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JSB “PRIKHODKO & PARTNERS” RECOVERED HALF MILLION GRIVEN FROM THE PROSECUTOR’S OFFICE

In continuation of the article on compensation for damage caused by law enforcement agencies we share the result.

In March 2021, JSB “Prikhodko and Partners” filed a lawsuit with the Kyiv City Prosecutor’s Office, according to which it asked the court to recover from the State Budget of Ukraine in its favor property damage in the amount of 142,408.56 UAH, 280,000.00 UAH costs for professional legal assistance and UAH 1,000,000.00 in non-pecuniary damage by debiting funds from the single treasury account.

In support of the claims it is stated that on November 28, 2019 he was detained on suspicion of committing criminal offenses under Part 2 of Article 15, Part 4 of Article 190 of the Criminal Code of Ukraine.

On November 29, 2019, the court ruled to choose a measure of restraint in the form of detention, the validity of which lasted until April 28, 2020.
However, on 27.04.2020 in the specified criminal proceedings the decision according to Art. 284 of the CPC of Ukraine on the closure of criminal proceedings against the suspect in connection with the absence in his actions of a criminal offense, the relevant resolution was adopted and in accordance with Art. 205 of the CPC of Ukraine was released from custody.

Thus, the closure of criminal proceedings due to the absence of a criminal offense in the actions of a person indicates the commission of illegal actions by bodies conducting operational and investigative activities, pre-trial investigation, prosecution or court, and is sufficient grounds to compensate the person for such actions , and do not require additional establishment by the court.

Consequently, there are grounds for compensation for material and moral damage, referring to the case law of the European Court of Human Rights, the Convention for the Protection of Human Rights, as well as Art. 1176 of the Civil Code of Ukraine and the Law of Ukraine “On the procedure for compensation for damage caused to a citizen by illegal actions of the bodies of inquiry, preliminary investigation, prosecutor’s office and court.”

The decision of the Pechersk district court of Kyiv of March 26, 2021 opened proceedings in the case of general claim proceedings. The defendant was invited to file a response to the lawsuit.

By the decision of the Pechersk District Court of Kyiv of June 30, 2021, the preparatory proceedings in the case were closed and the case was assigned for trial.

The defendant was not recognized by the Kyiv Regional Prosecutor’s Office in the response, it was stated that the plaintiff did not provide and the case file does not contain adequate evidence of non-pecuniary damage, and the claimed amount of compensation or court. It is stated that the plaintiff did not provide the court with calculations of costs, confirming the specific amount of services provided by the plaintiff’s lawyers, their direct content and detailed description, evidence of costs necessary to provide legal assistance.

Having considered the case in court, clarified the circumstances of the case and verified their evidence by examining the written evidence in the case file, assessing them together, established the following circumstances and came to the following conclusions.
The task of civil proceedings is fair, impartial and timely consideration and resolution of civil cases in order to effectively protect violated, unrecognized or disputed rights, freedoms or interests of individuals, rights and interests of legal entities, interests of the state.

The court found that on 13.11.2019 the Department of Procedural Guidance in especially important criminal proceedings of the Prosecutor General’s Office of Ukraine launched a pre-trial investigation in criminal proceedings .

On November 15, 2019, the above-mentioned criminal proceedings were merged and the pre-trial investigation under №42019000000002402 was continued.

On November 28, 2019, an investigator of the Investigation Department of the Main Directorate of the National Police in Kyiv detained a citizen of the Republic of Cameroon on suspicion of committing criminal offenses under Part 2 of Article 15, Part 4 of Article 190 of the Criminal Code of Ukraine.

Subsequently, on November 28, 2019, the detainee was informed about the suspicion of committing the above criminal offense under Part 2 of Article 15, Part 4 of Article 190 of the Criminal Code of Ukraine, according to which the suspect committed a completed attempt to seize property of two persons by abuse of trust, committed on a particularly large scale.

