Case No. 638/464/25
Proceedings No. 3/638/886/25
DECISION
IN THE NAME OF UKRAINE
April 7, 2025, Kharkiv
Dzerzhynsk District Court of Kharkiv, composed of Judge Tsvira D.M., having considered the administrative material regarding INDIVIDUAL_1, for holding accountable for committing an administrative offense under part 5 of Article 212-3 of the Code of Ukraine on Administrative Offenses, –
ESTABLISHED:
Dzerzhynsk District Court of Kharkiv received administrative material for holding INDIVIDUAL_1 accountable for part 5 of Article 212-3 of the CAO.
According to the protocol of series KS No. 00643 on an administrative offense under part 5 of Article 212-3 of the CAO dated January 8, 2025, and November 11, 2024, for obtaining information, for the purpose of providing legal assistance, in accordance with the Law of Ukraine ‘On Advocacy and Legal Practice,’ lawyer Klymenko I.A. submitted legal request No. 04/014/21 to the chairman of the board of the credit union ‘CU Volodar’ INDIVIDUAL_1. Within the legally established period, lawyer Klymenko I.A. did not receive a response to the legal request. Therefore, the actions of INDIVIDUAL_1 constitute an administrative offense under part 5 of Article 212-3 of the CAO.
The person held accountable for administrative responsibility, INDIVIDUAL_1, did not appear in court, was duly informed of the place, date, and time of the hearing. Court summonses were sent to the address of residence (stay) of INDIVIDUAL_1, as indicated by the police in the protocol on the administrative offense, however, the court correspondence was returned to the court undelivered, with a note ‘addressee absent at the specified address.’
According to Article 268 of the CAO, a case of an administrative offense is considered in the presence of the person held accountable for administrative responsibility. In the absence of this person, the case may be considered only if there is evidence of timely notification of the place and time of the hearing and if there is no request from the person for a postponement of the case. Part 2 of this article does not provide for the mandatory presence of the person held accountable for administrative responsibility during the consideration of a case under Article 212-3 of the CAO.
After a full and comprehensive examination of the case materials, the court reaches the following.
In accordance with Article 245 of the CAO, the tasks of conducting proceedings in cases of administrative offenses include, among other things, timely, comprehensive, full, and objective clarification of the circumstances of the case.
According to Article 280 of the CAO, an authority (official) when considering a case of an administrative offense is obliged to clarify: whether an administrative offense was committed, whether the person is guilty of its commission, whether they are subject to administrative liability, whether there are circumstances that mitigate or aggravate liability, whether material damage was caused, whether there are grounds for transferring materials on an administrative offense for consideration by a public organization, a labor collective, as well as to clarify other circumstances that are relevant to the correct resolution of the case.
According to the provisions of Article 251 of the CAO, evidence in a case of an administrative offense includes any factual data based on which an authority (official) establishes, in the prescribed manner, the presence or absence of an administrative offense, the guilt of the person in its commission, and other circumstances relevant to the correct resolution of the case. This data is established by the protocol on the administrative offense, explanations of the person held accountable for administrative responsibility, victims, witnesses, expert opinions, material evidence, statements of technical devices and technical means with functions of photo and video recording, including those used by the person held accountable for administrative responsibility or witnesses, as well as those working in automatic mode, or means of photo and video recording, including those used by the person held accountable for administrative responsibility or witnesses, and those working in automatic mode, used for monitoring compliance with rules, norms, and standards related to ensuring road safety, the protocol on the seizure of things and documents, as well as other documents.
As stated in Article 252 of the CAO, an authority (official) evaluates evidence based on their internal conviction, which is based on a comprehensive, complete, and objective examination of all circumstances of the case, guided by the law and legal consciousness.
The norms of Article 268 of the CAO provide that the person held accountable for administrative responsibility has the right, in particular, to submit evidence, make motions, and so on.
The procedural form and content of the original protocol on the administrative offense comply with the requirements of Article 256 of the CAO.
Part 5 of Article 212-3 of the CAO establishes liability for unlawful refusal to provide information, untimely or incomplete provision of information, provision of inaccurate information in response to a legal request, a request of the qualification-disciplinary commission of the bar, its chamber, or a member in accordance with the Law of Ukraine ‘On Advocacy and Legal Practice.’
