Case No. 359/4985/22
Proceedings No. 3/359/2588/2022
P O S T A N O V A
IN THE NAME OF UKRAINE
October 26, 2022, Boryspil
The judge of the Boryspil city district court of the Kyiv region, Kabanyachiy Yu. V., having considered the administrative material received from the Commissioner of the Bar Council of the Kyiv region, about bringing to administrative responsibility PERSON_1 , INFORMATION_1 , working as the chairman of the board of PJSC "Airline of Ukraine", living at the address : ADDRESS_1, for part 5 of Art. 212-3 KUpAP,
It follows from the data of the administrative offense protocol, series KS No. 00077 dated August 1, 2022, that PERSON_1, while serving as the chairman of the board of PJSC "Airline of Ukraine", committed an offense under Art. 5. 212-3 of the Criminal Procedure Code, which was manifested in the incomplete response to the lawyer's request of the lawyer V.S. Melnychenko. dated 29.12.2021, in accordance with Part 2 of Art. 24 of the Law "On Advocacy and Advocacy".
At the court session, PERSON_1 admitted his guilt and asked not to be severely punished.
After examining the case materials, I believe that PERSON_1 really committed an administrative offense, provided for in Part 5 of Article 212-3 of the Code of Criminal Procedure, based on the following.
According to Article 9 of the Code of Administrative Offenses, an administrative offense (misdemeanor) is an illegal, culpable (intentional or negligent) action or inaction that encroaches on public order, property, rights and freedoms of citizens, on the established management procedure and for which the law provides for administrative liability.
According to Article 251 of the Code of Administrative Offenses, evidence in a case of an administrative offense is any factual data on the basis of which the body (official) establishes the presence or absence of an administrative offense, the guilt of a given person in committing it, and other relevant circumstances in accordance with the procedure established by law for the correct resolution of the case.
In accordance with the provisions of Part 5 of Art. 212-3 of the Criminal Procedure Code, 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, 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" – entails the imposition of a fine on officials from twenty-five to fifty tax-free minimum incomes of citizens.
According to the provisions of Part 1 of Art. 24 of the Law of Ukraine "On Advocacy and Advocacy", a lawyer's request is a written appeal by a lawyer to a state authority, a local self-government body, their officials and employees, enterprises, institutions and organizations regardless of the form of ownership and subordination, public associations for granting information, copies of documents necessary for the lawyer to provide legal assistance to the client. A lawyer's request shall be accompanied by copies of a certificate of the right to practice law, a warrant or mandate from a body (institution) authorized by law to provide free legal aid, certified by a lawyer. It is forbidden to require the lawyer to submit other documents together with the lawyer's request.
As established by the court, on January 25, 2022, the Chairman of the Board of PJSC "Airline of Ukraine" received a request from the lawyer V.S. Melnychenko. from 29.12.2021.
On January 25, 2022, the lawyer V.S. Melnychenko received an answer to the lawyer's request dated 29.12.2021, to which an incomplete answer was given to the lawyer's request of the lawyer V.S. Melnychenko.
According to Part 2 of Article 24 of the Law of Ukraine "On Advocacy and Advocacy", state authorities, local self-government bodies, their officials and employees, managers of enterprises, institutions and organizations to which a lawyer's request has been sent, are obliged no later than seven working days from the date of receipt of the request to provide the lawyer with relevant information, copies of documents, except for information with limited access and copies of documents containing information with limited access.
Thus, in the court session, we found confirmation of the circumstances set forth in the protocol on administrative offense series KS No. 00077 dated August 1, 2022, regarding the failure to provide a full answer to the lawyer's request dated December 29, 2021.
In addition, PERSON_1's guilt in committing an administrative offense, provided for in part 5 of Article 212-3 of the Code of Administrative Offenses, is confirmed by the administrative offense protocol of the KS series No. 00077 dated August 1, 2022 (a.s. 3); a copy of the letter of the Bar Council of the Kyiv region (a.s. 5-6); a copy of the order on the provision of legal aid dated 12.29.2021 (a.s. 7); a copy of certificate No. 21/2534 on the right to practice law (a.s. 8); a copy of the lawyer's request dated 12.29.2021 (a.s. 10-12); a copy of the response to the request dated January 25, 2022 (a.s. 18-19);
Establishing the presence or absence of an administrative offense in the actions of the person against whom the protocol was drawn up, and giving an assessment of the factual data available in the case materials, according to my inner conviction, which is based on a comprehensive, complete and objective study of all the circumstances of the case as a whole, I believe that PERSON_2 is guilty of committing the offense provided for in Part 5 of Art. 212-3 of the Criminal Procedure Code, is fully proven by the evidence examined at the court hearing.
According to Art. 33 of the Code of Administrative Offenses, the nature of the offense committed, the identity of the offender, the degree of his guilt, property status, mitigating and aggravating circumstances are taken into account when imposing a fine.
According to Art. 22 of the Code of Administrative Offenses of Ukraine, if the offense committed is insignificant, the body authorized to resolve the case may release the offender from administrative responsibility and limit himself to a verbal remark.
Taking into account the above, taking into account the identity of the violator and the absence of aggravating circumstances, the court came to the conclusion that PERSON_1 may be released from administrative responsibility by issuing a verbal warning to the latter.
Thus, the proceedings in the administrative offense case are subject to closure.
Guided by Articles 212-3 part 5, 245, 278 of the Criminal Procedure Code, the judge
PERSON_1, INFORMATION_1, to be found guilty of committing an administrative offense provided for in part 5 of Article 212-3 of the Code of Administrative Offenses of Ukraine and release him from administrative responsibility by announcing an oral remark to the latter.
Proceedings of the case on an administrative offense against PERSON_1, INFORMATION_1 to bring the latter to administrative responsibility under Part 5 of Art. 212-3 KUPAP – close.
The court fee shall be borne by the state.
The resolution can be appealed to the Kyiv Court of Appeals through the Boryspil City and District Court within ten days from the date of its issuance.
A court ruling in a case of an administrative offense becomes legally binding after the expiry of the period for appealing this ruling and can be presented for execution within three months from the date of its entry into legal force.
Judge Yu.V. Boarish