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

On January 11, 2022, the judge of the Shevchenkivsky District Court of the city of Kyiv Antonyuk Maryna Stanislavivna, with the participation of the secretary of the court session – V.V. Tarasenko, the victim PERSON_1, the defender – M.V. Yankovo, having considered the administrative material received from the Kyiv Region Bar Council of the National Association lawyers of Ukraine, on bringing to administrative responsibility PERSON_2 , INFORMATION_1 director of the limited liability company "BI EL JI MICROFINANCE", RNOCPP NUMBER_1 ,

for committing an administrative offense provided for in Part 5 of Art. 212-3 KUpAP,

Director of "BI EL JI MICROFINANCE" LLC PERSON_2 committed an administrative offense provided for in Part 5 of Art. 212-3 of the Code of Criminal Procedure under the following circumstances.

So, on October 4, 2021, lawyer M.S. Kupenko addressed a lawyer's request to the director of BI EL G MICROFINANCE LLC PERSON_2.

According to Part 2 of Article 24 of the Law of Ukraine "On Advocacy and Advocacy", heads of enterprises, institutions, and organizations to which a lawyer's request is sent are obliged to provide the lawyer with relevant information and copies of documents no later than five working days from the date of receipt of the request , except for restricted information and copies of documents containing restricted information.

According to the official website of "Ukrposhta" ( http://ukrposhta.ua/ru/vidslidkuvati-forma-poshuku ), the authorized person of "BI EL JI MICROFINANCE" LLC received a lawyer's request – 06.10.2021. Thus, the last day of the deadline for providing an answer to the lawyer's request was October 12, 2021.

At the time of drafting the protocol, the lawyer M.S. Kupenko. did not receive an answer to the lawyer's request from the director of BI EL JI MICROFINANCE LLC PERSON_2.

Thus, in the actions of the director of BI EL MICROFINANCE LLC, PERSON_2, there is an element of an administrative offense provided for in Part 5 of Article 212-3 of the Code of Administrative Offenses, namely, untimely provision of information at a lawyer's request.

In addition, on November 30, 2021, I.H. Lishnevskyi, a member of the Kyiv Region Bar Council, authorized by the Kyiv Region Bar Council to draw up and sign protocols on administrative offenses. a report on an administrative offense series KS No. 00312 was drawn up against the director of BI EL JI MICROFINANCE LLC PERSON_2, the content of which shows the following.

So, on October 11, 2021, lawyer M.S. Kupenko addressed a lawyer's request to the director of BI EL JI MICROFINANCE LLC PERSON_2.

According to Part 2 of Article 24 of the Law of Ukraine "On Advocacy and Advocacy", heads of enterprises, institutions, and organizations to which a lawyer's request is sent are obliged to provide the lawyer with relevant information and copies of documents no later than five working days from the date of receipt of the request , except for restricted information and copies of documents containing restricted information.

According to the official website of "Ukrposhta" ( http://ukrposhta.ua/ru/vidslidkuvati-forma-poshuku ), the authorized person of the limited liability company "BI EL JI MICROFINANCE" received a lawyer's request – 12.10.2021. Thus, the last day of the deadline for providing an answer to the lawyer's request was October 18, 2021.

At the time of drafting the protocol, the lawyer M.S. Kupenko. did not receive an answer to the lawyer's request from the director of BI EL JI MICROFINANCE LLC PERSON_2.

Thus, the Commissioner of the Kyiv Oblast Bar Council for drawing up and signing protocols on administrative offenses, member of the Kyiv Oblast Bar Council I.G. Lishnevskyi, believes that the actions of the director of BI EL JI MICROFINANCE LLC PERSONAL_2 constitute an administrative offense provided for in Part 5 of Article 212-3 of the Criminal Procedure Code, namely – untimely provision of information at a lawyer's request.

