Case No. 752/17633/22
Proceedings No.: 3/752/469/23
P O S T A N O V A
in the name of Ukraine
On January 3, 2023, the judge of the Holosiivskyi district court of the city of Kyiv, M.V. Yesaulenko, after reviewing the administrative materials received from the Kyiv Region Bar Council on the arrest of PERSON_1, INFORMATION_1, a citizen of Ukraine, RNOCPP NUMBER_1, the general director of the SE "Ukrmetrteststandart" (Kyiv, Metrologichna St., 4), which is registered at the address: ADDRESS_1, to administrative liability on the grounds of the offense provided for in Part 5 of Art. 212-3 of the Labor Code of Ukraine
with the participation of the representative of the person who is being prosecuted (by proxy) – PERSON_2,
lawyer – O.A. Harnyk,
installed:
PERSON_1, holding the position of general director of the SE "Ukrmetrteststandart", on 04.10.2022 unlawfully refused to provide information at the request of the lawyer O.A. Harnyk. No. 188-v dated September 27, 2022, who acted in the interests of Saturn Data International LLC, thereby violating the requirements of Part 2 of Article 24 of the Law of Ukraine "On Advocacy and Advocacy".
PERSON_1 did not appear at the court session, the date, time and place of the case hearing was notified by sending a summons to the court to the e-mail address of SE "Ukrmetrteststandart", of which he is the head, and also through the representative D.G. Lukashevich. He did not inform the court of the reasons for his absence.
His representative by proxy Volska K.I. did not object to the consideration of the case without the participation of her principal PERSON_1. She asked to close the proceedings in the case in the absence of an administrative offense in the actions of PERSON_1, provided for in Part 5 of Art. 212-3 of the Labor Code of Ukraine. In the justification of the request, she noted that PERSON_1 is indeed the general director of SE "Ukrmetrteststandart". On 09/27/2022, a request was received from SE "Ukrmetrteststandart" by lawyer O. A. Harnyk, acting on behalf of Saturn Data International LLC, to provide a copy of the certificate of conformity No. IT061623RS170608 for mouthpieces manufactured by the company "Yuyao Rising Plastic & Hardware Factory ", which were used by SE "Ukrmetrteststandart" during the verification of "Drager Alcotest" devices. In a letter dated 04.10.2022 signed by PERSON_1 to lawyer Harnik O.A. an answer was given that this lawyer's request is identical to the previous request dated 09/09/2022 and contains identical questions, the answer to which was sent to him on 09/15/2022, and information about the certificate of conformity No. IT061623RS170608 for mouthpieces manufactured by the company "Yuyao Rising Plastic & Hardware Factory" is not owned by SE "Ukrmetrteststandart". Also, Sabatovych's representative D.A. noted that in the period from 10.08.2022 to 04.10.2022, lawyer Harnyk O.A. 9 lawyer requests were sent to the address of the enterprise, the answers to which he received in a timely manner and in full within the limits of the information available in the possession of the enterprise. Sabatovych's representative D.A. believes that the lawyer Harnyk O.A. by systematically sending requests from lawyers with identical questions to which he has already received an answer, exerts pressure and interferes in the business activities of the enterprise, such behavior is unacceptable. The representative also noted that the report on the administrative offense was drawn up by an unauthorized person, taking into account that the location of the SE "Ukrmetrteststandart" and the address of the lawyer's activity of attorney Harnyk A.O. is the city of Kyiv, therefore, in her opinion, the self-governing body of lawyers, which is authorized to draw up a report on an administrative offense, in this case, is precisely the Council of Advocates of the city of Kyiv.
