Risks of Violation of Attorney-Client Privilege during Covert Investigative (Search) Actions

Abstract

Abstract. In recent years, cases have been increasingly recorded in Ukraine when investigative bodies initiate covert investigative (search) actions against lawyers, justifying this by the needs of the investigation. However, practice shows that such actions are often carried out in violation of the principles of the rule of law, attorney-client privilege, and the procedural status of the defense attorney. This not only jeopardizes the rights of a particular lawyer, but also undermines the effectiveness of the functioning of the entire justice system. It is worth noting the insufficient state guarantees for the preservation of attorney-client privilege. In particular, law enforcement agencies sometimes avoid the process of a warranted search by resorting to covert investigative measures, such as wiretapping of conversations between an attorney and a client. This creates significant difficulties for attorneys when trying to prove the illegality of such actions. When contacting the competent authorities, they often receive answers based on the provisions of the Criminal Procedure Code of Ukraine. According to these norms, a person whose rights have been temporarily restricted as a result of covert investigative measures must be notified of this within twelve months after the completion of the specified measures. The lack of effective mechanisms in the legislation to prevent interference in advocacy activities through the NSRD may become the basis for large-scale violations of the principle of equality of arms and the right to defense. To achieve the goal, the author used methods characteristic of legal science. The study was conducted using a dialectical approach to the knowledge of legal reality, which allowed analyzing the essence of guarantees aimed at prohibiting interference in the private communication of a lawyer with a client and preserving attorney-client privilege. In turn, the use of the system-structural method helped to determine the general structure of the work, which ensured the effective disclosure of the research tasks. Systematic scientific research of the limits of admissibility of covert investigative (search) actions against a lawyer, analysis of judicial practice and development of clear standards is not only theoretically significant, but also practically necessary to ensure guarantees of the legal status of a defense attorney in the conditions of modern criminal proceedings. The article pays special attention to the study of the decisions of the Constitutional Court of Ukraine, the practice of the European Court of Human Rights and the recommendations of the Council of Advocates of Ukraine. Gaps in the current legislation are identified, which are sometimes used to obtain confidential information. In order to ensure proper conditions for practicing law and protecting professional secrecy, there is a need to adjust the legal regulation of covert investigative (search) actions against lawyers, by adapting the legislation to the standards of European integration of Ukraine, taking into account the practice of the European Court of Human Rights.

Keywords: defense attorney; pre-trial investigation; legal guarantees of legal activities; professional secrecy; improvement of the regulatory framework.