On November 29, 2019, the investigating judge of the Shevchenkivsky District Court of Kyiv ruled to choose a measure of restraint in the form of detention. According to the decision of the Shevchenkivsky District Court of Kyiv of March 25, 2020, the precautionary measure within the pre-trial investigation was extended until April 28, 2020 inclusive.

On April 27, 2020, the head of the group of prosecutors in the specified criminal proceedings – Deputy Chief of the Third Department of Procedural Management in the pre-trial investigation by territorial police bodies and support of the state prosecution in the court of supervision in criminal proceedings of the Kyiv Prosecutor’s Office. 284 of the CPC of Ukraine on the closure of criminal proceedings against the suspect in connection with the absence in his actions of a criminal offense under Part 2 of Article 15, Part 4 of Article 190 of the Criminal Code of Ukraine and in accordance with Art. 205 of the CPC of Ukraine was released from custody.

In accordance with the provisions of Art. 15, 16 of the Civil Code of Ukraine, every person has the right to defend his civil rights in court in case of violation, non-recognition or challenge and protection of their interests, which does not contradict the general principles of civil law, in particular by compensating moral damages.

According to Article 19 of the Constitution of Ukraine, state authorities and local self-government bodies, their officials are obliged to act only on the basis, within the powers and in the manner prescribed by the Constitution and laws of Ukraine.

According to Article 56 of the Constitution of Ukraine, everyone has the right to compensation at the expense of the state or local governments for material and moral damage caused by illegal decisions, actions or omissions of public authorities, local governments, their officials and officials in the exercise of their powers.

According to Part 1, Article 2. 1176 of the Civil Code of Ukraine damage caused to an individual as a result of his illegal conviction, illegal prosecution, illegal application of precautionary measures, illegal detention, illegal administrative penalty in the form of arrest or correctional labor, reimbursed by the state in full regardless of the fault of officials the body carrying out operational and investigative activities, pre-trial investigation, prosecutor’s office or court. The right to compensation for damage caused to an individual by illegal actions of the body carrying out operational and investigative activities, pre-trial investigation, prosecutor’s office or court, arises in cases provided by law.
Paragraph 1 of Part 1 of Art. 1 of the Law of Ukraine “On the procedure for compensation for damage caused to a citizen by illegal actions of bodies conducting operational and investigative activities, pre-trial investigation, prosecutor’s office and court” provides that in accordance with the provisions of this Law notification of suspicion of committing a criminal offense, illegal detention and detention, illegal search, seizure, illegal seizure of property, illegal dismissal and other procedural actions restricting the rights of citizens.

Part 2 of Art. 1 of the Law of Ukraine “On the procedure for compensation for damage caused to a citizen by illegal actions of bodies conducting operational and investigative activities, pre-trial investigation, prosecutor’s office and court” provides that in the cases referred to in part one of this article through the fault of officials of bodies carrying out operational and investigative activities, pre-trial investigation, prosecutor’s office or court.

In accordance with paragraph 2 of Part 1 of Art. 2 of the Law of Ukraine “On the procedure for compensation for damage caused to a citizen by illegal actions of bodies conducting operational and investigative activities, pre-trial investigation, prosecutor’s office and court” the right to compensation in the amount and manner prescribed by this Law in the absence of an event of a criminal offense, the absence in the act of a criminal offense or failure to establish sufficient evidence to prove the guilt of a person in court and the exhaustion of opportunities to obtain them.

In the cases specified in Article 1 of this Law, the citizen shall be reimbursed (returned), in particular, earnings and other monetary income that he lost as a result of illegal actions; amounts paid by a citizen in connection with the provision of legal assistance (Article 3 of this Law).

