1186 meeting (3-5 December 2013) (DH) Communication from Ukraine concerning the case of Golovan against Ukraine (Application No /06).

Transcription

1 SECRETARIAT GENERAL SECRETARIAT OF THE COMMITTEE OF MINISTERS SECRETARIAT DU COMITE DES MINISTRES / n y * f * I * V i COUNCIL CONSEIL OF EUROPE DE L'EUROPE Com m ittee of Ministers Comité des Ministres Contact: Abel Campos Tel: DH-DD(2013)1036 Date: 08/10/2013 Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. Meeting: 1186 meeting (3-5 December 2013) (DH) Item reference: Action plan (23/09/2013) Communication from Ukraine concerning the case of Golovan against Ukraine (Application No /06). * * * * * * * * * * * Les documents distribués à la demande d un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres. Réunion : Référence du point : 1186 réunion (3-5 décembre 2013) (DH) Plan d'action Communication de I Ukraine relative à l affaire Golovan contre Ukraine (requête n 41716/06) (anglais uniquement)

2 DGf 2 3 SEP, 2013 SERVICE DE L'EXECUTION DES ARRETS DE LACEDH Annex to the letter o f the Governm ent Agent o f Ukraine before the European Court o f Human Rights o f c O Septem ber 2013 no.k 'O, ' A c tio n p la n / rep o r t on m e a su r e s to c o m p ly w ith th e C o u r t s ju d g m e n t in the case of Golovan v. Ukraine (a p p l. n o /0 6, ju d g m e n t o f 0 5 /0 7 / , fin a l o n 0 5 /1 0 / ) T he first applicant is a practising law yer. T he second applicant is his w ife. T he case concerned the applicants com plaint under A rticle 8 o f the C onvention that th e search carried out in the prem ises, w hich the first applicant used as his office, as w ell as the seizure o f docum ents concerning one o f his clients w ere unlaw ful. T he applicant also com plained under A rticle 13 o f the C onvention that there had been no effective rem edies in this respect. T he C ourt held that there w as a violation o f A rticle 8 o f the C onvention on account of: - non-com pliance o f the m easures im pugned w ith th e provisions o f dom estic legislation; - insufficient degree o f protection against arbitrariness in the national law w hen conducting a search, due to the absence o f appropriate safeguards (inter alia, supervision by an independent observer); - unforeseeability o f application o f different provisions o f th e national law on the subject; T he C ourt held that there w ere violations o f A rticle 13 (R ight to an effective rem edy) o f the C onvention on account o f the failure o f the dom estic authorities to carry out an effective investigation into th e applicant s allegations thus negating also all applicant s expectations o f obtaining any retro sp ectiv e relief, including civil-law redress. Individu al m easures In the light o f the C o u rt s conclusions in the present case, individual m easures required are the paym ent o f ju s t satisfaction, and restitutio in integrum. J u st satisfaction The sum aw arded by the C ourt w as duly paid on 14 D ecem ber R estitutio in intesrum By letter o f 7 o f N ovem ber 2012 the G overnm ent o f U kraine inform ed the applicant about the possibility provided by the legislation in force to apply for th e review o f the im pugned proceedings. N o inform ation stating that the applicant has subm itted a respective com plaint is available. G eneral m easures T he violations found in the present case concern th e deficiencies in the relevant national legislation and in ad m inistrativ e practice.

