Case No. 504/2509/23
Proceedings number 3/504/1731/23
DECREE
IN THE NAME OF UKRAINE
07/05/2023, town of Dobroslav
The judge of the Comintern District Court of Odesa Oblast Yakymiv A.V., having considered the materials received from the Bar Council of Kyiv Oblast on bringing to administrative responsibility PERSON_1, who holds the position of director of LLC "MOTOR-AVTO Ukraine", is located at the address: ADDRESS_1, in h. 5th century 212-3 of the Code of Ukraine on administrative offenses, –
INSTALLED:
for consideration by the Comintern district court of the Odesa region, materials on bringing to administrative responsibility PERSON_1 under Part 5 of Art. 212-3 of the Labor Code of Ukraine.
PERSON_1 did not appear at the court session, the court was not notified of the reasons for the non-appearance, the case was properly notified by sending a summons to the court by telephone and electronic means, as well as by posting an official notice of the summons to the court court on the web portal "Judicial Authority of Ukraine" at the link https://km.od.court.gov.ua/sud1515/pres-centr/novini/1445918/ .
At the court session, the victim PERSON_2 did not appear, provided the court with an explanation of the substance of the administrative offense protocol, and asked the court to bring PERSON_3 to the legal responsibility.
The decision of the European Court of Human Rights dated April 3, 2008 in the case "Ponomaryov v. Ukraine" emphasized that the parties should take measures at reasonable time intervals to find out about the status of the court proceedings known to them. From the materials received by the court, including data from the administrative offense protocol, it is clear that the person who is being held administratively liable was aware of the fact that an administrative offense protocol was drawn up against him and the further consideration of the case in court.
Despite the stated circumstances, the person who is being held administratively liable for a long time was not interested in the status of the case, did not appear at the court session.
Therefore, PERSON_3 is the one who was informed about the date and time of the case hearing properly, and the court took all measures to provide the last opportunity to participate in the court session.
Thus, the court comes to the conclusion that the case of an administrative offense can be considered in the absence of PERSON_3.
After considering the materials of the proceedings, objectively investigating all the circumstances of the case, the court comes to the conclusion that PERSON_1 provided incomplete information in response to the lawyer's request, in accordance with the Law of Ukraine "On Advocacy and Advocacy", in particular, he did not provide the requested information, regarding item 5 lawyer's request No. 14/04 of the lawyer Kostyuchenko O.V. in the letter dated 04/24/2023 No. 24.04_1, and therefore her actions constitute an administrative offense provided for in Part 5 of Art. 212-3 of the Criminal Procedure Code, which is confirmed by the following data:
– protocol on the administrative offense series KS No. 00287 dated 12.06.2023, according to which on 14.04.2023 to obtain information, for the purpose of providing legal assistance, in accordance with the Law "On Advocacy and Advocacy", lawyer O.V. Kostyuchenko. appealed to the head of LLC "MOTOR-AVTO UKRAINA" with lawyer's request No. 14/04. The director of MOTOR-AUTO UKRAINE LLC PERSON_1 was obliged to provide complete information in response to the lawyer's request of the lawyer O. V. Kostyuchenko, or to refuse to provide information with reasons, in case access to such information is limited. By letter dated 04/24/2023 No. 24.04_1 signed by the director of MOTOR-AUTO UKRAINE LLC PERSON_1, incomplete information was provided at the request of the lawyer of the lawyer O. V. Kostyuchenko. Yes, no information was provided on the issues specified in clause 1, clauses 4-6 of lawyer's request No. 14/04;