Lawyer Harnyk O.A. explained to the court that on February 16, 2022, an agreement on the provision of legal assistance was concluded between him and Saturn Data International LLC, which is the authorized representative of the manufacturer – the German concern Drager Safety & Co. KGaA in Ukraine for the sale of alcohol and drug diagnostic devices and consumables for them, has the appropriate certificates and provides the services of an authorized certified service center for service maintenance and calibration, in particular, gas analyzers for measuring the alcohol content in exhaled air with "Drager Alcotest" devices. Acting in the interests of the said company, on September 27, 2022, he turned to SE "Ukrmetrteststandard", the purpose of which is, among other things, to perform work, provide services in the field of standardization, metrology and metrological activities, assessment of conformity, with a lawyer's request to issue a certificate of conformity No. IT061623RS170608 for mouthpieces produced by the company "Yuyao Rising Plastic & Hardware Factory", which were used by this company during the verification of the "Drager Alcotest" devices. By letter No. 03-20/204 dated 04.10.2022, signed by the general director of SE "Ukrmetrteststandart" OSOBA_1, he was refused the requested information. The refusal is motivated by the fact that when sending this lawyer's request, he expressed subjective negative judgments about the work of the enterprise; the request sent by him contains questions that were repeatedly repeated in previous requests. PERSON_1 considers such statements unfounded and cannot serve as a reason for refusing to provide the requested information. The lawyer's request dated 09.27.2022 contained a comprehensive explanation that the requested information is necessary for him exclusively within the framework of providing legal assistance to the client – LLC "ATZT Company "Saturn Data International", since the circumstances of the "Verification" operations of "Drager Alcotest" devices by SE "Ukrmetrteststandard" using mouthpieces manufactured by Yuyao Rising Plastic & Hardware Factory may harm the legitimate interests of the company. Indeed, as part of providing legal assistance to Saturn Data International LLC, he sent a number of requests to Ukrmetrteststandard SE. However, he was not given a full answer to any of these requests on the merits of the questions, and the reasons for such incompleteness were not properly motivated. The sending of repeated requests to the specified enterprise was due to the fact that none of its requests was provided with complete information and required documents. Considers PERSON_1's refusal to provide the requested information to be unlawful. Regarding the statements of the representative of Volska K.I. PERSON_3 stated the following about the protocol being drawn up by a non-authorized person. According to clause 3 of Section II of the decision of the Council of Advocates of Ukraine No. 238 of 19.11.2013 (approved in the new version) it is provided that the proceedings on the application of an administrative offense, provided for in Article 212-3 of the Code of Criminal Procedure (violation of the right to information), in terms of the violation of the right for information, violated at the request of a lawyer, the qualification and disciplinary commission of the bar, its chamber or a member, in the territory of jurisdiction of the relevant council of advocates of the region, at the address of the workplace of the lawyer, the qualification and disciplinary commission of the bar, its chamber, or at the location of the state authority, local self-government bodies, their officials and employees, enterprises, institutions and organizations regardless of the form of ownership and subordination, public associations that have committed an administrative offense. According to the data of the Unified Register of Lawyers of Ukraine, he has two addresses for the practice of law – Kyiv and Svyatopetrivske, Buchansky District, Kyiv Region, therefore he legitimately appealed to the Kyiv Region Bar Council with a statement to bring PERSON_1 to administrative responsibility.
The court, after listening to the explanation of the representative of the person who is brought to administrative responsibility PERSON_2, lawyer Harnyk O.A., after examining the case materials, the court comes to the following conclusions.
On September 27, 2022, attorney Harnyk O.A., within the scope of providing legal assistance to Saturn Data International LLC under the contract dated February 16, 2022, sent a lawyer's request dated September 27, 2022, to the email address of Ukrmetrteststandard. No. 188-c, in which he asked to provide a copy of the certificate of conformity No. IT061623RS170608 for mouthpieces produced by the company "Yuyao Rising Plastic & Hardware Factory" and the answer to the following questions: 1) which enterprise, organization or institution provided the specified certificate of conformity No. IT061623RS170608 to the SE " Ukrmetrteststandart"; 2) which institution issued the specified certificate of conformity No. IT061623RS170608 and what is its address; 3) which products (please provide a complete list) are covered by the indicated certificate of conformity No. IT061623RS170608; 4) which international standards and/or directives do the mouthpieces produced by the company "Yuyao Rising Plastic & Hardware Factory" comply with according to the specified certificate of conformity No. IT061623RS170608.
