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01.06.2023

Lawyer requests: the practice of the Bohunsky District Court of Zhytomyr

Case No. 295/4622/23

Category 451

3/295/1925/23

DECREE

IN THE NAME OF UKRAINE

05/24/2023 Zhytomyr

The judge of the Bohun District Court of Zhytomyr, A.G. Tokarev, considered the materials received from the Bar Council of the Kyiv region about bringing to administrative responsibility under Part 5 of Art. 212-3 of the Code of Ukraine on administrative offenses of the deputy head of the Main Department of the Pension Fund of Ukraine in the Zhytomyr region PERSON_1 , INFORMATION_1 , living at the address: ADDRESS_1 , i.k. NUMBER_1 , –

INSTALLED:

01.03.2023, PERSON_1, working in the position of deputy head of the Main Department of the Pension Fund of Ukraine in the Zhytomyr region, at his place of work: Zhytomyr, str. O. Olzhycha, 7, violated the requirements of Part 2 Art. 24 of the Law of Ukraine “On Advocacy and Advocacy”, namely, she unlawfully refused to provide information in response to the request of O.V. Zinevich, a lawyer. No. 01-03/23 dated March 1, 2023, which violated the professional rights of lawyer O.V. Zinevich. to obtain information and copies of documents necessary for providing legal assistance to the client.

Thus, PERSON_1 committed an administrative offense provided for in part. 5th century 212-3 of the Labor Code of Ukraine.

At the court session, PERSON_1 did not admit his guilt and explained that the protocol on the administrative offense series KS No. 00224 dated 04.13.2023 was drawn up in violation of procedural legislation and substantive law norms, which are substantiated in detail in the written objection dated 05.05.2023. In addition, she noted that personal data of a natural person can be provided at the request of a lawyer, if the subject of personal data has given consent to their distribution in accordance with the Law of Ukraine “On the Protection of Personal Data”. She asked to close the proceedings in the case due to the absence of an administrative offense.

The victim, PERSON_2, explained at the court hearing that on 03/01/2023, in order to obtain information, in order to provide legal aid, in accordance with the Law of Ukraine “On Advocacy and Advocacy”, he applied to the Deputy Chief Head of the Pension Fund of Ukraine in the Zhytomyr Region Makshaeva N.V. He noted that in the letter dated March 2, 2023 No. 0600-0202-8/26619 signed by N.V. Makshaeva, Deputy Head of the Main Department of the Pension Fund of Ukraine in the Zhytomyr region, in the information provided in response to the lawyer’s request No. 01-03/23 dated March 1 .2023 of attorney Zinevich O.V. was refused, the refusal to provide information to the lawyer’s request is justified by the lack of consent of the client of the lawyer O.V. Zinevich. to receive information about the amount of the pension. Considers that such a refusal is illegal. The lawyer’s right to a lawyer’s request is guaranteed by Art. 24 of the Law of Ukraine “On Advocacy and Advocacy”. He added that the lawyer’s request is one of the forms of the lawyer exercising his professional rights to provide legal assistance to the client, which is expressly stated in the Law of Ukraine “On Advocacy and Advocacy”, and therefore the information requested by the lawyer is necessary for the latter exclusively to provide legal assistance to the client. Thus, in the actions of the deputy head of the Main Department of the Pension Fund of Ukraine in the Zhytomyr Region, PERSON_1, there is an administrative offense, namely, unlawful refusal to provide information at a lawyer’s request, he asked to find her guilty and apply an administrative sanction within the scope of the sanction of part 5 of Article. 212-3 of the Labor Code of Ukraine.

After examining the case materials, the court comes to the following conclusion.

Article 251 of the Code of Administrative Offenses provides that evidence in a case of an administrative offense is any factual data on the basis of which, in accordance with the procedure established by law, the body (official) establishes the presence or absence of an administrative offense, the guilt of a given person in committing it, and other circumstances that are important for the correct decision of the case.

According to part 2 of the Law of Ukraine “On Advocacy and Advocacy”, the state creates appropriate conditions for advocacy and ensures compliance with the guarantees of advocacy.

By prescription. 24 of this law, a lawyer may request information.

Part of the 2nd century 24 of the Law of Ukraine “On Advocacy and Advocacy” stipulates that the institution to which a lawyer’s request has been received must provide the lawyer with relevant information no later than five working days after receiving the request.

One of the mechanisms for ensuring advocacy activities is provided for in ch. 5th century 213-3 of the Code of Civil Procedure, liability for wrongful refusal to provide information, untimely or incomplete provision of information, provision of information that does not correspond to reality at the request of a lawyer.

So, from the above, it can be seen that in the case of receiving a lawyer’s request to the relevant institution, if this institution is the administrator of the requested information and documents, the initiator of the request is obliged to provide such information.