3 A s regards the violation o f Article 8 o f the Convention P roced ural rules o f con d uction o f the search o f p rem ises and seizu re o f docum ents in the fram ew ork o f crim in al p roceedings The new C ode o f C rim inal P rocedure o f U kraine (C C P ), w hich w as adopted by the P arliam ent o f U kraine on 13 A pril 2012, and cam e into force on 19 N ovem ber 2012, envisages a num ber o f provisions aim ed at effective im provem ent o f the procedure o f prem ises search. Firstly, the new C ode redefined hom e as any prem ise an individual legally ow ns w hatever purpose it serves. Logically, it appears that a law yer s w orkplace is included (A rticle 233). F urther, the C C P clearly establishes how to conduct a search. The search shall be conducted solely under a m otivated court s decision. E xception is envisaged only for the cases o f em ergency and/or a crim in al s pursuit. N otw ithstanding, in such cases an investigating officer is still obliged to apply for a court s perm ission p o st fa c tu m, and rejection o f such a perm ission shall result in non-adm issibility o f the evidence obtained (A rticle 233). T his provision is o f extrem e im portance in the light o f prevention o f any abuses w hich m ight take place w hen th e search o f hom e is conducted. T herefore, a m otivated court s decision allow ing to conduct a search is an indispensable condition preventing any abuse thereby. The goal o f the search m ust be also stated in the decision - the lim ited list o f options is envisaged by the Code: particular object, m aterial or person, expected to be found shall be indicated in the decision (A rticle 235). M oreover, the investigator shall prove th e existence o f sufficient grounds to believe that objects and docum ents to be found are in the hom e, are im portant for the pre-trial investigation and m ay serve as evidence during trial (A rticle 234). Finally, the copies o f the docum ents confirm ing th e necessity to conduct a search, and an extract from the Integrated R egister o f P re-t rial Investigations shall be attached to the relevant subm ission. T herefore, the cu rren t legislation properly defends respect for private life and hom e w ithin the m eaning o f A rticle 8 o f the C onvention, and envisages a strictly defined procedure to interfere w hen needed. L egislative gu aran tees o f ad vocates privilege T he new L aw o f U kraine O n advocacy and legal practice (B ar A ct), w hich w as adopted by the P arliam ent o f U kraine on 5 July 2012 and cam e into force on 15 A ugust 2012, quashed the previous law, and included a set o f provisions to guarantee fairness and im partiality during a search o f the law yer s prem ises. T he new Bar A ct contains a particular provision regarding the search o f th e law yer s prem ises and law yer s docum ents seizure (A rticle 23). A law yer s prem ises can be searched only if the Prosecutor G eneral o f U kraine, his deputies, or prosecutors o f the A utonom ous R epublic o f C rim ea, prosecutor o f th e region, o f the cities K yiv and Sevastopol requests th e court, and perm ission is issued by th e latter. T he necessity to specify the goal o f a search w hen issuing such perm ission is reiterated. T he crucial point is that a Local A dvocates C ouncil representative should be present during a search w ith having been notified o f such actions in advance. T he representative shall be authorized to supervise the search, ask questions, and com m ent on any issues arising. These questions, com m ents shall be included to the record o f the search. Logically, such a representative shall b e hig h ly expected to m aster law, w hich m eets the C o u rt s assessm ent on the m atter, and solves the problem o f usual lack o f legal kn o w led ge o f the attesting w itnesses. Finally, the law provides that the authorities shall be bound by the requirem ents o f the C onvention and the C o u rt s case-law. Therefore, additional leverage to prevent arbitrariness, to guarantee law yer-client privilege is provided by the am ended legislation. W ith regard to th e above, the am ended legislation o f U kraine, nam ely the new C C P and Bar A ct, elim inates factors leading to violation o f A rticle 8 o f the C onvention.