– copies of lawyer's request No. 14/04, according to which lawyer Kostyuchenko O.V. requested the following information/documents from MOTOR-AUTO UKRAINE LLC: 1. about the existence of MOTOR-AUTO UKRAINE LLC contractual obligations with VEZEM SHIPPING LLC, regarding the receipt of an order for container MAEU9186655 (permit to receive cargo – transport vehicle brand LINCOLN, model МКС PREMIERE, year of production 2017, VIN-code (chassis (body) number NUMBER_1); provide a duly certified copy of the relevant document establishing the contractual obligations between VEZEM SHIPPING LLC and MOTOR-AUTO LLC UKRAINE". In the absence of such obligations from VEZEM SHIPPING LLC, please note this. 2. About the information available at the disposal of MOTOR-AUTO UKRAINE LLC about the buyer of a LINCOLN vehicle, MKS PREMIERE model, manufactured in 2017, VIN-code (chassis (body) number: NUMBER_1, which is PERSON_4 according to the preliminary contract of sale of vehicle PKP 8829 dated 09/27/2021 concluded with VEZEM SHIPPING LLC. 3. About the reason for not informing VEZEM SHIPPING LLC and/ or the buyer of the vehicle – PERSON_4 about the unloading on 02/22/2022 from the ship to the warehouse of the port of container MAEU9186655 with a LINCOLN vehicle, model МКС PREMIERE, year of production 2017, VIN code (chassis (body) number NUMBER_1 ) and about the conditions/actions , the fulfillment of which is necessary for the buyer to receive the specified vehicle. In the case of carrying out the specified notification about cargo unloading, please provide relevant supporting documents. 4. About all financial and other conditions of the limited liability company "MOTOR-AVTO UKRAINE" or any other persons/entities, the fulfillment of which is necessary for the buyer, PERSON_4, to receive a LINCOLN brand vehicle, MKS PREMIERE model, year of manufacture 2017 of the year, VIN code (chassis (body) number NUMBER_1 ), which is in the container MAEU9186655 with the names of the relevant payment assignments and the structure of all components, separately the financial component regarding the amount and period of accrued fines for failure to timely receive MOTOR-AUTO UKRAINE LLC » container order MAEU9186655 (permit to receive cargo). Please provide the information together with the relevant accounting documents (invoices, calculations, etc.). 5. On the legal grounds for offering "MOTOR-AUTO UKRAINE" LLC to operate cargo container MAEU9186655 to "KARS.OPTIMUM" Limited Liability Company according to the request dated 01.03.2023 based on the information provided by the port operator "DP VORL, TIS PIVDENNYI" LLC according to the letter Issue #2903/03 dated March 29, 2023. 6. Copies of the accompanying documents for the cargo (LINCOLN brand vehicle, МКС PREMIERE model, year of production 2017, VIN code (chassis (body) number): NUMBER_1 which was brought to the territory of Morskyi of the trade port "Pivdenny" in container MAEU9186655 on the ship SAFMARINE NOKWANDA, flight number № НОМЕР_2, unloaded to the ship's warehouse on February 22, 2022.
– copies of the postal shipment of the lawyer's request. No. 14/04 to the address of the location of "MOTOR-AVTO UKRAINE" LLC, namely, a receipt for mailing and a description of valuable investments and invoice No. 8210007935955;
– copies of the letter of LLC "MOTOR-AVTO UKRAINE" issued No. 24.04_1 signed by the director of the Company, PERSON_1, according to which PERSON_1 provided the following answer to the lawyer's request: LLC "MOTOR-AUTO UKRAINE" carries out freight forwarding activities on the territory of Ukraine. The enterprise has never had any legal relationship with the citizen PERSON_4. The company also does not have any documents confirming the ownership of PERSON_4 on a LINCOLN car, MKS PREMIERE model, VIN NUMBER_3, 2017. The specified vehicle was actually in the forwarding of "MOTOR-AUTO UKRAINE" LLC on the order of the client "VEZEM SHIPPING" LLC (Kyiv. Stolichne shosse, building 101-B, 43764369). Taking into account that PERSON_4 was not the customer of the forwarding services of the specified car, but according to the company's information, the owner of the LINCOLN car, model MKS PREMIERE, VIN NUMBER_4, NUMBER_5, 2017, and the customer of its forwarding is "VEZEM SHIPPING" LLC, the transfer of any – to whom requested copies of copies of documents and information regarding forwarding by the Company of transport container MAKU9186655 with cargo by LINCOLN brand vehicle, model МКС PREMIERE, VIN NUMBER_6, 2017, is possible either by order of VEZEM SHIPPING LLC, or by a relevant court decision.
