Case No. 361/11111/21
Proceedings No. 3/361/632/22
P O S T A N O V A
IN THE NAME OF UKRAINE
On 17.01.22, the judge of the Brovar city and district court of the Kyiv region, A. M. Hrydasova, having considered the materials received from the Bar Council of the Kyiv region, on bringing to administrative responsibility:
PERSON_1 , INFORMATION_1 , citizen of Ukraine, chairman of the board of the serving garage cooperative "Metalurg" (EDROPU 20586054), legal address: 07400, Brovary, str. Metalurgiv, registered: ADDRESS_1,
according to part 5 of Art. 212-3 of the Code of Administrative Offenses, –
set up:
Yes, PERSON_1, while in the position of chairman of the board of the serving garage cooperative "Metalurg", in violation of the requirements of Part 2 of Art. 24 of the Law of Ukraine "On Advocacy and Advocacy" by letter dated 10/25/2021 under No. 23 illegally refused to provide information in response to the lawyer's request of lawyer O. I. Batechka No. 10 of 10/13/2021.
Thus, by the indicated actions, PERSON_1 committed an administrative offense provided for in Part 5 of Article 212-3 of the Labor Code of Ukraine.
PERSON_1 did not appear at the court session.
The defender of PERSON_1 – lawyer Tselikov V.V. stated in the court session that the case materials do not contain any proper evidence provided for in Art. 251 of the Code of Administrative Offenses, which would confirm the illegality of the actions of the Company's officials. The protocol was drawn up in violation of the current legislation and the lawyer's request was submitted by the lawyer Batechko O.I. with improper confirmation of his authority. I asked to close the case in connection with the lack of an administrative offense in the actions of PERSON_1, since the refusal to provide information at the lawyer's request of the lawyer O.I. Batechka was lawful.
Lawyer O. I. Batechko explained to the court that on September 30, 2021, the first lawyer's request was sent to the Chairman of the Board of OGK METALURG OSOBA_2 by registered letter with a notice of delivery. No. 10 dated September 30, 2021. The lawyer's request contained a request to send the lawyer by mail information and duly certified copies of the documents listed in the request available at OGK Metalurg. On October 11, 2021, the Chairman of the Board of OGK METALLURG PERSON_3 provided an answer by which the lawyer's request No. 10 of September 30, 2021 was dismissed. The refusal was motivated by the inconsistency of the Advocate's request with the postulates of the current Ukrainian legislation and/or the clarification of the bodies of the self-government of the advocates. The Chairman of the Board of OGK METALURG PERSON_3 did not give a detailed argumentation regarding the refusal to grant the Attorney's request in the answer.
On October 13, 2021, a lawyer's request was again sent by registered letter to the Chairman of the Board of OGK METALURG OSOBA_4. No. 10 dated 13.10.2021 with notice of delivery. The lawyer's request contained a REPEATED request to consider the lawyer's request No. 10 dated 09/30/2021 and to send the lawyer by mail within the period established by law a complete answer with duly certified copies of the requested documents specified in the request. On 10/25/2021, the Chairman of the Board of OGK METALLURG PERSON_3 provided a response, with which the lawyer's request No. 10 of 10/13/2021 was left unsatisfied. The refusal was motivated by the inconsistency of the Advocate's request with the postulates of the current Ukrainian legislation and/or the clarification of the self-management bodies of the Bar. The Chairman of the Board of OGK METALURG PERSON_3 did not give a detailed argumentation regarding the refusal to grant the Attorney's request in the answer.
Lawyer O. I. Batechko noted that the Chairman of the Board of OGK METALURG OSOBA_3 unlawfully refused to satisfy the lawyer's requests to provide explanations and copies of the requested documents.
After hearing the opinion of the trial participants, the court came to the following conclusion.
Part 5 of Article 212-3 of the Criminal Procedure Code provides for administrative liability, in particular, for failure to provide or incomplete provision of information upon a lawyer's request.
By virtue of Part 1 of Art. 24 of the Law of Ukraine "On Advocacy and Advocacy" (hereinafter – the Law) lawyer's request – a written appeal of a lawyer to a state authority, a local self-government body, their officials and employees, enterprises, institutions and organizations regardless of the form of ownership and subordination, public associations on the provision of information, copies of documents necessary for a lawyer to provide legal assistance to a client.
Part 2 of Article 24 of the Law of Ukraine on Advocacy and Advocacy establishes that the institution to which an attorney's request has been received must provide the attorney with relevant information no later than five working days from the date of receipt of the request.
It follows from the above that the institution to which the lawyer's request was received, if this institution is the administrator of the requested information and documents, is obliged to provide such information to the initiator of the request.
Thus, to resolve the issue of the presence or absence of an administrative offense in the actions of PERSON_1 under Part 5 of Art. 212-3 of the Code of Administrative Offenses, it is necessary to establish whether the Service Garage Cooperative had the requested information in its possession.
