The Constitutional Court refused to consider the issue of the fundamental impossibility of examining a lawyer, since Idiyatdinov had not brought it before the court before and did not mention it in the complaint, and the verification of constitutionality "in the order of abstract normative control" was unacceptable.
In addition, the admissibility of a search of a lawyer on the territory of institutions where convicts are serving their sentences was previously stated by the Constitutional Court in Ruling No. 428-OP dated March 6, 2008. The same position can be extended to searches in places of detention, the Constitutional Court considered at this meeting.
The Constitutional Court recognized that paragraph 6 of Art. 34 of the Law on detention does not contradict
the Constitution of the Russian Federation. In its decision, the court noted that the state is obliged to create appropriate conditions for persons providing legal assistance for the effective implementation of activities without prejudice to their dignity, honor and business reputation. And the UN Basic Principles
on the Role of Lawyers also states that lawyers must be able to perform their professional duties without threats, hindrance, intimidation or undue interference.
"Lawyers should not be afraid of any sanctions or be subjected to pressure when they act in accordance with professional standards,
" the decision of the Constitutional Court notes.
The UN Standard Minimum Rules
for the Treatment of Prisoners (the Nelson Mandela Rules) require that convicted or remanded persons be provided with adequate facilities to meet with a lawyer, the COP points out. Although these rules make the admission of visitors to the prison facility dependent on consent to searches, they prohibit humiliating search procedures, and also prescribe that the prison administration must keep records of the activities carried out, indicating their reasons, perpetrators and results.
The federal law "On Advocacy and the Bar" also provides for the right of a lawyer to freely meet with his client in private during his detention without limiting the number of visits and their duration. However, the Constitutional Court has repeatedly noted that this law does not establish the immunity of a lawyer, and therefore does not provide for visiting a pre-trial detention center without complying with the established regime requirements.
According to the regulation
on the Federal Penitentiary Service, measures to ensure regime requirements include control at the entrance and exit from the territories of places of detention, including for the purpose of detecting and seizing - in particular from lawyers - items, substances and products that are prohibited for storage by those under investigation.
"Thus, the security requirements are aimed at protecting the general (public) interest, they are a condition for maintaining law and order and the safety of suspects and defendants, staff, officials and citizens, including lawyers, located on the territory of the pre-trial detention center. As such, by their nature, these measures, including those applied to persons in connection with the performance of their professional duties, do not have the character of sanctions," the Constitutional Court clarified.
For example, the Constitutional Court has already noted in previous decisions that the search by a bailiff of a lawyer entering the court building and his belongings, if there are grounds to believe that he has objects that pose a threat to the safety of others, cannot be considered as a disproportionate restriction of rights.
This time, the Constitutional Court separately emphasized that, when heading to the territory of the pre-trial detention center, the lawyer is also obliged to present to the employees of the institution for inspection the object "with signs of a forbidden to carry" in his belongings or clothes, to which the technical means reacted or which was visually noticed.
At the same time, if this happens directly at the checkpoint and does not meet with objections from the lawyer - after all, he can simply refuse to search and leave, then it does not go beyond the usual control, which means that written fixation is needed only if a prohibited item is found.
The Constitutional Court believes that the examination of things and clothes of a lawyer in connection with suspicion of trying to bring in prohibited items has a different legal nature: such an examination can be carried out both at the checkpoint and in other premises of the pre-trial detention center.
Moreover, in this case, the lawyer cannot refuse to undergo an inspection and leave the pre-trial detention center. For the transfer or attempted transfer of prohibited items to persons held in institutions of the penitentiary system or temporary detention centers, administrative liability is provided
. "Giving a person suspected of trying to bring in such an object the opportunity to leave the pre-trial detention center without hindrance and without consequences would create a risk of abuse and impunity," the Constitutional Court emphasized in its decision.
In this case, the course and results of the inspection should be recorded at the request of the lawyer, the Constitutional Court believes. "The possibility of such a requirement allows the lawyer, in particular, to respond to situations in which the search can, in his opinion, be transformed from the search of things and clothes into a personal search, regardless of the existence of legal grounds for this," the Court's decision says.
An alternative to written documentation may be to store a video recording of the search of things and clothes - at least for the period for a judicial appeal against the legality of such searches - and provide a copy of it to a lawyer, clarifies the Constitutional Court.
At the same time, the Constitutional Court considered that the case of Idiyatdinov, despite the absence of documentary fixation of his search, is not subject to revision, since no prohibited items were found on him, which means that "the procedure did not entail such negative legal consequences for him."