(Non) First Bells: Unwritten Challenges Faced by Defence Lawyers in Criminal Proceedings

Author: Yevhenii Isaienko, attorney, counsel at Grain Law Firm

In various professional environments there is a rule: to take care of others – take care of yourself first. A rescuer, before entering a burning building, must ensure their own safety. A doctor, providing medical assistance, must be confident they will not be infected by the patient. A psychologist, working with certain traumas, must maintain their own mental resilience. A journalist, collecting and publishing information, must be certain they are protected. Outside professional duties, each of us hears before takeoff: “In case of cabin depressurization, put on your oxygen mask first, and then assist a child or another person.”

These rules are consistent and clear, and their practical meaning is understandable even to a child. However, the necessity of applying the same approach to defence lawyers is not always obvious, and it becomes especially important when providing legal assistance in criminal proceedings.

A lawyer’s exercise of authority is always aimed at representing a specific person and defending their rights, freedoms, and interests. In criminal proceedings, this means fighting for a person’s future, their family, honour, dignity, and reputation.

At the same time, modern realities of criminal justice show that a lawyer’s “fight” for a client begins long before the trial, because:

– the constitutional presumption of innocence must be defended;
– procedural rights granted by criminal procedural law must be defended;
– existing guarantees must be defended;
– compliance with general principles of criminal proceedings must be defended;
– case-law of the European Court of Human Rights must be defended.

Of course, this refers exclusively to procedural advocacy carried out within the limits, procedure, and forms defined by Ukrainian law, in compliance with all rules and standards of advocacy and legal ethics. However, at certain stages of criminal proceedings, lawyers often find themselves fighting “windmills”.

It should be emphasized that since ancient times, the nature of any trial has implied opposition between parties, which is a natural expression of the principle of adversarial proceedings. The ability to engage another person for defence became the foundation for the development of the legal profession.

However, adversarial procedure as an element of justice today exists in a different, not entirely healthy paradigm, which reduces the lawyer’s role not merely to representing the defence, but to acting as a systemic opposition in a negative sense of the term.

This oppositional role is not a whim but a forced response to the conduct of state authorities, when instead of analysing a legal position, gathering evidence, and preparing for trial, one must first secure the very right to act as a lawyer in criminal proceedings.

This article presents an allegorical and sometimes ironic view of defence practice in criminal proceedings, yet unfortunately, this is the reality of modern criminal cases.

The struggle for the right to act as a defence lawyer begins almost immediately after receiving information about a person’s detention, when a number of urgent actions must be taken and significant time spent just to gain access to the client, as law enforcement bodies may obstruct this.

After overcoming the first stage, it often becomes clear that the detained person may have already been questioned before the lawyer’s arrival, regardless of whether a procedural record of such questioning was drawn up. The person’s vulnerable psychological state on the day of detention, often accompanied by a search – and even more often without a court order – makes them unable to effectively exercise their rights, even if they were aware of them.

Upon finally reaching the detainee, it is not uncommon to find signs of physical injuries inflicted during detention by unknown individuals in masks, whose identities are absent from any official records. At this time, law enforcement representatives may claim that everything has been settled and that the client has no complaints. However, after 30 seconds of confidential communication, it becomes clear that complaints are in fact numerous. Naturally, no criminal investigation into abuse of authority is initiated based on oral statements, nor even upon written complaints.

In the end, the person has already provided certain statements, having been promised release or a milder bail request, and has disclosed passwords to their mobile phone, as law enforcement promised not to seize it, as well as cash and a vehicle. However, despite such promises, everything is seized regardless of its relevance to the investigation.

Later, a motion for seizure of property typically appears, covering both assets belonging to the person and those seized during a search, which may not have been present at the premises prior to law enforcement arrival. Such motions are not always considered with participation of the defence or property owner. Even when they are, documents supporting the seizure are often not disclosed due to investigative secrecy.

