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On 20 July 2021, the Constitutional Court pronounced the Judgement in the case regarding review of constitutionality of Article 34, part six, of the Federal Law “On detention of persons suspected or accused of having committed crimes"
On 22 July 2021, the Constitutional Court of the Russian Federation pointed out that is unacceptable to perform security check of the advocate present in the territory of SIZO without documenting this procedure.

The hearing of the case on review of constitutionality of Article 34, part six, of the Federal Law “On detention of persons suspected or accused of having committed crimes” upon complaint of citizen R.Idiyatdinov was held on 29 June 2021.

 

Factual Background

Lawyer Ramil Idiyatdinov visited his client in the remand centre SIZO-3 for the Tatartstan Republic. During the visit he was checked by a metal detector and surrendered items forbidden for use in the regime territory (a cell phone). However, an inspector stopped the applicant within the local zone, believing to notice an object resembling a cell phone in the applicant’s pocket. The lawyer was again subjected to security check. His demands to produce a protocol of security check and give factual or legal grounds for it were refused. R.Idiyatdinov believed these actions to violate his honour and dignity both as a citizen and legal professional. He lodged a complaint with the prosecutor’s office and later with the court seeking to challenge the actions of the remand centre officers. During the proceedings it was established that no procedures regulated by the norm of the Code of Administrative Offences of the Russian Federation were performed in respect of the lawyer, namely the security check, rummaging through pockets and clothes and examination of items found. The courts refused the complaint of the applicant noting that in accordance with the Order of the Ministry of Justice no official protocol is produced if no prohibited items were discovered, as in the instant case.

 

Position of the Applicant

R.Idiyatdinov asserts that the challenged norm contradicts Article 55 (parts 2 and 3) of the Constitution of the Russian Federation. On the basis of the challenged norm a lawyer present in the territory of remand centre and performing his or her official duties can be subjected to additional security check without furnishing of a protocol, i.e. without indication of the reasons for the check, description of its process and results and handing over its copy. The applicant also believes that this norm unreasonably establishes different legal status for lawyers, investigators and inquiry officers, since security check of investigating (inquiry) officials is not permitted.

 

Position of the Court

The right to qualified legal assistance is enshrined in the Constitution of the Russian Federation. The law of the advocate’s work (Federal Law on Legal Practice and the Bar) affords lawyer the right to meet his or her client unhindered and in private without limits to the number of visits or their duration. At that as the Constitutional Court pointed numerous times this law does not establish full unlimited immunity of the lawyer. Realisation by the advocate of the right to meet his or her client does not mean visit to remand centre without observing the relevant regime requirements aimed at ensuring safety of all persons present in the territory of penitentiary facilities.

At that security check of personal belongings and clothes of the lawyer outside the normal check at the security gatehouse, that is, upon suspicion that he or she brought forbidden items “is of non-alternative nature”. The lawyer cannot refuse to undergo such check. Therefore, in order to protect his or her rights there should be a possibility of documenting the grounds, procedure and results of the security check. Formalising the security check and its video recording maybe presented upon the lawyer’s request and must be kept at least during the time foreseen to challenge the legality of security check.

The norm must be applied with due regard of its interpretation given by the Judgement ​of the Constitutional Court of the Russian Federation.

The case of the applicant is not subject to review since the security check performed did not result for him in negative legal consequences that would require relevant documents.

 

Presiding Judge Valery ZORKIN

Judge Rapporteur Yuri RUDKIN

20 July 2021



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