– copies of the explanations given by PERSON_1 to the Bar Council of the Kyiv region dated 25.05.2023, according to which "MOTOR-AVTO UKRAINE" LLC has never had any legal relationship with the citizen PERSON_4, whose interests are represented by lawyer O.V. Kostyuchenko. The company also does not have any documents confirming the ownership of PERSON_4 for a LINCOLN car, MKS PREMIERE model, VIN NUMBER_1, 2017. On the other hand, the mentioned vehicle was actually in the forwarding of "MOTOR-AUTO UKRAINE" LLC on the order of the client "VEZEM SHIPPING" LLC (Kyiv, Stolichne shosse, building 101-B, 43764369). Informed that the Transport Forwarding Agreement concluded by their company with the client VEZEM SHIPPING LLC contains a confidentiality clause, according to which the text of the Agreement, any materials, information and data related to the execution of this Agreement are confidential and cannot be transferred to third parties without the prior written consent of the other Party to the Agreement, except for cases when such transfer is related to obtaining official permits, documents for the execution of the Agreement or payment of taxes, other mandatory payments, as well as in cases provided for by the current legislation of Ukraine, which regulates obligations obligations of the Parties to this Agreement. Thus, "VEZEM SHIPPING" LLC, with which "MOTOR-AUTO UKRAINE" LLC has concluded an Agreement, was limited in access to the information requested by the lawyer O.V. Kostyuchenko. (information with limited access). PERSON_4, whose interests are represented by the lawyer O. V. Kostyuchenko, was not the customer of the forwarding services of the specified car, but according to the company's information, the owner of the LINCOLN car, MKS PREMIERE model, VIN NUMBER_3, 2017, and the customer of its forwarding is LLC " WE TAKE SHIPPING", therefore the transfer to anyone of information with limited access – copies of copies of documents and information regarding the forwarding by the Company of transport container MDEP9186655 with cargo "vehicle brand LINCOLN, model МКС PREMIERE, VIN NUMBER_1. 2017 year of release, is possible only at the request (consent) of "VEZEM SHIPPING" LLC, or by a relevant court decision.
According to Art. 9 of the Criminal Procedure Code, 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 is recognized as an administrative offense (misdemeanor).
According to the requirements of Art. 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.
Accordingly, Art. Art. 251,252 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 circumstances that are important for the correct resolution of the case. These data are established by the protocol on the administrative offense, explanations of the person who is brought to administrative responsibility, witnesses, as well as other documents. At the same time, the body (official) evaluates the evidence according to its internal conviction, which is based on a comprehensive, complete and objective study of all the circumstances of the case in their totality, guided by the law and legal awareness.
According to Art. 256 of the Code of Administrative Offenses, the protocol on an administrative offense shall include: the date and place of its completion, position, surname, first name, and patronymic of the person who drew up the protocol; information about the person who is brought to administrative responsibility (in case of detection); place, time of commission and essence of the administrative offense; a regulatory act that provides for responsibility for this offense; surnames, addresses of witnesses and victims, surname of the whistleblower (with his written consent), if any; explanation of the person who is brought to administrative responsibility; other information necessary to solve the case.
According to the disposition of part 5 of Art. 212-3 of the Code of Administrative Offenses provides for administrative responsibility 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 Bar and advocacy".
Pursuant to the provisions of Article 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 on the provision of information, copies of documents necessary for a lawyer to provide legal assistance to a client.
The court found incomplete provision of information by the director of MOTOR-AUTO UKRAINE PERSON_1, in response to a lawyer's request in accordance with the Law of Ukraine "On Advocacy and Advocacy", in particular, failure to provide the requested information, regarding item 5 of lawyer's request No. 14/04 of attorney Kostyuchenko O .IN. in the letter dated 04.24.2023 No. 24.04_1, since, both in the response to the lawyer's request and in the explanations provided by the RAU, there is no answer to the 5th question of the lawyer's request at all, and there is no data on the assignment of information about the legal basis of the offer of MOTOR LLC -AUTO UKRAINE" into operation cargo container MAEU9186655 to the limited liability company "KARS OPTIMUM" to information with limited access.
