. Therefore, depriving an advocate of the ability to use their own computer equipment affects the actual scope, efficiency and quality of legal assistance.

In its statement, the BCU noted that Article 59 of the Constitution guarantees everyone the right to professional legal assistance, and Article 64 of the Constitution prohibits any restriction of this right, even under martial law or a state of emergency. The statement also cited the Constitutional Court’s position in its decision No. 23-rp/2009 dated September 30, 2009, according to which the right to legal assistance is a constitutional, inalienable human right and is universal in nature.

The BCU called on the Ministry of Justice to immediately revise Order No. 1209/5 in the relevant section and restore the procedure allowing advocates to use their own computer equipment subject to a security inspection without access to the content of documents and materials. The BCU also appealed to the Cabinet of Ministers, relevant parliamentary Committees, the Ombudsman, and the Office of the Prosecutor General, requesting that they assess these changes and take measures to prevent the restriction of the right to defense and guarantees of legal practice.

The full text of the document is provided below:

STATEMENT

of the Bar Council of Ukraine

regarding the inadmissibility of restricting the right to professional legal assistance and guarantees of the practice of law in pretrial detention facilities of the State Criminal-Executive Service of Ukraine

The Bar Council of Ukraine, having reviewed Order No. 1209/5 of the Ministry of Justice of Ukraine dated May 11, 2026, «On amendments to certain regulatory acts of the Ministry of Justice of Ukraine», registered with the Ministry of Justice of Ukraine on May 11, 2026, under No. 647/46041, considers it necessary to publicly state that regulatory restrictions on the right to professional legal assistance, guarantees of the practice of law, and the confidentiality of communication between an advocate and a client in pretrial detention facilities of the State Criminal-Executive Service of Ukraine are unacceptable.

The aforementioned order amends the Internal rules of detention centers of the State Criminal-Executive Service of Ukraine. According to these amendments, during the period of martial law, persons providing legal assistance to detainees and convicts who are suspected or accused of criminal offenses against the foundations of Ukraine’s national security are prohibited from bringing in computer equipment. To exercise the relevant powers, as well as to familiarize such detainees and convicts with documents on electronic media, the use of computer equipment owned by the pretrial detention center is provided for. In fact, this is not about the technical details of the access regime, but about a change in the conditions for providing legal assistance to a specific category of persons.

The Bar Council of Ukraine proceeds from the premise that ensuring security in pretrial detention centers is a legitimate objective of the state. At the same time, this objective cannot be achieved by narrowing the scope of the right to defense, interfering with the confidentiality of advocate-client communications, creating risks of third-party access to advocate-client privilege, or establishing a reduced scope of procedural guarantees for a specific category of suspects and defendants. Any restriction in this area must meet the criteria of legality, necessity, proportionality, and the least interference with the right to defense.

The Bar Council of Ukraine emphasizes that the restriction introduced by the Ministry of Justice of Ukraine cannot be viewed as a purely technical rule of the internal regime of a pretrial detention facility. It directly concerns the manner of exercising the constitutional right to professional legal assistance. In modern criminal proceedings, such assistance includes working with electronic materials of the criminal case, analyzing evidence, preparing procedural documents, organizing a significant volume of information, working with electronic copies of documents, legal databases, case law materials, expert opinions, expert materials, and other data necessary for formulating the defense’s position. Depriving an advocate of the ability to use their own computer equipment directly affects the actual scope, efficiency and quality of legal assistance.

Article 59 of the Constitution of Ukraine guarantees everyone the right to professional legal assistance and the freedom to choose a defender of their rights. Pursuant to Article 64 of the Constitution of Ukraine, this right cannot be restricted even under martial law or a state of emergency. Therefore, martial law as a legal regime cannot in itself serve as a basis for imposing restrictions that complicate, narrow, or render less effective the exercise of the right to professional legal assistance.

Article 22 of the Constitution of Ukraine provides that constitutional rights and freedoms are guaranteed and cannot be abolished, and that when new laws are adopted or amendments are made to existing laws, the content and scope of existing rights and freedoms may not be narrowed. Pursuant to Article 92 of the Constitution of Ukraine, the rights and freedoms of the individual and the citizen, as well as the guarantees of these rights and freedoms, are determined exclusively by laws. A subordinate act of an executive authority may not establish additional restrictions on the manner of exercising the right to legal assistance if such restrictions result in a deterioration of the individual’s position in criminal proceedings or a narrowing of the guarantees of the practice of law.