Article 4 of the Law of Ukraine “On the Procedure for Compensation for Damage Caused to a Citizen by Illegal Actions of Bodies Carrying Out Investigative Activities, Pre-trial Investigation Bodies, Prosecutor’s Office and Court” provides that compensation for damage in cases provided for in paragraphs 1, 3, 4 and 5 of Article 3 of this Law, is carried out at the expense of the state budget. Compensation for non-pecuniary damage is provided when illegal actions of bodies conducting operational and investigative activities, pre-trial investigation, prosecutor’s office and court caused moral damage to a citizen, led to disruption of his normal life ties, require additional efforts to organize his life. Suffering caused to a citizen as a result of physical and mental influence, which led to the deterioration or deprivation of opportunities to realize their habits and desires, deterioration of relations with others, and other negative consequences of a moral nature.
Paragraph 2 part 2 of Art. 1167 of the Civil Code of Ukraine provides that non-pecuniary damage is compensated regardless of the fault of a public authority, authority of the Autonomous Republic of Crimea, local government, natural or legal person who caused it, if the damage was caused to an individual as a result of his illegal conviction , illegal application of a preventive measure, illegal detention, illegal imposition of an administrative penalty in the form of arrest or correctional labor.

In accordance with Part 2-3 of Art. 13 of the Law of Ukraine “On the procedure for compensation for damage caused to a citizen by illegal actions of bodies conducting operational and investigative activities, pre-trial investigation, prosecutor’s office and court” the amount of non-pecuniary damage is determined taking into account the circumstances within civil law. Compensation for non-pecuniary damage during the investigation or trial is based on at least one minimum wage for each month of investigation or trial.

Article 23 of the Civil Code of Ukraine stipulates that a person has the right to compensation for moral damage caused as a result of violation of his rights.

Part 2 of Art. 23 of the Civil Code of Ukraine stipulates that moral damage may consist in:

  • physical pain and suffering suffered by an individual in connection with an injury or other damage to health;
  • mental suffering suffered by an individual in connection with illegal behavior towards himself, members of his family or close relatives;
  • mental suffering suffered by an individual in connection with the destruction or damage to his property;
  • humiliation of the honor and dignity of an individual, as well as the business reputation of an individual or legal entity.

In the event of the closure of criminal proceedings in the case of a suspect for lack of corpus delicti, the person is entitled to reimbursement of legal aid costs incurred during the illegal criminal prosecution.

Therefore, in connection with the closure of the criminal proceedings due to the absence in the actions of PERSON_2 signs of criminal proceedings, the latter is entitled to reimbursement of legal costs.

Thus, on December 19, 2019, PERSON_2 and the Law Office “Prikhodko and Partners” entered into an agreement on the provision of legal assistance № 08 / 12-19. On the basis of this agreement, Prikhodko & Partners Law Office provided protection in criminal proceedings №41219000000002402.

On December 19, 2019, the suspect and the Prikhodko & Partners Law Firm concluded an Additional Agreement № 1 to the Legal Aid Agreement № 08 / 12-19 of December 19, 2019, which provided for the procedure for payment for professional legal assistance.

Pursuant to Clause 2 of the Supplementary Agreement № 1 to the Legal Aid Agreement № 08 / 12-19 of December 19, 2019, the cost of the Law Office’s services is calculated based on the hourly rate set by the Law Office for Lawyers’ Lawyers and the time spent on fulfillment of the Client’s task.

Pursuant to Clause 3 of the Supplementary Agreement № 1 to the Legal Aid Agreement № 08 / 12-19 of December 19, 2019, the Law Office sets an hourly rate for each lawyer, on the basis of which the Law Office’s fee is calculated.

The size of the hourly rate of lawyers is:

  • for the managing partner – UAH 5,500. for 1 year
  • for another lawyer – UAH 2,500. for 1 year

Pursuant to Clause 2 of the Additional Agreement to the Legal Aid Agreement № 08 / 12-19 of December 19, 2019, the amount of the fee under this Additional Agreement shall be paid by the Client on the basis of the delivery and acceptance agreement signed by the parties. № 08 / 12-19 dated 19.12.2019.

25.04.2020 to fulfill the terms of the Additional Agreement to the contract for legal aid № 08 / 12-19 from 19.12.2019 Law Office “Prikhodko and Partners” and PERSON_2 signed an Act of delivery-acceptance of work performed in accordance with the Contract for legal aid № 08 / 12-19 dated 19.12.2019.