On October 4, 2022, SE "Ukrmetrteststandart" sent the lawyer Harnik O.A. answer No. 03-20/204 signed by the general director PERSON_1, which states that the lawyer's request dated 09/27/2022 No. 188-v is identical to request No. 184-v dated 09.09.2022, the answer to which was provided by letter No. 12-38/44 dated 09.15.2022. In order to obtain a copy of the certificate No. IT061623RS170608 PERSON_3 is recommended to contact the company "Yuyao Rising Plastic & Hardware Factory". And also in the answer it is stated that the lawyer Harnyk O.A. negatively interpreting the company's answers to its requests, providing an assessment of the company's activities, as well as sending incorrect, ambiguous and repetitive questions in the requests, exerts pressure, interferes in the business activities of the company and violates lawyer ethics.
Considering this refusal of the General Director of the State Enterprise "Ukrmetrteststandart" to provide the requested information unlawful, on October 6, 2022, attorney Harnyk O.A. appealed to the Bar Council of the Kyiv region with a statement to bring PERSON_1 to administrative responsibility for wrongfully refusing to respond to a lawyer's request.
According to the results of consideration of the appeal of the lawyer O.A. Harnyk, on 23.11.2022, authorized by the Council of Advocates of the Kyiv Region, I.H. Lishnevskyi. a report on an administrative offense was drawn up against PERSON_1 under Part 5 of Art. 212-3 of the Labor Code of Ukraine.
Article 255 of the Code of Administrative Offenses defines the circle of persons who have the right to draw up protocols on administrative offenses.
Clause 9-1 of Art. 255 of the Criminal Procedure Code provides that in cases of administrative offenses provided for in Art. 212-3 of the Code of Criminal Procedure – in the part that concerns the violation of the right to information in accordance with the Law of Ukraine "On Advocacy and Advocacy", the head of the Bar Council of the Autonomous Republic of Crimea, oblasts, cities of Kyiv and Sevastopol, or a council member authorized by the council, has the right to draw up protocols on offenses lawyers
Clause 3 of Section II of the Decision of the Bar Council of Ukraine No. 238 dated 19.11.2013 (which approved the Procedure for the preparation by the head of the Bar Council of the Autonomous Republic of Crimea, oblasts, cities of Kyiv and Sevastopol or by a member of the Bar Council authorized by the Council of materials on administrative offenses with changes and additions introduced by the Council Decision of the Bar of Ukraine dated 27.10.2021 No. 114) provides that the proceedings on the application of an administrative offense provided for in Article 212-3 of the Code of Administrative Offenses (violation of the right to information), in terms of the violation of the right to information, are initiated based on the statements of the lawyer, the qualification and disciplinary commission of the bar, of its chamber or member, on the territory of the jurisdiction of the relevant bar council of the region, at the address of the lawyer's main place of work (where the lawyer paid the lawyer's annual contribution to ensure the implementation of the lawyer's self-governance), the location of the qualification and disciplinary commission of the bar, its chamber. In order to effectively protect the lawyer's right to information and to avoid an increase in the time period for consideration of materials, proceedings on an administrative offense provided for in Article 212-3 of the Code of Administrative Offenses (violation of the right to information), in terms of the violation of the right to information, may be initiated upon the lawyer's application at the address of the organization chosen by the lawyer the form of legal practice, if it is different from the address of the actual place of legal practice or the location of the state authority, local self-government body, their officials and employees, enterprises, institutions and organizations regardless of the form of ownership and subordination, public associations, that committed an administrative offense. If the proceedings on the application of an administrative offense provided for in Article 212-3 of the Code of Administrative Offenses are initiated by a lawyer in the territory of the jurisdiction of the regional bar council, the location of which is different from the address of the lawyer's main place of work, the applicant (lawyer) must reimburse to the account of such regional bar council organizational technical costs associated with checking materials, making a decision to draw up/refusal to draw up a protocol on an administrative offense, drawing up a protocol on an administrative offense and sending it to court in the amount of 15% of the subsistence minimum for able-bodied persons established by law on January 1 of the calendar year of the year in which the relevant statement or complaint is submitted. To such a statement (appeal), the lawyer attaches a copy of the bank institution's payment receipt for payment for the organizational support of its consideration (reimbursement of expenses related to the inspection of materials and drawing up protocols on administrative offenses, etc.). If the applicant refuses or withdraws his application (appeal) after paying the fee for the organizational support of the application review, such fee is not returned.
