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COMPENSATION FOR INITIATIVE INVESTIGATION IN CRIMINAL CASES

 Ukrainians may demand compensation from states for poorly conducted criminal investigations. The Grand Chamber of the Supreme Court in Case No. 916/1423/17 gave the relevant position.

 First of all, it should be noted that lawyers say that getting off compensation for a delay or a poorly conducted investigation by an investigator and prosecutor is still extremely rare.

 This ruling only indicates to Themis’ employees the direction for action, and does not mean that the plaintiff will make a positive decision in his case.

 The resolution highlights a number of issues that have already been resolved. In particular, it is necessary to settle the question “there is a right, but there is no mechanism of implementation”.

 Among other things, the court found that although the plaintiff could seek protection of his rights and compensation, the latter could still not equal the amount of damage suffered. In addition, only an individual can receive compensation.

Compensation must come from the level of non-pecuniary damage. At the same time, as the text of the decision, whatever the legal entity claims, does not receive compensation, because the state has no such obligation.

However, this position of the Grand Chamber of the Supreme Court had the first positive result, which in the future will help to remove the issue of compensation from a dead point.

 What to do to get a court to hear a case for damages suffered by an ineffective investigation

The lawsuit should include:

who and to whom the claim is addressed;

– what rights or interests are violated: property or non-property;

-what exactly violated the plaintiff’s rights: by actions, decisions or inaction.

 Who can tolerate inaction and what it is:

Investigator (did not consider the petition in a timely manner, did not carry out investigative actions, did not follow the instructions of the prosecutor, did not comply with the decisions of investigative judges, etc.);

– the head of the pre-trial investigation body (not properly organized effective pre-trial investigation: did not give instructions, did not appoint a group of investigators, did not eliminate the investigator who ineffectively conducted pre-trial investigation, did not satisfy the detention of the investigator if there were grounds, etc.);
 – the prosecutor (do not supervise the observance of the law: did not abolish the unlawful decisions of the investigator (to suspend the proceedings), did not give instructions to the investigator, did not initiate the issue of dismissal of the investigator, did not approve the request of the investigator, etc.). – the head of the prosecutor’s office (did not appoint another procedural head in the case of ineffective pre-trial investigation, unreasonably agreed to the extension of the pre-trial investigation period, did not respond to complaints about non-compliance with reasonable time, etc.).

 What confirms inaction:

court ruling;

– order on imposition of disciplinary sanction;

– instructions without being informed about the status of their implementation (for the victim).

 The recommended procedure for collecting evidence of ineffective investigation is:

  • Appeal to the investigator requesting investigative actions;
  • Appeal to the court with a complaint in the order of item 1 of part 1 of Art. 303 CPC of Ukraine, in case of non-response;
  • Direction of the investigative copy of the resolution to the note and execution (if the complaint is satisfied);
  • Informing the head of the pre-trial investigation body of the receipt of a decision of the court in the investigative unit upon failure to comply with the CCP’s investigative requirements;
  • Repeated request to the investigator (if the previous request was not answered);
  • Informing the procedural supervisor of the investigator’s failure to comply with the requirements of the investigative judge’s decision; informing the head of the pre-trial investigation body about the failure to comply with the requirements of the investigative judge’s decision with the requirement to conduct a formal investigation into this fact;
  • Appeal to the investigating judge with a new complaint in the same manner (if no answer was given);
  • Referral of the resolution of the addressee of the complaint; sending a copy of the ruling of the procedural supervisor, requesting to supervise the observance of the legislation regarding control of the timely response;
  • Appeal to the BDA with a statement on the fact of the presence in the actions of the investigator, the prosecutor of the signs of the criminal offense under Art. 382 of the Criminal Code of Ukraine;
  • Statement to the management of the higher-level unit about conducting an official investigation: upon failure of the investigator to comply with the requirements of the CPC, as well as upon the fact that the head of the pre-trial investigation body of the investigator’s activity was not properly organized by the investigator (in the absence of reaction to item 5);
  • Statement to the management of the higher-level unit about conducting an official investigation: upon failure of the investigator to comply with the requirements of the CPC, as well as upon the fact that the head of the pre-trial investigation body of the investigator’s activity was not properly organized by the investigator (in the absence of reaction to item 5);
  • Recording an admission to the leadership of the Prosecutor’s Office and filing a complaint against a procedural supervisor who fails to meet the requirements for a reasonable time in criminal proceedings (Part 1 of Article 308 of the CPC);
  • Statement by the Head of the Pre-trial Investigation Body to dismiss the investigator; a request for the appointment of a team of investigators (depending on the circumstances);
  • Careful storage of correspondence with all authorities on the occasion.

Author: Andrey Kubov

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