Article 93 of the Criminal Procedure Code of Ukraine: attorney’s request in practice

Effective defense in criminal proceedings today is impossible without skillful use of mechanisms that allow the defense side to independently collect evidence. One of the key tools is the attorney’s inquiry, especially in the context of applying Article 93 of the Criminal Procedure Code of Ukraine (CPC). Given the significant procedural imbalance between the prosecution and the defense, the attorney’s inquiry sometimes becomes the only way for the defender to obtain necessary evidentiary information.

Legislative regulation and procedural opportunities
Article 93 of the CPC of Ukraine stipulates that the defense side has the right to independently collect evidence, in particular by sending inquiries to individuals and legal entities. This provision gives the attorney the means to approach a wide range of entities — government bodies, businesses, institutions, individuals, and legal entities — with the requirement to provide information, documents, or their copies. Despite some procedural limitations, it is this mechanism that enables the defender to effectively collect information that an investigator or prosecutor might deliberately ignore during pre-trial investigation.

The nature of attorney’s inquiry: non-procedural or procedural mechanism?
The attorney’s inquiry has a dual nature. On one hand, it is based on the Law “On Advocacy and Advocate’s Activity,” which enshrines the attorney’s right to send requests for information in the interests of the client. On the other — requesting information under Article 93 of the CPC of Ukraine creates grounds to recognize the received information as procedurally significant for criminal proceedings. Judicial practice highlights debates on the admissibility of evidence obtained via attorney’s inquiry, but the general approach is that evidence collected by the defender in this way and properly attached to the case materials should be considered in the process of evaluating evidence.

Practical features of application: key aspects

1. Rules for drafting inquiries
   The inquiry must be made in writing, contain a precise justification of the legality and purpose of obtaining information. Attachments to the inquiry are required: copies of the certificate of authority (attorney’s certificate), sometimes documents confirming representation powers of the client’s interests.
2. Responsibility for non-response
   The law provides for administrative liability for ignoring attorney’s inquiries, but in practice, responses are often not reviewed, especially in the case of private companies or new market entities, which refer to confidentiality or other formal grounds.
3. Requesting information via investigating judge
   If the response to an attorney’s inquiry is glaringly refused or not provided within the established period, the defender may file a motion to the investigating judge for temporary access to items and documents. Judicial practice shows that such a motion may be satisfied if the attorney appropriately substantiates the procedural necessity of obtaining evidence.

Judicial practice and admissibility of evidence
Judicial practice is ambiguous regarding the admissibility of documents obtained upon inquiry. On one hand, there are court decisions where refusal to provide information on attorney’s inquiry was found unlawful and entailed administrative liability for officials. On the other hand, in some proceedings, courts critically assess such evidence and may deem it inadmissible if the form or mechanism of obtaining it, prescribed by the CPC, was violated.

It is important that evidence obtained through attorney’s inquiry is traditionally used not only for the client’s defense in criminal proceedings, but also in shaping defense strategy, giving consultations, and preparing written explanations.

Typical challenges of application

• Attorney’s inquiries ignored by private entities;
• Formal refusals citing commercial secret, personal data, or other restrictions;
• The prosecution side challenging the admissibility of evidence obtained outside procedural rules;
• Vague or insufficiently substantiated purpose of inquiry, giving grounds for refusal to provide information;
• Lack of a unified approach in court practice to granting motions for temporary access to information obtained through attorney’s inquiry.

Recommendations for attorneys on effective use of inquiries

• All inquiries should be made in writing with mandatory reference to Article 93 of the CPC of Ukraine and the Law “On Advocacy and Advocate’s Activity”;
• Include copies of the certificate of authority, attorney’s certificate, and power of attorney;
• Send the inquiry by registered mail or with delivery confirmation to the recipient;
• Document all attempts to obtain a response, keep evidence of sending and receiving;
• In case of refusal — initiate a complaint for administrative liability or motion to the investigating judge;
• Provide a well-reasoned justification for the need to obtain information in order to execute defense functions.

Conclusions
Attorney’s inquiry in the light of Article 93 of the CPC of Ukraine is an effective and flexible instrument for exercising the right to defense. Despite numerous application problems and reluctance by some recipients to cooperate, competent use of this tool gives the defense side an additional chance for evidentiary activity. Successful obtaining and use of evidence depends on proper drafting of inquiries and the willingness to fight for client rights at all procedural levels — including challenging unlawful refusals and initiating checks for legal compliance.

Author: Evhen Murchenko – Head of Criminal Law and Procedure Practice
Legal Association “WINNER“.

If you have any questions or problems related to the use of attorney’s inquiries, evidence collection, or defense in criminal proceedings, you may contact our team for professional legal advice and support. We are open to cooperation and ready to help with the most complex procedural situations.