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03.02.2022

Lawyer requests: the practice of the Podilsky District Court of the city of Kyiv

Case No. 758/91/22
P O S T A N O V A
IN THE NAME OF UKRAINE
January 27, 2022, Kyiv
Judge of the Podilsky District Court of Kyiv L.V. Kazmyrenko, after considering the case received from the Kyiv Region Bar Council of the National Bar Association of Ukraine on bringing to administrative responsibility
PERSON_1, acting director of KP "Kyivreklama", address: Kyiv, Borychiv Uzviz, 8,
according to part 5 of Art. 212-3 KUpAP,
set:
On November 9, 2021, to obtain information for the purpose of providing legal assistance in accordance with the Law of Ukraine "On Advocacy and Advocacy", lawyer E.L. Konovalenko. appealed to the utility company "Kyivreklama" with lawyer's requests No. 8 and No. 9 dated November 9, 2021.
In accordance with 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 has been 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, Acting the director of the municipal enterprise "Kyivreklama" PERSON_1 was obliged to provide information in response to the lawyer's requests of the lawyer E.L. Konovalenka. or with reasoned refusal to provide information, if access to such information is limited.
By letter dated 11/16/2021 No. 196-3196/KR signed by acting director of the municipal enterprise "Kyivreklama" PERSON_1 in the provision of information to the lawyer's requests of the lawyer Konovalenko E.L. was actually refused, no full answer was provided to any of the questions posed in lawyer's requests No. 8 and No. 9 of the lawyer Konovalenko E.L.
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". The specified provision of the Law is mandatory and establishes the obligation for state authorities and their officials to provide the lawyer with relevant information, copies of documents, except for information with limited access and copies of documents containing information, no later than five working days from the day of receiving the request with limited access.
A lawyer's request is one of the forms of exercise by a lawyer of his professional rights to provide legal assistance to a client, which is expressly stated in the Law of Ukraine "On Advocacy and Advocacy". Therefore, the information requested by the lawyer is necessary for the latter exclusively to provide legal assistance to the client.
So, in the actions of acting director of the municipal enterprise "Kyivreklama" PERSON_1 has an administrative offense, provided for in part 5 of Art. 212-3 of the Code of Criminal Procedure, namely, unlawful refusal to provide information in response to a lawyer's request.
In accordance with Part 5 of Art. 212-3 of the Code of Administrative Offenses, unlawful 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 the Bar and Bar activity" entails the imposition of a fine on officials from twenty-five to fifty tax-free minimum incomes of citizens.
PERSON_1 did not appear at the scheduled court session.
In the court session, the defender of PERSON_1, lawyer Antokhov J.S. asked to close the proceedings in the absence of an administrative offense for the reasons stated in the written objections.
In support of his arguments, he indicated that on November 16, 2021, by letter No. 196-3196/KR signed by Acting director of KP "Kyivreklama" PERSON_1 with attachments in the name of lawyer E.L. Konovalenka. in accordance with his requests, a response was sent and prepared that answers to similar requests for information were given to the director of Alego LLC, whose interests he represents. Taking into account that the information was already received and was at the disposal of LLC "Alego" and the lawyers of LLC "Alego", bringing to administrative responsibility for failure to provide information that was already provided earlier is a formalism and cannot go beyond the insignificance of such an act.
He also referred to the fact that to the requests of the lawyer Konovalenka E.L. a copy of the warrant certified by a lawyer was not attached.
He noted that the rights of PERSON_1, provided for in Art. 268 of the Criminal Procedure Code, since she was not present when the protocol was drawn up and did not have the opportunity to provide her explanations, in addition, it was drawn up by an unauthorized person and outside the time limits established by part 2 of Art. 254 of the Criminal Procedure Code, which is confirmed by the fact that the lawyer Konovalenko E.L. appealed to the Bar Council on 11/29/2021, instead, the administrative offense protocol was drawn up on 12/29/2021.
Having examined the case materials on the administrative offense in their totality, after listening to the explanation of the defense of PERSON_1, the lawyer Antokhov Ya.S. and after reviewing his objections with attachments, the court reached the following conclusion.
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 administrative liability is provided for by law 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 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.
