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13.10.2022

Lawyer request: practice of the Pechersk District Court of Kyiv

Pechersk District Court of Kyiv

Case No. 757/19856/22-p

P O S T A N O V A

IN THE NAME OF UKRAINE

On September 15, 2022, the judge of the Pechersk District Court of Kyiv Konstantinov K. E., with the participation of the defense attorney E. Ye. Voronov, after considering the materials received from the Kyiv Region Bar Council of the NAA of Ukraine, about bringing to administrative responsibility

PERSON_1, head of the Administration of Administrative Buildings of the Administration of Affairs of the Apparatus of the Verkhovna Rada of Ukraine, according to Part 5 of Art. 212-3 of the Code of Ukraine on administrative offences,

INSTALLATION:

PERSON_1, being the head of the Department of Administrative Buildings of the Department of Affairs of the Apparatus of the Verkhovna Rada of Ukraine, on June 27, 2022, unlawfully refused to provide information upon a lawyer's request under the following circumstances.

So, on June 18, 2022, in order to obtain information, in order to provide legal assistance, in accordance with the Law of Ukraine "On Advocacy and Advocacy", lawyer O.O. Zudinov applied to the Administration of Administrative Buildings with a lawyer's request No. 05/22ОЛВ/3-2 Management of the affairs of the Apparatus of the Verkhovna Rada of Ukraine. In accordance with Article 4.2 of Article 24 of the Law on Advocacy and Advocacy, heads of enterprises, institutions, and organizations to which an attorney's request has been sent are obliged to provide the attorney with relevant information, copies of documents, in addition to information with restricted access and copies of documents containing restricted access information.

By letter dated June 27, 2022 No. 15-7/44-2022/103528 signed by the head of the Administration of Administrative Buildings of the Affairs Department of the Apparatus of the Verkhovna Rada of Ukraine Kolesnik IA, in the information provided at the lawyer's request of the lawyer O.O. Zudinov. was actually refused.

PERSON_1 was informed about the place, day and time of the case hearing in accordance with the procedure established by law, he did not appear at the court session, the court on the basis of Art. 268 of the Criminal Code of Ukraine found it possible to consider the case in his absence.

Defender Voronov E.E. at the court session, PERSON_1 did not admit the guilt of the indicted administrative offense, supported his written explanations in the case file, according to which the latter asked to close the case against him in the absence of an administrative offense, in view of the following. Yes, the primary letter of PERSON_2 in the interests of a former employee of the Administration of Administrative Buildings of the Department of Affairs of the Apparatus of the Verkhovna Rada of Ukraine PERSON_3 received the email address of the Department of Affairs of the Apparatus of the Verkhovna Rada of Ukraine on 20.06.2022 as "Request for public information". On 06/21/2022, this request was sent to the address of the Administration of Administrative Buildings of the Department of Affairs of the Apparatus of the Verkhovna Rada of Ukraine (hereinafter – UAB), which on 06/23/2022 gr. INDIVIDUAL_4 provided a response in which the proposal was made to obtain an additional duly certified document from him, which would confirm his authority as an individual INDIVIDUAL_4 to act on behalf of the city. PERSON_3. Instead of a power of attorney, on June 22, 2022, the UAB received a lawyer's request from the lawyer O.O. Zudinova in the interests of the city of PERSON_3. During the preparation of the answer to this lawyer's request, the UAB took into account the following circumstances:

– absence of gr. PERSON_3 in Ukraine due to military operations;

– previous request form PERSON_4 (without confirmation of PERSON_3's powers of PERSON_4),

– as well as what was already requested by the lawyer O.O. Zudinov. in this initial, dated June 18, 2022, attorney request, the information related to personal data of PERSON_3.

In the letter dated June 27, 2022 No. 15-7/44-2022/103528, it was suggested to additionally send to the UAB a certified copy of the contract on the provision of legal assistance (power of attorney) or an extract from it, which would determine the parties to the contract and the scope of the powers of Zudinov's lawyer O.O. He believed that since the lawyer Zudinov O.O. received the requested information on another lawyer's request dated 07.05.2022, PERSON_1's actions in replying to him by letter dated 06.27.2022 to the lawyer's request dated 06.18.2022 do not constitute an administrative offense.

Having studied the materials of the administrative offense case, the materials of the defense side, I come to the conclusion that the guilt of PERSON_1 in committing the incriminated offense has been proven, which is confirmed by the actual data of the protocol on the administrative offense, a copy of the lawyer's request dated 18.06.2022, a copy of the reply letter of the head of the Administration of Administrative Buildings, the Administration of Cases Apparatus of the Verkhovna Rada of Ukraine Kolesnik IA dated 27.06.2022 to this lawyer's request and other case materials in their entirety.

At the same time, the court agrees with the position in the protocol that the refusal to provide information about PERSON_1 in the letter dated 06.27.2022 at the request of the lawyer, which was motivated by the fact that the lawyer Zudinov O.O. did not prove his authority to receive confidential information of the citizen PERSON_3, was illegal. Since PERSON_1's request to provide a copy of the legal aid agreement or an extract from it is not based on the provisions of the Law of Ukraine "On Advocacy and Advocacy", lawyer O.O. Zudinov. proved his authority to protect the interests of PERSON_3 with a warrant and a copy of the certificate of the right to practice law, which he attached to the lawyer's request No. 05/22 ОЛВ/3-2 dated 18.06.2022.

In view of the above, the court considers the position of the defense as groundless and aimed at avoiding PERSON_1 responsibility for his illegal actions.

Taking into account the factual circumstances of the case, the court qualifies the actions of PERSON_1 under Part 5 of Art. 212-3 of the Code of Criminal Procedure, as an unlawful refusal to provide information at a lawyer's request.

When deciding the issue of imposing an administrative fine, the court in accordance with the provisions of Art. 33 of the Code of Administrative Offenses takes into account the nature of the offense committed, data on the identity of the offender, and considers it possible to impose a penalty in the form of a fine for educational purposes.

On the basis of the above and guided by Part 5 of Art. 212-3, Art. 283-287 of the Criminal Procedure Code,

POSITION:

PERSON_1 to be found guilty of the offense provided for in Part 5 of Article 212-3 of the Criminal Procedure Code, and apply an administrative fine in the form of a fine to the state in the amount of 510 hryvnias.

The fine must be paid for the following details: UA48899999980314080542000026007, Name of Recipient of Funds: UK in Pechersk district/Caves.R-N/21081100, Recipient Code/EDRPOU Code/38004897, Treasury Bank: Treasury Banking: Purpose of payment: administrative fine.

Collect from PERSON_1 in favor of the state a court fee in the amount of 496 hryvnias 20 kopecks, which must be paid to the following details: Recipient of funds: UC in Pecher.r-ni/Pechers.r-n/22030101, Recipient code /EDRPOU code/ 38004897, Account beneficiary: UA 228999980313181206000026007, beneficiary's bank: Treasury of Ukraine (EAP), budget revenue classification code: 22030101, purpose of payment: court fee.

In accordance with Part 1 of Art. 307 and Part 2 of Art. 308 of the Code of Criminal Procedure, the fine must be paid by the violator no later than fifteen days from the date of delivery of the decision on the imposition of a fine, and in the event of an appeal against such a decision – no later than fifteen days from the day of notification of the rejection of the complaint. In the case of enforcement of 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 and the costs of accounting for the said offences.

The term of presentation for execution is 3 (three) months.

An appeal can be submitted to the Kyiv Court of Appeals through the Pecherskyi District Court of Kyiv within ten days from the date of the ruling.

Judge K.E. Konstantinova

Court practice (administrative protocols)