Many people who have ever had dealings with law enforcement officers during a search, arrest, or other investigative action experience an overwhelming sense of vengeance, a desire for justice, and an urge to punish the law enforcement officers who, in their opinion, acted inappropriately.  In such cases, most people begin filing reports of criminal conduct with other law enforcement agencies, as well as complaints with higher authorities, the prosecutor’s office, the president, and so on. However, for the most part, such actions do not lead to the expected result.

Perhaps the most effective way to protect a violated right in such a case is to file a separate lawsuit seeking compensation for damages caused by the unlawful actions of law enforcement agencies.

The procedure for compensating for damages caused by unlawful actions of such agencies in Ukraine is governed by both the provisions of the Civil Code and the special law “On the Procedure for Compensating for Damages Caused to a Citizen by Unlawful Actions of Agencies Conducting Operational and Investigative Activities, pre-trial investigation bodies, the prosecutor’s office, and the courts.” 

In accordance with the provisions of this law, damages caused to a citizen as a result of the following are subject to compensation:

1) unlawful conviction, unlawful notification of suspicion of committing a criminal offense, unlawful arrest and detention, unlawful search or seizure during criminal proceedings, unlawful seizure of property, unlawful suspension from work (from office), and other procedural actions that restrict the rights of citizens;

2) the unlawful imposition of administrative arrest or corrective labor, the unlawful confiscation of property, or the unlawful imposition of a fine;

3) the unlawful conduct of operational-investigative measures provided for by the Laws of Ukraine “On Operational-Investigative Activity,” “On the Organizational and Legal Foundations for Combating Organized Crime,” and other legislative acts.

Given the wording “other procedural actions,” it can be stated with certainty that the list of such actions resulting in harm is not exhaustive. The sole condition for proving a claim is that such actions restrict citizens’ rights.

For example, such actions may include failure to enter information into the unified register of pretrial investigations or failure to return property temporarily seized during a search.

Article 2 of the law stipulates that the right to compensation for damages arises not only in cases where a court issues an acquittal, but also when a court’s guilty verdict or other judicial decision establishes the fact of an unlawful notification of suspicion of committing a criminal offense, unlawful arrest and detention, unlawful conduct of a search or seizure during criminal proceedings, unlawful seizure of property, unlawful suspension from work (office), and other procedural actions that restrict or violate the rights and freedoms of citizens; the unlawful conduct of investigative operations; as well as the dismissal of criminal proceedings due to the absence of a criminal offense, the absence of the elements of a criminal offense in the act, or the failure to establish sufficient evidence to prove a person’s guilt in court and the exhaustion of all possibilities to obtain such evidence; and the dismissal of cases involving administrative offenses.

In the reality of the modern judicial system, one often has to wait years for a guilty verdict, let alone an acquittal. Furthermore, there is no certainty that—even in the event of a guilty verdict—the fact of unlawful actions by law enforcement agencies, the prosecutor’s office, or the court will be established.

Consequently, one most often has to seek another court decision that can establish the unlawful actions of law enforcement agencies or the prosecutor’s office. Such a court decision may include, in particular, a court order requiring the pretrial investigation agency to take a specific action: to enter information into the unified register of pretrial investigations, to return property seized during a search, or to overturn an investigator’s ruling. After all, it is precisely through such a ruling, following the review of complaints, that the fact of a violation of citizens’ rights by a law enforcement agency is established.

As for what one can expect when filing a claim for compensation, it is worth noting that, in addition to property, cash, securities, assets that have been confiscated or forfeited to the state, as well as fines and court costs, the law grants the right to compensation for lost wages and other income resulting from unlawful actions by law enforcement agencies, the prosecutor’s office, or the court. The law also grants the right to compensation for non-pecuniary damages resulting from unlawful actions by law enforcement agencies, the prosecutor’s office, or the court.

Pursuant to Article 13 of the Law, the amount of compensation for non-pecuniary damage is determined taking into account the circumstances of the case within the limits established by civil law.

Compensation for non-pecuniary damages for the period spent under investigation or on trial is calculated based on an amount not less than one minimum wage for each month spent under investigation or on trial.

Thus, just as under the general rule for compensation for non-pecuniary damages and under the provisions of this special law, the amount of non-pecuniary damages is determined taking into account the circumstances of the case.

At the same time, with regard to compensation for damages during the period of pretrial detention or trial, such compensation is calculated based on an amount not less than one minimum wage for each month spent in pretrial detention or on trial.

In other words, the law establishes a minimum threshold for non-pecuniary damages, below which the court is unable to calculate the amount of such damages when rendering a decision, and which is accordingly calculated based on an amount not less than one minimum wage for each month. This amount of non-pecuniary damages represents the minimum and maximum level guaranteed by the state.

A sound approach is for the plaintiff to seek an expert opinion on the amount of non-pecuniary damages when calculating such damages. For the court, the expert opinion should not be decisive, but it will significantly help the court gain a more detailed understanding of the plaintiff’s psychological characteristics, emotional reactions, and the presence of emotional distress, and thus reach a more well-founded conclusion regarding the amount of non-pecuniary damages.

As stated in Resolution No. 4 of the Plenum of the Supreme Court of Ukraine dated March 31, 1995, “On Judicial Practice in Cases Concerning Compensation for Moral(non-property) damage,” in accordance with current legislation, moral damage may consist, in particular, of: humiliation of honor, dignity,  prestige, or business reputation; in emotional distress resulting from harm to health; in the violation of property rights   (including intellectual property), rights granted to consumers, and other civil rights; in connection with unlawful detention during investigation and trial;  in the disruption of normal life circumstances due to the inability to continue an active social life, the disruption of relationships with others, and the occurrence of other negative consequences.

Undoubtedly, an expert assessment will help determine the specific nature of the moral harm in each of the categories listed above.