The Administrative Court of Appeal recognize legal a refusal to enter the data to the SRAU on the basis of the illegitimate certificate of the QDBC of Kyiv
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The Sixth Administrative Court of Appeal found it legitimate not to submit data to the SRAU about an advocate who received a certificate of the right to engage in advocacy in the QDBC of Kyiv during the prohibition on issuing such certificates by a decision of the BCU.
The decision was passed on April 10, 2019, at the lawyer's suit to the UNBA. The plaintiff considered the UNBA's actions illegal to remove public information about him from the Single Register of Attorneys of Ukraine from the open access and asked for the restoration of such data.
By the decision of the Kyiv District Administrative Court on January 16, 2019, the administrative claim was fully dismissed.
By refusing to satisfy the claims, the court of first instance proceeded from the fact that in this case, the UNBA had not committed any violations of the law, and the plaintiff has not provided evidence that would confirm the disclosure of information about him in the SRAU, as well as from the fact that on 13/06/2016 The plaintiff applied for information about him to the SRAU to the Kyiv Bar Council, in which such information was filed in violation of the decision of the Bar Council of Ukraine dated June 11, 2016, No. 156 on the prohibition of such actions, as well as the fact that, what is the Bar Council of Ukraine as a ministrator second level empowered to remove information about an individual SRAU.
Disagreeing with such a court decision, the plaintiff filed the appeal, referring to the fact that the BCU resolution dated June 11, 2016, No. 156 deprives lawyers of the possibility of advocacy, that the presence of disputes concerning the legitimacy of the Kyiv Regional Tax Administration cannot be the basis for extracting information about an advocate from SRAU and that such an action applies only in the case of bringing the lawyer to disciplinary responsibility.
In addition, the appellant noted that the Head of UNBA and BCU personally congratulated him on the occasion of the Day of Advocacy - he received an immortal greetings on the e-mail with a professional holiday from the site of the UNBA, which was sent to the e-mail addresses of all news subscribers of the site. The e-mail received by him, in his opinion, deserves attention in confirmation of his legal position.
The appellant also referred to the decisions of the courts of the first and appellate courts, which he considers to have been adopted in similar circumstances and the parties to the dispute.
The respondent insisted on the unpredictability of the arguments of the appellant and noted that information about him in the EARU administrator of the second level - BCU was not confirmed on the basis of the decision of the BCU dated June 11, 2016, No. 156 that the maintenance of the SRAU is carried out by the BCU and that the provision of excerpts from the SRAU by the administrator the first level - the Council of Advocates in Kyiv without their confirmation by the BCU with the display on the UNBA website in general is to provide inaccurate information and is contrary to Art. 17 of the Law of Ukraine "On Advocacy and Advocacy", which corresponds to the legal conclusions of the Grand Chamber of the Supreme Court, set forth in the Resolution of 07.11.2018 in the case No. 607/3128/16-th.
The Administrative Court of Appeal came to the conclusion that the legislation regulates a two-stage procedure for the introduction of lawyers' data to the SRAU: the first level administrator - the Council of Advocates of the region and the second level administrator - the BCU, which has the authority to exercise control over the activity of the advocates of the regions for the data entry to the SRAU, providing excerpts from SRAU and ensuring the maintenance of the official website of UNBA.
At the same time, only after the BCU's approval of the data submitted to the SRAU by the council of advocates of the region, they become the status of the information (information), become active and open and subject to disclosure on the official website of the UNBA.
A similar legal position is set out in the ruling of the Grand Chamber of the Supreme Court dated November 7, 2018 in the case No. 607/3128/16-t.
While reviewing the grounds of the appeal, the panel of judges draws attention to the fact that the data about the plaintiff as an advocate was submitted to the SRAU only by the Council of Advocates of Kyiv, that is, the administrator of the first level, but the BCU were not approved, according to the status of information (information) in the sense of Law No. 5076-VI and Order No. 26 were not published and the UNBA official website was not published.