Regarding the formulation of the plot of the administrative offense of the RAU, in the protocol on the administrative offense, in the part of not providing an answer to points 1, 4 and 6 of the lawyer's request, in this part the court established the absence of violations PERSON_1 of the Law of Ukraine "On Advocacy and Advocacy", considering on such
The first question stated in the lawyer's request of the lawyer Kostyuchenko O.V. is the provision of information about the availability of "MOTOR-AVTO UKRAINE" LLC contractual obligations with "VEZEM SHIPPING" LLC, regarding the receipt of an order for the container MAEU9186655 (permit to receive cargo – LINCOLN brand vehicle, model MKS PREMIERE, year of manufacture 2017, VIN – code (chassis (body) number NUMBER_1); provide a duly certified copy of the relevant document establishing the contractual obligations between VEZEM SHIPPING LLC and MOTOR-AUTO UKRAINE LLC. In the absence of such obligations from LLC " WE WILL TAKE SHIPPING", please note that questions 4 and 6 of the lawyer's request related to all financial and other conditions of the limited liability company "MOTOR-AVTO UKRAINE" or any other persons/entities, the fulfillment of which is necessary for the buyer to receive, PERSON_4, LINCOLN brand vehicle, МКС PREMIERE model, year of release 2017, VIN code (chassis (body) number NUMBER_1), which is in the container MAEU9186655 with the names of the corresponding payment assignments and the structure of all components, separately the financial component in terms of the amount and period accrued fines for failure to timely receive "MOTOR-AVTO UKRAINE" LLC order for container MAEU9186655 (permit to receive cargo), copies of shipping documents for cargo (vehicle brand LINCOLN, model MKS PREMIERE, year of manufacture 2017, VIN code (chassis number (body)): NUMBER_1 which was brought to the territory of the "Southern" Sea Trade Port in container NUMBER_7 on the ship SAFMARINE NOKWANDA, flight number NUMBER_2, unloaded to the ship's warehouse on February 22, 2022.
In the response to the lawyer's request, the director of the company stated that the vehicle was indeed shipped by "MOTOR-AUTO UKRAINE" LLC on the order of the client "VEZEM SHIPPING" LLC, according to the information available at the company, by the owner of the car brand LINCOLN, model MKS PREMIERE, VIN NUMBER_4. NUMBER_5, produced in 2017 and the customer of its forwarding is VEZEM SHIPPING LLC. Copies of copies of documents and information regarding the forwarding by the Company of transport container MDEP9186655 with cargo "vehicle brand LINCOLN, model MKS PREMIERE, VIN NUMBER_1. 2017 year of release, is possible only at the request (consent) of "VEZEM SHIPPING" LLC, or by a relevant court decision. In the explanations provided by PERSON_1 to the Kyiv Region Bar Council dated May 25, 2023, it is stated that "MOTOR-AVTO UKRAINE" LLC has never had any legal relationship with the citizen PERSON_4, whose interests are represented by lawyer O.V. Kostyuchenko. The company also does not have any documents confirming the ownership of PERSON_4 for a LINCOLN car, MKS PREMIERE model, VIN NUMBER_1, 2017. On the other hand, the mentioned vehicle was actually in the forwarding of "MOTOR-AUTO UKRAINE" LLC on the order of the client "VEZEM SHIPPING" LLC (Kyiv, Stolichne shosse, building 101-B, 43764369). Informed that the Transport Forwarding Agreement concluded by their company with the client VEZEM SHIPPING LLC contains a confidentiality clause, according to which the text of the Agreement, any materials, information and data related to the execution of this Agreement are confidential and cannot be transferred to third parties without the prior written consent of the other Party to the Agreement, except for cases when such transfer is related to obtaining official permits, documents for the execution of the Agreement or payment of taxes, other mandatory payments, as well as in cases provided for by the current legislation of Ukraine, which regulates obligations obligations of the Parties to this Agreement. Thus, "VEZEM SHIPPING" LLC, with which "MOTOR-AUTO UKRAINE" LLC has concluded an Agreement, was limited in access to the information requested by the lawyer O.V. Kostyuchenko. (information with limited access). PERSON_4, whose interests are represented by the lawyer O. V. Kostyuchenko, was not the customer of the forwarding services of the specified car, but according to the company's information, the owner of the LINCOLN car, MKS PREMIERE model, VIN NUMBER_3, 2017, and the customer of its forwarding is LLC " WE TAKE SHIPPING", therefore the transfer to anyone of information with limited access – copies of copies of documents and information regarding the forwarding by the Company of transport container MDEP9186655 with cargo "vehicle brand LINCOLN, model МКС PREMIERE, VIN NUMBER_1. 2017 year of release, is possible only at the request (consent) of "VEZEM SHIPPING" LLC, or by a relevant court decision.