PERSON_2 did not appear on repeated summonses to the court, he was informed about the consideration of the case in advance and properly. At the same time, the defense attorney of the person against whom the report on an administrative offense was drawn up, M. V. Yankovy, appeared at the court session. , who in the court session did not object to the holding of the court session without the participation of the person for whom the protocol was drawn up. Taking into account the above, as well as the fact that the participation of a person in the consideration of cases under Art. 212-3 of the Criminal Procedure Code is not mandatory, the judge considers it possible to consider the case in the absence of PERSON_2.

In court, defense attorney Yankovy M.V. asked to close the proceedings in the absence of an administrative offense for the reasons stated in the written petitions. In support of his arguments, he pointed out that there are about 60 contracts between BI EL G MICROFINANCE LLC and PERSON_4, about which he and his lawyer Kupenko M.S. active correspondence is carried out. I asked you to pay attention to the fact that requests from the lawyer Kupenko M.S. are received by the Company without a description of the attachment, which makes it difficult to identify them. After conducting an analysis of the document flow of BI EL JI MICROFINANCE LLC, it was established that both requests of the lawyer Kupenko M.S. received on October 13, 2021. The deadline for responding to such requests expires on October 21, 2021, and it has been met. I drew attention to the fact that the presence of a postal receipt does not confirm which document was sent. He also believes that the Bar Council of the Kyiv region did not have the appropriate authority to draw up protocols based on the appeals of the lawyer M.S. Kupenko, since the latter's workplace is in Kyiv. He also referred to the fact that the rights of PERSON_2 were violated during the drafting of the administrative protocols, as he was not present during the drafting of the protocol and did not have the opportunity to provide his explanations. There is no documentary confirmation of the receipt of both requests, for which the specified administrative protocols were drawn up, on October 13, 2021.

The victim PERSON_1 explained that he submitted two requests to obtain documents for the protection of PERSON_4, but he did not receive answers to the requests within the time limits established by the Law of Ukraine "On Advocacy and Advocacy". Subsequently, on 10/20/2021, he received a letter from BI EL G MICROFINANCE LLC, actually in response to both requests, but no information was provided. In its response, the Company reported that the client must have the requested documents. He informed that in the Unified Register of Lawyers of Ukraine it is stated that he is a lawyer who is registered with the Bar Council of the Kyiv Region, he paid annual contributions to the Bar Council of the Kyiv Region, and that is why he addressed the request to the said Council.

Having studied the materials of the administrative offense case as a whole, after listening to the victim's explanation and the defender's request, the court came to the following conclusion.

According to Part 5 of Article 212-3 of the Code of Administrative Offenses of Ukraine, an 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 Advocacy and Advocacy", for which administrative responsibility is provided.

In accordance with 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 workers 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.

According to Part 3 of Article 24 of the Law of Ukraine "On Advocacy and Advocacy", refusal to provide information at a lawyer's request, untimely or incomplete provision of information, provision of information that does not correspond to reality, entail responsibility established by law, except for cases of refusal to providing information with limited access.

The European Court of Human Rights in its decision of January 30, 2020 in the case "Namazov v. Azerbaijan" (CASE of Namazov v. Azerbaijan (application no. 74354/13)) noted that the proper functioning of the courts would be impossible without relations based on trust and mutual respect between different actors of justice (see Bono v. France, No. 29024/11, § 51, December 15, 2015, and Ottan v. France, No. 41841/12, § 72, April 19, 2018). The special status of lawyers gives them a central place in the administration of justice as mediators between the public and the courts.

The court established that on October 4, 2021, lawyer M.S. Kupenko. in the interests of PERSON_4 addressed a lawyer's request for issue No. 1 to the director of BI EL G MICROFINANCE LLC PERSON_2.

According to the official website of "Ukrposhta", the authorized person of "BI EL JI MICROFINANCE" LLC received the indicated lawyer's request on October 6, 2021.

At the same time, the director of BI EL G MICROFINANCE LLC did not provide PERSON_2's response to the lawyer's request of PERSON_1 for issue No. 1 dated 04.10.2021 within the time limit prescribed by law.