That is, in accordance with the specified Procedure, the proceedings on the application of an administrative offense, provided for in Article 212-3 of the Code of Administrative Offenses in terms of the violation of the right to information, may be initiated by the relevant council of lawyers of the region, at the address of the main place of work of the lawyer, as well as by another relevant institution of the organizational form of the lawyer chosen by the lawyer activity, if it is different from the address of the actual place of practice of advocacy, on the condition that the organizational and technical expenses related to the verification of materials, decision-making on drawing up/refusal to draw up a protocol on an administrative offense, drawing up a protocol will be reimbursed to the account of such a regional council of advocates about an administrative offense and sending it to court, or at the location of the state authority, local self-government body, their officials and employees, enterprises, institutions and organizations regardless of the form of ownership and subordination, public associations that have committed an administrative offense.
The location of SE "Ukrmetrteststandart" is – Kyiv, st. Metrological, 4.
According to data extracted from the Unified Register of Advocates, the workplace of attorney Harnyk O.A. is – city of Kyiv, str. Mykola Golego, building, office. 10, additional working address – ADDRESS_2.
Lawyer Harnyk O.A. appealed to the Bar Council of the Kyiv region with a statement about bringing PERSON_1 to administrative responsibility, i.e. to another appropriate institution of the organizational form of legal practice, not at the place of his legal practice. PERSON_3 also paid the corresponding expenses to the Kyiv Region Bar Council in the amount of UAH 390, which is confirmed by a copy of receipt No. 166801827 dated October 6, 2022.
This refutes the statement of the representative of Volska K.I. that the report on the administrative offense against PERSON_1 was drawn up by an unauthorized person.
Providing a legal assessment of PERSON_1's actions in terms of incriminated actions, the court comes to the following conclusions.
From the materials attached to the protocol, it was established that on August 29, 2022, attorney Harnyk O.A. turned to SE "Ukrmetrteststandard" with a lawyer's request, in which he raised the question of whether SE "Ukrmetrteststandard" used mouthpieces manufactured by the company "Yuyao Rising Plastic & Hardware Factory" (People's Republic of China) during the "Verification" operations of the "Drager Alcotest 6810" devices ", "Drager Alcotest 6820" and other "Drager Alcotest" models.
In a letter dated 01.09.2022 signed by the deputy general director of SE "Ukrmetrteststandart" PERSONAL_4, a reply was provided, the content of which stated that during the verification of the specified devices in SE "Ukrmetrteststandart", in particular, the above-mentioned mouthpieces manufactured by the company "Yuyao Rising Plastic & Hardware" were used Factory" (certificate of conformity No. IT061623RS170608).
Later, on September 9, 2022, attorney Harnyk O.A. turned to SE "Ukrmetrteststandart" with another lawyer's request, in which he asked questions about the above-mentioned certificate of conformity under No. IT061623RS170608 for mouthpieces manufactured by the company "Yuyao Rising Plastic & Hardware Factory" and asked to provide a copy of such certificate.
This request was answered on September 15, 2022, signed by PERSON_4, according to which SE "Ukrmetrteststandard" does not have information on the issues specified in the request, which is due to the fact that according to clause 6.2 of DSTU 8950:2019, any auxiliary means of verification can be used , which ensure the determination of characteristics with the required accuracy, keeping records of auxiliary devices (mouthpieces) submitted for verification is not provided for in the operating documents.
