Confidentiality of communication with a lawyer during a search: ECHR standards and a practical algorithm of actions

Confidentiality of communication with a lawyer during a search: from national legislation to modern European standards 

A person’s right to legal assistance includes not only the ability to call a lawyer, but also the guarantee that any communication with them, including during a search, remains confidential. Ukrainian legislation explicitly enshrines the inviolability of attorney-client privilege. According to Article 23 of the Law of Ukraine “On the Bar and Legal Practice”, interference in private communication between a lawyer and a client is prohibited. This applies to both verbal conversations and correspondence, notes, and electronic messages. This rule also applies when the lawyer has not yet arrived at the scene of the investigation, and the client is forced to contact him remotely.  

The ensuring attorney-client privilege when a person invites a lawyer during a search is problematic. 

On the one hand, the investigator or prosecutor has the right to prohibit any person from leaving the place of the search until it is completed and from taking any action that interferes with the conduct of the search . In such circumstances, the person remains under the control of law enforcement officers. On the other hand, the prohibition of interference in private communication between a lawyer and a client is one of the basic guarantees of legal practice defined by the Law of Ukraine “On the Bar and Legal Practice.” Any actions that may create an opportunity for outsiders to hear, record, or otherwise control the conversation between a lawyer and a client are unacceptable. This guarantee remains in force even when the search is ongoing and the lawyer has not yet arrived – the person has the right to inform their defence counsel about the situation, ask questions about the course of action or receive basic instructions without the risk of outside interference. 

In the author’s opinion, when giving a person the opportunity to call a lawyer, the investigator or prosecutor, depending on the circumstances of the search, is obliged to ensure the maximum privacy of such communication between the lawyer and the client. The requirement, as is often the case in practice, that the investigator or prosecutor communicate on speakerphone when inviting a lawyer by telephone is illegal because it violates the person’s right to defence. 

A a participant in a search has the right to obtain the legal assistance from a lawyer or representative. The legislation governing searches does not specify the procedure for obtaining such assistance, except for the right of a person to invite a defence lawyer or the mandatory participation of a defence lawyer during a search of a person.  

For example, does a person have the right to use legal assistance by telephone from the moment the lawyer is invited until his or her arrival? In the author’s opinion, yes. A person has the right to full legal assistance in any form, if this does not contradict or interfere with the procedural order of the search. 

Of particular importance in this context is the legal position of the Constitutional Court of Ukraine, which, in its decision of 30 September 2009, emphasised that the right to legal assistance is multidimensional and covers a wide range of forms, from consultations and explanations to direct defence against charges. The choice of the legal assistance form is the person’s own decision, and the state is obliged to create the conditions for its actual receipt.   

Moreover, the guarantee of this right stems not only from the Constitution of Ukraine, but also from the state’s international obligations. 

Neither the Charter of Fundamental Rights of the European Union nor the European Convention on Human Rights contains a separate article devoted exclusively to the right to confidential communication with a lawyer. However, this right is inherent in the guarantees of a fair trial (Articles 47 and 48 of the Charter and Article 6 of the ECHR) and is considered one of the key elements of effective defence. The European Court of Human Rights consistently considers the confidentiality of the relationship between client and lawyer to be an integral part of the right to a fair trial, and it constantly clarifies the limits of permissible state interference in this area in its practice. 

The European Court of Human Rights has consistently emphasised in its decisions, in particular in the case of Namazli v. Azerbaijan (2024), that: 

• lawyers play a central role in the administration of justice and in ensuring a fair trial; 
• communication between a lawyer and a client is privileged and protected by both Article 6 (right to a fair trial) and Article 8 of the Convention (right to respect for private life and correspondence); 
• any interference by the state in this communication is permissible only if there are compelling reasons, a clear legal basis and effective safeguards against arbitrariness. 

Any person wishing to consult a lawyer must be able to do so in conditions conducive to full and unhindered discussion. This position of the ECHR is reflected, in particular, in the Court’s decision in Campbell v. the United Kingdom (1992). 

These requirements were further clarified in the Convention on the Protection of the Legal Profession, adopted by the Council of Europe on 12 March 2025. According to Article 6(3) of this Convention and the Explanatory Report thereto, the participating states are obliged to guarantee lawyers the right to communicate confidentially with their clients “by any means and in any form” and to hold private (“face-to-face”) meetings under conditions where no outsiders can hear or otherwise access the content of the conversation. Even when supervising a meeting between a lawyer and a client who is deprived of liberty, or in the context of an investigation, the persons conducting the supervision may only observe the participants, but do not have the right to hear or record the content of the communication.  

Thus, even before Ukraine ratified this Convention, its provisions already reflected the current European consensus. We believe that in the near future, the ECHR will certainly take this into account when assessing cases of interference with the confidentiality of communication with a lawyer, including during searches. After ratification, the relevant provisions will become a directly applicable source of law and binding on all investigators, prosecutors, and courts.    

Practical recommendations for clients during searches and personal searches 

1. Keep the contact details of a lawyer who can be promptly notified of the search and invited to participate in the investigative action. 
2. Immediately declare your intention to involve your lawyer. Provide the investigator or prosecutor with their contact details and demand that the lawyer be allowed to participate in the search. Insist that this statement be included in the protocol. 
3. Emphasise the confidential nature of documents and correspondence. Everything related to your communication with your lawyer (paper materials, emails, instant messages) should be explicitly marked as covered by the attorney-client privilege. Demand that any instances of their inspection, copying, or seizure be recorded in the protocol. 
4. Refrain from any unnecessary conversations with law enforcement officials. Anything a person tells an investigator or prosecutor outside of clear procedural responses may be used against them later. Therefore, it is advisable to answer only those questions that directly relate to the search itself, and tao do so as concisely as possible, or to refuse to answer any questions without the presence of a lawyer. It is equally important to remain calm and composed. A person’s behaviour often influences the actions of law enforcement officers, and excessive emotionality can be misinterpreted. 
5. Keep an eye on the scope of the search. Check what is stated in the court order: the address, premises, list of items and documents. Any actions by investigators that go beyond this scope should be noted in your comments to the protocol. 
6. Carefully record the course of the personal search. If you are being searched, pay attention to: 

• the gender of the person conducting the search and the witnesses; 
• the recording of the relevant actions in the search protocol; 
• a full description of all items seized; 
• the presence of a video recording (if the personal search takes place within the scope of the search of the premises). 

7. Make comments in the protocol. Even if you cannot prevent the investigators from conducting the search, your recorded comments referring to specific violations will be an important tool for your defence in the future.