Case No. 129/1321/23
Proceedings No. 3/930/554/23
P O S T A N O V A
IN THE NAME OF UKRAINE
On May 31, 2023, the judge of the Nemyriv district court of the Vinnytsia region V.M. Alekseenko
having reviewed the administrative material prepared by the Authorized Council of Bars of Kyiv region – member of the Council of Bars I.H. Lishnevskyi, on bringing to administrative responsibility PERSON_1 , INFORMATION_1 , resident of ADDRESS_1 , head of the Krasnopil village council of Gaisyn district of Vinnytsia region, RNOCPP NUMBER_1 ,
according to Art. 212-3 Part 5 of the Code of Ukraine on Administrative Offenses,
V S T A N O V I V
In relation to the head of the Krasnopil Village Council of the Haysyn District, INDIVIDUAL_1, a protocol was drawn up on an administrative offense Series KS No. 00225 dated 04/13/2023 under Part 5 of Art. 212-3 of the Criminal Procedure Code, which states that on February 6, 2023, to obtain information for the purpose of providing legal assistance in accordance with the Law of Ukraine "On Advocacy and Advocacy", attorney Nazarov R.Yu. appealed to the head of the Krasnopil Village Council of the Gaisyn District of the Vinnytsia Region with a lawyer's request No. 06/02/23-03 Romanenko K.M. According to Part 2 of Art. 24 of the Law "On Advocacy and Advocacy", heads of enterprises, institutions, organizations, and public associations to which a lawyer's request is sent are obliged to provide the lawyer with relevant information, copies of documents, in addition to information with restricted access and copies of documents containing restricted access information. Therefore, the head of the Krasnopil village council of the Haysyn district of the Vinnytsia region PERSON_1 was obliged to provide complete information in response to the lawyer's request of the lawyer Nazarov R.Yu. According to the official website of "Ukrposhta", an authorized representative of the Krasnopil village council of the Haysyn district of the Vinnytsia region received a lawyer's request on February 23, 2023. Thus, the last day of the deadline for providing an answer to the lawyer's request was 03.01.2023. At the time of drawing up the report, lawyer Nazarov R.Yu. PERSON_1 did not receive a response to the lawyer's request from the head of the Krasnopil village council of the Haysyn district of the Vinnytsia region. Therefore, in the actions of the head of the Krasnopil village council of the Haysyn district of the Vinnytsia region, PERSON_1, there is an administrative offense provided for in part 5 of Article 212-3 of the Labor Code of Ukraine.
The administratively charged PERSON_1, having been duly notified of the date, time and place of the trial, which is confirmed by the tracking of the recommended notice of service of the subpoena 2373322530089 and the written explanations provided to the court by PERSON_1, did not appear at the court session, giving the reason for non-appearance – her employment as a representative of the Krasnopil Village Council in case No. 144/342/23 in the Teplytsky District Court of the Vinnytsia Region. However, PERSON_1 did not provide evidence of her participation in case No. 144/342/23 in the Teplytskyi District Court of Vinnytsia Oblast, and in her written explanations, she did not indicate the priority of the case pending in the Teplytskyi District Court over the case of bringing PERSON_1 to administrative responsibility. as an official of the local self-government body, in connection with which the court considers the reasons for her non-appearance at the court session to be invalid.
However, the court does not accept PERSON_1's references that she was not properly notified of the date, time and place of the case hearing. This is refuted by the tracking of the recommended notice of service of the subpoena 2373322530089, according to which the subpoena was served personally on 05/29/2023, as well as the explanations of PERSON_1 provided in advance to the Nemyriv District Court, which confirm that PERSON_1 was properly notified of the date, time and place trial of the case
According to the written explanations provided by PERSON_1, the latter requests to close the case No. 129/1321/23 on bringing her to administrative responsibility in connection with the absence in her actions of an administrative offense provided for in part 5 of Art. 212-3 of the Code of Criminal Procedure or in connection with the end of the term of consideration of the case.
