Case №760/1835/25 3/760/1733/25
DECISION
IN THE NAME OF UKRAINE
On March 5, 2025, Judge S.A. Ahafonov of Solomianskyi District Court of Kyiv, having considered the case of an administrative offense received from the authorized Council of Advocates of Kyiv region regarding the administrative liability under part 5 of article 212-3 of the Code of Ukraine on Administrative Offenses in relation to INDIVIDUAL_1, a citizen of Ukraine, unknown judge of the State Environmental Inspection of the Capital District, working as the head of the State Environmental Inspection of the Capital District, –
ESTABLISHED:
By letter dated 10.12.2024 No.9/6/2-28/3435 from the head of the State Environmental Inspection of the Capital District, INDIVIDUAL_1 provided an incomplete response to the legal request of lawyer Onyshchenko M.V., in particular, copies of documents on how the employees of the State Environmental Inspection of the Capital District were involved by the Criminal Investigation Department of the Main Department of the National Police in Kyiv for inspection, verification, and subsequent preparation of reports.
Therefore, the actions of the head of the State Environmental Inspection of the Capital District INDIVIDUAL_1 constitute an administrative offense as defined in part 5 of article 212-3 of the Administrative Offenses Code, namely, incomplete provision of information in response to a legal request, for which a protocol on an administrative offense KS№00649 was drawn up on January 15, 2025.
In the court session, INDIVIDUAL_1 did not admit her guilt in the committed offense and showed the court that on 12.05.2024, a legal request from Onyshchenko Marina Vitaliivna was received by the State Environmental Inspection of the Capital District (hereinafter – the Inspection).
Thus, Marina Onyshchenko provides legal assistance to suspect INDIVIDUAL_3 in the commission of a criminal offense, provided for in part 3 of article 28, part 2 of article 239 of the Criminal Code of Ukraine, in criminal case No.12023100000000359 of 03.08.2023, the pre-trial investigation of which is carried out by the Investigative Department of the Main Department of the National Police in Kyiv.
Therefore, on 12.10.2024 (in a timely manner, within the prescribed period) a copy of the Regulation on the Inspection was provided to the lawyer, regarding other requested documents, a response was provided that they were received by the pre-trial investigation authority during the pre-trial investigation of the criminal case, and therefore may contain information of the pre-trial investigation, the disclosure of which in accordance with the first part of article 222 of the Criminal Procedure Code of Ukraine can only be carried out with the written permission of the investigator or prosecutor.
In addition, specialists of the Inspection were involved, therefore, in accordance with part five of article 71 of the Criminal Procedure Code of Ukraine, a specialist is obliged not to disclose information directly related to the essence of the criminal proceedings and procedural actions (including, but not limited to: grounds for involvement, results of the involvement, methods and methods of sampling), which are carried out (were carried out) during it, and which became known to the specialist in connection with the performance of his duties.
Furthermore, the lawyer was informed that she could contact the investigator, interrogator, prosecutor under article 221 of the Criminal Procedure Code of Ukraine.
After that, a letter from the Council of Advocates of the Kyiv region dated 12.23.2024 No.1130/0/2.24 was sent to the Inspection regarding the drafting of a protocol concerning her.
The Inspection sent an explanatory letter to the Council of Advocates of the Kyiv region on 01.08.2025 No.9/6/2-28/61 regarding the circumstances of the case, in which the Inspection fully described the situation.
Despite the explanations and the presentation of the situation, as well as the fact that the materials constitute materials of a criminal case, a protocol on an administrative offense was drawn up on 01.15.2025 series KS №00649.
She believes that as the Head of the Inspection, she has no legal basis to provide any information or documents without the written permission of the investigator or prosecutor, therefore, there is no element of an administrative offense under part 5 of article 212-3 of the Code of Ukraine on Administrative Offenses, as incomplete provision of information in response to a legal request cannot be considered for information and documents that cannot be disclosed within the framework of a criminal case, and such actions would be considered a direct violation of the norms of criminal procedural legislation and their negation.