At the same time, the court does not take into account the defense counsel’s arguments that the lawyer’s request of PERSON_1, ex. No. 1 dated 04.10.2021, was received by BI EL JI MICROFINANCE LLC on 10.12.2021, since the defense attorney did not provide any confirmation to substantiate these arguments, instead, in the materials of the proceedings contain confirmation of receipt of the lawyer's request from the lawyer M.S. Kupenko. issue No. 1 dated 04.10.2021 "BI EL G MICROFINANCE" LLC dated 06.10.2021

The principle of adversariality does not create an obligation for the court to consider the circumstance claimed by the party as proven and established. Such a circumstance must be proven in such a way as to implement the standard of greater persuasiveness, according to which the conclusion about the existence of the asserted circumstance, taking into account the evidence provided, seems more likely than the opposite. Having examined the case materials in their entirety, paying special attention to the presence of written confirmations of the receipt of the lawyer's request of PERSON_1, ex. No. 1 dated October 4, 2021, BI EL JI MICROFINANCE LLC, the judge is convinced that such a request was received on October 6, 2021.

Among those attached to the motion of Yankov's defense attorney M.V. according to input number 121092, there are confirmations of sending a letter on 10/21/2021 about the closure of processed materials. Taking into account that the victim confirmed at the court hearing that it actually contained the answer to the lawyer's request of issue No. 1 dated 04.10.2021, the judge comes to the conclusion that the answer to the lawyer's request of PERSON_1 of issue No. 1 of 04.10.2021 was sent in violation of the term specified in Part 2 of Art. 24 of the Law of Ukraine "On Advocacy and Advocacy".

Also, the case files contain confirmation of the receipt by the authorized person of "BI EL JI MICROFINANCE" LLC of letters from the Kyiv Region Bar Council of the National Bar Association of Ukraine dated 11.11.2021 according to ex. No. 1557/0/2-21 and No. 8554/0/2-21, in which the essence of the offenses was outlined, the rights were explained, the time and place of the protocol was notified, and an opportunity was given to provide their explanations. Thus, the court rejects the defender's claim of violation of Art. 268 of the Labor Code of Ukraine

In accordance with clause 2 of Section III of the Procedure for the preparation by the head of the Bar Council of the Autonomous Republic of Crimea, oblasts, Kyiv and Sevastopol or by a member of the Bar Council authorized by the council of materials on administrative offenses, the decision to draw up a protocol on an administrative offense is made after an inspection, provided that the lawyer's request is met. statement (appeal) and the attached materials of the Law. The verification may consist of sending written or oral appeals to the applicant and the person who is brought to administrative responsibility, with the aim of obtaining additional explanations.

The court takes into account the fact that letters from the Kyiv Region Bar Council of the National Bar Association of Ukraine dated 11.11.2021 under No. 1557/0/2-21 and No. 8554/0/2-21, the sending of written appeals to the person who is brought to administrative responsibility is confirmed, with the aim of obtaining additional explanations and giving him a reasonable period for providing such explanations.

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.

In the protocol on administrative offense series KS No. 00313 dated 30.11.2021, the surname, first name, patronymic of the person in respect of whom the protocol on administrative offense was drawn up, place of work and position, in addition, it is indicated that the date and place of birth, registration number of the taxpayer's card, address of residence could not be established.

Taking into account the above, the court rejects the arguments of the defender about the violation of 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 during the preparation of protocols on administrative offenses.

In accordance with clause 3 of Section II of 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 of 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, is violated based on the statements of the lawyer, the qualification and disciplinary commission of the bar, its chamber or a member, in the territory of jurisdiction of the relevant council of lawyers of the region, at the address of the lawyer’s main place of work (where the lawyer has paid the lawyer’s annual contribution to ensure the implementation of the lawyer’s self-government), the location of the qualification and disciplinary commission of the bar, its chamber.