From the lawyer's request of PERSON_5 dated 13.10.2021, attached to the case materials, according to ex. No. 10, it can be seen that the latter, acting in the interests of PERSON_6, in order to protect his rights and interests, asked to provide the following information and documents: the accountant's report of PERSON_7, attached to the protocol dated March 27, 2010; act (Reference, Report) based on the results of the audit (verification and analysis) of the actual state of affairs in OGK Metalurg and which was conducted in 2017; the decision of OGK Metalurg to conduct an official investigation into the abuse of official position, self-management by the head of the Management Board of OGK Metalurg PERSON_6 and his gross violations of the Statute of OGK Metalurg and the results of the official investigation (inspection); the list of members of the board of OGK Metalurg with their last name, first name and patronymic, whom the members of OGK Metalurg (surname, first name and patronymic of each) authorized to represent interests on their behalf at the extraordinary meeting of authorized representatives held on February 4, 2017; the register of authorized members of OGK Metalurg who appeared and were present at the extraordinary meeting on February 4, 2017; the register of authorized members of OGK Metalurg who appeared and were present at the extraordinary meeting on February 20, 2017; explain in writing on the basis of which regulation of the Statute or the Law the board elected the Chairman of the meeting and the secretary of the meeting on 02/04/2017 and what is reflected in Minutes No. 1 of 02/04/2017; about the total number of members of the cooperative as of March 12, 2011 and their full list; the decision on delegating consideration and resolution of issues to the meeting of authorized representatives and which ones; the minutes of the meeting of the board of OGK Metalurg dated June 24, 2021; personal card type Form No. 2 is filed with the head of the board PERSON_6; time sheet for the head of the board PERSON_6 as of June 17, 2021; minutes of the meeting of the board of OGK "Metalurg" dated June 17, 2021; the procedure for electing and recalling members of the board of OGK Metalurg, their quantitative composition and terms of election; the decision on the election of the head of the board PERSON_1; the decision on the election of acting chairman of the board PERSON_7 as of November 11, 2011; an extract from the Journal of Registration of Incoming Correspondence about the fact and date of receipt of the decision of the Economic Court of the Kyiv Oblast dated June 16, 2021 in case No. 361/1059/17 regarding the reinstatement of PERSON_6 at OGK Metalurg; the meeting's decision on the election of board members (by surnames), which was in effect as of February 7, 2017; the procedure for determining the authorized members of the cooperative with changes and additions; the list of members of the cooperative who expressed distrust in the work of PERSON_6 and which the defendant emphasized: OGK Metalurg and the presence of this list in case No. 361/1059/17; the confirming document of OGK Metalurg that PERSON_6 had a significant term of office, as a member of the cooperative, at the time of his dismissal and which was emphasized by the lawyer V. V. Tselichev, and what is stated in the first paragraph on p. 8 decision of the commercial court dated June 16, 2021; certificate No. 41 dated 05/23/2017; act of the commission dated 02.14.2017 on the non-handover of PERSON_6 documents cited by the court in the third paragraph of the decision dated 08.16.2021 with reference to the notification of the fact of the representative of the defendant PERSON_8 in the court session. According to the last paragraph on page 12 of the court decision dated June 16, 2021, you did not comply with the court's request at the court hearing.
In response to the request dated 10/25/2021 No. 23, PERSON_1 noted that in accordance with Sec. 1 Art. 24 of the ZU "On Advocacy and Advocacy", a lawyer's request is a written appeal by a lawyer to a state authority, a local self-government body, their officials and employees, enterprises, institutions and organizations regardless of the form of ownership and subordination, public associations to provide information, copies of documents necessary for the lawyer to provide legal assistance to the client.
A lawyer's request shall be accompanied by copies of a certificate of the right to practice law, a warrant or mandate from a body (institution) authorized by law to provide free legal aid, certified by a lawyer.
He pointed out that the repeated request of the lawyer submitted by the lawyer O. I. Batechka does not correspond to the postulates of the current Ukrainian legislation and/or the explanations of the self-management bodies of lawyers, as a result; this repeated request cannot be granted.
Yes, the court agrees with the arguments of PERSON_5 that the content of the answer does not contain information on the questions formulated by the lawyer, which is necessary for the latter to provide legal assistance.
The judge does not take into account the reference of the defender of the person who is brought to administrative responsibility regarding the inconsistency of the lawyer's request with the requirements of the law, referring to minor shortcomings of the considered request, which, at the same time, did not give the latter the right to refuse to provide an answer to the lawyer's request.
The court found that the lawyer's requests from the lawyer Batechka O.I. in terms of content, form and documents attached to it meet the requirements of Part 1 of Art. 24 of the Law of Ukraine On Advocacy and Advocacy, and the information requested from them is necessary for a lawyer to provide legal assistance to a client, and therefore PERSON_1 had no legal grounds for refusing to respond to the said lawyer's requests.
In connection with the above, the court comes to the conclusion that PERSON_1 by his actions, which were expressed in the illegal refusal to provide 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 5th century 212-3 of the Labor Code of Ukraine.
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 responsibility 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_1 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_1 a court fee in the amount of UAH 496 in favor of the state. 20 kopecks
Taking into account the above, guided by Art. 24 of the Law of Ukraine "On Advocacy and Advocacy", Art. 9, 283, 284 of the Criminal Procedure Code, Article 4 of the Law of Ukraine "On Court Fees", the judge,
POSITION:
PERSON_1 to be found guilty of the offense provided for in Part 5 of Art. 212-3 of the Code of Administrative Offenses of Ukraine, and to impose 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 from PERSON_1 in favor of the state a court fee in the amount of 496 (four hundred and ninety-six) UAH. 20 kopecks
The fine must be paid no later than fifteen days from the date of delivery of the decision on the imposition of a fine, and in the event of an appeal against such a decision – no later than fifteen days from the date of notification of the rejection of the complaint.
In case of failure to pay the fine within the prescribed period, the offender shall be charged double the amount of the fine in order to enforce the resolution in accordance with Art. 308 of the Labor Code of Ukraine.
The deadline for presenting the resolution for implementation is three months.
The resolution can be appealed to the Kyiv Court of Appeals through the Brovarsky City and District Court of the Kyiv Region within ten days from the date of its issuance and enters into force after the deadline for filing an appeal.
Judge A.M. Grydasov