How can protest participants be compensated for property and moral damage caused by law enforcement officers?

A series of legal consultations continues within the framework of the implementation of the project “Protection of Civil and Civic Rights in Ukraine”, which is aimed at promoting transparent and fair elections of the President of Ukraine, as well as overcoming the negative legal consequences of the current socio-political situation.

Compensation to participants of protest actions for property and moral damage caused by government structures

This publication highlights issues related to compensation for property and non-property damage caused to participants of recent protest actions by actions, inaction or decisions of law enforcement, judicial and other state authorities. However, this publication does not address the issue of compensation for damage caused by death or injury to health, since the specifics of such issues require separate attention.

In accordance with Articles 1173 and 1174 of the Civil Code of Ukraine, damage caused to an individual by illegal decisions, actions or inaction of a state authority shall be compensated by the state, regardless of the fault of such authority. At the same time, damage caused to an individual by illegal decisions, actions or inaction of an official or employee of a state authority in the exercise of his or her powers shall be compensated by the state, regardless of the fault of this person.

What does the legislation say about compensation for damage caused by police officers

As expressly provided for in Art. 5 of the Law of Ukraine “On the Police” the police shall perform its tasks impartially, in strict accordance with the law. No exceptional circumstances or instructions of officials may be the basis for any illegal actions or inaction of the police. The police shall also be obliged, if necessary, to take measures to immediately provide medical and other assistance to detained and arrested (taken into custody) persons.

In the event of failure by police officers to comply with the specified requirements, the victim shall be fully compensated for:

earnings and other monetary income that the person lost as a result of illegal actions or inaction of police officers;

property (including money, securities, other valuables), the value of the seized property, if its return in kind and in the same condition has become impossible;

amounts paid by a citizen in connection with the provision of legal assistance to him;

moral damage.

What are the legal prerequisites for compensation for damage by those illegally brought to justice

According to Art. 1176 of the Civil Code of Ukraine, damage caused to an individual as a result of his illegal conviction, illegal criminal prosecution, illegal application of a preventive measure, illegal detention, illegal imposition of an administrative penalty in the form of arrest or corrective labor, is compensated by the state in full, regardless of the fault of officials and employees of the body carrying out operational and investigative activities (which include, in particular, the internal affairs bodies and the Security Service of Ukraine), pre-trial investigation, prosecutor’s office or court.

Art. 2 of 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, Bodies of Pre-Trial Investigation, the Prosecutor’s Office and the Court” (hereinafter referred to as the Law on Compensation for Damage) provides that the right to compensation for damage caused by illegal actions of the specified bodies arises in cases of:

a court’s acquittal;

closure of criminal proceedings due to the absence of a criminal offense event, the absence of elements of a criminal offense in the act or the failure to establish sufficient evidence to prove the guilt of a person in court and the exhaustion of opportunities to obtain it;

closure of a case on an administrative offense.

In the above cases, the citizen shall be compensated (returned):

earnings and other monetary income that he lost as a result of illegal actions;

property confiscated or turned over to the state by the court, seized by pre-trial investigation bodies, bodies carrying out operational search activities, as well as property that has been seized;

fines collected to enforce a court verdict, court costs and other expenses paid by the citizen;

amounts paid by the citizen in connection with the provision of legal assistance to him;

moral damage.

How is property damage determined

According to the provisions of the law, property damage subject to compensation consists of loss of earnings (income) and/or loss (damage, seizure) of property, including money. Loss of earnings means the loss of all types of wages and other income (including income from entrepreneurial or independent professional activities()..

Article 4 of the Law on Compensation for Damages provides that the amount of amounts subject to compensation is determined taking into account the earnings not received by a citizen during the period of suspension from work (position), during the period of serving a criminal sentence or corrective labor as an administrative penalty.

What does the law mean when speaking of compensation for moral damage

As provided for in Article 5 of the Law of Ukraine “On Police” and Article 4 of the Law on Compensation for Damages, compensation for moral damage is carried out in cases where illegal actions or inaction of employees of government agencies caused moral loss to a citizen, moral suffering, led to a violation of his normal life relationships, and required additional efforts from him to organize their lives. Moral damage is considered to be suffering caused to a citizen as a result of physical or mental impact, which led to the deterioration or deprivation of the ability to realize their habits and desires, deterioration of relations with others, other negative consequences of a moral nature.

Article 13 of the Law on Compensation for Damages provides that the amount of moral damage is determined taking into account the circumstances of the case within the limits established by civil legislation. In this case, compensation for moral damage during the period of investigation or trial is carried out based on the amount of not less than one minimum wage for each month of being under investigation or trial.

What you should know when filing a claim for compensation for damage

Cases regarding compensation for damage caused to participants in protest actions are resolved, as a rule, within the framework of civil claim proceedings. According to Article 21 of the Code of Administrative Procedure of Ukraine, the requirements for compensation for damage are considered within the framework of an administrative case only if they are filed in the same proceedings with other claims resolved by administrative courts (for example, simultaneously with a claim to oblige an executive body to take certain actions or make a certain decision).

Since the damage caused by state authorities (their officials) is compensated at the expense of the state budget, the defendants in such cases will be the state authorities themselves and the territorial bodies of the State Treasury Service of Ukraine, which have the status of legal entities.

According to the general rule of civil proceedings, a claim is filed at the location of the defendant, however, in cases of compensation for damage, the Civil Procedure Code of Ukraine provides for an exception.. According to Art. 110 of the Code, claims for compensation for damage caused as a result of a crime may be filed at the registered place of residence or stay of the plaintiff, or at the place where the damage was caused. Claims related to compensation damage caused to a person by illegal decisions, actions or inaction of the body carrying out operational-search activities, pre-trial investigation, prosecutor’s office or court, may be filed at the registered place of residence or stay of the plaintiff. In addition, claims for compensation for damage caused to the property of individuals or legal entities may also be filed at the place of infliction of damage.

For filing a claim for compensation for damage caused to a person by illegal decisions, actions or inaction of a state authority, its official or employee, as well as illegal decisions, actions or inaction of bodies carrying out operational-search activities, pre-trial investigation bodies, prosecutor’s office or court, no court fee is charged (clause 13, part 2, article 3 of the Law of Ukraine “On Court Fee”).

It should also be noted that in addition to substantiating the fact and amount of damage caused in the summons statement, the submitted statement should be accompanied by documents confirming the arguments provided. These include procedural documents confirming the facts mentioned in Article 2 of the Law on Compensation for Damage (resolution on the closure of criminal proceedings in the absence of a criminal offense, etc.), salary certificates (tax declarations of an individual entrepreneur), certificates from medical institutions, materials of examinations (medical, technical, etc.).

Given the mass nature of the protests, certain facts will be legitimately established on the basis of witness statements (beating, undocumented detention, infliction of moral damage). A motion to summon witnesses to a court hearing may be contained directly in the statement of claim, or filed during the court hearing at the stage of a preliminary court hearing. and if a preliminary court hearing in the case is not held – before the start of consideration of the case on the merits (Article 27 and Article 130 of the Code of Civil Procedure of Ukraine).