In accordance with Part 2 of the Law of Ukraine "On Advocacy and Advocacy", the state creates appropriate conditions for the activity of the advocacy and ensures compliance with the guarantees of advocacy.
According to the provisions of Art. 24 of this Law, a lawyer may request information.
Part 2 of Article 24 of the Law of Ukraine "On Advocacy and Advocacy" stipulates that the institution to which a lawyer's request has been received is obliged to provide the lawyer with relevant information no later than five working days from the date of receipt of the request.
Part 5 of Article 213-3 of the Code of Administrative Offenses, responsibility 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.
The court established that on November 9, 2021, the lawyer Konovalenko E.L. in the interests of "ALEGO" LLC addressed legal requests for issues No. 8 and No. 9 to KP "Kyivreklama".
By letter dated November 16, 2021 No. 196-3196/KR to lawyer Konovalenka E.L. it was reported that the answers to the information requested by him had previously been given to the director of ALEGO LLC, whose interests he represents.
Considering the above, the court does not agree with the position of the defense of PERSON_1, lawyer Antokhov J.S. that the lawyer Konovalenka E.L. the provision of information at the request of the lawyer was not refused, since the specified letter does not contain the requested information, but only contains a reference to the fact that the specified information was already provided to the head of "Alego" LLC.
Also, the case file contains confirmation of receipt by an authorized person of KP "Kyivreklama" on 10.12.2021 of a letter from the Kyiv Region Bar Council of the National Bar Association of Ukraine dated 07.12.2021 under ex. No. 2134/0/2-21, in which the essence of the offense was outlined, rights were explained, the time and place of drawing up the report were notified, and an opportunity was given to provide explanations. Thus, the court rejects the defender's claim of violation of Art. 268 of the Labor Code of Ukraine.
According to Clause 7 of Section III of the Procedure for Registration by the Chairman 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, the content of the protocol must meet the requirements established by Article 256 of the Code of Administrative Offenses, and is drawn up in accordance with Appendix 1 to of this Order. The authorized person notes in the protocol all the available information that identifies the person who is brought to administrative responsibility.
The statement of the lawyer Antokhov Ya.S. that the lawyer's request was not accompanied by the proper documents of authority of the lawyer E.L. Konovalenka. was not confirmed, because as established by the court, lawyer Konovalenka E.L. along with the request, the following was sent: the original warrant and a duly certified copy of the certificate.
Other arguments of the defense of PERSON_1, lawyer Antokhov Ya.S. also do not deny the fact of the existence of an administrative offense, and cannot be recognized as sufficient grounds for concluding that the proceedings in the case are closed due to the absence of an offense.
Taking into account the above circumstances, the court comes to the conclusion that the actions of PERSON_1 constitute an administrative offense, provided for in Part 5 of Article 212-3 of the Code of Criminal Procedure and imposes a penalty in the form of a fine in the amount of 25 tax-free minimums of citizens.
According to Art. 40-1 of the Code of Administrative Offenses, the court fee in proceedings on an administrative offense in the case of a court (judge) ruling on the imposition of an administrative fine shall be paid by the person on whom such a fine has been imposed. The amount and procedure for payment of the court fee is established by law.
Pursuant to the Law of Ukraine "On court fees" a court fee in the amount of UAH 454 is subject to collection from PERSON_1. 00 kopecks
On the basis of Part 5 of Art. 212-3 of the Code of Administrative Offenses, guided by Art. 283, 284 KUpAP, judge,
post:
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 apply an administrative penalty in the form of a fine in the amount of twenty-five non-taxable minimum incomes of citizens in the amount of UAH 425. 00 kopecks (four hundred and twenty-five UAH. 00 kopecks)
Collect a court fee in the amount of UAH 454 from PERSON_1 into the state income. 00 kopecks (four hundred and fifty-four UAH. 00 kopecks).
The decision of a judge in cases of an administrative offense becomes legally binding after the deadline for filing an appeal has expired.
The decision may be appealed by the person brought to administrative responsibility, his legal representative, defense counsel, the victim, his representative within ten days from the day the decision was issued to the Kyiv Court of Appeals through the Podilskyi District Court of the city of Kyiv.
Judge L.V. Kazmyrenko
Court practice (administrative protocols)