4 A s regards the violation o f A rticle 13 o f the C onvention T his violation w as found by the C ourt on account o f ineffectiveness o f the investigation into the applicant s com plaints due to num erous refusals to open crim inal proceedings being later quashed, and absence o f the applicant s victim status (being him thus com pletely excluded from the proceedings). In this contest, and turning back to the new C C P: the new order o f institution o f crim inal proceedings, absence o f pre-investigation exam ination and granting victim s w ith status and set o f rights arising from the very beginning o f th e investigation shall be noted. T he provisions o f the new C ode envisage obligatory institution o f crim inal proceedings in any case w ere indication o f crim e exists. In particular, investigator, public prosecutor shall im m ediately, but in any case no later than w ithin one day after subm ission o t a report, inform ation on a crim inal offense o r after he/she has learned on his/her ow n from any source about circum stances w hich are likely to indicate that a crim inal offence has been com m itted, to enter the respective inform ation to the Integrated R egister o f P re-t rial Investigations, and to initiate investigation (A rticle 214 1). Pre-trial investigation shall start from the m om ent the respective inform ation has been entered to the Integrated R egister o f P re-t rial Investigations (A rticle 214 2). Investigator, public prosecutor, other official authorized to accept and register reports, inform ation on crim inal offenses, is required to accept and register such report or inform ation. R efusal to accept and register a statem ent or inform ation on a crim inal offense shall be inadm issible (A rticle 214 4). S uch new procedure excludes the stage o f prelim inary enquiry provided for by the C ode o f 1960 and envisages that after an inform ation on a crim e w as registered a full-scale investigation shall com m ence. T his procedure also guarantees that the investigator has m ore possibilities for investigative m easures in the first hours after the com m itm ent o f crim e than he had on prelim inary enquiry stage. T hese provisions shall also rem edy a situation w here the law -enforcem ent authorities repeatedly refuse to institute crim inal proceedings, w hich w as also the case in the present judgm ent. A s to the status o f a victim it shall be noted that the rights and duties o f th e victim shall arise from the very m om ent o f filing an application that a crim inal offence has been com m itted against him /her or application for being involved in crim inal proceedings as a victim (A rticle 55 2). A victim shall be served a leaflet advising on his/her procedural rights and duties by the person w ho accepted the application that a crim inal offence has been com m itted (A rticle 55 2). T hroughout the entire crim inal proceedings, a victim has the right, in particular, to know the substance o f suspicion and charges, be inform ed on im position, change or revocation o f precautionary m easu res taken in respect o f the suspect, accused or about term ination o f the p retrial investigation, exam ine p arties m aterials directly related to the crim inal offense com m itted in their respect, as w ell as exam ine the m aterials o f crim inal proceedings directly related to the crim inal offense com m itted in their respect in case th e proceedings have been closed, have an authorized representative etc (A rticle 56 1). T hese provisions shall considerably contribute to the v ic tim s involvem ent into respective crim inal proceedings and therefore im prove the effectiveness o f th e investigations into allegations o f unlaw ful search. T hese innovations o f the C C P shall effectively contribute to elim ination o f the legislative shortcom ings underlying the violation o f A rticle 13 o f th e C onvention in the present case. Other m easures A s to the training activities on the im plem entation o f the n ew C C P o f U kraine it shall be noted that in this context on 5 July 2012 the P resident o f U kraine issued a respective Decree. F ollow ing th is D ecree a com prehensive set o f trainings and sem inars w as held for the

5 prosecutors, law -enforcem ent authorities and ju d g es as w ell as the sta ff o l the State Security Service and tax police. D etailed inform ation on all the m easures im plem ented in respect o f adoption o f the new C C P o f U kraine, in particular, conduction o f respective training activities for the legal professionals w ere already stated in the action report o f 4 A pril 2013 no /3263. M oreover, respective sem inars and round tables are regularly held by the M inistry o f Internal and the G eneral P rosecutor s O ffice, including th o se w ith th e participation o f the representatives o f the G overnm ent A gent s O ffice. A dditionally, m ost o f the C o u rt s judgm ents are included to the training program s for the prosecutors an d law -enforcem ent officers. Publication and dissemination T he sum m ary o f th e ju d g m en t w as published in the G overnm ent s C ourier [Uriadovyi K urier], no. 213 o f 20 N ovem ber 2012 and placed on the M inistry o f Justice official web-site. T he C o u rt s conclusions in the above case w ere reported to th e sta ff o f the G eneral P rosecutor s O ffice and the D onetsk R egion P rosecutor s O ffice together w ith subordinate departm ents. E xplanatory notes as to the conclusions o f the C ourt in the abovem entioned judgm ent w ere sent to the the P rosecutor s O ffice o f V oroshylyvskiy D istrict o f D onetsk. T he Suprem e C ourt o f U kraine, th e H igh S pecialized C ourt o f U kraine for civil and crim inal cases and the D onetsk R egion C ourt o f A ppeal reported th e C o u rt s conclusions in the above case to the ju d g e s o f these courts. M oreover, the C o u rt s conclusions in the above ju d g m en t w ere included into the subm ission to the C abinet o f M inisters o f U kraine as to execution o f ECRH judgm ents (as o f D ecem ber 2012). T he C abinet o f M inisters o f U kraine instructed relevant authorities to take m easures to rem edy the violation found, to avoid sim ilar violations and bring their practices in accordance w ith the requirem ents o f the C onvention.

