In November, 2013, Valentyn Zagariya, Head of the Higher Qualification and Disciplinary Bar Commission received several appeals due to the violation of the guarantees of attorney’s activity by the law enforcement officials during investigation.

In particular, on November 13, 2013, search of the working premises (at address 120, Estonska str.) leased by attorney Hanna Kolesnyk took place; on November 22, 2013 search of the working premises (at address 7, Dniprovska naberechna str.) leased by attorneys Oleksandr Zinchenko, Serhiy Maksymenko, Oleksandr Lysak and Teryana Kostina was conducted.

The judgments on conducting the search on 06.11.13 and on 13.11.13 on which the investigation was based were issued not at the request of the Prosecutor General of Ukraine his deputies, the prosecutor of the Autonomous Republic of Crimea, regions, cities of Kyiv and Sevastopol, but at the request of the investigator, that has broken third item of the first part of the Article 23 of the Law of Ukraine “On the Bar and Advocacy”.

According to the sixth item of the third part of the article 234 of the Criminal Procedure Code of Ukraine in case of necessity of conducting search, the request for search should include data about the person who owns the home or other premises, and person in whose actual possession it actually is. However, the investigators have not identified in their requests who actually possessed parts of the premises at   120, Estonska str., and 7, Dniprovska naberezhna. By this fact the sixth item of the third part of the Article 234 of the Criminal Procedure Code of Ukraine was breached.

Also, investigators who conducted search on attorney’s premises did not notify the regional attorney’s council about the search at the location of the search. Neither did they allow presence of the representatives of the regional attorney’s council at the location of the search. These actions breached requirements of the second part of the Article 23 of the Law of Ukraine “On the Bar and Advocacy”.

Head of the Commission emphasized that violation of the guarantees of attorney’s activity should never be allowed.

According to the third item of the first part of the Article 23 of the Law of Ukraine “On the Bar and Advocacy” investigation that involves attorney’s participation can be conducted exclusively according to the leave of the court, is carried out on the basis of the court judgment, issued at the request of the Prosecutor General of Ukraine his deputies, the prosecutor of the Autonomous Republic of Crimea, regions, cities of Kyiv and Sevastopol.

According to the first paragraph of the second part of the Article 23 of the Law in case of a search or  inspection of housing, other property of the lawyer, the premises where they carry out advocacy, temporary access to lawyer’s belongings and documents, an investigative judge or the court in judgment thereof specify mandatory list of belongings, documents that are  planned to be found, identified or suppressed during the investigation or application of ensuring the criminal proceeding, as well as consider the requirements of the Law, Art. 23, p. 1, par. 2-4.

Meanwhile, second part of the Article 23 of the Law states that during the search or examination of home, other property of the attorney, the premises where he or she carries out advocacy, temporary access to attorney’s objects and documents representative of the regional Board of Advocates should be provided. To ensure the attorney’s participation officer who will conduct appropriate investigative action or measure to ensure use of the criminal proceedings notify in advance the regional Board of Advocates at the location of such action.

But mentioned above examples of conducting investigation in attorney’s premises testify the numerous breaking demands of the Article 23 of the Law by the law enforcement officials. Searches of the attorney’s working premises are conducted on the basis of court judgments testified according to the requests of the unliable persons; without notification the regional Board of Advocates; without access to the search provided to the representatives of the Board of Advocates.

Due to this facts Head of the Commission Valentyn Zagariya has sent the official appeal to the Prosecutor General of Ukraine and the Minister of Internal Affairs of Ukraine with the request to conduct examination the facts of breaking the requirements of the Article 23 of the Law of Ukraine “On the Bar and Advocacy” by the law enforcement officials during the searches of the attorney’s working premises, judge them and assume the measures of reaction specified by the effective legislation.

Also, the appeal sets out a need to avoid violation of the Law requirements by law enforcement officials in the future.