In accordance with Part 2 of Art. 24 of the Law "On Advocacy and Advocacy", the state authority, local self-government body, their officials and employees, heads of enterprises, institutions, organizations, and public associations, to whom a lawyer's request has been sent, are obliged no later than five working days from the date of receipt of the request, provide the lawyer with relevant information, copies of documents, except for information with limited access and copies of documents containing information with limited access.
Under such circumstances, the Company provided an answer regarding the existence of contractual obligations with "VEZEM SHIPPING" LLC, regarding the receipt of an order for the container MAEU9186655 (permit to receive cargo – LINCOLN brand vehicle, model МКС PREMIERE, year of manufacture 2017, VIN code ( number of the chassis (body) NUMBER_1 ), informed about the owner of such a car, which is "VEZEM SHIPPING" LLC, and noted the restriction of access to other requested information, copies of documents, regarding contractual obligations, regarding the fulfillment of these contractual obligations, and therefore violations , regarding the provision of the answer in parts 1, 4 and 6 of the lawyer's request, the court has not determined.
Despite the specified circumstances, the incomplete provision of information by the director of MOTOR-AUTO UKRAINE PERSON_1, regarding item 5 of lawyer's request No. 14/04 of lawyer Kostyuchenko O.V. in the letter dated April 24, 2023 No. 24.04_1, in itself constitutes the objective side of the administrative offense provided for in Part 5 of Art. 212-3 of the Criminal Procedure Code, and therefore the guilt of PERSON_1 in committing this administrative offense is proven, the qualification of her actions is correct.
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 an administrative penalty in the form of a fine should be applied to PERSON_1.
In accordance with Article 40-1 of the Code of Administrative Offenses, the court fee in the case of an administrative offense in the case of a judge ruling 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, who holds the position of director of "MOTOR-AVTO Ukraine" LLC, is located at the address: Odesa region, Odesa district, village Vizyrka, str. Oleksiy Stavnitsera, 60, corp. 1, room 3, to be found guilty of committing an administrative offense provided for in Part 5 of Art. 212-3 of the Code of Administrative Offenses and to impose on her an administrative penalty in the form of a fine in the amount of 25 (twenty-five) tax-free minimum incomes of citizens, which is 425 (four hundred and twenty-five) hryvnias.
Download from PERSON_1, who holds the position of director of LLC "MOTOR-AVTO Ukraine", located at the address: Odesa region, Odesa district, village Vizyrka, str. Oleksiy Stavnitsera, 60, corp. 1, room 3 in favor of the state court fee in the amount of 536.8 (five hundred and thirty-six) hryvnias (eighty) kopecks.
According to Part 1, Article 307 of the Code of Criminal Procedure, the fine must be paid no later than fifteen days from the date of delivery of the decision on the imposition of a fine, except for the cases provided for in Article 300-1 of this Code, and in the event of an appeal against such a decision, no later than fifteen days from the day of the notification of leaving the complaint unsatisfied.
To explain that in case of non-payment of the fine imposed on him within the period stipulated by the law, he may be subject to a double collection of the fine in accordance with Art. 308 of the Criminal Procedure Code, i.e. in the case of enforced execution of a court order.
Details for paying the fine and court fee are posted on the official web portal "Judicial Authority" – https://km.od.court.gov.ua/sud1515/gromadyanam/zbir/ and https://km.od.court.gov. ua/sud1515/gromadyanam/tax/ .
The ruling can be appealed within ten days from the date of the ruling to the Odesa Court of Appeal through the Comintern District Court of the Odesa Region.
Judge AV Yakimov