6 Annex to the Action plan/report as to the execution o f the Court s judgment in the case o f Golovan v. Ukraine C o d e o f C r im in a l P r o c e d u r e o f U k r a in e o f 13 A p r il (in fo r c e sin c e 19 N o v e m b e r ) A rticle 3. D efin ition o f the C ode s p rincipal term s [...] 18) Investigating ju d g e is a ju d g e o f a court o f first instance charged w ith carrying out, in accordance w ith the procedure established by the present C ode, court supervision over the observance o f rights, freedom s and interests o f persons involved in crim inal proceedings [...]. A rticle 13. In violab ility o f hom e or any other possession o f a person 1. It shall not be allow ed to penetrate into a hom e or any other possession o f an individual, conduct inspection or search therein otherw ise than upon reasoned 2. co u rt s decision, except for cases specified in the present Code. A rticle 15. N on-in terferen ce in private life 1. In the course o f crim inal proceedings, everyone shall be guaranteed non-interference in private (personal and fam ily) life. 2. N o one m ay collect, store, use and im parl inform ation on personal and fam ily life o f an individual w ithout their consent, except for cases prescribed in th e present Code. 3. Inform ation on personal and fam ily life o f an individual obtained in accordance w ith the procedure established by the present C ode m ay not be used otherw ise than for the purpose o f achieving the objectives o f crim inal proceedings. 4. E veryone w ho h as been granted access to inform ation on private life shall be required to prevent disclosure o f such inform ation. A rticle 55. V ictim 1. A victim in crim inal proceedings m ay be a physical person, w ho h as sustained moral, physical or m aterial dam age as a result o f a crim inal offence, as w ell as a legal person, that has sustained a m aterial dam age. 2. R ights and duties o f th e victim shall arise upon filing an application that a crim inal offence has been com m itted against him /her or application for being involved in crim inal proceedings as a victim. A victim shall be delivered a leaflet advising on his/her procedural rights and duties by the person w ho accepted the application that a crim inal offence has been com m itted. 3. A victim shall also be the person, w ho has not filed the application but w ho suffered dam age as a result o f crim inal offence and w ho consequently, after crim inal proceedings have been instituted, lodged the application for being involved in crim inal proceedings as a victim If an application, inform ation on a crime or an application fo r being involved in crim inal proceedings as victim is lodged by a person who has not sustained the dam age specified in part one o f this Article, investigator or public prosecutor shall adopt a m otivated ruling refusing to recognize the person to be a victim, which m ay be appealed to investigating judge. 6. If a crim inal offence caused the death o f a person or a person is in a state w hich does not allow him /her to file a respective application, provisions o f parts one to three o f the present A rticle shall apply to close relatives or fam ily m em bers o f such person. O ne person from am ong close relatives o r fam ily m em bers w ho has filed an application to be engaged in proceedings as victim shall be recognized to be a victim, and upon relevant application, several persons m ay be

7 recognized to b e victim s. 7. [...] A rticle 56. R igh ts o f a victim 1. Throughout the entire crim inal proceedings, a victim shall have the right to: 1) be advised in his/her rights and duties as set forth in the present Code; 2) know the substance o f suspicion and charges, be inform ed on im position, change or revocation o f precautionary m easures taken in respect o f the suspect, accused or about term ination o f the pre-trial investigation; 3) produce evidence to investigator, public prosecutor, investigating ju d g e, court; 4) propose d isq ualification s and subm issions; 5) [...]; 6) give explanations, testim onies or refuse to do so; 7) challenge decisions, acts, and om issions o f the investigator, public prosecutor, investigating ju d g e, court in accordance w ith the procedure laid dow n by the present Code; 8) have an authorized representative and at any tim e during crim inal proceedings w aive h is/her services; 9) give explanations, testim onies in native language or any other language in w hich he/she is fluent, benefit from free translator s services at th e S tate s expense if he/she has no