	Lex Mundi Global Attorney-Client Privilege Guide
	Ukraine
	(Europe) Firm Asters Contributors Sergiy Grebenyuk Updated 12 Oct 2021
Is the ACP recognized in your jurisdiction?	Yes, the attorney-client privilege is recognized in Ukraine but is not extensively developed. General rules and guarantees related to the ACP are established in the Constitution of Ukraine, the Law on the Bar and Advocates’ Activity and the Rules of Professional Conduct of an Attorney ("*Rules of Professional Conduct"). Namely, the above acts provide that the ACP covers any communications with the client, any information or materials received by an attorney from the client, contents of advice, consultations to the client, and any document created by the attorney under the client's request. The ACP also applies to communications shared when the attorney was approached for legal assistance, regardless of whether a legal assistance agreement was concluded or not. Generally, the attorneys (as well as their assistants and other employees) shall keep the respective information and materials secret (unless there is a consent of the client or the information is disclosed for purposes of proceedings against attorney initiated by his/her client).¹ The Law on the Bar and Advocates' Activity* establishes general guaranties for attorneys related to the ACP, including: prohibition to interrogate an attorney as a witness; right of an attorney to refuse provision of privileged information and materials; prohibition of interference in communications of an attorney and a client; prohibition of seizure of documents related to attorney`s professional activity. Also, there are specific rules in relation to procedural actions against an attorney (issuance of notice of suspicion to an attorney only by high-level prosecutors, conducting a search in premises occupied by the attorney (working place, home) in presence of a representative of local attorney`s council, etc). Relevant procedural safeguards are reflected in the Criminal Procedure Code, the Civil Procedure Code, the Code of Administrative Proceedings and the Commercial Procedure Code. __________ ¹ Attorneys have obligations to report under anti-money laundering regulations in a limited number of cases.
If the ACP is not recognized in your jurisdiction, are there rules of professional confidentiality or other rules that would enable a lawyer or a client to withhold attorney-client communications or work product prepared by counsel from disclosure...	Please refer to the response to question 1 of this section.
Is a distinction made in applying the ACP or professional confidentiality rules in civil and criminal proceedings? May government authorities require disclosure of attorney-client communications and legal work product?	Generally, the Law on the Bar and Advocates' Activity providing for the ACP applies to all kinds of proceedings. In practice effectiveness of the above general guarantees depends on provisions of the procedural and other legislation as well as its interpretation by courts and relevant authorities. In civil, commercial or administrative proceedings courts may oblige to disclose evidence upon request of a party to such proceedings. If such evidence includes a legal work product, it may theoretically fall under this scope. The Ukrainian Bar Association expressed the view (not mandatory for judges) and continues to insist that in such cases courts shall not allow disclosure of evidence falling under the ACP to prevent disproportionate interference in attorneys’ activity. However, in criminal proceedings, there are cases where courts grant access (and subsequent seizure) to materials covered by the ACP due to the following. The Criminal Procedure Code clearly prohibits access and seizure of the privileged materials only if the attorney acts as a defender (i.e. represents a suspect or an accused in the commission of the criminal offense). Based on this, investigative authorities may argue that if the notice of suspicion was not served, courts are entitled to grant access to the materials requested. At the same time, there are examples when the first level court decision granting access to such materials was canceled by the appeal court based on general provisions of the Law on the Bar and Advocates’ Activity prohibiting access to or seizure of materials containing the ACP, including for the purpose of a criminal investigation. In other instances, investigative authorities attempt to rely on the provision in the Criminal Procedure Code allowing seizure of material evidence (e.g. documents) to justify the seizure of privileged materials (acting on the presumption that this provision overrides the general ACP guarantees). There is no consistent court practice in this regard, but there are examples where courts allow the seizure of the materials or even technical devices containing the ACP. Also, in criminal proceedings, there are cases in which courts dismiss the ACP if the attorney is charged with the same or related criminal offense as his/her client. Further, in some instances, the investigative authorities do not inform courts that the access requested is for the privileged information and materials or that the search warrant is sought for an attorney`s office home, so judges may not have an opportunity to consider such facts. As an example, the ECHR recently accepted the applications of practicing attorneys against Ukraine, in which they alleged that when seeking a court order to access the telecommunications data for a three-year period "the prosecutors deliberately omitted to indicate to the court that the request concerned practicing lawyers and, moreover, legal counsel to Mr. O.Sh. in the ongoing criminal proceedings against him".¹ Under information available, the above request of investigative authorities indicated that the applicants could have been involved in the criminal offense under investigation. __________ ¹ https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-211990%22]}
