Departure of a lawyer for illegal detention of a person by law enforcement agencies: legal aspects

Ensuring the rights and freedoms of citizens is one of the key elements of the rule of law, and it is the lawyer who plays an important role in protecting the rights of detained persons. Illegal detention by law enforcement officers is a serious violation of human rights that can lead to unlawful consequences for both the detainee and the law enforcement officers themselves. In such situations, the timely intervention of a lawyer is critical to ensure legality and protect the rights of the individual.

In what cases does the detainee have the right to legal protection?

According to Article 29 of the Constitution of Ukraine, the right to protection and assistance of a lawyer is a fundamental right guaranteed, in particular, by Article 59, which establishes the right of everyone to legal assistance. In addition, Article 29 of the Constitution of Ukraine guarantees the right to freedom and personal integrity, and provides that no one can be detained without a reasoned court decision, except in cases provided for by law.

In addition to the Constitution, the legal regulation of detention and actions of a lawyer regarding the protection of detained persons is regulated by the Criminal Procedure Code of Ukraine (hereinafter the Criminal Procedure Code), as well as the Law of Ukraine "On Advocacy and Advocacy".

According to the Criminal Procedure Code, a detained person has the right to legal assistance from the moment of actual detention. The lawyer has the right to immediately go to the place of detention to ensure the protection of the client, to check the lawfulness of the actions of the law enforcement officers and to monitor compliance with the procedures.

The lawyer's procedure

Regarding the lawyer's procedure in case of illegal detention, when the lawyer receives information about possible illegal detention of the client, he must immediately go to the scene of the incident. Regardless of the circumstances, it is important to follow a well-defined algorithm of actions determined by a lawyer in order to effectively protect the rights of a detained person.

After receiving information about the detention, the lawyer finds out the location of the client, calls the appropriate unit of law enforcement agencies (police department, pre-trial detention center, etc.). This is important to determine the exact place of detention of the person, as the information may be incomplete or incorrect.

The law establishes a requirement for law enforcement officers to inform a lawyer or close relatives about the detention, if the person has indicated a lawyer as a defender. However, in practice this right can be ignored, which is one of the key points to challenge in unlawful detention cases.

The lawyer's arrival at the place of detention requires proper processing of documents for access to the client. This may include:

• Attorney's certificate.
• A contract on the provision of legal assistance or a warrant confirming the right of a lawyer to represent the interests of the detainee.

After submitting these documents, the lawyer meets with the detainee. The delay in providing access to a lawyer is a gross violation of the rights of the detained person and may be grounds for further appeals against the actions of law enforcement officers.

One of the first steps a lawyer takes upon arrival is to assess the legality of the detention. According to Article 208 of the Criminal Procedure Code of Ukraine, detention without a court order is possible only in cases where a person:

• if this person was caught during the commission of a crime or an attempt to commit it;
• if, immediately after the commission of the crime, an eyewitness, including the victim, or a set of obvious signs on the body, clothes, or the scene of the incident indicate that this particular person has just committed the crime;
• if there are reasonable grounds to believe that a person suspected of committing a serious or particularly serious corruption crime, assigned by law to the jurisdiction of the National Anti-Corruption Bureau of Ukraine, may flee for the purpose of evading criminal responsibility;

If the lawyer discovers that none of these cases apply to the client, he must immediately point out the illegality of the detention. In such a situation, the lawyer can challenge the actions of the law enforcement officers, file a complaint with the court or demand the immediate release of the client.

Immediately after assessing the legality of the detention, the lawyer must ensure that the client's rights are not violated. The basic rights of a detained person include:

• The right to remain silent (a person is not obliged to testify against himself).
• The right to legal aid.
• The right to be informed about the reasons for detention and the presentation of suspicion within the time limits established by law.

If the lawyer discovers a violation of these rights, he can demand the drawing up of relevant acts or file a motion to eliminate the violations. The lawyer also has the right to call an ambulance if there is reason to suspect that the client has been subjected to violence or torture.

In case of illegal detention, the lawyer must record all the circumstances of the event as much as possible. This may include:

• Receiving explanations from the client about the conditions of detention and the actions of law enforcement officers.
• Fixation of the time and place of detention.
• Issuance of documents that testify to the violation of the procedure.

This evidence can be used to further challenge the actions of law enforcement officers or as part of the client's defense in court.

If the lawyer has come to the conclusion that the detention is illegal, he has several legal mechanisms to protect the client's interests:

• Filing a complaint to the court in accordance with Article 206 of the Criminal Code of Ukraine: the court must immediately consider the complaint and make a decision on the legality of the detention.
• Challenging the actions of an investigator or prosecutor: a lawyer can file a complaint about illegal actions or inaction of law enforcement officers to higher authorities or to the court.
• Addressing the prosecutor's office or the State Bureau of Investigation: to investigate cases of possible abuse of authority by law enforcement officers.

After solving the issue of illegal detention, the lawyer continues to protect the interests of the client in the framework of the pre-trial investigation or court process. This includes participation in investigative actions, preparation of the evidence base and submission of necessary documents to ensure protection.

In particular, a lawyer has the right to participate in court sessions where the issue of choosing a preventive measure is considered. In the case of illegal detention, the lawyer can request the release of the person from custody or the change of the preventive measure to a less severe one.