Based on the provisions of the Law of Ukraine “On Advocacy and Advocacy”, the deputy head of the Main Department of the Pension Fund of Ukraine in the Zhytomyr region PERSON_1 had to act within the limits of the specified law and was obliged to provide an answer on the merits, as well as to send an answer within five working days from on the day of receipt of the lawyer’s request.

It was established that the lawyer’s requests were received by PERSON_1, but the response to them was refused. The refusal is based on the fact that the information about the person regarding the type of pension, its amount, as well as being on the pension register in the bodies of the Pension Fund of Ukraine is information with limited access (personal data), which is provided only with the consent of the person or in accordance with the procedure established by law. Such a refusal is illegal, since PERSON_1 did not receive a response to the lawyer’s request, in which the lawyer asked for information about the progress of the execution of the court decision, and in response, he was informed about the specifics of providing information about the amount of the pension and about the fact that the person is registered with the Pension Fund, in which time when such information was not requested, that is, the lawyer acted in accordance with the Law and requested certain information in the interests of his client, which is public and necessary for the lawyer to provide legal assistance.

Taking into account the above, the lawyer’s requests were one of the forms of implementation by the lawyer O.V. Zinevych. their professional rights to provide legal assistance to the client.

The court also disagrees with the arguments of PERSON_1 regarding the violation of the Procedure when drawing up the protocol, since in this case the protocol stated that the person did not appear when summoned. In the letter sent by the Bar Council of the Kyiv region to N. V. Makshaeva, deputy head of the Main Department of the Pension Fund of Ukraine in the Zhytomyr region, there was a request to appear before the Bar Council of the Kyiv region (Kyiv, 15 Kyrylivska St.) within 3 working days from the date of receipt of this letter, taking into account the need to draw up a protocol on an administrative offense. The requirements of Art. 63 of the Constitution of Ukraine and Art. 268 of the Code of Administrative Offenses, informed that in the absence of PERSON_1, the review of materials will be conducted in his absence within 5 working days from the date of expiry of the deadline, with information on awareness of the essence of the administrative offense, after which the protocol will be submitted to the court for review and adoption decision. The specified letter was received, as evidenced by the reply received by the Kyiv Region Bar Council on 04/06/2023 outlining the position of PERSON_1. Taking into account the non-appearance of the person on the call, the protocol was drawn up in his absence and the protocol contains information about the person according to the data available in the answer, a copy of which was sent to the place of work of PERSON_1 ( ADDRESS_2 ).

The guilt of PERSON_1 in the commission of 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. 00224 dated 04/13/2023; by statement of PERSON_2 No. 0648-01-23 dated 07.03.2023; the contract on the provision of legal assistance dated November 20, 2020; lawyer’s request from lawyer Zinevich O.V. No. 01-03/23 dated March 1, 2023; by letter of the Kyiv Region Bar Council 0205-02-23 dated March 7, 2023; by letter of the Kyiv Region Bar Council 0301-02-23 dated 04/13/2023.

PERSON_1’s arguments about the absence of an administrative offense cannot affect the correctness of the administrative case, so the court cannot use them as the basis of its decision.

Thus, in the actions of the latter as an official, there is an element of an administrative offense provided for in part. 5th century 212-3 of the Code of Administrative Offenses of Ukraine, in the part related to non-provision of information (illegal refusal) upon a lawyer’s request, in accordance with the Law of Ukraine “On Advocacy and Advocacy”.

When imposing a penalty, the court takes into account the nature of the offense committed, the identity of the violator, the degree of his guilt, property status, mitigating and aggravating circumstances, and considers that PERSON_1 should be subject to an administrative penalty in the form of a fine.

According to Art. 40-1 of the Code of Administrative Offenses of Ukraine, the court fee in proceedings on an administrative offense in the event that the judge issues a resolution on the imposition of an administrative fine shall be paid by the person on whom such a fine is imposed.

Guided by Article 27, Part 5 of Article 212-3,251,256 of the Criminal Procedure Code, the judge, –

RESOLVED:

PERSON_1 to be found guilty of the offense provided for in part. 5th century 212-3 of the Code of Administrative Offenses to impose an administrative penalty in the form of a fine in the amount of twenty-five non-taxable minimum incomes of citizens, which is 425 (four hundred and twenty-five) hryvnias.

Collect a court fee in the amount of 536 (five hundred and thirty-six) hryvnias and 80 kopecks from PERSON_1 in favor of the state in the person of the DSA of Ukraine.

The ruling can be appealed to the Zhytomyr Court of Appeal through the Bogunskyi District Court. Zhytomyr within 10 days from the date of its issuance.

Judge

The resolution is subject to appeal for implementation within three months from the date of its issuance.

Court practice (administrative protocols)