In the corporate context, what test is applied to determine who within a corporation is considered the client for the purposes of the ACP? (e.g., in the U.S.: the Upjohn approach, control group test, etc.)	Both the Upjohn approach and control group test are alien to the Ukrainian legal system. According to the *Rules of Professional Conduct*, inter alia, in view of the ACP, (i) the signatory of the legal assistance agreement on behalf of the company, or (ii) other individuals mentioned in such agreement represent the company as a client of an attorney (for purposes of providing instructions or waiving the privilege). For other communications to be covered by the ACP, it is recommended that the legal assistance agreement contains a clause that other employees besides the signatory are entitled to communicate with an attorney regarding the matter in question.
Is in-house counsel expected to meet a higher burden than outside counsel in order to establish that privilege applies to in-house counsel’s communications?	Under Ukrainian legislation, the ACP generally applies to relations between clients and attorneys who act under a legal assistance agreement. However, in some instances, the communication of an in-house counsel and its employer may enjoy the same level of protection. For more details, please refer to the answer to questions 3 (i) and (ii) of this section.
Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality?	As stated above, the ACP generally applies to relations between clients and attorneys who act under a legal assistance agreement. Therefore, if in-house counsel is not an attorney, he/she may not assert privilege or professional confidentiality, with exception of some cases. As an example, if an in-house counsel (or another employee) represents the company under power of attorney in a criminal proceeding against the company, such counsel couldn’t be interrogated regarding matters he/she becomes aware of during such representation. Further, the ACP could not be invoked in the instances where in-house counsel acts only based on a labor contract with their employer (the company). At the same time, if an in-house counsel admitted to the bar also concludes with their employer a legal assistance agreement (e.g. for the purpose of representation in the court), the activities falling under the scope of such agreement should be covered by the ACP.¹ __________ ¹ The right of in-house counsels admitted to the bar, to represent their employers in court in accordance with the legal assistance agreement was confirmed by the Supreme Court in its decision in case â„– 826/15943/17.
Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar?	In-house counsels admitted to the bar are not prohibited from being its active members.¹ As stated above, in-house counsels may act as attorneys under a legal assistance agreement with their employees (e.g. for the purpose of representing the company before the court). ¹ As a matter of practice, in the state attorneys registers, the in-house counsels are reflected as attorneys practicing individually.
Is the common interest doctrine recognized in your jurisdiction?	The common interest doctrine is not recognized in Ukraine (no legislative provisions or court guidance on the matter are in place).
How is the doctrine articulated in your jurisdiction?	Please refer to the response to question 1 of this section.
Must a common interest agreement be in writing?	Please refer to the response to question 1 of this section.
Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect?	Third-party funding is not prohibited or otherwise regulated in Ukraine. Thus, it is possible to fund, inter alia, the claims in civil/commercial proceedings before the courts. As a matter of practice, third-party litigation funding is not actively used in Ukraine. In absence of specific rules regarding such funding, the attorneys could be guided by general rules, including to serve the best interests of their clients, independently, without being guided by instructions of other persons and without conflict of interest. Further, to share any privileged information or documents with funders, an attorney should seek consent from his/her client. Also, it is allowed for Ukrainian attorneys to handle cases under success fee arrangements¹ (which might be viewed as a type of litigation funding). The Rules of Professional Conduct do not prohibit and enable, to some extent, such a way of structuring the payments to an attorney, but depending on the circumstances, at some point, their legality was questioned by Supreme Court. In April 2019 the Council of Attorneys expressed the view that such arrangements are lawful. Further, the Supreme Court issued recent decisions in cases â„– 904/4507/18, â„– 5015/7368/11, in which the latter confirmed possibility to recover success fees within the expenses for legal assistance in case if such fees are real and reasonable. __________ ¹ As well as contingency and conditional fee arrangements.
Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection	We are not aware of such cases. At the same time, while considering the third-party funding and sharing privileged information and materials with the funders, potential claimants should take into account that under procedural rules, the courts are not precluded from requesting such funders to submit evidence they possess related to the matter.
