Case No. 375/924/22
Proceedings No. 3/375/666/22
P O S T A N O V A
IN THE NAME OF UKRAINE
On October 31, 2022, the village of Rokytne
The judge of the Rokytnyan district court of the Kyiv region, Chornenka O.I., after reviewing the case materials on an administrative offense, which were received from the Kyiv Region Bar Council of the National Association of Lawyers of Ukraine on bringing to administrative responsibility:
PERSON_1, court date of birth is unknown, court tax payer registration number is unknown, working as the head of the Rokytnyan department of the state executive service in the Bilotserki district of the Kyiv region of the Central Regional Department of the Ministry of Justice (Kyiv), living at the address: ADDRESS_1,
according to part 5 of Art. 212-3 of the Code of Ukraine on administrative offenses,-
SET UP:
07/05/2022 to obtain information, for the purpose of providing legal assistance, in accordance with the Law of Ukraine "On Advocacy and Advocacy", lawyer V.V. Kapustin. appealed to attorney request No. 18 to the head of the Rokytnyan department of the state executive service in the Bilotserkiv district of the Kyiv region of the Central Regional Office of the Ministry of Justice (Kyiv) Nataliya Vasylivna Krasutska.
In accordance with Part 2 of Art. 24 of the Law of Ukraine "On Advocacy and Advocacy", heads of enterprises, institutions, organizations to which a lawyer's request has been sent are obliged to provide the lawyer with relevant information, copies of documents, except information with limited access and copies of documents containing restricted access information.
According to information from the official website of JSC "Ukrposhta", an authorized person of the Rokytnya Department of the State Executive Service in the Bilotserki district of the Kyiv Region of the Central Interregional Department of the Ministry of Justice (Kyiv) received a lawyer's request on 07.07.2022.
By letter dated 18.07.2022 No. 8100, signed by the head of the Rokytnya Department of the State Executive Service in the Bilotserkiv District of the Kyiv Oblast of the Central Interregional Department of the Ministry of Justice (Kyiv), PERSON_1 provided an untimely response to the lawyer's request of the lawyer V.V. Kapustin.
Thus, in the actions of the head of the Rokytny Department of the State Executive Service in the Bilotserki District of the Kyiv Oblast of the Central Regional Office of the Ministry of Justice (Kyiv) PERSON_1 there is an administrative offense, the responsibility for which is provided for in Part 5 of Art. 212-3 of the Code of Criminal Procedure, namely – untimely provision of information at a lawyer's request.
The trial of the administrative case was scheduled for 11 a.m. on October 21, 2022.
However, on October 20, 2022, the court received an application from PERSON_1 to postpone the consideration of the case due to the need to review the materials of the administrative case.
In view of the above, the trial of the administrative case was postponed to 11:40 a.m. on October 26, 2022.
On October 21, 2022, PERSON_1 submitted a petition to the court to close the administrative case in connection with the absence of the event and composition of the administrative offense provided for in part 5 of Article 212-3 of the Criminal Procedure Code. The petition is based on the fact that the answer to the request of V.V. Kapustin's lawyer was provided by her within the five-day period specified by law.
On October 26, 2022, PERSON_1 filed an application to postpone the consideration of the administrative case in connection with the need to provide evidence to the case materials.
The trial of the administrative case was postponed to 08 hours 40 minutes on October 31, 2022.
On October 31, 2022, PERSON_1 submitted a request to add to the administrative file the extract from the postal register of the Rokytnya post office for July 7, 2022.
According to the said extract, postal item No. 0911900516013 was received by the responsible person of the PERSON_2 department on 07/08/2022, which is confirmed by her personal signature in the said extract.
At the court session, PERSON_1 explained that the question of the lawyer V.V. Kapustin arrived at the Rokytnya Department of the State Executive Service in the Bilotserkiv District of the Kyiv Oblast of the Central Moscow Regional Department of the Ministry of Justice (Kyiv) on July 11, 2022 and was registered by the department's document expert in the department's log of registration of general incoming correspondence under entry number 1680 dated 11.07.2022 and was submitted to her for review on 12.07.2022. The date and number of the registration of the request is confirmed by a corresponding entry in the journal of registration of general incoming correspondence of the department.
