Blog

16.01.2023

Lawyer requests: the practice of the Dnipro district court of Kyiv

Case No. 755/11266/22

Proceedings No.: 3/755/6121/22

P O S T A N O V A

IN THE NAME OF UKRAINE

On December 14, 2022, the judge of the Dnipro District Court of Kyiv, O.M. Kozachuk, after reviewing the case files on an administrative offense received from the Bar Council of the Kyiv Region on bringing to administrative responsibility

PERSON_1, who holds the position of director of the limited liability company "KAR INVEST UKRAINE", address: Kyiv, str. Pavla Usenko, 8,

according to part 5 of Art. 212-3 KUpAP,

INSTALLED:

In accordance with the protocol on administrative offense series KS No. 00121 dated 31.10.2022, drawn up regarding PERSON_1, on 27.07.2022 to obtain information, for the purpose of providing legal aid, in accordance with the Law of Ukraine "On Advocacy and Advocacy", lawyer V. V. Dasyuk. , filed a lawyer's request No. 2022/01/31-1 to "KAR INVEST UKRAINE" LLC. In accordance with Part 2 of Art. 24 of the Law of Ukraine "On Advocacy and Advocacy", heads of enterprises, institutions, and organizations to which a lawyer's request has been sent are obliged to provide the lawyer with relevant information, copies of documents, except for information with limited access and copies, no later than five working days from the day of receiving the request documents containing restricted access information. Therefore, the head of LLC "KAR INVEST UKRAINE" PERSON_1 was obliged to provide information in a timely manner in response to the lawyer's request of the lawyer V.V. Dasyuk, or refuse to provide information with reasons, in case access to such information is limited. According to the notice of delivery of the postal item, the authorized person of "KAR INVEST UKRAINE" LLC received a lawyer's request – 08/05/2022. Thus, the last day of the deadline for providing an answer to the lawyer's request was August 11, 2022. At the time of drafting the report, the lawyer V.V. Dasyuk did not receive a response to the lawyer's request from the head of CAR INVEST UKRAINE LLC PERSON_1. Therefore, in the actions of the head of LLC "KAR INVEST UKRAINE" PERSON_1, there is an administrative offense provided for in Part 5 of Art. 212-3 of the Labor Code of Ukraine.

At the court hearings scheduled for 11/18/2022 and 12/14/2022, PERSON_1 did not appear, no applications and petitions were submitted to the court, he did not report the reasons for the non-appearance, and the time and place of the case hearing was duly informed.

The court is not empowered to search for a person who is subject to administrative liability and has taken all possible measures for advance notice of the time and place of the hearing. In addition, PERSON_1 himself did not inquire about the fate of the protocol on an administrative offense drawn up against him, taking a passive position of prolonging the court proceedings.

According to 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.

According to the requirements of Art. 278, 280 of the Code of Administrative Offenses, when preparing for consideration of a case on an administrative offense, the court must decide on the correctness of drawing up the protocol and other case materials, whether there is a need to request additional materials, and when considering the case, it is obliged to find out: whether an administrative offense was committed, whether this person is guilty of committing it, whether he is subject to administrative liability, whether there are mitigating and aggravating circumstances, as well as to find out other circumstances that are important for the correct resolution of the case.

The sanction of part 5 of Art. 212-3 of the Code of Administrative Offenses, liability is provided 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 " About Advocacy and Advocacy".

Guilt of PERSON_1 in committing an administrative offense provided for in Part 5 of Article 212-3 of the Code of Administrative Offenses is confirmed by: protocol on administrative offense Series KS No. 00121 dated 10/31/2022; by the complaint of the lawyer Dasyuk V.V. to the Bar Council of the Kyiv region from September 12, 2022; the contract on the provision of legal aid dated 07.15.2022; at the request of lawyer Dasyuk V.V. to "KAR INVEST UKRAINE" LLC dated 07/21/2022; a warrant and a certificate of the right to practice law; registered mail delivery notices, invoices and receipts; letter of the Bar Council of the Kyiv region to the head of KAR INVEST UKRAINE LLC PERSON_1 dated 07.10.2022; by notification of the Bar Council of the Kyiv region dated 10/31/2022.

Part 2 of Art. 38 of the Code of Administrative Offenses provides that if cases of administrative offenses in accordance with this Code or other laws are under the jurisdiction of a court (judge), a fine may be imposed no later than three months from the date of the commission of the offense, and in the case of an ongoing offense – no later than three months from the date its detection, except for cases of administrative offenses specified in parts three and four of this article.

Clause 7 of Art. 247 of the Criminal Code of Administrative Offenses regulates that proceedings in the case of an administrative offense may not be initiated, and the proceedings initiated are subject to closure under the circumstances of the expiration of the terms provided for in Article 38 of this Code at the time of consideration of the case of an administrative offense.

It can be seen from the content of the above legal norms that the closing of the proceedings on the basis of Art. 38, Clause 7 of Art. 247 of the Code of Administrative Offenses is possible under the following conditions:

– commission (detection) of an administrative offense;

– the expiration of the three-month period established by law, the period of which begins from the day of the commission of the administrative offense (in the case of an ongoing offense – from the day of its discovery).

At the same time, in order to calculate the statutory term for imposing an administrative penalty and closing the proceedings in connection with its expiration, it is necessary to establish the fact of committing an administrative offense – an illegal, culpable act or inaction.

Taking into account the fact that the administrative offense was discovered on 12.08.2022 and at the time of consideration of this case the time limits for imposing an administrative fine have expired, therefore the proceedings in the case against PERSON_1 must be closed on the basis of Clause 7 of Art. 247 of the Code of Administrative Offenses, in connection with the expiration of the terms stipulated by Art. 38 of this Code.

On the basis of the above and guided by clause 7 of Art. 247 KUPAP, –

RESOLVED:

To find PERSON_1 guilty of committing an administrative offense provided for in Part 5 of Article 212-3 of the Labor Code of Ukraine.

Proceedings in the case regarding PERSON_1 under Part 5 of Art. 212-3 of the Code of Criminal Procedure to be closed on the basis of Article 7. 247 of the Code of Administrative Offenses in connection with the expiration of the terms provided for in Art. 38 of the Labor Code of Ukraine.

The resolution may be appealed by a person within ten days from the date of its issuance and shall enter into force after the expiry of the period for filing an appeal.

The appeal is submitted to the Kyiv Court of Appeal through the Dnipro District Court of Kyiv.

Judge: O.M. Kozachuk

Court practice (administrative protocols)