Is the crime-fraud exception recognized in your jurisdiction?	This exception is not recognized in Ukraine. Namely, the legislation contains no provisions expressly permitting courts to grant motions requiring disclosure of the attorney-client communications on such grounds and establishing a standard of proof for such actions. The courts have not developed guidance in this regard as well. Attorneys themselves are neither obliged nor entitled to waive the ACP in view of the possible intentions of their client to commit a crime. At the same time, under the Rules of Professional Conduct, an attorney is prohibited to accept a client's matter if the result expected by the client or the means for its achievement the client insists on are illegal.
What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction?	Please refer to the response to question 1 of this section.
Is there a statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings? (In the U.S.: What state rule is your jurisdiction’s analog to FRCP 26(b)(3)?)	Ukrainian legislation does not contain specific provisions as to litigation privilege. Generally, the same level of protection is available to both attorney-client communications and work product. Also, it might be argued that the work product prepared by third parties (e.g. auditors, accountants) for purposes of providing legal advice enjoys the protection as well. Please also refer to the response to question 3 of Section I for more details.
What are the elements of the protection in your jurisdiction?	Considering the above, the attorney-client communications and work product have common elements for protection to apply. Generally, for the protection to be in place, both communications and work product shall be within typical attorney professional activity and an attorney has to act under a legal assistance agreement with the client (communications shared when the attorney was approached for purposes of legal assistance, regardless whether the agreement was concluded or not, also fall under protection). There are no other specific requirements related to the ACP protections (time, place of creation, location of records, etc.).
Does your jurisdiction recognize an accountant-client privilege?	The Ukrainian legal system does not have a concept similar to "federally authorized tax practitioner" in the U.S. At the same time, when a tax lawyer admitted to the bar represents a person or an entity before the State Tax Service under a legal assistance agreement (e.g. scope of assignment falls under typical attorney activities), the ACP would apply. An auditor`s professional secrecy established in the Law of Ukraine "On Audit of Financial Statements and Auditing" has common features with a non-evidentiary accountant-client privilege (e.g. certified public accountants shall not voluntarily disclose information communicated to them by a client in connection with the engagement without permission of the latter). According to the above law, auditors (save for obligation to report under anti-money laundering provisions) are obliged to (i) maintain the confidentiality of information obtained during the provision of audit services, (ii) refrain from disclosing data to which they have access during the provision of such services, and (iii) refrain from using such data in their own interests or in the interests of third parties. Working documents of the auditors as well as information that falls under professional secrecy could be accessed only based on a court decision, save for certain exceptions (e.g. quality control of audit services, disciplinary proceedings against auditor).
Does your jurisdiction recognize a mediation privilege?	There is no legal framework for mediation proceedings in Ukraine, but it is possible to conduct mediations in practice and sign settlement agreements resulting from it (to be enforceable as contracts). This being the case, the effective legislation contains some provisions related to mediation privilege. Namely, prohibition to interrogate persons responsible to keep confidential the data they were entrusted with while providing mediation services, as witnesses in civil, commercial and administrative proceedings. As to the criminal proceedings, the Criminal Procedure Code of Ukraine establishes a prohibition to interrogate persons who participated in the conclusion and execution of the conciliation agreement between a victim and an accused on the data they learn during this process. Technically, mediators can fall under the above scope as well. Further, the draft law "On Mediation" adopted by the parliament in the first reading in 2020 directly states that in criminal proceedings mediation could be conducted for purposes of conciliation agreements. The above draft also contemplates amendments to the Criminal Procedure Code of Ukraine prohibiting interrogation of the mediators in relation to data they learned and/or received in course of mediation.
Does your jurisdiction recognize a settlement negotiation privilege?	Ukrainian procedural legislation does not contain provisions related to the settlement negotiation privilege similar to the ones in the U.S. laws. This being the case, civil, commercial and administrative procedural legislation provides for a possibility (with an exception for some types of cases) to settle disputes with the participation of a judge (before the start of their consideration by the court). The information received by either party and the judge during such procedure is treated as confidential. Also, the minutes of the meetings under such procedure shall not be kept and the meetings shall not be recorded by technical means. Further, the judge involved in such procedure cannot be summoned to testify as a witness in case if court proceeding over the matter at hand is resumed. Also, if a mediator participates in settlement negotiations, the provisions related to mediation privilege would apply.