The judge, having heard the explanations of INDIVIDUAL_1, who is being held administratively responsible, examined the case materials and came to the following conclusions, which are motivated as follows.
As established during the court hearing, lawyer Onyshchenko Marina Vitaliivna (certificate of the right to engage in legal practice No.000359) provides legal assistance to suspect INDIVIDUAL_4 in the commission of a criminal offense, provided for in part 3 of article 28, part 2 of article 239 of the Criminal Code of Ukraine, in criminal case No.12023100000000359 of 08.03.2023, the pre-trial investigation of which is carried out by the Investigative Department of the Main Department of the National Police in Kyiv.
During 2024, the State Environmental Inspection of the Capital District prepared a series of reports that have evidentiary value in the aforementioned criminal case.
On 12.05.2024, based on part 1 of article 22 of the Criminal Procedure Code of Ukraine, which provides that criminal proceedings are conducted on the basis of adversarial proceedings, which provide for the independent defense of the rights, legal positions, rights, freedoms, and legitimate interests of the prosecution and the defense by means provided for by this Code, a legal request was sent to the State Environmental Inspection of the Capital District requesting the following documents and information:
- copy of the regulation of the State Environmental Inspection of the Capital District, or the State Environmental Inspection of Ukraine, which provides for the grounds and procedure for conducting inspections, sampling of soil, and further laboratory research.
- copies of documents on how the employees of the State Environmental Inspection of the Capital District were involved by the Investigative Department of the Main Department of the National Police in Kyiv for inspection, verification, and subsequent preparation of reports and calculations of the State Environmental Inspection of the Capital District:
on 07.11.2024 at the address: Kyiv region, village Zazymye, st. Radhospna (Industrial), 6;
on 08.09.2024 at the address: Kyiv region, Bila Tserkva city, Hayok microdistrict (plot 1);
on 09.09.2024 at the address of Kyiv region, village Shkarivka, st. Mir, 1-A.
- copies of reports on the results of the involvement and departure of inspectors, laboratory staff to the research objects:
in August 2024 to the Kyiv region, Bila Tserkva city, Hayok microdistrict (plot 1).
in July 2024 to the Kyiv region, village Zazymye, st. Radhospna (Industrial), 6).
in September 2024 to the Kyiv region, village Shkarivka, st. Mir, 1-A.
- Full names of inspectors and laboratory staff who conducted the departure and took soil samples at the specified objects on the respective dates.
- methods and methods used to take soil samples
However, on 12.10.2024, the State Environmental Inspection of the Capital District provided only a copy of the Regulation on the State Environmental Inspection of the Capital District approved by the Order of the State Environmental Inspection of Ukraine dated February 20, 2023 No. 18, and no other information or documents were provided.
The refusal of the State Environmental Inspection of the Capital District to provide other information and copies of documents was justified by the fact that other requested documents were received by the pre-trial investigation authority during the pre-trial investigation of the criminal case, and therefore may contain information of the pre-trial investigation, the disclosure of which in accordance with the first part of article 222 of the Criminal Procedure Code of Ukraine can only be carried out with the written permission of the investigator or prosecutor and to the extent that they consider possible, as the mentioned documents contain information of the pre-trial investigation of the criminal case, the disclosure of which may harm the further investigation, the Inspection has no legal basis to provide the requested copies of documents.
According to the Law “On Access to Public Information”, public information is any information that has been obtained or created in the process of performing official duties by entities with public authority, provided for by the current legislation, or that is in the possession of entities with public authority, other information providers defined by this Law. Public information is open, except as provided by law.
According to paragraph 1 of part 3 of article 10 of the Law “On Access to Public Information”, information providers who have information about a person are obliged to provide it freely and free of charge at the request of the persons concerned, except as provided by law.
