Case No. 759/5878/25
File No. 3/759/2692/25
DECISION
IN THE NAME OF UKRAINE
On April 15, 2025, Judge Viktoriia Oleksiivna Zhmud of the Sviatoshyn District Court of Kyiv, having examined the materials received from the Bar Council of Kyiv Region of the National Bar Association of Ukraine, regarding holding PERSON_1, a Ukrainian citizen and director of LLC ‘ISCO’, located at 9 Simyi Steshenkiv St., Kyiv, administratively liable for an offense under part 5 of article 2123 of the Code of Ukraine on Administrative Offenses,
ESTABLISHED:
PERSON_1, the director of LLC ‘ISCO’ located at 9 Simyi Steshenkiv St., Kyiv, failed to timely respond to the lawyer Yermolenko N.M.’s request dated 24.12.2024, which was due on 30.12.2024. By his actions, PERSON_1 committed an administrative offense under part 5 of article 2123 of the Code of Ukraine on Administrative Offenses.
At the court hearings scheduled for 09:20 on 31.03.2025 and 09:30 on 15.04.2025, PERSON_1 did not appear, being duly notified of the date and time of the hearing.
In accordance with the provisions of article 19 of the Law of Ukraine ‘On International Treaties of Ukraine’ and article 17 of the Law of Ukraine ‘On the Execution of Judgments and the Application of the Practice of the European Court of Human Rights,’ courts apply the Convention and the practice of the European Court of Human Rights as a source of law in the examination of cases. The ECtHR in its decisions defines legal approaches to understanding the violation of the right to a fair trial both in terms of the principle of procedural equality and the procedural conduct of the parties to the proceedings, emphasizing that parties should take steps at reasonable intervals to find out about the status of the known court proceedings (‘Oleksandr Shevchenko v. Ukraine’, ‘Trukh v. Ukraine’, ‘Ponomariov v. Ukraine’). Under such circumstances, taking into account the principle of judicial proceedings, which recognizes the priority of public interest over private interest, the judge considers it possible to proceed with the case in the absence of the person subject to administrative liability, as unjustified intentional delay in the case undermines the objectives of the Code of Administrative Offenses, which include protecting the constitutional order of Ukraine, maintaining law and order, strengthening legality, preventing offenses, educating citizens in the spirit of strict and conscientious compliance with the Constitution, laws of Ukraine, respect for the rights, honor and dignity of other citizens, the rules of coexistence, conscientious performance of duties, and responsibility to society (article 1 of the Code of Administrative Offenses). It should also be noted that the provisions of article 268 of the Code of Administrative Offenses do not prohibit the consideration of a case of an administrative offense under article 212-3 of the Code of Administrative Offenses without the mandatory presence of the person subject to administrative liability.
After a thorough examination of the materials of the case of an administrative offense, namely: the protocol on the administrative offense of series KS No. 00674 dated 10.03.2025 drawn up against PERSON_1; a copy of power of attorney No. 41 for PERSON_2 dated 01.06.2024; a copy of the statement by PERSON_3 dated 20.01.2025 on bringing to administrative liability; copies of lawyer’s requests dated 11.12.2024 and 24.12.2024; a copy of the additions to the statement on bringing to administrative liability dated 31.01.2025 with attachments, the judge reached the following conclusion.
According to part 1 of article 9 of the Code of Administrative Offenses, an administrative offense (misdemeanor) is recognized as an unlawful, guilty (intentional or negligent) act or inaction that encroaches on public order, property, rights and freedoms of citizens, on the established order of management, for which the law provides for administrative liability.
Part 5 of article 212-3 of the Code of Administrative Offenses establishes administrative liability for 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-disciplinary commission of the bar, its chamber, or a member in accordance with the Law of Ukraine ‘On the Bar and Legal Practice.’
Thus, considering that there is sufficient evidence in the case that does not raise doubts about its reliability and admissibility, and that confirm the commission of an administrative offense by PERSON_1 under part 5 of article 2123 of the Code of Administrative Offenses, there are all grounds for holding him administratively liable.
However, according to paragraph 7 of article 247 of the Code of Administrative Offenses, proceedings in a case of an administrative offense cannot be initiated, and if initiated, must be closed if at the time of the consideration of the case of an administrative offense, the deadlines specified in article 38 of this Code have expired.
In accordance with part 2 of article 38 of the Code of Administrative Offenses, if a case of an administrative offense in accordance with this Code or other laws falls under the jurisdiction of a court (judge), a penalty may be imposed no later than three months from the date of the offense.
As it appears from the case materials, the offense was committed by PERSON_1 on 31.12.2024, the protocol on the administrative offense of series KS No. 00674 was drawn up against PERSON_1 on 10.03.2025.
The case of an administrative offense against PERSON_1, according to the incoming stamp, was received by the Sviatoshyn District Court of Kyiv on 20.03.2025 and was twice scheduled for a court hearing for the proper notification of the person against whom the protocol was drawn up.
In view of the above, the proceedings in the case against PERSON_1 for committing an administrative offense under part 5 of article 2123 of the Code of Administrative Offenses must be closed on the basis of paragraph 7 of article 247 of the Code of Administrative Offenses.
Guided by articles 38, 2123, 247, 245, 251, 252, 283-285, 294 of the Code of Administrative Offenses, the judge,
DECIDED:
To find PERSON_1 guilty of committing an administrative offense under part 5 of article 2123 of the Code of Administrative Offenses.
To close the proceedings in the case of an administrative offense under part 5 of article 2123 of the Code of Administrative Offenses against PERSON_1 on the basis of paragraph 7 of article 247 of the Code of Administrative Offenses – due to the expiration of the deadlines specified in article 38 of this Code at the time of the consideration of the case of an administrative offense.
The decision may be appealed within ten days from the date of its adoption. An appeal is filed with the Kyiv Court of Appeal through the Sviatoshyn District Court of Kyiv.
The decision shall enter into legal force upon the expiration of the deadline for filing an appeal.
Judge Viktoriia Oleksiivna Zhmud of the Sviatoshyn District Court of Kyiv