Having examined the administrative material, studied the evidence in the case, the court concludes that the guilt of INDIVIDUAL_1 in committing an administrative offense under part 5 of Article 212-3 of the CAO is fully proven by the evidence examined by the court.
However, the court notes that according to part 2 of Article 38 of the CAO, administrative penalties can be imposed no later than three months from the date of the offense.
According to the protocol of series KS No. 00643 on an administrative offense under part 5 of Article 212-3 of the CAO, the offense was committed on November 21, 2024. This offense is not ongoing; therefore, at the time of the case consideration, the deadlines for imposing administrative penalties have expired.
In this regard, it should be noted that an ongoing offense is a violation related to continuous, uninterrupted non-fulfillment of duties prescribed by law. That is, ongoing offenses are characterized by the fact that the person who performed certain actions or inactions continues to be in a state of continuous continuation of these actions (inactions). These actions continuously violate the law for some time. Sometimes this state continues for a significant period, and throughout this time, the guilty party continuously commits an offense in the form of non-fulfillment of duties imposed on them. An ongoing offense ceases only when the condition for which there is objectively this duty is eliminated, by fulfilling the duty by the relevant subject or by the cessation of the action of the relevant legal norm.
The offense under part 5 of Article 212-3 of the CAO does not have the nature of an ongoing offense; at present, the deadlines for holding INDIVIDUAL_1 accountable for administrative responsibility, as defined in part 1 of Article 38 of the CAO, have expired.
According to the requirements of paragraph 7 of Article 247 of the same Code, proceedings in a case of an administrative offense cannot be initiated, and if initiated, must be closed due to the expiration at the time of the case consideration of the deadlines provided for in Article 38 of this Code for cases of administrative offenses.
If cases of administrative offenses are within the jurisdiction of the court (judge) according to this Code or other laws, the penalty can be imposed no later than three months from the date of the offense, and in the case of an ongoing offense – no later than three months from the date of its detection, except for cases of administrative offenses mentioned in the third to fifth parts of this article.
From the content of the above legal norms, it can be concluded that the closure of proceedings under paragraph 7 of part 1 of Article 247 of the CAO is possible only with the simultaneous presence of certain conditions, namely: the commission (detection) of an administrative offense and the expiration of the deadline provided for in Article 38 of the CAO, the course of which begins from the date of the commission of an administrative offense (in the case of an ongoing offense – from the date of its detection).
Thus, a systematic analysis of the above legal norms of the CAO allows us to conclude that the closure of proceedings in a case under paragraph 7 of part 1 of Article 247 of the CAO is possible only with the establishment by the court of the fact of the commission by the person of a guilty unlawful act or the commission of a guilty unlawful inaction falling under the signs of an administrative offense.
In accordance with part 2 of Article 7 of the CAO, proceedings in cases of administrative offenses are carried out on the basis of strict observance of legality.
The court also takes into account the practice of the European Court of Human Rights (paragraph 137 of the Decision of January 9, 2013, in the case ‘Oleksandr Volkov v. Ukraine’ (application No. 21722/11) that statutes of limitations serve several important purposes, namely: ensuring legal certainty and finality, protecting potential respondents from untimely claims that may be difficult to counter and preventing any injustice that could arise if courts were required to make decisions on events that took place in the distant past based on evidence that has become unreliable and incomplete over time (see the decision of October 22, 1996, in the case ‘Stubbings and Others v. the United Kingdom,’ para. 51, Reports 1996-IV). Statutes of limitations are a common feature of the national legal systems of contracting states regarding criminal, disciplinary, and other offenses.
Given that the deadline for holding INDIVIDUAL_1 accountable for administrative responsibility as defined in Article 38 of the CAO has expired, the proceedings in the case must be closed based on paragraph 7 of Article 247 of the CAO.
Guided by Articles 38, 40-1, 212-3, 221, 268, 280, 283, 284 of the CAO, the court,-
DECIDED:
To find INDIVIDUAL_1 guilty of committing an administrative offense under part 5 of Article 212-3 of the CAO.
To close the proceedings in the case of an administrative offense against INDIVIDUAL_1, under part 5 of Article 212-3 of the CAO, due to the expiration of the deadlines for imposing administrative penalties.
The decision may be appealed within ten days from the date of its issuance.
Judge D.M. Tsvira