Lex Mundi Global Attorney-Client Privilege Guide

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Is the ACP recognized in your jurisdiction?

Yes, the attorney-client privilege is recognized in Ukraine but is not extensively developed.

General rules and guarantees related to the ACP are established in the Constitution of Ukraine, the Law on the Bar and Advocates’ Activity and the Rules of Professional Conduct of an Attorney ("Rules of Professional Conduct").

Namely, the above acts provide that the ACP covers any communications with the client, any information or materials received by an attorney from the client, contents of advice, consultations to the client, and any document created by the attorney under the client's request. The ACP also applies to communications shared when the attorney was approached for legal assistance, regardless of whether a legal assistance agreement was concluded or not.

Generally, the attorneys (as well as their assistants and other employees) shall keep the respective information and materials secret (unless there is a consent of the client or the information is disclosed for purposes of proceedings against attorney initiated by his/her client).¹

The Law on the Bar and Advocates' Activity establishes general guaranties for attorneys related to the ACP, including:

prohibition to interrogate an attorney as a witness;
right of an attorney to refuse provision of privileged information and materials;
prohibition of interference in communications of an attorney and a client;
prohibition of seizure of documents related to attorney`s professional activity.

Also, there are specific rules in relation to procedural actions against an attorney (issuance of notice of suspicion to an attorney only by high-level prosecutors, conducting a search in premises occupied by the attorney (working place, home) in presence of a representative of local attorney`s council, etc).

Relevant procedural safeguards are reflected in the Criminal Procedure Code, the Civil Procedure Code, the Code of Administrative Proceedings and the Commercial Procedure Code.

__________

¹ Attorneys have obligations to report under anti-money laundering regulations in a limited number of cases.

If the ACP is not recognized in your jurisdiction, are there rules of professional confidentiality or other rules that would enable a lawyer or a client to withhold attorney-client communications or work product prepared by counsel from disclosure...

Please refer to the response to question 1 of this section.

Is a distinction made in applying the ACP or professional confidentiality rules in civil and criminal proceedings? May government authorities require disclosure of attorney-client communications and legal work product?

Generally, the Law on the Bar and Advocates' Activity providing for the ACP applies to all kinds of proceedings. In practice effectiveness of the above general guarantees depends on provisions of the procedural and other legislation as well as its interpretation by courts and relevant authorities.

In civil, commercial or administrative proceedings courts may oblige to disclose evidence upon request of a party to such proceedings. If such evidence includes a legal work product, it may theoretically fall under this scope. The Ukrainian Bar Association expressed the view (not mandatory for judges) and continues to insist that in such cases courts shall not allow disclosure of evidence falling under the ACP to prevent disproportionate interference in attorneys’ activity.

However, in criminal proceedings, there are cases where courts grant access (and subsequent seizure) to materials covered by the ACP due to the following.

The Criminal Procedure Code clearly prohibits access and seizure of the privileged materials only if the attorney acts as a defender (i.e. represents a suspect or an accused in the commission of the criminal offense). Based on this, investigative authorities may argue that if the notice of suspicion was not served, courts are entitled to grant access to the materials requested. At the same time, there are examples when the first level court decision granting access to such materials was canceled by the appeal court based on general provisions of the Law on the Bar and Advocates’ Activity prohibiting access to or seizure of materials containing the ACP, including for the purpose of a criminal investigation.

In other instances, investigative authorities attempt to rely on the provision in the Criminal Procedure Code allowing seizure of material evidence (e.g. documents) to justify the seizure of privileged materials (acting on the presumption that this provision overrides the general ACP guarantees). There is no consistent court practice in this regard, but there are examples where courts allow the seizure of the materials or even technical devices containing the ACP.

Also, in criminal proceedings, there are cases in which courts dismiss the ACP if the attorney is charged with the same or related criminal offense as his/her client.

Further, in some instances, the investigative authorities do not inform courts that the access requested is for the privileged information and materials or that the search warrant is sought for an attorney`s office home, so judges may not have an opportunity to consider such facts. As an example, the ECHR recently accepted the applications of practicing attorneys against Ukraine, in which they alleged that when seeking a court order to access the telecommunications data for a three-year period "the prosecutors deliberately omitted to indicate to the court that the request concerned practicing lawyers and, moreover, legal counsel to Mr. O.Sh. in the ongoing criminal proceedings against him".¹ Under information available, the above request of investigative authorities indicated that the applicants could have been involved in the criminal offense under investigation.