After examining the case materials, evaluating the evidence as a whole, I believe that PERSON_1 is guilty of committing the administrative offense provided for in Part 5 of Art. 212-3 of the Criminal Procedure Code is fully proven by the administrative offense protocol, as well as the attached materials, in particular:
– by the statement of the lawyer Nazarov R.Yu. dated 03.13.2023 No. 13/03/23-03 on taking measures to bring the guilty to administrative responsibility, provided for in Part 5 of Art. 212-3 of the Code of Criminal Procedure;
– lawyer's request No. 06/02/23-03 dated 02/06/2023, which was sent to the head of the Kraspopil village council PERSON_1 by mail with a description of the inclusion in a valuable letter at the address: ADDRESS_2, invoice number 0304907980439 dated 02/06/2023;
– tracking (tracking) of postal shipment 0304907980439, according to which the specified shipment was delivered personally on 23.02.2023
– by the letter of the head of the Krasnopil village council of the Gaisyn district of the Vinnytsia region, Romanenko K.M. dated 04.04.2023 No. 219, addressed to the Bar Council of the Kyiv region, according to which PERSON_1 informs that he allegedly sent a response to the lawyer's request to the lawyer Nazarov R.Yu. on 13.02.2023 together with the documents requested by the lawyer, in confirmation of which I provided a copy of the invoice 2370001654828 dated 22.02.2023
However, according to the provided invoice of postal shipment 2370001654828 dated 22.02.2023, provided by PERSON_1, the answer, as it were, to the lawyer's request was to send the lawyer Nazarov R.Yu. at an address different from the address specified by the lawyer when applying with the lawyer's request, i.e. instead of the correct address ADDRESS_3, another address is specified street Lermontovska, 4, office 13, Kyiv, 04050, which also testifies to the false information provided by PERSON_1 to the Kyiv Region Bar Council and her attempt to conceal the offense committed;
– by a reply from JSC "Ukrposhta" No. 01.12.011-Н-2023022010229-В dated 31.03.2023, according to which postal item No. 0304907980439 was accepted for forwarding by the postal department (VPZ) Kyiv 03049 on 06.02.2023. According to the report of the head of the Krasnopilka 23733 WPP, the specified postal item arrived at the WPP on 10.02.2023 and on 23.02.2023 it was handed over to the authorized representative of the Krasnopil village council of the Gaisyn district, Deineka I.O.
Yes, according to Art. 9 of the Criminal Code of Administrative Offenses, 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 responsibility is recognized as an administrative offense (misdemeanor)
According to Art. 280 of the Code of Administrative Offenses of Ukraine, the court is obliged to find out whether an administrative offense has been committed or whether a given person is guilty of it.
In accordance with Part 1 of Art. 251 of the Code of Administrative Offenses, 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 affairs.
The guilt of the head of the Krasnopil village council of the Gaisyn district of the Vinnytsia region, Romanenko K.M., is confirmed by the fully investigated materials of the case, in particular those indicated above.
The explanations of PERSON_1, which were given to the Bar Council of the Kyiv region and to the Nemyriv District Court, contain false information, which, moreover, contradict each other, in connection with which the court does not accept the explanations of PERSON_1, submitted to the court.
In addition, the head of the Krasnopil village council of the Haysyn district of the Vinnytsia region, PERSON_1, did not appear at the court session without good reasons, she did not provide evidence of her innocence, and therefore the court does not see grounds for closing case No. 129/1321/23 on bringing to administrative liability in connection with the absence in the actions of PERSON_1, the composition of the administrative offense provided for in Part 5 of Art. 212-3 of the Code of Administrative Offenses, as well as there are no grounds for closing the case in connection with the end of the term of consideration of the case provided for in Art. 38 of the Code of Criminal Procedure, since the last day of the possibility of imposing an administrative fine against PERSON_1 in this case is 06.02.2023.
And therefore, taking into account the public danger and the nature of the offense committed, the identity of the offender, the degree of his guilt, the property status of the offender, I consider it necessary to apply the administrative sanction provided for in the sanction of Part 5 of Article 1 against PERSON_1. 212-3 of the Code of Administrative Offenses in the form of an administrative fine to the state income.
In addition, in accordance with Article 40-1 of the Code of Administrative Offenses, the court fee for the proceedings in the case of administrative law violation in the event of a court (judge) decision to impose an administrative penalty shall be paid by the person on whom such a penalty was imposed
On the basis of the above, guided by Art. Art. 40-1, 212-3, 251, 280, 283, 284, 289 KUpAP, judge,
P O S T A N O V I V
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 of Ukraine and impose on her an administrative penalty in the form of an administrative fine in the amount of twenty-five non-taxable minimum incomes of citizens, which amounts to 425 hryvnias in state income, by transferring the funds of the State Administration of Ukraine in Vinnytsia Region/ Nemyriv 21081100, recipient code (YEDRPOU) 37979858, recipient's bank – Treasury of Ukraine, recipient's account UA768999980313040106000002796, budget revenue classification code 21081100
Withdraw from PERSON_1 in favor of the state 536 hryvnias 80 kopecks. of the court fee – the recipient of the funds of the Central Administrative Court in the city of Kyiv/22030106, recipient code (YEDRPOU) 37993783, recipient account UA908999980313111256000026001, budget revenue classification code 22030106
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 case 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 event that the offender fails to pay the fine within the specified period, the decision on the imposition of the fine is sent for enforcement to the department of the state executive service at the offender's place of residence, work or at the location of his property in accordance with the procedure established by law
In order to enforce the resolution on the collection of a fine for the commission of an administrative offense, the offender shall be charged twice the amount of the fine specified in the relevant article of the Code of Criminal Procedure and specified in the resolution on the collection of the fine.
The ruling can be appealed by the offender within 10 days from the day of its delivery to the Vinnytsia Court of Appeal through the Nemyriv District Court.
Judge: V.M. Alekseenko