The Constitutional Court of Ukraine, in its decision of September 30, 2009, No. 23-rp/2009, noted that the right to legal aid is one of the constitutional, inalienable human rights and is of a general nature. This right applies to all persons without exception—citizens of Ukraine, foreigners, and stateless persons residing in Ukraine. Its exercise is based on adherence to the principles of equality before the law and the absence of discrimination on grounds of race, skin color, political, religious, or other beliefs, social origin, property status, place of residence, language, or other characteristics.

The Constitutional Court of Ukraine ruled that the provision of Part 1 of Article 59 of the Constitution of Ukraine — «everyone has the right to legal aid» — must be understood as a state-guaranteed opportunity for any person, regardless of the nature of their legal relations with state bodies, local self-government bodies, associations of citizens, legal entities, and individuals, to freely, without unlawful restrictions, to receive assistance on legal matters to the extent and in the forms they require. This approach precludes the imposition of selective restrictions based on a person’s procedural status or the legal classification of a suspicion or charge.

The Criminal Procedure Code of Ukraine classifies the guarantee of the right to defense, the adversarial nature of the proceedings, freedom to present evidence, confidentiality of communications, and the presumption of innocence as general principles of criminal proceedings (Article 7). The scope of the right to defense includes, in particular, the ability to collect and present evidence, to receive legal assistance from a defense attorney, and to exercise other procedural rights (Article 20). A defense attorney enjoys the procedural rights of the person they are defending, and their meetings with the suspect or accused are confidential (Article 46). The practical implementation of these guarantees requires that the advocate be able to independently use the lawful professional tools necessary for an adequate defense.

Article 12 of the Law of Ukraine «On pretrial detention» guarantees a person in custody the right to legal assistance and confidential legal consultations with an advocate. Visits by a person in custody with a defense attorney and other persons specified by law are confidential; audio recording of such visits is prohibited; video recording must be conducted in a manner that prevents the recording of the content of documents and conversations. These guarantees must cover not only oral communication but also work with documents and electronic defense materials.

With regard to convicted persons held in pretrial detention facilities, similar guarantees are derived from Part 2 of Article 8 of the Criminal Executive Code of Ukraine, to which the Internal rules of pretrial detention facilities also explicitly refer. Thus, a person’s status does not negate the requirement for confidentiality of legal assistance.

The Bar Council of Ukraine emphasizes that the aforementioned guarantees are incompatible with an advocate’s obligation to use computer equipment owned by the pretrial detention center. Such equipment is the property of an institution controlled by the pretrial detention center administration, i.e., a body of the state system for the execution of criminal sentences. An advocate’s use of such equipment to work with defense materials, electronic documents, draft procedural documents, or other client information creates a risk of unauthorized access to information constituting attorney-client privilege, including through temporary files, access logs, residual copies of documents, software settings, or administrative control over the device. The mere fact of creating a situation in which confidentiality depends not on the advocate and the client, but on the technical and organizational conditions determined by the institution’s administration, is sufficient to constitute a violation of the guarantees of the legal profession.

The Law of Ukraine «On the advocacy and the practice of law» defines the practice of law as the independent professional activity of an advocate in providing defense, representation, and other types of legal assistance to a client (Article 1). The practice of law is carried out on the principles of the rule of law, legality, independence, and confidentiality (Article 4). An advocate has the right to take any actions not prohibited by law and necessary for the proper performance of a contract for the provision of legal assistance, including reviewing necessary documents and materials, drafting statements, complaints, motions, and other legal documents (Article 20). The technical means used by an advocate for such work are an integral part of the organization of the advocate’s independent professional practice.