know ledge o f the State language or the language in w hich the crim inal proceedings is conducted; 10) [...]; 11) exam ine p arties m aterials directly related to the crim inal offense com m itted in their respect, [...], as w ell as exam ine the m aterials o f crim inal proceedings directly related to the crim inal offense com m itted in th eir respect, in case the proceedings has been closed; 12) in com pliance w ith the requirem ents o f th e present C ode, use technical m eans during the conduct o f procedural actions he/she takes part in. Investigator, public prosecutor, investigating ju d g e, court m ay prohibit a victim the use o f technical m eans during the conduct o f a specific procedural action or at a certain stage o f crim inal proceedings, in order to prevent disclosure o f data containing a secret protected by law or related to intim ate sides o f hum an life, as prescribed by a m otivated decision (ruling); 13) obtain copies o f procedural docum ents and receive w ritten notifications in cases specified by the present Code; 14) enjoy other rights specified in the present Code. 2. D uring pre-trial proceedings, the victim shall have the right to: 1) have his/her application that a crim inal offence has been com m itted against him /her and to be recognized as v ictim accepted and registered prom ptly; 2) obtain from th e com petent body w here he/she has lodged the application, a docum ent confirm ing the filing and registering o f the application; 3) produce evidence w hich support his/her application; 4) take part in investigatory (search) and other procedural actions in the course o f w hich ask questions, subm it his/her com m ents and objections w ith regard to the conduct o f procedural action, such com m ents and objections being put in the record o f th e procedural action concerned, as w ell as review the records o f the investigatory (search) and other procedural actions conducted w ith h is/h er participation; 5) after the com pletion o f pre-trial investigation, obtain copies o f m aterials w hich directly relate to crim inal offence w hich has been com m itted against him /her. 3. D uring trial in any court instance, a victim shall have the right to: 1 ) be tim ely inform ed on the tim e and place o f trial; 2) participate in trial conducted by court o f any instance; 3) participate in d irect exam ination o f evidence; 4) prosecute in court if the public prosecutor w aives prosecuting on b eh a lf o f the State;

8 5) express his/her opinion w hen the issue o f im posing a punishm ent on the defendant and o f indem nifying the dam age caused by crim inal offence, is being disposed, as w ell as express his/her opinion w hen the issue o f applying com pulsory m easures o f m edical or educational nature, is being disposed; 6) fam iliarize w ith th e decision m ade by the court, jo u rn al o f court session and technical recording o f crim inal proceedings in court; 7) challenge co u rt s decision as prescribed in the present Code. 4. [...]. A rticle 87. In adm issibility o f evidence obtained through serious violation o f hum an rights and fundam en tal freedom s 1. Inadm issible shall be evidence obtained through essential violation o f hum an rights and fundam ental freedom s guaranteed by the C onstitution o f U kraine and international treaties the V erkhovna R ada o f U kraine has given its consent to b e bound by, as w ell as any other evidence w hich w as obtained thanks to inform ation obtained through essential violation o f hum an rights and fundam ental freedom s. 2. T he court shall b e required to find essential violations o f hum an rights and fundam ental freedom s, in particular, in the follow ing acts: 1) conducting procedural actions w hich require previous perm ission o f the court w ithout such perm ission or w ith disrespect o f its essential conditions; [...] 3. E vidence referred to in this A rticle shall be found by court inadm issible during any trial except trial w hen the issue o f liability for the said essential violation o f hum an rights and fundam ental freedom s as result o f w hich such evidence w as obtained is disposed. A rticle 214. In itiatin g pre-trial investigation 1. Investigator, public prosecutor shall be required im m ediately but in any case no later than w ithin one d ay after subm ission o f a report, inform ation on a crim inal offense or after he/she has learned on his/her ow n from any source, about circum stances w hich are likely to indicate that a crim inal offence has been com m itted, to en ter the inform ation concerned in the Integrated R eg ister o f P re-t rial Investigations, an d to initiate investigation. 