CCBE called on Ukraine to investigate the murder of advocate Grabovskyy
The Council of Bars and Law Societies of Europe (CCBE) urged the President Petro Poroshenko, Prime Minister Arseniy Yatsenyuk and acting Prosecutor General of Ukraine Yuriy Sevruk to investigate violations of advocates’ rights and guarantees.
The CCBE was informed of the facts of searches and detentions of advocates, during which documents representing advocate-client privilege were seized.
The letter stated that “the CCBE has been informed that searches were carried out without the presence of the relevant lawyer(s) and without the presence of a representative of the relevant Regional Bar Council, as foreseen by the Law of Ukraine ‘On the Bar and Practice of Law’. Furthermore, we have received reports that investigating authorities in some cases seized all documents and electronic data in a law firm - shared by different lawyers - although the search warrant was issued only in the name of one lawyer. Very often, searches and seizures have been carried out without observing the principle of confidentiality. Moreover, clients’ requests - who wished their lawyers to be present during the search – were disregarded by the authorities”.
In connection with such cases the CCBE cited the case law of the European Court of Human Rights, which has repeatedly examined cases of searches of lawyers’ offices and homes and detentions of lawyers. In its judgments the Court stressed that searches need to be accompanied by particular safeguards, since lawyers occupy a vital position in the administration of justice and can, by virtue of their role as intermediary between litigants and the courts, be described as officers of the law. Besides, the Court emphasized that it is vital to safeguard professional secrecy in the case of the search of a lawyer’s office or home and the seizure of documents. The safeguards should protect against arbitrariness and abuse.
“Numerous cases of searches and seizures have been reported to the CCBE by the Ukrainian National Bar Association in which European and national standards were not complied with”, - stated the letter. The CCBE expressed its concern about the existence of such cases and increase in their number. The Council noted that such practices by the authorities directly breach international standards concerning functioning of lawyers as well as the national legislation
The CCBE informed that it had carried out a survey on the search and seizure of lawyers’ law firms and homes in Europe. The survey showed that a search of a lawyer’s office and/or home can only be carried out under very strict conditions, for example with issuance of a search warrant by a court, the presence of a Bar representative etc. In certain countries, the search is only allowed if the lawyer is subject of a criminal investigation.
The Council was also informed by the Ukrainian side about the summoning of advocates to testify against their clients. According to the European practice, lawyers cannot and must not give evidence in matters confided to them by their clients. In certain countries, the client can release the lawyer from their obligation, and in others the lawyer can be asked to witness for particularly serious crimes. However, the Ukrainian legislation prohibits demanding disclosure of data constituting professional secrecy from an advocate. Advocates cannot be questioned about privileged information, except when the client has released the advocate from the duty to keep professional secrets.
In its letters to the Ukrainian leaders the CCBE emphasized that international law, case law of the European Court of Human Rights, the European Convention of Human Rights, as well as the Ukrainian legislation provide advocates with professional guarantees for an independent and professional defence.
The Council strongly recommended the Ukrainian authorities to take all necessary steps in order to guarantee that all relevant provisions of both international and national law are respected.
“The CCBE respectfully urges to investigate the facts and to take all measures to ensure that the law enforcement authorities carry out their functions in full compliance with the relevant provisions of national law, and with the fundamental principles of professional secrecy and confidentiality”, - states the letter.
In addition, the CCBE requested the authorities to provide information about the measures, and the outcome of such measures, taken to improve the situation of advocates in Ukraine.
For information: The Council of Bars and Law Societies of Europe (CCBE) represents the bars and law societies of 32 member countries and 13 further associate and observer countries, and through them more than 1 million European lawyers.
Protection of human rights, rule of law and human rights defenders around the world are among the CCBE priorities.
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