The response to the attorney's request was prepared by her on 18.07.2022, i.e., on the last, fifth working day, of the deadline set by the current legislation for providing a response to the attorney's request, and was handed over to the document specialist of the department for registration and referral as appropriate.
Thus, her actions do not constitute an administrative offense provided for in Part 5 of Article 212-3 of the Code of Administrative Offenses, since the response to the lawyer's request was prepared on time, within the five-day period defined by the legislation.
And therefore asks to close the case on an administrative offense in connection with the absence of the event and composition of the administrative offense provided for in Part 5 of Article 212-3 of the Labor Code of Ukraine.
Explanations of PERSON_1 regarding the timely provision of an answer to the lawyer's request are evaluated critically by the court on the following grounds.
During the examination of the materials of the administrative case of PERSON_1, it was proven that the request was received by the department on 07.08.2022, not 07.07.2022, as stated in the administrative offense protocol.
Thus, the date of receipt of a document sent by post to the institution is its receipt by the responsible person in the branch or authorized person of the post office.
The case file contains information about the receipt by the responsible employee of the postal department No. 0911900516013 (request of V.V. Kapustin's lawyer) on July 8, 2022, which fell on Friday.
According to the rules of record keeping, a document received by the institution must be registered on the day of its receipt. If the document is received at the end of the working day, it can be registered the next working day.
However, the court critically assesses PERSON_1's explanation regarding the response to the lawyer's request within the time limit set by law, since taking into account that the request from the lawyer was received by the institution on 07.08.2022 and not on 07.07.2022, as stated in the protocol on the administrative offense and in the tracking of postal items, then the answer to the specified request should have been provided by July 15, 2022, instead, the answer was dated July 18, 2022, and to the email address of the lawyer V.V. Kapustin. arrived only at 14:19 on July 21, 2022 (Friday).
The deadline is not considered missed if, before its expiration, the application, complaint, other documents or materials, or funds are mailed or transferred by other appropriate means of communication.
Thus, since the answer to the request of the lawyer Kapustin V.V. was transferred to him by means of electronic communication by sending to his official e-mail address only on July 21, 2022, the court considers the fact of violation of PERSON_1's five-day deadline for providing an answer to the lawyer's request proven.
According to Article 245 of the Code of Administrative Offenses, the task of proceedings in administrative offense cases is a timely, complete, comprehensive clarification of the circumstances of the case.
According to the requirements of Article 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 of the case.
In accordance with Article 280 of the Code of Administrative Offenses, the body (official) when considering a case of an administrative offense is obliged to find out: whether an administrative offense was committed, whether a given person is guilty of committing it, whether he is subject to administrative responsibility, whether there are circumstances that improve and burden responsibility, whether property damage has been caused, whether there are grounds for transferring materials about an administrative offense for consideration by a public organization, labor collective, as well as to find out other circumstances that are important for the correct resolution of the case.
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, is recognized as an administrative offense in accordance with part 5 of Article 212-3 of the Code of Criminal Procedure in accordance with the Law of Ukraine "On Advocacy and Advocacy".
Part 1 of Article 9 of the Code of Criminal Procedure defines that an administrative offense (misdemeanor) is 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 .