2. Pre-trial investigation shall start from the m om ent the inform ation concerned has been entered in the Integrated R egister o f Pre-T rial Investigations. [...] 3. C onducting pre-trial investigation before entering the inform ation in the R egister or w ithout such entering shall not be perm itted and shall entail liability established by law. [...] 4. Investigator, public prosecutor, other official authorized to accept and register reports, inform ation on crim inal offenses, shall be required to accept and register such report or inform ation. R efusal to accept and register a statem ent or inform ation on a crim inal offense shall be inadm issible. 5. T he follow ing inform ation shall be entered in th e Integrated R egister o f Pre-Trial Investigations: 1) date o f arrival o f th e report or inform ation on crim inal offense o r o f finding from another source the circum stances that m ay indicate th e com m ission o f crim inal offense; 2) last nam e, first nam e, patronym ic (nam e) o f the victim or applicant; 3) other source o f learning about the circum stances that m ay indicate the com m ission o f crim inal offense; 4) b rief description o f the circum stances that m ay indicate th e com m ission o f crim inal offense, provided by victim, applicant or learned from other source; 5) provisional legal qualification o f the crim inal offense w ith indication o f A rticle (A rticle part) o f the U krainian law on crim inal liability;

9 6) last nam e, first nam e, patronym ic and position o f investigator, public prosecutor who entered the inform ation in the R egister an d initiated investigation; 7) other circum stances specified by regulation on the Integrated R egister o f Pre-Trial Investigations. In the Integrated R egister o f Pre-Trial Investigations the date o f entering the inform ation shall be fixed autom atically, and the crim inal proceedings num ber shall be assigned. 6. Investigator shall im m ediately, in w ritten form, inform public prosecutor about the initiation o f investigation, the grounds for beginning the investigation, and other inform ation specified in part th ree o f this A rticle. 7. If inform ation on crim inal offense has been entered in the Integrated R egister o f Pre- Trial Investigations by public prosecutor, he/she shall be required im m ediately but in any case not later than n ex t day, in com pliance w ith investigative ju risd ictio n rules, to transfer m aterials in his/her possession to the agency o f pre-trial investigation and assign the conduct o f pre-trial investigation. A rticle 233. E n terin g hom e o r any other possession o f a person 1. N obody is allow ed to enter hom e or any other possession o f a person for any purpose w hatsoever otherw ise than upon voluntary consent o f the ow ner or based on a ruling ot investigative judge, and except in cases specified in part three o f th is A rticle. 2. It is understood that hom e m eans any prem ise an individual perm anently or tem porarily legally ow ns w hatever purpose it serves and w hatever legal status it has, and adapted for perm anent or tem porary residence o f physical persons, as w ell as all constituent parts o f such prem ises. P rem ises specially intended for keeping o f persons w hose rights have been restricted by law, are not deem ed dw ellings. O ther possession o f a person refers to vehicle, land parcel, garage, other utility structures, buildings o f household, m anufacturing and other purpose etc., w hich a person legally ow ns. O ther possessions also include a law yer s or notary s w orkplace. 3. Investigator, public prosecutor has the right to enter hom e or any other possession o f a person w ithout co u rt s ruling only in urgent circum stances related to saving hum an life and property or to a hot pursuit o f persons suspected o f com m itting a crim e. [...] A rticle 234. Search 1. A search is conducted w ith the purpose o f finding and fixing inform ation on circum stances o f com m ission o f crim inal offense, finding tools o f crim inal offense or property obtained as a result o f its com m ission, as w ell as o f establishing th e w hereabouts o f w anted persons. 2. A search shall be based on m otivated ruling o f investigator approved by public prosecutor, w ith the exception o f a search o f hom e or other possession o f a person conducted on the basis o f investigative ju d g e s ruling. 