__________

¹ https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-211990%22]}

In the corporate context, what test is applied to determine who within a corporation is considered the client for the purposes of the ACP? (e.g., in the U.S.: the Upjohn approach, control group test, etc.)

Both the Upjohn approach and control group test are alien to the Ukrainian legal system.

According to the Rules of Professional Conduct, inter alia, in view of the ACP, (i) the signatory of the legal assistance agreement on behalf of the company, or (ii) other individuals mentioned in such agreement represent the company as a client of an attorney (for purposes of providing instructions or waiving the privilege).

For other communications to be covered by the ACP, it is recommended that the legal assistance agreement contains a clause that other employees besides the signatory are entitled to communicate with an attorney regarding the matter in question.

Is in-house counsel expected to meet a higher burden than outside counsel in order to establish that privilege applies to in-house counsel’s communications?

Under Ukrainian legislation, the ACP generally applies to relations between clients and attorneys who act under a legal assistance agreement. However, in some instances, the communication of an in-house counsel and its employer may enjoy the same level of protection. For more details, please refer to the answer to questions 3 (i) and (ii) of this section.

Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality?

As stated above, the ACP generally applies to relations between clients and attorneys who act under a legal assistance agreement. Therefore, if in-house counsel is not an attorney, he/she may not assert privilege or professional confidentiality, with exception of some cases. As an example, if an in-house counsel (or another employee) represents the company under power of attorney in a criminal proceeding against the company, such counsel couldn’t be interrogated regarding matters he/she becomes aware of during such representation.

Further, the ACP could not be invoked in the instances where in-house counsel acts only based on a labor contract with their employer (the company).

At the same time, if an in-house counsel admitted to the bar also concludes with their employer a legal assistance agreement (e.g. for the purpose of representation in the court), the activities falling under the scope of such agreement should be covered by the ACP.¹

__________

¹ The right of in-house counsels admitted to the bar, to represent their employers in court in accordance with the legal assistance agreement was confirmed by the Supreme Court in its decision in case â„– 826/15943/17.

Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar?

In-house counsels admitted to the bar are not prohibited from being its active members.¹ As stated above, in-house counsels may act as attorneys under a legal assistance agreement with their employees (e.g. for the purpose of representing the company before the court).

¹ As a matter of practice, in the state attorneys registers, the in-house counsels are reflected as attorneys practicing individually.

Is the common interest doctrine recognized in your jurisdiction?

The common interest doctrine is not recognized in Ukraine (no legislative provisions or court guidance on the matter are in place).

How is the doctrine articulated in your jurisdiction?

Please refer to the response to question 1 of this section.

Must a common interest agreement be in writing?

Please refer to the response to question 1 of this section.

Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect?

Third-party funding is not prohibited or otherwise regulated in Ukraine. Thus, it is possible to fund, inter alia, the claims in civil/commercial proceedings before the courts. As a matter of practice, third-party litigation funding is not actively used in Ukraine.

In absence of specific rules regarding such funding, the attorneys could be guided by general rules, including to serve the best interests of their clients, independently, without being guided by instructions of other persons and without conflict of interest. Further, to share any privileged information or documents with funders, an attorney should seek consent from his/her client.

Also, it is allowed for Ukrainian attorneys to handle cases under success fee arrangements¹ (which might be viewed as a type of litigation funding). The Rules of Professional Conduct do not prohibit and enable, to some extent, such a way of structuring the payments to an attorney, but depending on the circumstances, at some point, their legality was questioned by Supreme Court. In April 2019 the Council of Attorneys expressed the view that such arrangements are lawful. Further, the Supreme Court issued recent decisions in cases â„– 904/4507/18, â„– 5015/7368/11, in which the latter confirmed possibility to recover success fees within the expenses for legal assistance in case if such fees are real and reasonable.

__________

¹ As well as contingency and conditional fee arrangements.

Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection

We are not aware of such cases. At the same time, while considering the third-party funding and sharing privileged information and materials with the funders, potential claimants should take into account that under procedural rules, the courts are not precluded from requesting such funders to submit evidence they possess related to the matter.

Is the crime-fraud exception recognized in your jurisdiction?

This exception is not recognized in Ukraine. Namely, the legislation contains no provisions expressly permitting courts to grant motions requiring disclosure of the attorney-client communications on such grounds and establishing a standard of proof for such actions. The courts have not developed guidance in this regard as well.

