Unlawful prosecution can have serious consequences for a person's personal, professional, and psychological life. Cases of unfounded accusations or convictions, unfortunately, do occur in Ukraine. In this regard, a person who has suffered as a result of such actions has the right to compensation for moral damage.
Compensation for damage caused by such actions is provided for by the Law of Ukraine “On the Procedure for Compensation for Damage Caused to a Citizen by Illegal Actions of Bodies Carrying Out Operational-Investigative Activities, Pre-Trial Investigation Bodies, the Prosecutor’s Office and the Court” dated 01.12.1994 (hereinafter also – Law No. 266/94-VR), The Civil Code of Ukraine, the Regulations on the Application of the Law of Ukraine “On the Procedure for Compensation for Damage Caused to a Citizen by Illegal Actions of Bodies Carrying Out Operational and Search Activities, Pre-Trial Investigation Bodies, the Prosecutor's Office and the Court” dated 04.03.1996 (hereinafter also referred to as the Regulations of 04.03.1996).
A citizen has the right to compensation if he or she has suffered damage as a result of:
- unlawful conviction and unlawful reporting of suspicion of committing a criminal offense;
- unlawful arrest and detention;
- illegal conduct of a search or seizure during criminal proceedings;
- unlawful seizure of property;
- illegal dismissal from work (position);
- other procedural actions that restrict the rights of citizens.
In such a case, the citizen is compensated, in particular, for moral damage. The compensation is paid at the expense of the state budget. The right to compensation for damage arises from the court's acquittal.
Payment of moral damages is made if illegal actions of state bodies:
- caused moral damage to a citizen;
- led to the disruption of his normal life relationships;
- require additional efforts from him to organize his life;
Moral damage is also recognized as: physical or mental suffering that:
- inflicted on a citizen as a result of physical or mental impact, which led to the deterioration or deprivation of the opportunity to realize his habits and desires;
- deterioration of relationships with others;
- other negative consequences of a moral nature.
Necessary prerequisites for compensation for damage
According to the legal position highlighted in the resolution of the CCS of the Supreme Court of Ukraine dated November 13, 2019 in case No. 583/1075/16-ts, compensation for moral damage requires the presence of certain prerequisites, namely: establishing the illegality of the actions of the bodies carrying out operational and investigative activities, pre-trial investigation bodies, the prosecutor's office or the court during the investigation of criminal proceedings against a person, as a result of which the latter suffered moral damage.
At the same time, the illegality of a person being under investigation and trial is confirmed by:
- by the issuance of an acquittal;
- establishing in a court verdict of conviction or other court decision the fact of illegal actions of the pre-trial investigation bodies and the prosecutor's office during the conduct of criminal proceedings.
- closing criminal proceedings in connection with:
- the absence of a criminal offense;
- the absence of elements of a criminal offense in the act;
- failure to establish sufficient evidence to prove a person's guilt in court and exhausting the possibilities to obtain it.
In addition, the Supreme Court of Ukraine, dated 08.02.2022 in case No. 201/10234/20, concluded that moral damage was compensated to the person against whom illegal actions of the authorities, provided for by Article 1176 of the Civil Code of Ukraine and Article 4 of Law No. 266/94-VR, took place. without establishing the guilt of the body, which is responsible for compensating for such damage.
Algorithm of actions for compensation for moral damage for illegal criminal prosecution
- Receiving a notice from the court.
After the acquittal becomes final, the court sends the person a notice along with it, which specifies the procedure and deadlines for applying for compensation. The notice lists only those claims to which the citizen has the right to claim.
At the same time, even if such notification is not received, the person has the right to file a lawsuit with a claim for compensation for moral damage.
- Determining the extent of damage.
The amount of moral damage is determined taking into account the circumstances of the case within the limits established by civil legislation. The court establishes the amount of compensation, depending on the nature and extent of the plaintiff's suffering (physical, mental, psychological, etc.), the nature of non-property losses (their duration, possibility of recovery, etc.) and taking into account other circumstances. In this case, the state of health of the victim, the severity of forced changes in his life and work relationships, the degree of decline in prestige, business reputation, as well as the time and effort required to restore the previous state are taken into account. The conclusions are set out in the resolution of the Supreme Court of Ukraine dated 20.03.2019 on the case No. 161/15362/16-ts.
