Hashimov R.A

Decision of the RF Constitutional Court of 17 December 2015 no. 33-P contains a message to the legislator that necessitates additional guarantees in the legislation that exclude the possibility to receive information constituting legally protected professional privilege by pre-trial investigation authorities in the course of the search which assumes access to the lawyer's materials. Before the legislation develops relevant legal mechanisms, the RF Constitutional Court formulated a three-element legal position that reflects the guarantees already existing in legislation and in international law: the rule of mandatory pre-judicial control, the rule of distinguishing information by content and privilege; the rule of the prohibition of the fixation of information constituting legal professional privilege. The Constitutional Court of the Russian Federation has rightly pointed out the possibility of additional positive legislation in the protection of legitimate lawyer-client privilege because the organizational and tactical features of search and of other investigative actions against a lawyer, even with the proposed rules, do not exclude the possibility of an investigator, an inquiry officer or an investigative action participant to obtain information that is subject to protection by legal professional privilege. The rule of law should balance the equal public interests of, first, the need for an effective investigation of crimes involving abuse of law, in which lawyers may participate, and, second, the need to be able to give the lawyer information without the fear that it may randomly be seized from the lawyer by members of the prosecution. To achieve this, a positive regulation of the two areas of interest is required through the establishment of special guarantees and mechanisms.

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