Oleksandr Troyan, an associate at BARRISTERS LLC, discusses the issues surrounding the imposition of administrative liability on individuals for violating legal requirements regarding responses to attorney requests

Issues Regarding the Imposition of Administrative Liability on Individuals for Violating Legal Requirements Concerning Responses to Attorney Requests

With the adoption in 2012 of the Law of Ukraine “On the Bar and the Practice of Law,” Article 212-3 of the Code of Administrative Offenses, concerning violations of the right to information, was supplemented by Part 5, which introduced administrative liability for the unlawful refusal to provide information, the untimely or incomplete provision of information, or the provision of false information in response to a lawyer’s request.

Decision No. 27 of the Bar Council of Ukraine dated December 17, 2012, established the procedure for holding persons administratively liable under Part 5 of Article 212-3 of the Code of Administrative Offenses. Decision No. 238 of the Ukrainian Bar Association, dated November 19, approved a new version of the aforementioned Procedure.

However, judicial practice in cases involving the administrative offense provided for in Part 5 of Article 212-3 of the Code of Administrative Offenses has been quite negative. The main reason why offenders are not held administratively liable is that judges dismiss cases under Part 5 of Article 212-3 of the Code of Administrative Offenses on the grounds that the statute of limitations for imposing an administrative penalty has expired, in accordance with Part 2 of Article 38 and Paragraph 7 of Article 247 of the Code of Administrative Offenses.

For example, a judge of the Kalush City and District Court in Ivano-Frankivsk Oblast dismissed proceedings in Case No. 345/3371/18 on the grounds that “…proceedings in the case cannot be initiated, and any proceedings that have been initiated must be closed, since the time limits provided for in Article 38 of this Code had expired by the time the case was considered.” In particular, the report on the administrative offense, Series IF No. 0012 dated August 3, 2018, states that the offense was committed on June 5, 2018, according to written refusal No. 851 (case file pp. 1–4). Given that the offense was committed on June 5, 2018, the case was filed with the court on August 17, 2018, and the hearing took place on September 12, 2018; that is, the time limits for imposing a penalty provided for by current legislation have expired, and therefore the proceedings in this case should be closed.”

In the decision in Case No. 758/8212/18, the judge of the Podilskyi District Court of Kyiv noted: “…the administrative offense took place on April 27, 2018, meaning that by the time the case was heard in court, the three-month period for imposing an administrative penalty had expired. Pursuant to paragraph 7 of Article 247 of the Code of Administrative Offenses, proceedings in a case concerning an administrative offense may not be initiated, and any proceedings that have been initiated must be terminated due to the expiration, at the time of the hearing of the administrative offense case, of the time limits provided for in Article 38 of this Code. By the time the administrative case was considered, the three-month period for imposing an administrative penalty provided for in Article 38 of the Code of Administrative Offenses had expired; therefore, the proceedings in the case must be closed pursuant to paragraph 7 of Article 247 of the Code of Administrative Offenses. In light of the foregoing, the court concludes that the proceedings in the case against PERSON_3 should be closed due to the expiration of the time limit for imposing an administrative penalty pursuant to Article 38 of the Code of Administrative Offenses.”

Thus, judges do not have time to review the case files regarding administrative offenses under Part 5 of Article 212-3 of the Code of Administrative Offenses. In the author’s opinion, there are several reasons for this situation.

1. The procedure for the Regional Bar Association to prepare the case materials regarding an administrative offense committed by an offender is too lengthy and complex.

By Decision No. 238 of the Ukrainian Bar Association dated November 19, 2013, a new version of the Procedure for the Preparation by the Chair of the Bar Association of the Autonomous Republic of Crimea, the regions, the cities of Kyiv and Sevastopol, or by a Council member authorized by the Council, of materials concerning administrative offenses (hereinafter—the Procedure).

Paragraph 2 of Section III of the Procedure states that the decision to draw up a report on an administrative offense is made after conducting a review, provided that the attorney’s request, statement (petition), and the materials attached thereto comply with the Law. The review may involve sending written or oral requests to the petitioner and the person subject to administrative liability in order to obtain additional explanations.

