The panel of judges of the Sixth Appeals Administrative Court agreed with the conclusion of the court of first instance on the validity of the claims of the head of the VKDKA, Serhiy Vylkov, regarding the declaration of illegality and cancellation of the prescription of the National Agency for the Prevention of Corruption.
NAKC indicated the illegality of the appointment to the head of VKDKA (resolution 6ААС)
The text of the relevant resolution of the 6AAS in case No. 640/26894/20 appeared in the Unified State Register of Court Decisions.
We will remind, by the decision of the Qualification and Disciplinary Commission of the Bar of Kharkiv Region dated 19.05.2020, the lawyer R. was brought to disciplinary responsibility in the form of deprivation of the right to practice law for his participation in confidential cooperation with the bodies of the pre-trial investigation.
The ex-lawyer appealed this decision together with the decision to open a case in the Kharkiv District Administrative Court (case 520/1285/2020).
In parallel with the court process in July 2020, he sent an appeal to the National Agency for the Prevention of Corruption. It reported the existence of circumstances of violation of the Law "On Prevention of Corruption".
However, by the decision of the Kharkiv District Administrative Court dated September 15, 2020, the administrative claim of R. was refused.
Despite this, on September 25, 2020, the NAKC issued an order (No. 23-07/45/20) to the head of the VKDKA to eliminate violations of the requirements of the third part of Article 53-4 of the Law "On Prevention of Corruption", which, according to the officials, consisted in subjecting the whistleblower to a negative measure of influence. In the order, the head of the KDKA was required to cancel the decision of the KDKA to bring the lawyer to disciplinary responsibility.
During the regular meeting of the VKDKA on September 30, the members of the commission discussed the order and, based on the results, recommended the chairman to provide a reasoned answer, contact the law enforcement authorities with a statement about the commission of a criminal offense, notify the Bar Council of Ukraine, and also appeal the order to the court. Which was done.
The District Administrative Court of Kyiv, by its decision dated July 13, 2021, found the order of the National Agency for the Prevention of Corruption to be illegal and annulled it. However, the department appealed against this decision.
Providing a legal assessment of the established circumstances of the case and the conclusions of the court of first instance, the panel of judges of the Sixth Appeals Administrative Court drew attention to the fact that the ex-lawyer R. appealed in court the decision of the KDKA of the region, however, the decision of the court, which became legally binding (see resolution of the Second Appeal Administrative Court dated 07.07.2021), the claims were refused. Thus, it was noted in the appeal, the legality of the adoption of the initial decision of the KDKA, in connection with which the NAZK issued an order, was confirmed in a court of law.
In addition, the Law "On Advocacy and Advocacy" allows to appeal the decision of the KDKA to the VKDKA or to the court. As evidenced by the case materials, R. decided to use the judicial method of protecting his own rights. After all, no complaints from him about the decision of the KDKA of the Kharkiv region from 05.19.2020 were received by the KDKA. However, the current legislation empowers the KDKA to review the decision of the KDKA only on the basis of a complaint submitted in accordance with the procedure. And there is no possibility of appealing the same decision of the KDKA of the region by one side of the disciplinary proceedings both to the court and to the VKDKA. Therefore, it is impossible to review the same decision of the KDKA of the region simultaneously by two bodies – the court and the VKDKA.
In addition, 6AAS noted that the Higher Qualification and Disciplinary Commission of the Bar is a collegial body. And the head of this body, due to the requirements of the current legislation, is not empowered to make the decision in a one-person manner, which was required in the order of the NAKC.
Taking into account such circumstances of the case as a whole and the legal regulation of the disputed legal relations, the panel of judges of the 6AAS stated that the court of first instance made a valid decision. Therefore, the appeal of the National Agency for the Prevention of Corruption was dismissed.
Resolution 6AAS entered into force.