Problems of admitting a lawyer to participate in a search

Abstract

The article is devoted to the fundamental problematic issues of an access of an advocate to a search are indicated in the article. Attention is paid to the negative consequences of the no admission of an advocate to the participation in the stated investigative search act. It is substantiated that the existing practice of the agencies, that are responsible for the pre-trial inquiry regarding the refusal to allow the participation in searching of advocates and/or legal representatives of persons who are general and/or actual owners of the searched dwelling (of other dominion) does not correspond to the notion of the reasonableness, conscientiousness and justice. The article accentuates the necessity of search featuring an advocate, since the practice shows that the given investigative act often includes the risks of infringement of the fundamental rights of a suspect, an accused or another person whose rights or legitimate interests are limited during the pre-trial investigation and secured by the fundamental law of Ukraine. The article proves that the participation of an advocate in a search can decrease the amount of the abuses and transgression of the criminal law of procedure from the law enforcement officers. The conclusions indicate the necessity on the legislative level, particularly via the amending the Code of Criminal Procedure, to settle in detail the issue of the authorization of an advocate to participate in a search in order to exclude wrong interpretation of the proper provisions of the Act and also to make provision in the paragraph 303 of the Code of Criminal Procedure for a right to appeal against the decision of an investigator, a prosecutor to refuse an authorization of an advocate to search and to carry out his professional obligations.