ATTORNEY AT BARRISTERS, LLC OLGA BLASHCHUK ON THE IDENTIFIED ACCESS OF ATTORNEYS TO THE UNIFIED REGISTER OF PRELIMINARY INVESTIGATIONS IN THE CONTEXT OF THE EXPANSIONof Professional Rights

IDENTIFIED ACCESS BY ATTORNEYS TO THE UNIFIED REGISTER OF PRELIMINARY INVESTIGATIONS IN THE CONTEXT OF EXPANDING THEIR PROFESSIONALRIGHTS

The Verkhovna Rada of Ukraine is currently considering Draft Law of Ukraine No. 9055 “On the Bar and the Practice of Law,” dated September 6, 2018, which the President of Ukraine has designated as urgent.

The purpose of this draft law is to strengthen legal guarantees for the practice of law, expand the professional rights of attorneys, ensure attorneys’ accountability for compliance with ethical standards and the quality of legal assistance, regulate access to the right to practice law without the risk of its unjustified restriction, and ensure the further development and proper functioning of bar self-governing bodies based on the principles of decentralization within the framework of the unified National Bar Association of Ukraine.

Expanding the professional rights of attorneys is an essential step toward improving the Ukrainian legal profession as a whole.

Among the proposed professional rights of attorneys, enshrined in para. 8, Part 1, Article 20 of the draft Law of Ukraine “On the Bar and the Practice of Law,” is the right to have identified access to state registries, including the Unified Register of Pretrial Investigations, the Unified State Register of Enforcement Proceedings, in accordance with the procedure established by the relevant register administrator or automated system operator in consultation with the Ukrainian Bar Council, except for registers containing information that constitutes a state secret.

The procedure for establishing and maintaining the Unified Register of Pre-trial Investigations is governed by the Regulations on the Procedure for Maintaining the Unified Register of Pre-trial Investigations,  approved by Order No. 139 of the Prosecutor General’s Office of Ukraine dated April 6, 2016, which designates the Prosecutor General’s Office of Ukraine as the keeper of this Registry and identifies the Registry’s users, including:

• heads of prosecutor’s offices and pretrial investigation agencies;
• prosecutors;
• investigators from the police, security agencies, agencies responsible for monitoring compliance with tax legislation, the State Criminal-Executive Service of Ukraine, and the State Bureau of Investigations, as well as detectives from the National Bureau;
• other authorized personnel of the prosecutor’s offices and pre-trial investigation agencies who perform functions related to providing information and analytical support to law enforcement agencies and maintaining special records (operational, operational-accounting, fingerprint, etc.) in accordance with applicable law.

Currently, unlawful interference with the operation of the Registry and unauthorized actions involving information processed by an automated system is subject to criminal liability under Articles 361 and 362 of the Criminal Code of Ukraine, which underscores the existing restrictions and the status of the information contained in the Unified Register of Pre-trial Investigations.

Article 214 of the Criminal Procedure Code of Ukraine establishes the obligation of an investigator or prosecutor to, without delay, but no later than 24 hours after the filing of a complaint, a report of a criminal offense, or after they independently discover, from any source, circumstances that may indicate the commission of a criminal offense, to enter the relevant information into the Unified Register of Pre-trial Investigations, initiate an investigation, and, within 24 hours of entering such information, provide the applicant with an extract from the Unified Register of Pre-trial Investigations.

The above-mentioned Regulations establish an obligation for prosecutors and heads of pre-trial investigation agencies at all levels to ensure that their agencies monitor the timely, complete, and accurate entry of information into the Register within the timeframes specified by the Criminal Procedure Code of Ukraine.

However, in practice, situations frequently arise where information is entered into the Unified Register of Pre-trial Investigations with errors in individuals’ full names, discrepancies between the legal classification of the criminal offense committed and the relevant article of Ukraine’s Criminal Code, when the applicant does not receive an extract within the time limit established by the CPC of Ukraine, or when information regarding actions and procedural decisions during the pretrial investigation is entered into the Register by the investigator or prosecutor after the expiration of the established time limits.

Ensuring a defense attorney’s authenticated access to the aforementioned Unified Register of Pretrial Investigations will make it possible to monitor compliance with the rights and interests of the defendant during the pretrial investigation, improve the quality of legal assistance, facilitate a timely response to identified violations, and serve as an effective means of preventing unlawful actions, the adoption of procedural decisions, and inaction on the part of the pre-trial investigation authority.

However, obtaining authorized access to the Unified Register of Pre-trial Investigations is not an automatic procedure for all attorneys who have received a certificate of admission to the bar and whose information is entered in the Unified Register of Attorneys of Ukraine; the procedure will be determined by the Prosecutor General’s Office of Ukraine or an automated system, subject to the approval of the Bar Council of Ukraine, and the obligation of attorneys to maintain professional secrecy, as well as criminal liability for the disclosure of pre-trial investigation data, as established by Part 1 of Article 387 of the Criminal Code of Ukraine,  demonstrates the absence of any risks associated with lawyers’ identified access to the Unified Register of Pretrial Investigations.