Case No. 638/464/25
Proceedings No. 3/638/886/25
DECISION
IN THE NAME OF UKRAINE
April 7, 2025, Kharkiv City
Dzerzhynsk District Court of Kharkiv City, composed of Judge Tsviri D.M., having considered the administrative material regarding INDIVIDUAL_1, for holding accountable for committing an administrative offense under part 5 of Article 212-3 of the Code of Ukraine on Administrative Offenses, –
R U L E S:
The Dzerzhynsk District Court of Kharkiv City received administrative material for holding INDIVIDUAL_1 accountable for part 5 of Article 212-3 of the Code of Ukraine on Administrative Offenses.
In accordance with the protocol series KS No. 00643 on the administrative offense under part 5 of Article 212-3 of the Code of Ukraine on Administrative Offenses dated January 8, 2025, November 11, 2024, for obtaining information, for providing legal assistance, in accordance with the Law of Ukraine “On Advocacy and Legal Practice,” lawyer Klymenko I.A. submitted legal inquiry No. 04/014/21 to the chairman of the board of the credit union “KS Volodar” INDIVIDUAL_1. Within the statutory period, lawyer Klymenko I.A. did not receive a response to the legal inquiry. Therefore, the actions of INDIVIDUAL_1 constitute an administrative offense under part 5 of Article 212-3 of the Code of Ukraine on Administrative Offenses.
The person held accountable for administrative responsibility, INDIVIDUAL_1, did not appear at the court hearing, was duly notified of the place, date, and time of the hearing. Court summonses were sent to the address of residence (stay) of INDIVIDUAL_1 as indicated by the police officers in the protocol on the administrative offense, however, the court correspondence was returned undelivered with the remark “addressee absent at the specified address.”.
According to the provisions of Article 268 of the Code of Ukraine on Administrative Offenses, a case of an administrative offense is considered in the presence of the person held accountable for administrative responsibility. In the absence of this person, the case may be considered only when there is evidence of timely notification of the place and time of the hearing and if there is no request from them to postpone the case. Part 2 of this article does not provide for the mandatory presence of the person held accountable for administrative responsibility when considering a case under Article 212-3 of the Code of Ukraine on Administrative Offenses.
Having fully and thoroughly examined the case materials, the court reaches the following conclusion.
In accordance with the requirements of Article 245 of the Code of Ukraine on Administrative Offenses, the objectives of proceedings in cases of administrative offenses include, among other things, timely, comprehensive, full, and objective clarification of the circumstances of the case.
According to Article 280 of the Code of Ukraine on Administrative Offenses, an authority (official) when considering a case of an administrative offense is obliged to clarify: whether an administrative offense was committed, whether the person is guilty of its commission, whether they are subject to administrative liability, whether there are circumstances that mitigate or aggravate liability, whether property damage was caused, whether there are grounds for transferring materials on the administrative offense for consideration by a public organization, a labor collective, as well as to clarify other circumstances that are relevant to the correct decision of the case.
According to the provisions of Article 251 of the Code of Ukraine on Administrative Offenses, evidence in a case of an administrative offense includes any factual data based on which an authority (official) establishes, in the prescribed manner, the presence or absence of an administrative offense, the guilt of the person in its commission, and other circumstances that are relevant to the correct decision of the case. This data is established by the protocol on the administrative offense, explanations of the person held accountable for administrative responsibility, victims, witnesses, expert opinions, material evidence, statements of technical devices and technical means that have functions of photo and video recording, including those used by the person held accountable for administrative responsibility or witnesses, and those working in automatic mode, or means of photo and video recording used for monitoring compliance with rules, norms, and standards related to ensuring road safety, protocol on the seizure of things and documents, as well as other documents.
As stated in Article 252 of the Code of Ukraine on Administrative Offenses, an authority (official) evaluates evidence based on their internal conviction, which is based on a comprehensive, full, and objective examination of all circumstances of the case in their entirety, guided by the law and legal consciousness.
The norms of Article 268 of the Code of Ukraine on Administrative Offenses provide that the person held accountable for administrative responsibility has the right, in particular, to submit evidence, make motions, etc.
The procedural form and content of the original protocol on the administrative offense comply with the requirements of Article 256 of the Code of Ukraine on Administrative Offenses.
Part 5 of Article 212-3 of the Code of Ukraine on Administrative Offenses establishes liability for unlawful refusal to provide information, untimely or incomplete provision of information, provision of false information in response to a legal inquiry, inquiry of the qualification-disciplinary commission of the bar, its chamber, or a member in accordance with the Law of Ukraine “On Advocacy and Legal Practice”.