According to the information contained in the Unified Register of Advocates Kupenko M.S. is a lawyer registered with the Kyiv Region Bar Council. At the court hearing, the victim confirmed the specified circumstances and reported that he also pays annual contributions to the Kyiv Region Bar Council.

Thus, the court comes to the conclusion that the statements of Yankov's defense attorney M.V. that the report on an administrative offense was drawn up by a non-authorized body are untrue.

According to Art. 19 of the Constitution of Ukraine, the legal order in Ukraine is based on the principles according to which no one can be forced to do what is not provided for by law. At the same time, the current legislation does not provide for the obligation to send attorney requests necessarily with a description of the attachment.

Based on the content of the petitions under entry numbers 121092 and 121277 from Yankov's defense attorney M.V. in the interests of PERSON_2, in which he asked to close the proceedings in the absence of the event and the composition of the offense, as well as taking into account the fact that in these petitions, both the fact of receiving a lawyer's request from 10.04.2021 and the fact of receiving a lawyer's request from 11.10 are separately recognized. 2021, the court comes to the conclusion that the defense counsel's argument regarding the impossibility of identifying PERSON_1's lawyer's requests under ex. No. 1 dated 04.10.2021 and under No. 1 dated 11.10.2021.

Taking into account the above, the court came to the conclusion that PERSON_2 by his actions, which were manifested in the untimely provision of information in response to a lawyer's request, in accordance with the Law of Ukraine "On Advocacy and Advocacy", committed an administrative offense, provided for in Part 5 of Art. 212-3 of the Labor Code of Ukraine.

According to Art. 245 of the Code of Administrative Offenses, the task of proceedings in administrative offense cases is: timely, comprehensive, complete and objective clarification of the circumstances of each case, its resolution in exact accordance with the law, ensuring the implementation of the issued resolution, as well as identifying the reasons and conditions causing the commission of administrative offenses, prevention of offenses, education of citizens in the spirit of law-abiding, strengthening of legality.

When deciding on the imposition of an administrative penalty, the court takes into account the nature of the offense committed and its consequences, the identity of the offender, his relationship to the offender, which consists in not admitting guilt, and the property status of the latter, which cannot be considered difficult.

Circumstances mitigating or aggravating the responsibility of PERSON_2 have not been established by the court.

Thus, taking into account the above, I come to the conclusion that it is necessary to apply to PERSON_2 an administrative penalty in the form of a fine within the limits determined by the sanction of part 5 of Article 212-3 of the Code of Administrative Offenses, namely in the amount of 25% of the tax-free minimum income of citizens. This type and size of the fine, in the opinion of the court, is not notoriously excessive and will contribute to the fulfillment of the tasks of the Code of Ukraine on administrative offenses.

In accordance with the procedure specified in Art. 401 of the Code of Criminal Procedure and Clause 5, Part 2, Art. 4 of the Law of Ukraine "On Court Fees", I consider it necessary to charge PERSON_2 a court fee in the amount of UAH 496, 20 kopecks in favor of the state.

When considering the issue of PERSON_2 committing an administrative offense under Part 5 of Art. 212-3 of the Code of Administrative Offenses on the episode of providing information to the lawyer's request No. 1 dated 11.10.2021 according to the protocol on administrative offense series KS No. 00312 the court established the following.

The materials of the proceedings contain confirmation of the receipt by LLC "BI EL JI MICROFINANCE" of the lawyer's request of PERSON_1 dated 11.10.2021 according to ex. #1 October 12, 2021.

