To improve the effectiveness of attorneys’ work, it is proposed to clarify the provision regarding their right to video-record procedural actions in which they participate, as well as the proceedings of court hearings. However, will such changes be effective?
What is the current situation, and what is being proposed?
On June 24, 2025, Member of Parliament Oleksandr Yurchenko introduced a bill titled “On Amendments to Article 20 of the Law ‘On the Bar and the Practice of Law’ regarding the right of a lawyer to video-record procedural actions in which he or she participates, as well as the proceedings of a court hearing” (No. 13400).
In the explanatory note, the author notes that Article 20 of the Law “On the Bar and the Practice of Law” lacks legal clarity regarding the methods by which a lawyer may record procedural actions and the proceedings of a court hearing.
Part 1 of Article 20 of the Law “On the Bar and the Practice of Law” stipulates that, in the course of practicing law, a lawyer has the right to take any actions not prohibited by law, the rules of attorney ethics, and the legal assistance agreement, that are necessary for the proper performance of the legal assistance agreement, in particular:
“8) use technical means, including for copying materials of the case in which the attorney is providing defense, representation, or other types of legal assistance; record procedural actions in which he or she participates; and record the proceedings of the court hearing in the manner prescribed by law.”
The draft proposes to clarify paragraph 8 of Part 1 of Article 20 of this law, specifically regarding the attorney’s right to record procedural actions (including video recording using a portable video recorder or a personal mobile phone) in which they participate, as well as the proceedings of a court hearing, in the manner prescribed by law.
Legal Consequences
Despite the authors’ desire to demonstrate the necessity of adopting this bill, as well as its uniqueness in regulating a number of issues, the following should be noted.
Current Ukrainian legislation contains numerous loopholes that allow law enforcement agencies to restrict attorneys’ rights while they are practicing law.
By specifying exactly how attorneys are permitted to record certain procedural actions, the legislature fails to address the main problem with this provision of the law—namely, it does not define the term “procedural actions.”
Since current legislation has yet to clarify which specific actions fall under the definition of “procedural actions,” this leaves ample room for procedural manipulation by law enforcement officials.
The proposed amendments provide only one example of how a lawyer may document procedural actions, namely through video recording.
At the same time, law enforcement officials may interpret this provision in their own way, omitting the phrase “including,” which significantly narrows the scope of attorneys’ authority. After all, the proposed amendments do not mention the possibility of photographing or audio-recording procedural actions.
Furthermore, the proposed amendments mention only two technical devices that a lawyer may use to record procedural actions: a portable video recorder and a personal mobile phone.
At the same time, law enforcement officers are not restricted in their use of any technical devices to record investigative (search) or procedural actions, including cameras, video recorders, voice recorders, tablets, laptops, stationary equipment, and so on.
By attempting to expand the scope of lawyers’ rights to record procedural actions, the legislature may, in practice, achieve the opposite effect of restricting those rights—a restriction that would apply only to video recording and exclusively through the use of a portable video recorder or a personal cell phone.
In their professional practice, attorneys often face obstacles to using personal cell phones or video recorders due to bans on bringing such items into certain locations, namely:
pretrial detention facilities (pretrial detention centers or temporary detention centers);
places where sentences of imprisonment are served (correctional colonies);
law enforcement agency buildings (most commonly the Security Service of Ukraine [SBU] and the National Anti-Corruption Bureau [NABU]);
to certain temporary detention centers and police stations.
Another ongoing issue is the ability of attorneys to freely record court proceedings during which procedural actions are taking place.
Thus, Part 6 of Article 27 of the Code of Criminal Procedure stipulates that photography, video recording, radio and television broadcasts of court proceedings, as well as audio recording using stationary equipment, are permitted only on the basis of a court ruling issued after considering the opinions of the parties and the feasibility of such actions without prejudice to the court proceedings.
The draft does not propose any changes to this provision of the Code of Criminal Procedure.
Unpunished Obstruction
Finally, whatever changes to the list of attorneys’ rights may be proposed by the legislature, they will be completely ineffective without a real mechanism for holding accountable those responsible for violating attorneys’ rights.
Article 397 of the current Criminal Code provides for criminal liability for obstructing, in any form, the lawful activities of a defense attorney or a representative providing legal assistance.
At the same time, statistics published on the website of the Office of the Prosecutor General indicate a complete lack of action by law enforcement agencies in effectively investigating criminal proceedings under Article 397 of the Criminal Code.
Thus, during the period from January 2023 to May 2025, no individual was notified of being suspected of obstructing the lawful activities of a defense attorney or of other acts provided for in Article 397 of the Criminal Code. All criminal proceedings are either closed or remain pending with law enforcement agencies.
In conclusion, the adoption of this bill will in no way enhance the effectiveness of the procedure for lawyers to document procedural actions. On the contrary, specifying the method of documenting procedural actions and the list of technical means could lead to a narrowing of lawyers’ existing rights.
Author: Barrister Mykhailo Yakovchuk
Source: https://zib.com.ua/ua/167706.html