Case No. 711/6429/22
Proceedings number 3/711/2407/22
DECREE
IN THE NAME OF UKRAINE
December 12, 2022, Cherkasy
The judge of the Prydniprovsky District Court of Cherkasy, T.O. Komplektova, after considering the materials received from the Bar Council of the Kyiv Region, about bringing to administrative responsibility PERSON_1 , INFORMATION_1 , resident of ADDRESS_1 , working as the director of the State Enterprise Cherkasy Oblavtodor OJSC "DAK Automotive Roads of Ukraine", m Cherkasy, blvd. Shevchenko, 389, TIN is not available in the case file,
for committing an administrative offense provided for in Part 5 of Art. 212-3 of the Code of Administrative Offenses, –
INSTALLED:
09/07/2022 to obtain information, in order to provide legal assistance, in accordance with the Law of Ukraine "On Advocacy and Advocacy", lawyer Didenko A.O. filed a lawyer's request from 09/07/2022 to the Cherkasy Oblavtodor State Enterprise OJSC "DAK Automotive Roads of Ukraine".
According to the official website of "Ukrposhta" ( http://ukrposhta.ua/ru/vidslidkuvati-forma-poshuku ), the authorized person of the Cherkasy Oblavtodor State Enterprise OJSC "DAK Automotive Roads of Ukraine" received a lawyer's request – 12.09.2022. Thus, the last day of the deadline for providing an answer to the lawyer's request was September 16, 2022.
At the time of drawing up the report, lawyer Didenko A.O. PERSON_1 did not receive a response to the lawyer's request from the director of the Cherkasy oblavtodor of JSC "Automotive Roads of Ukraine" OJSC.
Thus, the director of SE Cherkasy Oblavtodor OJSC "DAK Automobile Roads of Ukraine" PERSON_1 committed an offense for which responsibility is provided for in Part 5 of Art. 212-3 of the Labor Code of Ukraine.
PERSON_1 did not appear at the court session, he was properly informed about the time and place of the case hearing, he did not apply for postponement of the case hearing.
Article 268 of the Code of Administrative Offenses does not provide for the mandatory participation of a person who is brought to administrative liability under Article 212-3 of the Code of Administrative Offenses of the Code of Administrative Offenses, and therefore, in order to ensure consideration of the case within the time limit for imposing an administrative penalty, the court considers it possible to consider the case without the participation of PERSON_1.
Before the start of the court session, PERSON_1 filed an objection to the protocol on an administrative offense, motivating it as follows. Indeed, on September 12, 2022, a lawyer's request from the lawyer of the "ARIO Law Firm" Bar Association No. b/n dated September 6, 2022 was received at the address of the Cherkasy Oblavtodor State Enterprise. The relevant request was considered and a response was provided within the time limits stipulated by the Law of Ukraine "On Advocacy and Advocacy", namely: letter regarding consideration of the lawyer's request dated 09/14/2022 No. 709/11. The Bar Council of the Kyiv region was notified of the response to the lawyer by letter No. 781/11 dated November 7, 2022. However, the aforementioned circumstances were not covered by the latter in the motivational part of the protocol, which in turn makes it impossible to fully reproduce the objective circumstances of the fact specified in the protocol. The answer was given in a timely manner (September 14, 2022), namely within five working days from the moment of receipt of the request, because the lawyer's request was received on September 12, 2022, which is confirmed by an extract from the journal of registration of outgoing correspondence for the Cherkasy Oblavtodor SE. In the answer, it was also reported that the information about the wages of the company's employees is confidential, as it belongs to personal data about a natural person and can be distributed only with the consent of such a person, or at the request of the person himself. It was also reported that relevant information can be provided by the company at the request of the court. As for the contract concluded between PERSON_2 and JSC "Automotive Roads of Ukraine" JSC, it was added that "Cherkasky Oblavtodor" SE is not the administrator of this information, and therefore, for this information, the lawyer had to contact JSC "Automobile Roads of Ukraine" at the address : 02000, Kyiv, str. Antonovycha, 51. Thus, the answer to the lawyer's request was provided in the order and time frame specified by Art. 24 of the Law of Ukraine "On Advocacy and Advocacy". He asks to close the proceedings in the case, due to the absence of an administrative offense in his actions, provided for in part 5 of Article 212-3 of the Labor Code of Ukraine.
Having examined the written materials of the case and the objections of PERSON_1 regarding the protocol, the judge believes that his actions constitute an administrative offense provided for in Part 5 of Article 212-3 of the Code of Administrative Offenses of Ukraine, namely untimely provision of information in response to a lawyer's request, in accordance with the Law of Ukraine "On Advocacy and Advocacy".