The limits of compensation for moral damage during the period of investigation or trial are determined based on the minimum wage established by law, for each month of stay. In a case where a person was acquitted due to lack of proof of the elements of a criminal offense and was illegally under investigation and trial for 83 months and 24 days, the courts correctly established that this is a basis for compensation for moral damage (Resolution of the CCS of the Supreme Court of Ukraine dated 08.11.2018 in case No. 296/2443/16-ts)
The court is not obliged to determine the amount of compensation for moral damage within the minimum wage for each month of being under investigation or trial. The law only establishes the lowest limit for the amount of such compensation. Therefore the amount of compensation may be greater, than one minimum wage for each month of being under investigation or trial. This legal position is confirmed by the Supreme Court resolutions of 10.01.2019 in case No. 615/448/17 and 16.02.2022 in case No. 686/19887/19.
- Appeal to court.
Cases on compensation for damage caused by illegal decisions, actions or inaction of a body carrying out operational and investigative activities, pre-trial investigation, prosecutor's office or court shall be considered in accordance with the procedure civil proceedings and according to the rules claim (general) proceedings as stated in the resolutions of the Supreme Court of Ukraine dated March 20, 2019 in case No. 161/15362/16-ts and dated February 8, 2022 in case No. 201/10234/20.
The lawsuit is filed with the court that issued the acquittal. In accordance with clause 11, part 2, article 3 of the Law of Ukraine "On Court Fees" and the Regulation of 04.03.1996 court fee is not paid.
Who is the defendant in the case?
The proper defendant is state, which participates in the case through the relevant state authority(ies) related to the contested actions. This approach is set out, in particular, in the Supreme Court resolutions of 11.12.2019 in case No. 207/1728/15-ц and 25.03.2020 in case No. 641/8857/17.
At the same time, the involvement or non-involvement of the State Treasury Service of Ukraine or its territorial body in such categories of disputes does not affect the correctness of determining the proper defendant in the case, since the defendant is the state, and not the State Treasury Service of Ukraine or its territorial body. A similar position is reflected in the resolution of the Grand Chamber of the Supreme Court of November 27, 2019 in case No. 242/4741/16-ц.
The State Treasury of Ukraine cannot be a separate defendant in these cases. Conclusion in the resolution of the Supreme Court of Ukraine dated 08.02.2022 in case No. 201/10234/20.
Is it necessary?'Is an examination required?
If special knowledge is needed to clarify the circumstances regarding the citizen's moral damage, the court maybe appoint an appropriate expert examination. The expert's conclusion is evaluated together with other evidence in the case. The amount of moral damage is determined by the court, taking into account the circumstances of the case, within the limits established by civil legislation.
Case exampleIn the resolution of 08.04.2020 in case No. 464/6418/146-ts, the panel of judges of the Supreme Court noted that the calculations of monetary compensation for moral damage caused to the plaintiff is only a scientific and practical recommendation for determining the nature and degree of moral suffering.
Final day of the period for which moral damages are accrued
The final day of the period for which moral damages are calculated is day of entry into legal force of the acquittal or by a decision to close the criminal proceedings. This was indicated by the Supreme Court in its resolution dated 04.09.2024 in case No. 205/4113/21.
Therefore, when preparing a claim for compensation for damage caused by illegal actions of pre-trial investigation bodies, the prosecutor's office or the court, it is necessary to take into account several key points:.
Firstly, the claim is filed with the court that issued the acquittal, and the defendant is the state, which participates in the case through the relevant state authority(ies). Importantlythat court fees are not charged in such cases. Second, since it concerns moral damage, its extent must be substantiated, in particular taking into account the duration of the illegal investigation or trial and the physical and mental suffering of the victim. It is also necessary to provide relevant evidence confirming the fact of the damage and its consequences. Thirdly, the wording of the claims must be clear and specific, including a claim for compensation for moral damage for each month of unlawful detention or trial, taking into account all the circumstances of the case.
