Page 31 - Report on the infringement of rights and guarantees of attorneys in Ukraine

THE FOLLOWING PERSONS APPLIED REGARDING VIOLATIONS OF
ATTORNEYS' PROFESSIONAL GUARANTEES DURING SEARCHES:

2017:

M.H. Korotiuk, S.M. Lysenko, A.A. Busel, O.M. Iskizarov, S.V. Pliaka,
V.V. Liushyk, V.V. Kosianchuk, Dimicandum Attorneys At Law, V.I. Semenov,
T.M. Voronenko, S.M. Tarasyuk, O.O. Lytvyn, M.V. Honcharov, I.V. Rudniva,
I.A. Mudra, O.L. Pryshedko, L.M. Holovachova
2018:

O.V. Onischchenko, Yu. V. Syvovna, P.A. Losovskyi, V.V. Havryliuk,
A.A. Tuleibych, O.B. Khehai

"TYPICAL" VIOLATIONS

the Bar Council is not notified at all or is notified immediately before a search is started,
which prevents its representatives from arriving on time;
documents related to the exercise of legal practice, computer equipment, portable data
storage devices, personal mobile phones of attorneys containing information protected
by attorney-client privilege, in particular the correspondence of an attorney with a client,
are seized;
items and documents are seized without any court warrant for seizing such things;
the fact that a search is going to take place at an attorney’s premises is hidden from an
investigating judge.

During 2016, detectives of the NABU filed 34 petitions for searching premises
owned by attorneys. Since 2017, such practice has become common among
each and every law- enforcement agency, although the Prosecutor-General’s
Office of Ukraine remains the leader, and, furthermore, this tendency has
gradually spread to all regions of Ukraine. Conducting searches may be used for
subsequent criminal prosecution of an attorney, removing him/her from
participation in court proceedings, seizure of data protected by attorney-client
privilege.
The ECHR has expressed its position regarding illegal searches and seizure of
documents (and information) from attorneys. In the Niemietz v. Germany case
the ECHR emphasizes that interference in attorneys’ practice (in the form of a
search) may threaten the inadequacy of such actions in terms of the legitimate
aim pursued, namely the prevention of disorder and the protection of the rights
of others – and may not be regarded as necessary in a democratic society. The
ECHR reiterates that encroachment on professional confidentiality may have
repercussions on the proper administration of justice and hence on the rights
guaranteed by Article 6 (right to a fair trial) of the Convention for the Protection
of Human Rights and Fundamental Freedoms. The ECHR also points out that
searches of attorneys must be conducted according to a warrant issued by a
judge and under the supervision of a bar representative, whose task is to
determine which documents are protected by attorney-client privilege and
cannot be seized (Tamosius v. The United Kingdom, Iliya Stefanov v. Bulgaria,
Andre and Others v. France cases). Conducting searches without a warrant and
the participation of a bar observer violates the Convention for the Protection of
Human Rights and Fundamental Freedoms.

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