The specified answers led to the appeal of the lawyer Harnyk O.A. to SE "Ukrmetrteststandard" with a lawyer's request dated 27.09.2022 No. 188-v to provide a copy of the specified certificate and other information regarding the legality of using mouthpieces manufactured by the company "Yuyao Rising Plastic & Hardware Factory" during the conduct of SE "Ukrmetrteststandard" operations "Verification "Drager Alcotest" devices.
From the content of PERSON_3's request dated 09/27/2022, in comparison with his other requests dated 08/29/2022 and 09/09/2022, which were sent to SE "Ukrmetrteststandart", it can be seen that in each of the following requests, attorney Harnyk O.A. an analysis of previous answers is given
and it is indicated why he considers such answers inappropriate, which became the reason for sending requests with similar questions.
In accordance with 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 to provide information, copies of documents necessary for the lawyer to provide legal assistance to the client.
According to Part 2 of Art. 24 of the Law of Ukraine "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 not later than five working days from the date of receipt of the request to provide the lawyer with relevant information, copies of documents, except information with limited access and copies of documents containing information with limited access.
Lawyer Harnyk O.A. applied to the general director of SE "Ukrmetrteststandard" PERSON_1 with a lawyer's request within the scope of providing legal assistance to LLC "ATZT Company" Saturn Data International", provided all the necessary documents to confirm his authority, set a specific list of questions in order to obtain the necessary information within the scope of providing legal assistance , the specified information is not classified as restricted information, etc.
Therefore, PERSON_1 had no legal grounds for refusing to provide the requested information to the lawyer's request dated 09/27/2022, the fact that this request contains questions similar in content to the request dated 09/09/2022 cannot be a reason for refusing to provide such information. Moreover, the provisions of the current legislation do not prohibit the lawyer from asking the same question to the addressee of the lawyer's request again after receiving an answer that the lawyer considers inadequate or incomplete
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).
Part of the 5th Art. 212-3 of the Code of Criminal Procedure provides for liability 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, request of the qualification and disciplinary commission of the bar, its chamber or a member in accordance with the Law of Ukraine "On advocacy and advocacy".
Taking into account the above, the court comes to the conclusion that the guilt of PERSON_1 has been proven in the commission of an administrative offense provided for in Part 5 of Article 212-3 of the Code of Administrative Offenses on the grounds of unlawful refusal to provide information at a lawyer's request.
Circumstances mitigating or aggravating responsibility for an administrative offense provided for in Art. 34-35 of the Code of Administrative Offenses, not established by the court.
The court comes to the conclusion that it is necessary to apply to PERSON_1 an administrative sanction in the form of a fine within the scope of the sanction of part 5 of Article 212-3 of the Code of Criminal Procedure, as well as in accordance with the provisions of Art. 40-1 of the Code of Administrative Offenses of Administrative Offenses to collect a court fee in the amount of UAH 536.80.
On the basis of the above, guided by Art. Art. 9, 23, 33-35, part 5 of Art. 212-3, 255, 266, 276-280, 283-285 KUpAP, Art. 24 of the ZU "On Advocacy and Advocacy", the procedure for the preparation of materials on administrative offenses by the head of the Bar Council of the Autonomous Republic of Crimea, oblasts, cities of Kyiv and Sevastopol or by a member of the Bar Council authorized by the Council, as amended by the Decision of the Bar Council of Ukraine dated 10/27/2021 No. 114, approved by the decision of the Bar Council of Ukraine No. 238 dated 19.11.2013, court, –
decreed:
PERSON_1 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 subject to administrative penalty in the form of a fine in the amount of 30 (thirty) non-taxable minimum incomes of citizens, amounting to 510 (five hundred and ten) UAH.
Collect a court fee in the amount of 536 (five hundred and thirty-six) hryvnias from PERSON_1 in favor of the state. 80 kopecks
The resolution enters into force after the expiry of the period for appealing it.
The resolution can be appealed to the Kyiv Court of Appeals through the Holosiivskyi District Court of Kyiv within ten days from the date of its issuance.
Judge Yesaulenko M.V.