PROBLEMS OF LEGAL PROTECTION OF THE LAW SECURITY
The specialty of a lawyer’s profession is that he receives information from the client that he will not communicate to another person, as well as other information that he must keep secret. Trust in a lawyer can only arise if he is bound by the principle of confidentiality. Thus, confidentiality is a primary and fundamental right and duty of a lawyer.
The lawyer’s secret is also protected by criminal procedural law. The Criminal Procedural Code of Ukraine provides that documents related to the performance of a defender of his duties in participation in a case are not subject to review, disclosure or removal by the investigator, prosecutor or court without his consent. The Code also prohibits interrogating as witnesses attorneys about what they are entrusted with or became aware of in the course of their professional activities if they are not exempted from the obligation to keep professional secrecy by the person who entrusted them with this information. The prohibition of interrogation of a lawyer as a witness is established by the Civil Procedural Code of Ukraine, the Code of Administrative Proceedings of Ukraine.
Before the adoption in 2001 of the new Criminal Code (further – Criminal Code) of Ukraine, the violation of the lawyer’s secrecy did not entail the responsibility of the persons who allowed it. Now in Art. 397 of the Criminal Code establishes criminal liability for interference with the activities of a lawyer or representative of a person to which the legislator attributes breaches of professional secrecy.
Consequently, the lawyer’s secret as a fundamental principle of the profession of lawyer is sufficiently protected by the legislation of Ukraine. However, this does not completely prevent its violation by law enforcement officials. Recently, the facts of listening to conversations with lawyers accused of a guaranteed face-to-face dating have become more frequent. There are occasions for a personal review of lawyers and their belongings when visiting clients held in pre-trial detention centers (hereinafter – SIZO), searches at lawyers’ offices and their homes, with the exclusion of professional secrecy documents. Under such conditions legal aid, guaranteed by Art. 59 of the Constitution of Ukraine. Violation of the principle of confidentiality leads to non-fulfillment of the duty not to worsen the situation of the defendant when using the lawyer’s powers, to violation of the constitutional right to protection. Thus, legal safeguards for the protection of lawyer’s secrecy need to be expanded.
The importance of maintaining a professional legal counsel for professional secrecy is due, firstly, to the fact that it is only in this way that it is possible to encourage the client to provide full information about the circumstances of the case, without which it is simply impossible to provide legal advice. The client should not fear disclosure by the lawyer of confidential information to any third parties, court, or other state bodies. Secondly, the Western legal tradition considers the legal protection of the confidentiality of the attorney-client privilege as an essential element in ensuring the equality of the parties in the adversarial system of court proceedings.
According to the Law of Ukraine “On Advocacy and Advocacy”, the protection of lawyer’s secrecy is a professional duty of a lawyer.
According to Article 22 of the aforementioned law, the lawyer’s secret is any information that has become known to a lawyer, a lawyer’s assistant, a lawyer’s apprenticeship, a person in employment relationship with a lawyer, a client, and issues from which the client (the person refused the conclusion of an agreement on the provision of legal aid in accordance with the grounds provided for by this Law) turned to a lawyer, a lawyer’s office, a lawyer’s association, the content of advice, counseling, clarification of a lawyer, documents made by him, information stored in electronic nose yah, and other documents and information obtained by a lawyer during the performance of advocacy activities.
According to Article 23 (Guarantee of Advocacy) of the Law of Ukraine “On Advocacy and Advocacy”, it is prohibited to require a lawyer, his assistant, trainee, a person who is in labor relations with a lawyer, a lawyer’s office, a lawyer’s association, and also from a person , in respect of which the right to engage in legal activities has been suspended or suspended, the provision of information that is an advocate’s secret. On these issues, these individuals can not be questioned.
It is prohibited to conduct a review, disclosure, claim or withdrawal of documents related to the exercise of advocacy.
Thus, the norms of Ukrainian legislation in general are in line with world standards. Guarantees for the protection of lawyer’s secrecy are provided even in the case of a search or review of housing, other possession of a lawyer, premises where he carries out advocacy, temporary access to things and documents of a lawyer.
Author: Ivan Ishchuk