According to paragraph 8 of section III of the Regulation on the State Environmental Inspection of the Capital District approved by the Order of the State Environmental Inspection of Ukraine dated February 20, 2023 No. 18, the Inspection, in order to organize its activities, ensures access to public information in its possession.
According to part 2 of article 24 of the Law of Ukraine “On Advocacy and Advocacy”, a government body, a local self-government body, their officials and employees, managers of enterprises, institutions, organizations, public associations to whom a legal request is sent, are obliged no later than five working days from the date of receipt of the request to provide the lawyer with the relevant information, copies of documents, except for information with limited access and copies of documents containing information with limited access.
Thus, the provision of information requested in a legal request is an obligation, not a right of the person to whom the request is addressed. The refusal to provide such information or the provision of incomplete information must be justified.
Therefore, the obligation to provide the requested information in a legal request is presumed. Violation of this presumption is possible only on the grounds provided by law.
Moreover, INDIVIDUAL_1 did not appeal to the investigator under part 1 of article 222 of the Criminal Procedure Code of Ukraine, and no documents regarding such an appeal were provided to the judge. There is also no confirmed information that the investigator did not allow the dissemination of this information due to the secrecy of the pre-trial investigation.
Any legal grounds for refusing to provide or incomplete provision of the requested information are absent, therefore, the actions of INDIVIDUAL_1 are considered to constitute an administrative offense under part 5 of article 212-3 of the Code of Ukraine on Administrative Offenses.
According to part 5 of article 212-3 of the Code of Ukraine on Administrative Offenses, unlawful refusal to provide information, untimely or incomplete provision of information, provision of information that does not correspond to reality in response to a legal request, a request of the qualification-disciplinary commission of the bar, its chamber, or a member under the Law of Ukraine “On Advocacy and Advocacy”, entails the imposition of a fine on officials from twenty-five to fifty non-taxable minimum incomes of citizens.
According to article 33 of the Code of Ukraine on Administrative Offenses, when choosing the type of penalty, the court takes into account the person of the offender, the nature of the committed administrative offense, the degree of guilt, financial condition, circumstances that mitigate and aggravate liability.
According to articles 40-1 of the Code of Ukraine on Administrative Offenses, the court fee in a case of administrative offense is paid by the person on whom such penalty is imposed.
Taking into account the above, the judge –
DECIDED:
To find INDIVIDUAL_5 guilty of committing an administrative offense under part 5 of article 212-3 of the Code of Ukraine on Administrative Offenses and to apply to her an administrative penalty in the form of a fine of 425 UAH, which must be paid to the following details: … .
To collect from INDIVIDUAL_1 in favor of the state a court fee in the amount of 605.60 UAH, which must be paid to the following details: Recipient of funds: Main Department of Justice in Kyiv/city of Kyiv/22030106, Recipient code / EDRPOU code / 37993783, Recipient account: UA908999980313111256000026001, Recipient bank: Treasury of Ukraine (EAP), Budget revenue classification code: 22030106, Purpose of payment: court fee.
The decision can be appealed to the Kyiv Court of Appeals through the Solomianskyi District Court of Kyiv within ten days from the date of its adoption.
According to part 1 of article 307 and part 2 of article 308 of the Code of Ukraine on Administrative Offenses, the fine must be paid by the offender no later than fifteen days from the date of receipt of the decision on the imposition of the fine, and in case of appealing such a decision – no later than fifteen days from the date of notification of the dismissal of the complaint. When enforcing a decision on the recovery of a fine for committing an administrative offense from the offender, double the amount of the fine and the costs of accounting for such offenses are collected. A document confirming payment, or its copy no later than three working days after the expiration of the period provided for in the first part of article 307 of the Code of Ukraine on Administrative Offenses, is sent by the offender to the authority (official) who issued the decision to impose this fine.
The deadline for execution is 3 (three) months.
Judge S.A. Ahafonov