Blog

28.12.2022

Lawyer’s inquiries: the practice of the Holosiivsky District Court of Kyiv

Case No. 752/16031/22

Proceedings No.: 3/752/8333/22

DECREE

IN THE NAME OF UKRAINE

On December 7, 2022, the judge of the Holosiivsky District Court of Kyiv M.V. Didyk, after reviewing the materials on an administrative offense received from the Kyiv Region Bar Council regarding PERSON_1, INFORMATION_1, a citizen of Ukraine, working as a director of Atmosfera Management Company LLC, address at place of work: Kyiv, str. Antonovycha 74-78B,

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

in st a n o v i v :

On September 15, 2022, lawyer O.G. Buryak submitted a lawyer's request No. 15/09/2022-01 to the Atmosfera Management Company LLC. In accordance with Part 2 of Art. 24 of the Law "On Advocacy and Advocacy", the heads of enterprises, institutions, organizations to which a lawyer's request is sent are obliged to provide the lawyer with relevant information, copies of documents, except for information with limited access, no later than five working days from the day of receiving the request. Therefore, the director of the LLC "UC "Atmosfera" INDIVIDUAL_1 was obliged to provide information or with reason to refuse to provide information, if access to such information is limited.

In a letter dated 09/26/2022 No. SF-20220926-2 signed by the director of "Atmosfera" LLC OSOBA_1, incomplete information was provided in response to the lawyer's request from lawyer O.G. Buryak, namely, this response did not contain a monthly report of expenses incurred "Atmosfera" LLC, in connection with the provision to PERSON_2 of services related to the management/maintenance of the house and the adjacent territory and the organization of the access control regime for the adjacent territory according to the contract K-SF-2 dated 04/23/2021 for the time period from 01/01/2022 year to August 10, 2022

Therefore, in the actions of the director of the LLC "UC "Atmosfera" PERSON_1, there is an administrative offense provided for in Part 5 of Art. 212-3 of the Code of Criminal Procedure, namely – incomplete provision of information at a lawyer's request.

At the court session, PERSON_1's defender appeared – lawyer Petryk M.M., who denied the fact that his client had committed an administrative offense. He explained that the director of Atmosfera LLC, PERSON_1, fulfilled the requirements of Part 2 of Art. 24 of the ZU "On Advocacy and Advocacy", namely, he provided, as he believes, a full answer to the lawyer's request, guided by subparagraph 10 of paragraph 4 of Article 8 of the Law "On Housing and Communal Services". Namely, an estimate of services per square meter was provided, and each user can calculate the costs incurred precisely for the provision of services to a specific person. Financial World for the year has also been provided, from which you can also determine expenses on a monthly basis.

Having read the protocol and the materials in addition to it, after listening to the explanation of the lawyer Petryk M.M., the court came to the conclusion that the actions of PERSON_1 contain the composition of an administrative offense provided for in part 5 of Article 212-3 KUPAP.

According to Art. 7 of the Law "On housing and communal services", every resident of the building is a consumer of housing and communal services and has the right to receive free of charge from the provider of housing and communal services information about prices/tariffs, the total cost of the monthly payment, the price/tariff structure, consumption standards and the procedure for providing the appropriate services;

Provision of Part 5 of Art. 212-3 provides for liability for incomplete provision of information at a lawyer's request.

According to the court, the answer to the lawyer Buryak O.H. in letter No. SF-20220926-2 dated September 26, 2022, should be considered as incomplete provision of information at the attorney's request.

This follows from the following:

this answer did not contain a monthly report of expenses incurred by Atmosfera LLC in connection with the provision of services to PERSON_2 regarding the management/maintenance of the house and the adjoining territory and the organization of the access control regime for the adjoining territory in accordance with the contract K-SF-2 dated 23.04 .2021 for the period from 01.01.2022 to 08.10.2022.

The attorney was sent an estimate of expenses for the management of the house and the surrounding territory of the "SAN FRANCISCO" residential complex, that is, it is an approved tariff for services, and not a monthly report of expenses in connection with the provision of services to PERSON_2.

Also, the lawyer was sent a financial report regarding the apartment building at ADDRESS_1, and as can be seen from the reply letter, this report is for 2021, but the lawyer Buryak O.H. In his request, he asked for a monthly report of the expenses incurred by Atmosfera LLC in connection with the provision of services only to PERSON_2, and specifically for the period from 01.01.2022 to 08.10.2022.

At the same time, the lawyer Buryak O.H. no information was provided regarding the impossibility of providing a more detailed report for specific reasons.

The court also does not consider and does not take into account the statement of the defense attorney Petryk M.M. in the fact that the answer to the lawyer's request was provided exclusively in accordance with the requirements of Art. 8 of the Law "On Housing and Communal Services", since the specified norm does not contain direct prohibitions on providing exclusive information, including that which was requested by the lawyer.

Having examined the case materials and taking into account the nature of the offense committed, the identity of PERSON_1, the degree of his guilt, the circumstances aggravating and mitigating responsibility, I consider it necessary to find PERSON_1 guilty of committing an administrative offense provided for in Part 5 of Article 212-3 of the Criminal Procedure Code, since her guilt is confirmed by the evidence contained in the case file and to apply an administrative penalty in the form of a minimum fine to her.

On the basis of Art. 40-1 of the Criminal Procedure Code, collect from PERSON_1 a court fee in the amount of 0.2 of the subsistence minimum for able-bodied persons.

On the basis of the above and guided by Part 5 of Art. 212-3, Art. 283-284 of the Criminal Procedure Code, court –

position:

To find PERSON_1 guilty of committing an administrative offense provided for in Part 5 of Article 212-3 of the Code of Criminal Procedure and to impose an administrative penalty in the form of a fine in the amount of twenty-five non-taxable minimum incomes of citizens, which is 425 (four hundred and twenty-five) UAH. 00 kopecks

Collect from PERSON_1 a court fee in the amount of 0.2 of the subsistence minimum for able-bodied persons, which is 496 (four hundred and ninety-six) UAH. 20 kopecks in favor of the state.

The decision of the judge in the case of an administrative offense may be appealed by the person who is brought to administrative responsibility, his legal representative, the defender, the victim, his representative within ten days from the date of the decision.

An appeal is filed with the appropriate appellate court through the local court that issued the decision.

Judge Didyk M.V.

Court practice (administrative protocols)