The guilt of PERSON_1 in the commission of an administrative offense is confirmed by the materials of the administrative case, namely: the appeal of the lawyer Didenko A.O. about holding the administrator responsible for the failure to provide information on the lawyer's request dated September 28, 2022; a copy of the lawyer's request dated September 6, 2022; a copy of the receipt for sending a registered letter dated September 7, 2022; by tracking to check the status of tracking the letter; a copy of the certificate dated 11.03.2022; additional explanations of the lawyer Didenko A.O. from 12.10.2022; by the answer of JSC "DAK Automobile Roads of Ukraine" dated 08.08.2022 No. 2/17-10/1288; by letter of the Bar Council of the Kyiv region dated October 25, 2022; a copy of the receipt for sending a registered letter dated 10/26/2022; by letter of SE "Cherkasky Oblavtodor" dated November 7, 2022 No. 781/11; explanations for the application for bringing to administrative responsibility for failure to provide information on a lawyer's request dated November 22, 2022; certificate dated 11/18/2022.
According to Article 245 of the Code of Administrative Offenses, the tasks of proceedings in cases of administrative offenses are: timely, comprehensive, complete and objective clarification of the circumstances of each case, its resolution in strict accordance with the law, ensuring the implementation of the issued resolution, as well as identifying the reasons and conditions, that contribute to the commission of administrative offenses, prevention of offenses, education of citizens in the spirit of law-abiding, strengthening of legality.
According to Art. 280 of the Code of Administrative Offenses of Ukraine, a body (an official) when considering a case of an administrative offense is obliged to find out: whether an administrative offense was committed, whether this person is guilty of committing it, whether he is subject to administrative responsibility, whether there are mitigating and aggravating circumstances responsibility, whether material damage was caused, as well as to find out other circumstances that are important for the correct resolution of the case.
Part 5 212-3 of the Code of Criminal Procedure provides for liability for wrongful refusal to provide information, untimely or incomplete provision of information, provision of information that does not correspond to reality, in response to a lawyer's request, a request of the qualification and disciplinary commission of the bar, its chamber or a member in accordance with the Law of Ukraine "On the Bar and advocacy activity", for which administrative responsibility is provided.
In accordance with Part 2 of Art. 24 of the Law of Ukraine "On Advocacy and Advocacy", state authorities, local self-government bodies, their officials and employees, managers of enterprises, institutions, organizations, and public associations, to whom a lawyer's request has been sent, are obliged not later than five workers days from the date of receipt of the request to provide the lawyer with relevant information, copies of documents, except information with limited access and copies of documents containing information with limited access.
According to Part 3 Art. 24 of the Law of Ukraine "On Advocacy and Advocacy", refusal to provide information at a lawyer's request, untimely or incomplete provision of information, provision of information that does not correspond to reality, entail responsibility established by law, except for cases of refusal to provide information with limited access.
The European Court of Human Rights in its decision of January 30, 2020 in the case "Namazov v. Azerbaijan" (CASE of Namazov v. Azerbaijan (application no. 74354/13)) noted that the proper functioning of the courts would be impossible without relations based on trust and mutual respect between different actors of justice (see Bono v. France, N 29024/11, § 51, December 15, 2015, and Ottan v. France, N 41841/12, § 72, April 19, 2018). The special status of lawyers gives them a central place in the administration of justice as mediators between the public and the courts.
The court established that on 06.09.2022 lawyer Didenko A.O. in the interests of PERSON_2 addressed a lawyer's request to SE "Cherkasky Oblavtodor JSC "DAC Automobile Roads of Ukraine", which was sent on 09/07/2022, as evidenced by the receipt for sending a registered letter.
According to the official website of "Ukrposhta", the authorized person of the State Enterprise "Cherkasky Oblavtodor JSC "DAC Automobile Roads of Ukraine" received a lawyer's request – 12.09.2022. That is, the last day of the deadline for providing an answer to the lawyer's request was September 16, 2022.
At the same time, the director of SE "Cherkasky Oblavtodor JSC "DAK Automobile Roads of Ukraine" PERSON_1 did not provide an answer to the lawyer's request of PERSON_3 dated 06.09.2022 within the time limit prescribed by law.
Along with the objections to the protocol on bringing PERSON_1 to administrative responsibility, he provided a letter-response dated 14.09.2022 No. 709/11 regarding the consideration of the lawyer's request and a copy of the log of registration of outgoing correspondence for SE Cherkasy Oblavtodor, from which it can be seen that on 14.09.2022 the journal registered the response of JSC "Ario Law Firm" for No. 709/1, but there are no documents confirming the sending of this letter.
As for the completeness of the response to the lawyer's request, information about the salary and other payments to an employee of a state body or local self-government body is information about a natural person. According to the Decision of the Constitutional Court of Ukraine dated January 20, 2012 No. 2-рп/2012 (case No. 1-9/2012), such information is not confidential, as it relates to the performance of official or official duties by a person holding a position related to with the performance of functions of the state or local self-government. This is also confirmed by the provisions of several laws. The Law of Ukraine "On Access to Public Information" prohibits limiting access to information on the disposition of budget funds. Wages and other payments (bonuses, material assistance, etc.) to officials and civil servants are expenses from the budget. According to the amendment to Article 6 of the Law, the information specified in the declaration of property, income, expenses and obligations of a financial nature, drawn up in the form and in the manner established by the Law of Ukraine "On the principles of prevention and combating corruption", in addition to the information specified in point 7 of the note to the appendix to this Law.