3. W henever it is necessary to conduct a search o f hom e or other possession o f a person, investigator w ith approval o f public prosecutor, or public prosecutor shall subm it an appropriate request to investigative ju d g e containing the follow ing inform ation: 1) designation and registration num ber o f crim inal proceedings; 2) b rie f description o f circum stances o f the crim inal offense in connection w ith investigating w h ich the request is subm itted; 3) legal qualification o f the crim inal offense indicating A rticle (A rticle part) o f the U krainian law on crim inal liability; 4) grounds for search; 5) hom e or any other possession o f a person or a part th e re o f o r other possession o f the person w here th e search should b e conducted; 6) person w ho ow ns th e hom e or other possession, and person in w hose actual possession it actually is;

10 7) objects, docum ents or individuals to b e found. T he request shall be required to b e attached originals o r copies o f docum ents and other m aterials by w hich public prosecutor, investigator substantiates the argum ents o f the request, as w ell as an extract from the Integrated R egister o f Pre-T rial Investigations related to the crim inal proceedings in the fram ew ork o f w hich the request is subm itted. 4. A request for search shall be considered in court on the day o f receipt, w ith participation o f investigator or public prosecutor. 5. Investigative ju d g e shall reject a request fo r search unless public prosecutor, investigator proves the existen ce o f sufficient grounds to believe that: 1 ) a crim inal offense w as com m itted; 2) objects and docum ents to be found are im portant for pre-trial investigation; 3) know ledge contained in objects and docum ents being searched m ay be found to be evidence during trial; 4) objects, docum ents or persons to be found are in the hom e or any other possession o f a person indicated in the request. A rticle 235. R uling to au thorize a search o f hom e o r any oth er possession o f a person 1. Investigative ju d g e s ruling authorizing search o f hom e or other possession o f a person on grounds provided in public prosecutor s, investigator s request, shall give the right to enter hom e or other possession o f a person only once. 2. Investigative ju d g e s ruling authorizing search o f hom e or other possession o f a person shall be required to com ply w ith general requirem ents for court decisions laid dow n in the present Code. In addition, the investigative ju d g e s ruling authorizing search o f hom e or other possession o f a person shall contain inform ation on the follow ing: 1) term o f effect o f the ruling w hich m ay not exceed one m onth after the day it w as passed; 2) public prosecutor, investigato r w ho requests the search; 3) legal provision based on w hich the ruling is passed; 4) hom e or any other possession o f a person or a part thereof, or other possession o f the person w here th e search should be conducted; 5) person w ho ow ns th e hom e or other possession, and person in w hose actual possession it actually is; 6) objects, docum ents or individuals to be found. 3. T w o copies o f the ruling should be prepared and expressly m arked as copies. A rticle 236. E xecu tion o f the ruling to au th orize search o f h om e or any other p ossession o f a person 1. Investigator or public prosecutor m ay execute the ruling to authorize a search o f hom e or any other possession o f a person. T he victim, the suspect, defense counsel, representative, and other participants to crim inal proceedings m ay be invited to attend. W henever investigator, public prosecutor needs assistance in issues requiring special know ledge, they m ay invite specialists to participate in th e search. 2. A search o f hom e or other possession o f a person based on investigative ju d g e s ruling should be conducted in tim e w hen the least dam age is caused to usual occupations o f their ow ner unless the investigator, public prosecutor finds that m eeting such requirem ent can seriously com prom ise th e objective o f the search. 3. P rior to the execution o f investigative ju d g e s ruling, the ow ner o f hom e or any other possession or any other present individual in case o f th e absence o f the ow ner, should be produced court s ruling and given a copy thereof. Investigator, public prosecutor m ay prohibit any person from leaving th e searched place until the search is com pleted and from taking any action w hich im pede conducting search. Failure to follow these requests entails liability established by law.