Attorney-client privilege covers any information that has become known to the advocate regarding the client, the content of advice, consultations, and explanations, documents drafted by the advocate, information stored on electronic media, as well as other documents and information obtained in the course of the advocate’s practice (Article 22). Any interference with or obstruction of the practice of advocacy is prohibited. It is also prohibited to demand from an advocate information that constitutes attorney-client privilege, or to inspect, disclose, demand, or seize documents related to the practice of advocacy (Article 23). Such information includes, in particular, files, drafts, electronic copies of documents, metadata, and other digital information generated during the preparation of a defense.

Based on a systematic interpretation of these provisions, the Bar Council of Ukraine emphasizes that prohibiting an advocate from using their own computer equipment and effectively requiring them to use the detention center’s equipment is inconsistent with the guarantees of the independence of legal practice and attorney-client privilege. This model creates a risk of interference with the content of legal assistance, as defense materials are processed through a technical device that is not under the control of the advocate or the client. It also places an unacceptable risk of disclosure of information on the advocate, for the preservation of which the advocate bears a professional duty.

Separately, the Bar Council of Ukraine notes that the changes apply to individuals suspected or accused of criminal offenses against the foundations of Ukraine’s national security. This approach is particularly problematic in light of the presumption of innocence. The mere fact of the legal classification of a suspicion or charge cannot serve as grounds for reducing the procedural safeguards of a person who has not yet been found guilty by a court conviction. The right to defense has the same constitutional nature regardless of the severity of the alleged criminal offense, the public resonance of the proceedings, or the legal regime under which they are conducted. A different approach effectively introduces a presumption of a lesser scope of protection for a specific category of individuals, which is incompatible with constitutional guarantees.

Prior to the amendments, the Internal Rules of detention centers already contained balanced regulations: advocates and other persons specified by law were permitted to bring in laptops and portable printing devices necessary for the performance of their duties, subject to mandatory inspection at the checkpoint without reviewing the content of documents and materials on the storage media. It is precisely this model that ensured a balance between the facility’s security requirements and guarantees of attorney-client privilege, and serves as a less burdensome alternative to a complete ban on the use of an advocate’s personal computer equipment.

The Bar Council of Ukraine considers that the disputed provisions of Order No. 1209/5 of the Ministry of Justice of Ukraine dated May 11, 2026, regarding the prohibition on bringing in computer equipment to provide legal assistance to a specific category of detainees prisoners and convicts, do not comply with Articles 22, 59, 64, and 92 of the Constitution of Ukraine, the principles of the rule of law, the independence of advocacy, the confidentiality of legal assistance, and the guarantees of the practice of law. They also constitute a disproportionate interference with the right to defense and fail to ensure an appropriate balance between security needs and constitutional guarantees of the individual.

In this regard, the Bar Council of Ukraine calls on the Ministry of Justice of Ukraine to immediately review Order No. 1209/5 of May 11, 2026, in the relevant part and bring the Internal Rules of Detention Centers of the State Penitentiary Service into compliance with the Constitution of Ukraine, the Criminal Procedure Code of Ukraine, the Criminal Executive Code of Ukraine, and the laws of Ukraine «On pretrial detention» and «On advocacy and the practice of law». It is necessary to restore a procedure that allows an advocate to use their own computer equipment subject to a security inspection without access to the content of documents and materials.

The Bar Council of Ukraine also appeals to the Cabinet of Ministers of Ukraine, the Verkhovna Rada Committee on legal policy, the Verkhovna Rada Committee on law enforcement, the Verkhovna Rada Commissioner for Human Rights and the Office of the Prosecutor General, requesting that they assess the aforementioned changes within the scope of their authority and take measures to prevent the restriction of the right to defense and guarantees of the practice of law. Such an assessment must take into account not only the formal purpose of the changes but also their actual impact on a person’s ability to obtain effective professional legal assistance.

The Bar Council of Ukraine emphasizes that any changes to the regulatory framework governing advocates’ access to places of detention, the procedure for conducting confidential visits, and the use of documents, electronic media, and technical means during the provision of legal assistance must be prepared with the involvement of bar self-governing bodies. In matters directly concerning the right to defense, attorney-client privilege, and professional guarantees for advocates, the state must choose solutions that ensure the actual, rather than merely declarative, exercise of constitutional rights. Security measures must be organized in such a way that they do not replace restrictions on defense and do not make attorney-client privilege dependent on the administration of the institution where the client is held.

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