At roughly the same time, a court decision is issued in the absence of the defence or property owner, retroactively authorizing a previously conducted search under an “urgent necessity” related to the preservation of property, and also authorizing the seizure of already seized items (which exceeds the powers of the investigating judge), enabling the prosecution to avoid returning property or even filing a seizure motion.

Next comes the motion for a preventive measure – usually detention – accompanied by an extremely high alternative bail amount and additional obligations, the necessity of which is never properly justified.

However, the risks are always justified:

– risk of absconding is justified by the severity of the potential punishment, often supported by selective ECtHR citations;
– risk of unlawful influence on witnesses is justified by the fact that the court directly receives testimony and that the investigation may last up to 12 months;
– risk of destroying evidence is justified by the fact that the suspect now knows the allegations;
– risk of obstruction is justified by reference to the person’s social connections;
– risk of reoffending is justified by the mere fact of prior alleged conduct.

These configurations vary, but risks are rarely supported by evidence, relying instead on generic reasoning applicable to almost any suspect.

As for “reasonable suspicion”, it is almost always deemed sufficient (from the prosecution’s perspective, and generally accepted by investigating judges), based on ECtHR case law such as “Nechiporuk and Yonkalo v. Ukraine”.

Bail amounts are typically set at several times the alleged damage or benefit, justified by referencing lifetime income of the person and their family, as well as frozen assets.

The motion must be served at least three hours before the hearing. Therefore, it is fortunate if the lawyer has at least one sleepless night before the hearing, as courts often refuse adjournments despite the prosecution having months or years to prepare.

After a detention order is issued, the person is placed in a pre-trial detention facility, and the lawyer files an appeal. However, appellate review may take more than a month due to delays in case transfer or prosecutor absence. If the appeal is not reviewed within two months, a new detention extension is typically issued and must also be appealed.

Meanwhile, the person remains in custody under harsh conditions. Media coverage and anonymous “leaked” photos create a public stigma of guilt. Despite occasional improvements in detention facilities, better cells are not always available, and conditions may involve overcrowding and lack of basic comfort, effectively removing the person from normal life.

Changing the preventive measure or reducing bail is a lengthy process. Cooperation with the investigation, however, may significantly accelerate proceedings – but only at the cost of admitting guilt or testifying against others.

Collecting evidence for the defence is formally equal in law but not in practice. Requests for documents are often denied without a court order, while courts are stricter with defence motions than prosecution ones.

Over time, it may become evident that detention was unjustified, legal qualification changed, and evidence was inadmissible.

These are only a brief and abstract description of the unwritten challenges faced by defendants and their lawyers in criminal proceedings.

Each issue deserves separate attention and is widely discussed in professional circles, yet they persist.

At the same time, defence rights and guarantees are intended to protect individuals and society, enabling lawyers to act as a necessary counterbalance to law enforcement, courts, and sometimes the state.

In 2023, suspicion was reported in 189,292 criminal proceedings, and in 2024 in 194,688 proceedings. One case may involve multiple suspects, meaning the number of individuals is even higher. The rate of acquittals remains extremely low.

Every participant in criminal proceedings, even a witness, has the right to legal assistance.

However, recent trends indicate increasing risks for lawyers themselves – searches, surveillance, seizure of privileged materials, witness questioning, and criminal proceedings against defence lawyers. This raises concern for all members of society.

Of course, legal practice must not become a means of committing crimes, and rights and guarantees must serve lawful protection of individuals.

However, when investigative powers are used for illegitimate purposes and accompanied by media pressure and detention motions with no effective immediate remedy, this raises serious concern.

If such actions are implicitly tolerated, it may create fear among lawyers regarding the exercise of their professional duties.

Should law enforcement officers fear criminal liability for doing their job? Should judges fear liability for their decisions?

If a lawyer is afraid to act effectively, will individuals receive proper legal protection? The answer is obvious.

Unfortunately, early warning signs have already appeared in the history of the legal profession in our country, and current trends continue to intensify.

As John Donne once wrote: “never ask for whom the bell tolls; it tolls for thee.”