11 4. If no one is present in the hom e or other possession, the copy o f ruling should be left visible in the hom e or other possession. In such a case, investigator, public prosecutor is required to ensure preservation o f property contained in th e hom e or any other possession and m ake it im possible for unauthorized individuals to have access thereto. 5. Search based o n co u rt s ruling should be conducted w ithin the scope necessary to attain the objective o f search. U pon decision o f the investigator, public prosecutor, individuals present in the hom e or other possession m ay be searched if there are sufficient grounds to believe that they hide on th eir person objects or docum ents w hich are im portant for crim inal proceedings. Such search should be conducted by individuals o f th e sam e sex. 6. D uring th e search, investigator, public prosecutor shall have the right to open closed prem ises, depositories, objects if the person present during the search, refuses to open them, or if the search is conducted in the absence o f persons specified in part three o f this Article. 7. D uring the search, investigator, public prosecutor m ay conduct m easurem ents, shoot pictures, m ake audio or video recording, d raw plans and schem es, produce graphic im ages o f the searched hom e or other possession o f a person, o r o f particular objects, m ake prints and m oulds, inspect and seize objects and docum ents w hich are im portant for crim inal proceedings. O bjects seized by law from circulation shall be subject to seizure irrespective o f their relation to the crim inal proceedings concerned. Seized objects and docum ents not included in the list o f those directly allow ed to be found in the ruling authorizing the search, and are not am ong objects w ithdraw n by law from circulation, shall be deem ed prov ision ally seized property. 8. P ersons w ho are present during the search have th e right to m ake statem ents in the course o f investigative (detective) action, such statem ents being entered in th e record o f search. T he new Bar A ct (in force since 15 A ugust 2012) A rticle 23. G u aran tees o f the ad vocates activity 1. Professional rights, honor and dignity o f a law yer are guaranteed and protected by the C onstitution o f U kraine, this A ct and other law s, including: [...] 3) searches, investigation activities regarding a law yer m ay be conducted only under the court s authorisation, shall be based on the court s decision, adopted at the request o f the Prosecutor G eneral o f U kraine, his deputies, prosecutors o f th e A utonom ous R epublic o f Crim ea, prosecutor o f the region, o f the cities o f K yiv and Sevastopol; 4) the review, disclosure, discovery or seizure o f docum ents related to advocacy is prohibited; [...] 2. W here search o r inspection o f housing, other property o f the law yer, prem ises w here he carries out advocacy, tem porary access to objects and docum ents o f a law yer is conducted, investigating ju d g e, the court, in its decision shall define objects, docum ents w hich are expected to be found, identified o r seized during th e investigative action [...]. D uring the search or inspection o f housing, other property o f th e law yer, prem ises w here he carries out advocacy, tem porary access to objects and docum ents o f a law yer, a representative o f the Local A dvocates' C ouncil shall be present [...]. To ensure his/her participation, investigating officer conducting investigative action [...] shall notify the Local A dvocates C ouncil in advance. In order to ensure com pliance w ith the provisions o f th is law concerning law yer-client privilege w hen perform ing respective procedural actions, a representative o f the Local A dvocates C ouncil shall be granted w ith a right to ask questions, subm it com m ents and objections in th e course o f investigative (detective) action, such statem ents being entered to the record o f the search.

12 3. Public and local authorities, and their officials and em ployees in dealing w ith law yers shall be bound by the C onstitution o f U kraine and law s o f U kraine, th e C onvention fo r the Protection o f H um an R ights and F undam ental Freedom s o f 1950 and the P rotocols thereto, agreed to be binding by V erkhovna R ada o f U kraine, the European C ourt o f H um an R ights case law.