Having examined the case materials, the court considers that PERSON_1 is guilty of committing an administrative offense, provided for in Part 5 of Art. 212-3 of the Criminal Procedure Code, was fully confirmed in court and is proved by the following evidence:
- by the protocol on the administrative offense of the CS series No. 00090 dated 08/17/2022 under Part 5 of Art. 212-3 of the Code of Administrative Offenses, which records the fact of untimely provision of information on lawyer's request No. 18 dated 05.05.2022, which is not signed by the person who is subject to administrative liability;
- the complaint of the lawyer Kapustin V.V. dated 07/25/2022 No. 20;
- a copy of the lawyer's request of the lawyer Kapustin V.V. dated 07/05/2022 No. 18;
- tracking tracking of postal shipment No. 0911900516013, according to which the specified postal shipment was delivered to the addressee personally on 07.07.2022;
- an extract from the postal register of the Rokytnyan branch of postal communications for 07/07/2022, according to which postal item No. 0911900516013 was received by the responsible person of the department PERSON_2 on 07/08/2022, which is confirmed by her personal signature in the specified extract;
- a copy of the response of the head of the Rokytnya Department of the State Executive Service in the Bilotserki district of the Kyiv region of the Central Interregional Department of the Ministry of Justice (Kyiv) to N.V. Krasutska. dated 07/18/2022 No. 8100;
- a screenshot of the official e-mail address of the lawyer V.V. Kapustin, according to which the answer to the lawyer's request was received at his e-mail address on 07.21.2022;
- letter of the Chairman of the Kyiv Region Bar Council dated August 1, 2022 regarding consideration of the application of the lawyer Kapustin V.V. regarding drawing up a protocol on an administrative offense against PERSON_1;
- explanations provided by PERSON_1 to the head of the Bar Council of the Kyiv region with an attachment dated 08/05/2022.
The court recognizes the specified evidence within the meaning of Article 251 of the Code of Administrative Offenses of Ukraine as appropriate, admissible and as fully proving the guilt of PERSON_1 in the commission of the administrative offense provided for in part 5 of Article 212-3 of the Code of Administrative Offenses, under the circumstances set forth in the administrative offense protocol of the KS series No. 00090 dated 17.08 .2021.
At the same time, Part 1 of Article 33 of the Code of Administrative Offenses provides that fines for administrative offenses are imposed within the limits established by this Code and other laws of Ukraine.
Article 38 of the Code of Ukraine on Administrative Offenses establishes the terms of imposing an administrative penalty.
Yes, an administrative fine may be imposed no later than two months from the date of the commission of the offense, and in the case of an ongoing offense – no later than two months from the day of its detection, except for cases where cases of administrative offenses in accordance with this Code are brought under the jurisdiction of the court ( judges).
If cases of administrative offenses in accordance with this Code or other laws are under the jurisdiction of a court (judge), fines may be imposed no later than three months from the date of commission of the offense, and in the case of an ongoing offense – no later than three months from the day of its detection, except cases on administrative offenses specified in parts three to five of this article.
In accordance with the requirements of Clause 7 of Article 247 of the Code of Administrative Offenses, proceedings in the case of an administrative offense may not be initiated, and the proceedings initiated shall be closed in the event of the expiration of the terms provided for in Article 38 of this Code at the time of consideration of the case of an administrative offense.
In view of the above and taking into account that at the time of consideration of the administrative offense case, more than three months have passed since the offense was committed, the judge comes to the conclusion that the specified administrative proceeding should be closed due to the expiration of the terms provided for in Article 38 of the Code of Administrative Offenses.
In accordance with Article 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.
Guided by Art. Art. 38, 40-1, Part 5 of Art. 212-3, item 7 of Art. 247, 268, 284 of the Code of Ukraine on Administrative Offenses, the judge, –
POSITION:
To recognize PERSON_1, working as the head of the Rokytnya department of the state executive service in the Bilotserki district of the Kyiv region of the Central Regional Administration of the Ministry of Justice (Kyiv), living at the address: ADDRESS_1, guilty of committing an administrative offense provided for in part 5 of Article 212-3 of the Code of Ukraine on administrative offenses.
Close administrative proceedings against PERSON_1 for committing an administrative offense, provided for in part 5 of Article 212-3 of the Code of Ukraine on Administrative Offenses, in connection with the expiration of the terms of imposing an administrative fine.
The ruling can be appealed within ten days from the date of the ruling by filing an appeal to the Kyiv Court of Appeals through the Rokytnyan District Court of the Kyiv Region.
The resolution enters into force after the deadline for filing an appeal has expired.
The deadline for presenting a resolution for implementation is three months.
Judge Olena Chornenka