Attorneys themselves are neither obliged nor entitled to waive the ACP in view of the possible intentions of their client to commit a crime. At the same time, under the Rules of Professional Conduct, an attorney is prohibited to accept a client's matter if the result expected by the client or the means for its achievement the client insists on are illegal.

What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction?

Please refer to the response to question 1 of this section.

Is there a statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings? (In the U.S.: What state rule is your jurisdiction’s analog to FRCP 26(b)(3)?)

Ukrainian legislation does not contain specific provisions as to litigation privilege. Generally, the same level of protection is available to both attorney-client communications and work product. Also, it might be argued that the work product prepared by third parties (e.g. auditors, accountants) for purposes of providing legal advice enjoys the protection as well.

Please also refer to the response to question 3 of Section I for more details.

What are the elements of the protection in your jurisdiction?

Considering the above, the attorney-client communications and work product have common elements for protection to apply.

Generally, for the protection to be in place, both communications and work product shall be within typical attorney professional activity and an attorney has to act under a legal assistance agreement with the client (communications shared when the attorney was approached for purposes of legal assistance, regardless whether the agreement was concluded or not, also fall under protection).

There are no other specific requirements related to the ACP protections (time, place of creation, location of records, etc.).

Does your jurisdiction recognize an accountant-client privilege?

The Ukrainian legal system does not have a concept similar to "federally authorized tax practitioner" in the U.S. At the same time, when a tax lawyer admitted to the bar represents a person or an entity before the State Tax Service under a legal assistance agreement (e.g. scope of assignment falls under typical attorney activities), the ACP would apply.

An auditor`s professional secrecy established in the Law of Ukraine "On Audit of Financial Statements and Auditing" has common features with a non-evidentiary accountant-client privilege (e.g. certified public accountants shall not voluntarily disclose information communicated to them by a client in connection with the engagement without permission of the latter).

According to the above law, auditors (save for obligation to report under anti-money laundering provisions) are obliged to (i) maintain the confidentiality of information obtained during the provision of audit services, (ii) refrain from disclosing data to which they have access during the provision of such services, and (iii) refrain from using such data in their own interests or in the interests of third parties.

Working documents of the auditors as well as information that falls under professional secrecy could be accessed only based on a court decision, save for certain exceptions (e.g. quality control of audit services, disciplinary proceedings against auditor).

Does your jurisdiction recognize a mediation privilege?

There is no legal framework for mediation proceedings in Ukraine, but it is possible to conduct mediations in practice and sign settlement agreements resulting from it (to be enforceable as contracts).

This being the case, the effective legislation contains some provisions related to mediation privilege. Namely, prohibition to interrogate persons responsible to keep confidential the data they were entrusted with while providing mediation services, as witnesses in civil, commercial and administrative proceedings.

As to the criminal proceedings, the Criminal Procedure Code of Ukraine establishes a prohibition to interrogate persons who participated in the conclusion and execution of the conciliation agreement between a victim and an accused on the data they learn during this process. Technically, mediators can fall under the above scope as well.

Further, the draft law "On Mediation" adopted by the parliament in the first reading in 2020 directly states that in criminal proceedings mediation could be conducted for purposes of conciliation agreements. The above draft also contemplates amendments to the Criminal Procedure Code of Ukraine prohibiting interrogation of the mediators in relation to data they learned and/or received in course of mediation.

Does your jurisdiction recognize a settlement negotiation privilege?

Ukrainian procedural legislation does not contain provisions related to the settlement negotiation privilege similar to the ones in the U.S. laws.

This being the case, civil, commercial and administrative procedural legislation provides for a possibility (with an exception for some types of cases) to settle disputes with the participation of a judge (before the start of their consideration by the court).

The information received by either party and the judge during such procedure is treated as confidential. Also, the minutes of the meetings under such procedure shall not be kept and the meetings shall not be recorded by technical means. Further, the judge involved in such procedure cannot be summoned to testify as a witness in case if court proceeding over the matter at hand is resumed.

Also, if a mediator participates in settlement negotiations, the provisions related to mediation privilege would apply.

Lex Mundi Global Attorney-Client Privilege Guide

Ukraine

Lex Mundi Global Attorney-Client Privilege Guide

Ukraine

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