In accordance with the Decree of the Cabinet of Ministers of Ukraine dated September 30, 2020 No. 1191-r "On the postponement of working days in 2021" in order to ensure the rational use of working hours and create favorable conditions for celebrating in 2021 January 7 – Christmas, August 24 – The Independence Day of Ukraine and October 14 – the Defender of Ukraine Day are recommended to the heads of enterprises, institutions and organizations (except for the bodies of the Pension Fund of Ukraine, the joint-stock company "Ukrposhta", the State Treasury Service and banking institutions) for employees who have established a five-day work week with two days off on Saturdays and Sundays, to move the working days from Friday, January 8 to Saturday, January 16 in 2021 in accordance with the procedure and under the conditions determined by the law; Monday, August 23 to Saturday, August 28; Friday, October 15 to Saturday, October 23.

The case file contains a copy of the order of the Director of the Company No. 57 dated October 1, 2021 "On the schedule of the enterprise in October 2021", according to which the working day of October 15, 2021 was moved to October 23, 2021.

According to Art. 73 of the Labor Code of Ukraine, October 14 is, in particular, the Day of Defenders of Ukraine.

Thus, on the last day to provide an answer to the lawyer's request PERSON_1 ex. No. 1 dated 11.10.2021 was 21.10.2021.

Among those attached to the motion of Yankovo's defense attorney M.V. according to the input number 121277, there are confirmations of sending a letter on 10/21/2021 about closing the processed materials. Taking into account that the victim confirmed at the court hearing that it actually contained the answer to the lawyer's request of issue No. 1 dated 11.10.2021, the judge comes to the conclusion that the answer to the lawyer's request of PERSON_1, issue No. 1 of 11.10.2021 was sent in a timely manner and in compliance with the terms established by the Law "On Advocacy and Advocacy".

In accordance with Part 1 of Art. 247 of the Code of Administrative Offenses of Administrative Offenses may not be initiated, and the initiated proceedings shall be closed, in particular, in the absence of an administrative offense.

The stated circumstances testify to the absence of violations by PERSON_2 of the provisions of Article 24 of the Law "On Advocacy and Advocacy" and the absence of the composition of the offense provided for in Part 5 of Article 212-3 of the Code of Administrative Offenses in relation to the failure to respond to the lawyer's request PERSON_1 under ex. No. 1 dated October 11, 2021, and therefore, in this part of the proceedings, the case is subject to closure due to the absence of an administrative offense in his actions.

Taking into account the above, guided by Art. 24 of the Law of Ukraine "On Advocacy and Advocacy", Article 7, 212-3, 245, 247, 251, 256, 268, 280, 283, 284 KUpAP, judge

PERSON_2 , INFORMATION_1 , RNOKPP NUMBER_1 , to be found guilty of the offense provided for in part 5 of Article 212-3 of the Code of Administrative Offenses, and impose on him an administrative penalty in the form of a fine in the amount of 25 tax-free minimum incomes of citizens, which is 425 (four hundred and twenty-five) UAH. 00 kopecks, in favor of the state.

Collect a court fee in the amount of 496 (four hundred and ninety-six) hryvnias from PERSON_2 in favor of the state. 20 kopecks

Explain to PERSON_2 that the fine must be paid no later than fifteen days from the date of delivery of the resolution on imposing a fine to him, and in the event of an appeal against the resolution – no later than fifteen days from the date of notification of the rejection of the complaint.

If the offender fails to pay the fine within the above-mentioned 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 double the amount of the fine and the costs of accounting for the said offences.

Oblige the department of the state executive service to inform about the implementation of the resolution by returning the latter to the court address with a note about its implementation.

Close the proceedings in the case regarding the prosecution of PERSON_2, INFORMATION_1, RNOCPP NUMBER_1, to administrative liability under part 5 of Article 212-3 of the Code of Administrative Offenses, for the episode of providing information to the lawyer's request No. 1 dated 11.10.2021 – due to the absence of an administrative offense in his actions .

The resolution enters into force after the deadline for filing an appeal has expired.

The ruling can be appealed within ten days from the day of its issuance. The appeal is submitted to the Kyiv Court of Appeal through the Shevchenkiv District Court of Kyiv.

The deadline for submitting a resolution for execution is three months from the day the resolution enters into force.