When the refusal to provide information at the request of a lawyer is lawful: the case law of the Supreme Court

Myroshnychenko Anastasia
05.03.2021
Law Services - When the refusal to provide information at the request of a lawyer is lawful: the case law of the Supreme Court

 A lawyer’s request is the most commonly used method of law
lawyers to obtain the necessary information, copies of documents from public authorities.
However, there are often situations when lawyers are denied the requested information.

In order to avoid situations of misunderstanding between the lawyer and the client, the lawyer must know what nuances should be taken into account when requesting a lawyer. Judicial practice shows that quite often lawyers can respond in providing the requested information.

Thus, in case № 805/2113/17-a dated 21.09.2020, the Supreme Court clarified when they could refuse to provide the requested information.

In this case, the plaintiff stated that he, as a lawyer, asked the defendant for a copy of the documents used by the defendant during the unscheduled documentary on-site inspection of LLC, but the defendant refused to provide such copies with reference to para. 4 h. 1 st. 24 of the Law of Ukraine “On Advocacy and Advocacy”, which provides that the provision of information to the lawyer and copies of documents obtained during the criminal proceedings, is carried out in the manner prescribed by criminal procedure law. However, the plaintiff considers such a refusal illegal, as the defendant’s inspection is not a pre-trial investigation and procedural actions, but carried out to perform the functions of tax administration in accordance with the provisions of the Tax Code of Ukraine. The plaintiff stated that failure to provide him with the requested copies of documents at the request of a lawyer was a violation of his professional rights as a lawyer.

However, the court of first instance, with the position of which the appellate court agreed, leaving the administrative claim unsatisfied, proceeded from the fact that according to the decision of the district court in another case (№335 / 9688/16-k) unscheduled documentary inspection of compliance with tax requirements. legislation of LLC “X” during the purchase and sale of shares of JSC “K”, which is entrusted to the specialists of the State Tax Service in Kyiv, appointed by the court directly in criminal proceedings on the grounds of a crime under part three of Art. 212 of the Criminal Code of Ukraine, and carried out exclusively for the collection of evidence in these proceedings.

Considering the case, the Supreme Court noted that from the moment of entering information about a criminal offense into the Unified Register of Pre-trial Investigations, any information or documents related to the relevant criminal proceedings are provided for review only on the basis and in the manner prescribed by the CPC of Ukraine.

The Supreme Court also stressed that during the consideration of the case by the courts of previous instances it was established that the inspection was conducted by the defendant in accordance with the requirements of subparagraph 78.1.11 of paragraph 78.1 of Article 78 of the Criminal Code of Ukraine, based on the district court decision in case made at the request of the Deputy Head of the Second Department of Investigations of Criminal Proceedings of the Investigative Department of Financial Investigations of the Main Department of the SFS in Zaporizhia region.

Therefore, the documents requested by the plaintiff are related to the relevant criminal proceedings, and therefore, their provision is carried out in the manner prescribed by the CPC of Ukraine. Therefore, the Supreme Court agreed with the conclusions of the courts of previous instances that the defendant had rightly refused to provide such.

In another case № 299/3792/17 dated 22.07.2020, the lawyer tried to obtain the original decisions of the village council for a certain period, but he was denied due to the fact that the requested information contains personal data and access to it is limited. . Disagreeing with this, he went to court.

The claim was upheld by the decision of the court of first instance, upheld by the decision of the appellate court. However, the village council did not agree with the decision of the courts, emphasizing that the appealed court decisions are obliged to provide the plaintiff with the originals, the seizure of which is carried out in exceptional cases.

The Supreme Court noted that the lack of specification in the lawyer’s request that copies of documents are requested, based on the content and purpose of the lawyer’s request and the procedure for access to information provided by these laws, does not give grounds to believe that the plaintiff intended to obtain originals. in the lawyer’s request, as well as does not give grounds to conclude that, choosing the method of protection of the violated rights of the plaintiff, the courts of previous instances imposed on the defendant the obligation to provide at the request of the plaintiff (lawyer) originals of the requested documents.

In addition, the Supreme Court disagreed with the defendant’s argument that by requiring him to provide information and documents at the plaintiff’s request, the courts of previous instances had interfered with his discretion.

The Supreme Court reminded that the powers of subjects of power are not discretionary, when there is only one legitimate and lawful basis

Administrative Law
Administrative Law
Мирошниченко Анастасія
22.07.2021