The Law of Ukraine "On Principles of Preventing and Combating Corruption" also prohibits information on the amounts and types of remuneration of the specified persons to be classified as information with limited access. The Law of Ukraine "On Remuneration" allows providing information on remuneration to other persons, when it is provided by law.
In accordance with Part 3 of Art. 7 of the Law "On appeals of citizens", if the issues raised in the appeal received by the body of state power, local self-government, enterprises, institutions, organizations regardless of the form of ownership, associations of citizens or officials are not within their powers, it is not within the time limit more than five days is forwarded by them to the appropriate body or official, which is notified to the citizen who submitted the appeal. If the appeal does not contain data necessary for the body or official to make a reasoned decision, it shall be returned to the citizen within the same period with relevant explanations.
The objective side of the offense provided for in Part 5 of Art. 212-3 of the Code of Criminal Procedure is expressed in an unlawful refusal to provide information, untimely or incomplete provision of information, provision of information that does not correspond to reality, in response to a lawyer's request in accordance with the Law of Ukraine "On Advocacy and Advocacy".
Therefore, the judge examines the case within the scope of the disposition of part 5 of Article 212-3 of the Code of Administrative Offenses of the Russian Federation according to the prepared protocol, namely for untimely provision of information in response to a lawyer's request.
Director of SE "Cherkasky Oblavtodor" PERSON_1 violated the guarantee. 24 of the Law of Ukraine "On Advocacy and Advocacy" professional law of lawyer Didenko A.O.
In accordance with the 11 of the Law of Ukraine "On Advocacy and Advocacy", the lawyer undertakes to faithfully ensure the right to defense and provide legal assistance in accordance with the Constitution of Ukraine and the laws of Ukraine, to responsibly fulfill the duties assigned to him.
Article 23 of the Law of Ukraine "On Advocacy and Advocacy" provides that the professional rights, honor and dignity of a lawyer are guaranteed and protected by the Constitution of Ukraine, this Law and other laws, in particular, any interference and obstacles to the practice of advocacy are prohibited.
According to Part 1, Article 5. 55 of the Constitution of Ukraine, everyone is guaranteed the right to appeal in court decisions, actions or inaction of state authorities, local self-government bodies, officials and officials. Everyone has the right to protect their rights and freedoms from violations and illegal encroachments by any means not prohibited by law.
Taking into account the above, the judge believes that PERSON_1 is guilty of committing an administrative offense, provided for in Part 5 of Art. 212-3 of the Criminal Procedure Code, proven.
The judge does not see circumstances mitigating or aggravating the responsibility of PERSON_1.
Taking into account the nature of the offense committed, the identity of the offender, the degree of his guilt, the absence of circumstances that mitigate and aggravate the responsibility of PERSON_1, the judge considers it necessary to impose on the latter an administrative sanction in the form of a fine, provided for by the sanction of Part 5 of Article 212-3 of the Code of Criminal Procedure, which will be sufficient for his education in the spirit of compliance with the laws of Ukraine, as well as for the prevention of new offenses both by himself and by other persons.
On the basis of Art. 40-1 of the Code of Criminal Procedure from PERSON_1 in favor of the state, a court fee in the amount of UAH 496 is subject to collection. 20 kopecks
On the basis of the above, guided by Art. Art. 40-1, 212-3, 280,283,284 KUpAP,-
RESOLVED:
To find PERSON_1 guilty of committing an administrative offense provided for in Part 5 of Article 212-3 of the Code of Criminal Procedure, and to impose on him an administrative penalty in the form of a fine in the amount of twenty-five non-taxable minimum incomes of citizens, which is equal to 425 (four hundred and twenty-five) UAH.
Collect a court fee in the amount of UAH 496.20 from PERSON_1 in favor of the state.
According to the provisions of Part 1 of Article 307 of the Code of Administrative Offenses of Ukraine, the fine must be paid no later than fifteen days from the date of delivery of the decision on the imposition of a fine, and in the case of an appeal against such a decision – no later than fifteen days from the date of notification of the abandonment of the complaint without satisfaction
Ruler 2 Art. 308 of the Code of Criminal Procedure provides that in order to enforce a resolution on the collection of a fine for the commission of an administrative offense, the offender shall be charged double the amount of the fine specified in the relevant article of the Code of Criminal Procedure and specified in the resolution on the collection of a fine.
The term of presentation of the resolution for execution is within three months from the moment of its issuance.
The resolution enters into force after the expiration of the ten-day period for appealing it.
The ruling can be appealed to the Cherkasy Court of Appeal through the Prydniprovskyi District Court of Cherkasy within ten days from the date of its issuance.
Judge: T. O. Komplektova