In other words, before drawing up a report on an administrative offense, the regional Bar Council gathers explanations from the person subject to administrative liability, verifies compliance with the requirements of Article 24 of the Law of Ukraine “On the Bar and the Practice of Law” regarding a lawyer’s inquiry to which no response was provided or a request for information was denied, or for which a response was not provided in a timely manner, complies with the requirements of Article 24 of the Law of Ukraine “On the Bar and the Practice of Law,” and only then decides whether to draw up a report on an administrative offense.

Paragraph 7 of the same section of the Procedure states that the content of the report must comply with the requirements established by Article 256 of the Code of Administrative Offenses. Paragraph 12 states that the person against whom a report on an administrative offense is being drawn up is offered the opportunity to provide a written explanation and comments regarding the substance of the offense committed, which are included in the report and certified by the signature of that person. Explanations and comments may be attached to the report separately, in which case a note to that effect is made in the report.

One of the requirements of Article 256 of the Code of Administrative Offenses regarding the content of the report is that it must include the explanations of the person subject to administrative liability.  That is, the person provides an explanation regarding the committed administrative offense twice: first during the investigation conducted by the Regional Bar Association, and second when the report on the commission of the administrative offense is drawn up.

However, based on the foregoing, it can be concluded that the Regional Bar Association, prior to drawing up the report on the administrative offense, determines whether the actions of the person subject to administrative liability constitute an administrative offense.

Article 280 of the Code of Administrative Offenses stipulates that the authority (official) considering a case involving an administrative offense is required to determine:

whether an administrative offense was committed;
whether the person in question is guilty of committing it;
whether the person is subject to administrative liability;
whether there are circumstances that mitigate or aggravate liability;
whether property damage was caused;
whether there are grounds for referring the materials regarding the administrative offense to a public organization or a work collective for consideration;
and to determine other circumstances relevant to the proper resolution of the case.

In other words, a court hearing a case involving an administrative offense must, in the course of its proceedings, also determine whether the actions of the person subject to administrative liability constitute an administrative offense.

However, the regional bar association also determines whether the actions of the person subject to administrative liability constitute an administrative offense.

Thus, there is duplication of effort, which in turn delays the procedure for holding a person administratively liable.

2. An excessive caseload for each judge.

Due to the large number of cases and a shortage of staff in the court, judges become overburdened, which consequently delays the adjudication of cases involving administrative offenses.

According to the “Review of Data on the State of the Administration of Justice in 2017”: “…in 2017, the authorized number of judges in local and appellate courts changed. However, despite the reduction in the authorized number of judges, many positions remain vacant. The issues of appointing new judges, electing judges to permanent positions, and transferring judges have remained unresolved for a long time. There are some courts that do not have a single judge authorized to administer justice. This situation increases the workload on judges who do have authority and negatively affects the efficiency and quality of case proceedings.”

3. Numerous postponements of court hearings in cases involving administrative offenses.

When a judge schedules a hearing for an administrative offense case, the proceedings are delayed due to constant postponements for various reasons, again stemming from the judges’ heavy caseload. However, one of the reasons for the constant postponement of a case is the failure of the person subject to administrative liability to appear at court hearings because they were not properly notified of the date and time of the hearing.

Taken together, these factors affect the duration of proceedings in cases involving administrative offenses under Part 5 of Article 212-3 of the Code of Administrative Offenses, and, as a result, judges simply do not have enough time to hear cases involving administrative offenses under Part 5 of Article 212-3 of the Code of Administrative Offenses within the time limits established by law.

In the author’s opinion, to resolve this problem, it is necessary to approve a new procedure for preparing case files on administrative offenses, which would simplify the process of compiling such materials. At the same time, I consider it necessary to amend Article 38 of the Code of Administrative Offenses and extend the time limit for imposing an administrative penalty for committing an administrative offense under Part 5 of Article 212-3 of the Code of Administrative Offenses to 6 (six) months.