Having reviewed the administrative material, examined the evidence in the case, the court concludes that the guilt of INDIVIDUAL_1 in committing an administrative offense under part 5 of Article 212-3 of the Code of Ukraine on Administrative Offenses is fully proven by the evidence examined by the court.
However, the court notes that in accordance with part 2 of Article 38 of the Code of Ukraine on Administrative Offenses, administrative penalties may be imposed no later than three months from the date of the offense.
According to the protocol series KS No. 00643 on the administrative offense under part 5 of Article 212-3 of the Code of Ukraine on Administrative Offenses, the offense was committed on November 21, 2024, this offense is not continuous, thus, at the time of the case consideration, the deadlines for imposing administrative penalties have expired.
In this regard, it should be noted that a continuous offense is an offense related to prolonged, continuous non-compliance with duties prescribed by law. That is, continuous offenses are characterized by the fact that the person who committed certain actions or inactions continues to be in a state of continuous continuation of these actions (inactions). These actions continuously violate the law for some time. Sometimes this state lasts for a significant period, and throughout this time, the guilty party continuously commits the offense in the form of non-performance of duties imposed on them. A continuous offense ceases only when the state for which there is objectively this duty ceases, by performing the duty by the relevant subject or by ceasing the effect of the relevant legal norm.
The offense under part 5 of Article 212-3 of the Code of Ukraine on Administrative Offenses does not have a continuous nature, at present, the deadlines for holding INDIVIDUAL_1 accountable for administrative responsibility, as defined in part 1 of Article 38 of the Code of Ukraine on Administrative Offenses, have expired.
In accordance with the requirements of paragraph 7 of Article 247 of the same Code, proceedings in a case of an administrative offense cannot be initiated, and if initiated, must be closed due to the expiration of the deadlines at the time of consideration of the case of an administrative offense, as provided for in Article 38 of this Code.
If cases of administrative offenses are under the jurisdiction of the court (judge) according to this Code or other laws, the penalty may be imposed no later than three months from the date of the offense, and in the case of a continuous offense – no later than three months from the date of its detection, except for cases of administrative offenses mentioned in the third to fifth parts of this article.
From the content of the aforementioned legal norms, it can be inferred that the closure of proceedings based on paragraph 7 of part 1 of Article 247 of the Code of Ukraine on Administrative Offenses is possible only in the presence of certain conditions, namely: the commission (detection) of an administrative offense and the expiration of the period provided for in Article 38 of the Code of Ukraine on Administrative Offenses, the course of which begins from the date of the administrative offense (in the case of a continuous offense – from the date of its detection).
Thus, a systematic analysis of the above legal norms of the Code of Ukraine on Administrative Offenses allows us to conclude that the closure of proceedings in a case based on paragraph 7 of part 1 of Article 247 of the Code of Ukraine on Administrative Offenses is possible only if the court establishes the fact of the person’s commission of a wrongful act or the commission of wrongful inaction falling under the signs of an administrative offense.
In accordance with part 2 of Article 7 of the Code of Ukraine on Administrative Offenses, proceedings in cases of administrative offenses are carried out on the basis of strict observance of legality.
The court also takes into account the practice of the European Court of Human Rights (paragraph 137 of the Decision of January 9, 2013, in the case of “Oleksandr Volkov v. Ukraine” (application No. 21722/11) that statutes of limitations serve several important purposes, namely: ensuring legal certainty and finality, protecting potential respondents from untimely claims that may be difficult to counter and prevent any injustice that could arise if courts were required to make decisions on events that took place in the distant past based on evidence that has become unreliable and incomplete over time (see the decision of October 22, 1996, in the case of “Stubbings and Others v. the United Kingdom,” p. 51, Reports 1996-IV). Statutes of limitations are a common feature of the national legal systems of contracting states regarding criminal, disciplinary, and other offenses.
Taking into account that the deadline for holding INDIVIDUAL_1 accountable for administrative responsibility as defined in Article 38 of the Code of Ukraine on Administrative Offenses has expired, the proceedings in the case must be closed based on paragraph 7 of Article 247 of the Code of Ukraine on Administrative Offenses.
Guided by Articles 38, 40-1, 212-3, 221, 268, 280, 283, 284 of the Code of Ukraine on Administrative Offenses, the court,-
R U L E S:
INDIVIDUAL_1, to be found guilty of committing an administrative offense under part 5 of Article 212-3 of the Code of Ukraine on Administrative Offenses.
Proceedings in the case of an administrative offense regarding INDIVIDUAL_1, under part 5 of Article 212-3 of the Code of Ukraine on Administrative Offenses – to be closed due to the expiration of the deadlines for imposing administrative penalties.
The decision may be appealed within ten days from the date of its issuance.