IRYNA HLOVYUK, ATTORNEY, SENIOR RESEARCH ADVISOR AT BARRISTERS LLC, DOCTOR OF LAW, ASSOCIATE PROFESSOR: "Some Notes on Draft Law of Ukraine No. 9055 (Part Three)"

Some Notes on Draft Law of Ukraine No. 9055 (Part Three)

The provisions of Draft Law No. 9055 regarding the standardization of the status of a witness’s attorney are positive, as issues concerning the regulatory framework for this status and the witness’s participation have long been the subject of discussion in professional circles. However, the proposed amendments contain certain shortcomings that will complicate the exercise of a witness’s right to professional legal assistance. Thus, although a witness’s attorney will have the right to participate in the questioning or other procedural actions involving the witness, he or she will be entitled to confidential communication with the witness only during the questioning, and will be entitled to review only the interrogation transcript; other procedural actions are not covered. The witness’s attorney will have the right to advise the witness if the factual circumstances of the case could be used to criminally prosecute the witness personally or members of the witness’s family or close relatives. The roots of this proposal lie in the 1960 Code of Criminal Procedure. However, this wording essentially restricts the witness’s right to legal assistance by limiting the witness’s ability to receive advice during questioning solely to these cases.

It is proposed to amend Article 93 of the Code of Criminal Procedure of Ukraine by adding a paragraph with the following content: “3. It is prohibited to gather evidence by obtaining information regarding communications between an attorney or an attorney’s assistant and their client. If such communications have been recorded, the relevant recordings and their copies must be immediately destroyed, and any use thereof is unlawful and entails liability as established by law.” Overall, the logic of this provision should be recognized. In the case law of the European Court of Human Rights (ECHR), the importance of the confidentiality of communications between a lawyer and a client has been repeatedly emphasized. For example, in the ECHR judgment in “Dudchenko v. Russia” (Application No. 37717/05) the Court reiterated that, while Article 8 protects the confidentiality of any “correspondence” between individuals, it provides enhanced protection for the exchange of information between lawyers and clients. This is confirmed by the fact that lawyers fulfill a fundamental mission in a democratic society—the defense of accused and defendants. Clearly, a lawyer cannot properly carry out this fundamental mission if he or she cannot guarantee to those he or she is defending that their communications will remain confidential. In its case law, the Court has established the following minimum safeguards that must be enshrined in legislation to prevent abuse of power in cases where legally privileged material has been obtained through covert surveillance measures. First, the law must clearly define the scope of legal professional privilege and specify how, under what conditions, and by whom the distinction between privileged and non-privileged materials should be made. Given that the confidential relationship between an attorney and their clients is a particularly sensitive area directly related to the right to a defense, it is unacceptable for this task to fall within the jurisdiction of an executive branch official without oversight by an independent judge. Second, the legal provisions governing the examination, use, and storage of the material obtained, the precautions to be taken when transferring the material to other parties, and the circumstances under which records may or must be deleted, or materials that have been destroyed, must provide sufficient safeguards to protect legally privileged material obtained through covert surveillance. In particular, national legislation should provide sufficient clarity and detail regarding: the procedure for reporting to an independent oversight body to address cases where material falling under the concept of legal professional privilege was obtained as a result of covert surveillance; acquired as a result of covert surveillance; the procedure for the secure destruction of such material; the conditions under which it may be retained and used in criminal cases and law enforcement investigations; and, in such cases, the procedures for the secure storage, dissemination, and subsequent destruction of such materials, as soon as they are no longer needed for any of the authorized purposes (https://www.echr.com.ua/wp-content/uploads/2017/11/dudchenko-protiv-rossii.pdf).

It should be noted that the significance of this proposed provision in the context of ensuring safeguards for the practice of law is substantially diminished by the fact that it does not provide for a procedure for the destruction of records and their copies containing information regarding communications between a lawyer or a lawyer’s assistant and their client. After all, the draft does not specify who is to make such a decision, in what procedural form, who is responsible for implementing this decision, or what the deadline is for destroying the relevant records and their copies.

We cannot agree with the proposed narrowing of guarantees for the practice of law in the context of special criminal proceedings, specifically the provision of the proposed Part 2 of Article 481 of the Criminal Procedure Code of Ukraine: “The notice of suspicion shall be served on the persons specified in Part 1 of this article by the Prosecutor General (the Acting Prosecutor General), his deputy, the head of a regional prosecutor’s office within the scope of his authority, or, at their direction, by an investigator or prosecutor in accordance with the procedure set forth in Parts 1 and 2 of Article 278 of this Code.” This narrows the guarantees for defense counsel in criminal proceedings compared to the current provisions. Currently, even given differing interpretations of the existing provisions of Article 481 of the Criminal Procedure Code of Ukraine in legal doctrine and in law enforcement practice, there is case law regarding the response to the service of a written notice of suspicion on persons against whom criminal proceedings are conducted in accordance with Chapter 37 of the Code of Criminal Procedure of Ukraine, by entities not provided for in Article 481 of the CPC of Ukraine (dissenting opinions, reversal of decisions regarding the service of a notice of suspicion, return of the indictment, and denial of motions to apply preventive measures).