However, an extract from the SRAU dated June 13, 2016 No. 012430 issued by the Kyiv City Bar Council, to which the appellant refers, does not confirm the completion of the aforementioned statutory procedure for the introduction of information about an advocate to the SRAU and their promulgation on the official website of UNBA both active and open, but indicates that the regional council has made certain actions as the first level administrator. That is, such an extract is not a valid and admissible evidence of the subject of evidence in the present case, and no other evidence has been provided either to the court of first instance or to the appellant during the appeal proceedings.
At the same time, the Court of Appeal notes that at the time of the petition of the plaintiff to the Council of Advocates of Kyiv with a statement regarding the submission to the SRAU of the data about him, the BCU had already taken a decision dated June 11, 2016, No. 154, which was prohibited precisely by the Kyiv City Bar Council to submit to SRAU the information about the persons who received the received certificates on the right to practice advocacy on the basis of certificates of completion of the qualification exam issued by the non-authorized body - the Kyiv city QDBC, starting from 12.10.2012.
Consequently, the prohibition established by the above-mentioned decision of the BCU applied to the submission of information about the plaintiff to the SRAU and the evidence that would confirm the recognition in accordance with the procedure established by the legislation, the BCU's decision was unlawful and / or canceled by the plaintiff to the court.
However, in accordance with the requirements of Law No. 5076-VI, the BCU Resolution dated June 11, 2016, No. 154 was binding on the said council of advocates of the region, and it was authorized by the BCU to exercise control over the activity of councils of advocates of the regions, that is, the Council of Advocates Kyiv, concerning data entry to the SRAU and provision of excerpts from SRAU.
Thus, the panel of judges agrees with the conclusions of the court of first instance that the information about the plaintiff in general was not subject to the submission by the Bar Council of Ukraine to the SRAU, and in case of their disclosure, the BCU as an administrator of the second level was immediately required to be removed.
Moreover, the appellate court draws attention to the fact that the authority to exercise control over the activities of the advocates of the regions for the data entry to the SRAU, the provision of extracts from the SRAU and the maintenance of the official website of the UNBA were provided directly to the Bar Council of Ukraine.
Taking into account the above circumstances and evidence in their totality, taking into account the legal position of the Supreme Court set forth in the said resolution dated November 8, 2018 regarding the administrative jurisdiction of the dispute, the panel of judges agrees with the conclusions of the court of first instance regarding the lack of legal grounds for satisfying the administrative claim in to this case.
The appellant's arguments that the decision of the BCU of June 11, 2016 No. 156 deprives lawyers of the opportunity to exercise advocacy, the appellate court does not take into account the fact that this decision of the BCU is not the subject of the dispute in this case, the relevant claims in the court of first instance are not were declared and according to Part 5 of Art. 308 of the APC of Ukraine, the court of appeal may not consider the claims and the grounds of the claim that were not filed in the court of first instance.
The petitioner's assertion that the existence of disputes concerning the legitimacy of the Kyiv Regional Court of Appeal cannot serve as a basis for extracting information about an advocate from EARU that such an action is applicable only in the case of bringing an advocate to disciplinary liability is ungrounded in the light of the foregoing.
The petitioner's reference to the fact that the Head of UNBA and BCU personally congratulated him on the occasion of the Day of Advocates, in no way confirm the existence of legal grounds for his claim in this case, and the court will not be taken into consideration.
Having analyzed all the arguments of the appellant, the panel of judges considers that they do not refute the correctness of the conclusions of the court of first instance, which fully and correctly established the circumstances of the case and adopted a judicial decision complying with the rules of substantive and procedural law.
The court decided to leave the appeal without satisfaction, and the decision of the District Administrative Court of Kyiv on January 16, 2019 - unchanged.
The resolution is valid from the date of its adoption and can be appealed by submitting a cassation appeal directly to the Supreme Court in the manner and in the timeframe specified in Art. 328-331 APC of Ukraine.
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