Blog

18.11.2021

Lawyer’s request: the practice of the Brovary City and District Court of the Kyiv Region

Case No. 361/8749/21
Proceedings No. 3/361/5905/21
P O S T A N O V A
IN THE NAME OF UKRAINE
November 4, 2021 Breweries
Judge Vasylenko T.K. of the Brovar city and district court of the Kyiv region, after considering the case materials on an administrative offense, which were received from the authorized member of the Bar Council of the Kyiv region on bringing to administrative responsibility:
PERSON_1, director of the “Kalytianskyi” Communal Enterprise,
for committing an administrative offense provided for in part. 5th century 212-3 of the Code of Ukraine on administrative offenses,
INSTALLED:
In accordance with the protocol on the administrative offense series KS No. 00244 dated September 30, 2021, on July 9, 2021, to obtain information, for the purpose of providing legal assistance, in accordance with the Law of Ukraine “On Advocacy and Advocacy”, lawyer KarlinO. IN. applied to the “Kalytianskyi” utility company with a lawyer’s request No. 01-09/07-21. According to the official website of “Ukrposhta”, the authorized person of the specified enterprise received a lawyer’s request on July 13, 2021. By letter No. 40 dated August 6, 2021 signed by the director of KP “Kalytyanskyi” PERSON_1 gave a late response to PERSON_2’s lawyer’s request, which violated the requirements of part. 2 Art. 24 of the Law of Ukraine “On Advocacy and Advocacy”, for which administrative responsibility is provided for in part. 5th century 212-3 of the Labor Code of Ukraine.
To the court from the lawyer Karlin O. IN. an application was received to consider the case in his absence.
At the court hearings scheduled by the court for October 13 and November 4, 2021, PERSON_1 did not appear, the hearing of the case was duly notified, and no applications and motions for adjournment to the court were received.
PERSON_1 also provided written explanations to the court, in which he noted that lawyer Carlin O. IN. contrary to Art. 20 of the Law of Ukraine “On Advocacy and Advocacy” sent documents to the address of KP “Kalytyanskyi”, thereby making an attempt to obtain information for the purpose of gathering evidence, the procedure for obtaining which is established by Art. 93 of the Criminal Procedure Code of Ukraine, not the Law of Ukraine “On Advocacy and Advocacy”. In addition, the lawyer does not fulfill the requirements established by the Rules of Lawyer Ethics, as the specified address in the lawyer’s request is not in the Unified Register of Lawyers of Ukraine. According to PERSON_1, lawyer Carlin O. IN. abuses the rights granted to the lawyer, which was expressed in repeatedly sending the same lawyer requests with demands, which in essence is terrorizing the KP “Kalytyanskyi”. The lawyer did not justify how the information requested by him generally relates to his client and can help in providing legal assistance. In this connection, he asks to close the proceedings in the case due to the absence of an administrative offense in his actions.
After examining the materials of the administrative offense case, the court came to the following conclusion.
According to part 1 Art. 9 of the Code of Ukraine on Administrative Offenses (hereinafter referred to as the Code of Administrative Offenses) an administrative offense (misdemeanor) is defined as 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.
Disposition of ch. 5th century 212-3 of the Criminal Procedure Code provides for liability for wrongful 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”.
According to Art. 251 of the Code of Administrative Offenses, evidence in the case of administrative offenses 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 resolution of the case. These data are established, in particular, by the protocol on the administrative offense, the explanations of the person who is brought to administrative responsibility, the victims, witnesses, the opinion of an expert, physical evidence, as well as other documents.
According to part 2 Art. 24 of the Law of Ukraine “On Advocacy and Advocacy”, heads of enterprises, institutions, organizations to which an attorney’s request has been sent are obliged to provide the attorney with information, copies of documents, except information with limited access and copies documents containing restricted access information.
From the case materials, it can be seen that in letter No. 40 dated August 6, 2021, the director of KP “Kalytyanskyi” PERSON_1 responded to PERSON_2’s lawyer’s request, which was received on July 13, 2021, that is, in violation of the deadline provided for in part. 2 Art. 24 of the Law of Ukraine “On Advocacy and Advocacy”, which provided information in an untimely manner.
Under such circumstances, the fault of PERSON_1 in committing an administrative offense provided for in part. 5th century 212-3 of the Code of Administrative Offenses, proven by: protocol on administrative offense series KS No. 00244 dated September 30, 2021, a copy of the certificate of the right to practice law, issued by PERSON_2, a copy of the lawyer’s request, ex. No. 01-09/07-21 dated 07/09/2021, a copy of the fiscal check dated 07/09/2021, the track of the Ukrposhta postal shipment No. 0113515520685, according to which the shipment was delivered on 07/13/2021, a letter in response to the lawyer’s request No. 40 of 06/08 .2021, signed by the director of KP “Kalytianskyi” PERSON_1.
Having assessed the submitted evidence as a whole, the court comes to the conclusion that the actions of PERSON_1 constitute an administrative offense, provided for in Part 5th century 212-3 of the Labor Code of Ukraine.
The reference of PERSON_1 that the lawyer has made unlawful demands, as well as the lawyer’s address is not listed in the Unified Register of Lawyers of Ukraine, does not affect the violation by the director of KP “Kalytyanskyi” of the fact regarding the timeliness of the response to the lawyer’s request and is not a reason for closing the proceedings in the case.
The court does not see circumstances that mitigate or aggravate the responsibility of PERSON_1.
In view of the above, the court considers it necessary to impose an administrative penalty on him in the form of a fine, determined by the sanction of part. 5th century 212-3 of the Labor Code of Ukraine.
According to the court, this type of punishment will be a sufficient and necessary measure of responsibility to prevent the commission of new offenses.
Under the supervision of Art. 40-1, ch. 5th century 212-3, 221, 283, 284 KUpAP, judge
RESOLVED:
PERSON_1 to be found guilty of committing an administrative offense provided for in part. 5th century 212-3 of the Code of Administrative Offenses, and apply to him 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) hryvnias 00 kopecks.
Collect from PERSON_1 a court fee in the amount of 454 (four hundred and fifty-four) hryvnias 00 kopecks as state revenue.
The resolution can be appealed to the Kyiv Court of Appeals within 10 days from the moment of its issuance, by filing an appeal through the Brovarsky City District Court of the Kyiv Region, and by the offender from the day of its receipt.
Judge: T.K. Vasylenko
Court practice (administrative protocols)