According to the Act of delivery-acceptance of works performed in accordance with the Agreement on Legal Aid № 08 / 12-19 of 19.12.2019, the total time spent by lawyers of the Law Office to provide professional legal assistance to the Client in criminal proceedings № 41219000000002402 in accordance with the Agreement on legal aid № 08 / 12-19 dated 19.12.2019, is 92.8 hours. The total amount payable for the professional legal assistance of lawyers of the Law Office is 280,000 (two hundred and eighty thousand) hryvnias.

Additionally, on April 27, 2020, the suspect and the Law Office “Prikhodko and Partners” concluded an Additional Agreement № 2 to the Agreement on Legal Aid № 08 / 12-19 dated 19.12.2019. By this agreement, the suspect authorized the Prikhodko & Partners Law Firm to recover damages in the manner and under the terms of the Law of Ukraine “On Compensation for Damage Caused to a Citizen by Illegal Actions of Investigative Bodies, Pre-Trial Investigations, Prosecutor’s Office and Court”. He also instructed Prikhodko & Partners Law Firm to obtain reimbursed damages to the Law Firm’s current account.

The suspect paid a fee of UAH 280,000 (two hundred and eighty thousand) to the Prikhodko & Partners Law Firm, which is confirmed by the receipt № ПН55591 attached to the statement of claim, which states the purpose of payment “For granted / rights”. dop. resp. to the additional agreement № 2 to the contract № 08 / 12-19 from 19.12.2019 from PERSON_5 ».

In this regard, the plaintiff has the right to reimbursement of legal costs in the amount of UAH 280,000.00. in accordance with the Law of Ukraine “On the Procedure for Compensation for Damage Caused to a Citizen by Illegal Actions of Bodies Carrying Out Operational and Investigative Activities, Bodies of Pre-Trial Investigation, Prosecutor’s Office and Court”.

In addition, the suspect from 31.10.2017 to 31.12.2020 studied at the Kharkiv National University of Radio Electronics. During the above period of study he paid 5133.69 dollars. USA, which is confirmed by the response of 01.09.2020 № 04 / 17-663 of the University to the lawyer’s request from 17.08.2020 № 07 / 08-20.

On December 31, 2019, he was expelled from the university in connection with the expiration of his term of study, as one who fully complied with the curriculum, but was not certified due to non-attendance at the meeting of the examination commission.

Due to the detention on suspicion of committing a crime, the latter did not have the physical ability to appear at the meeting of the examination commission and pass the exam.

Given the fact that the criminal proceedings were closed for lack of corpus delicti, indicating the illegality of the pre-trial investigation and court, the student suffered property damage in the amount of tuition at Kharkiv National University of Radio Electronics, because it was due to illegal actions of the student to appear at the meeting of the examination commission and pass the exam, which was the reason for expulsion from the university.

The amount of property damage at the time of filing a lawsuit in national currency in accordance with the official exchange rate of the NBU is equivalent to 142 408, 56 UAH.

Justifying the amount of non-pecuniary damage, the plaintiff points out that the actions of the pre-trial investigation body, the prosecutor’s office and the court regarding the illegal accusation of a criminal offense caused the latter non-pecuniary damage in the form of mental suffering and humiliation. The task of moral damage is due to the following factors: public accusation of him in committing a particularly serious crime under Part 2 of Article 15, Part 4 of Article 190 of the Criminal Code of Ukraine; illegal long-term criminal prosecution; deprivation of his liberty; stay in the Kyiv Remand Prison; deductions from Kharkiv National University of Radio Electronics.

Thus, the amount of monetary compensation for non-pecuniary damage is determined by the court depending on the nature of the offense, the depth of physical and mental suffering, deterioration of the victim’s abilities or deprivation of their possibility, the degree of guilt of the person who caused non-pecuniary damage. other circumstances that are significant. In determining the amount of compensation takes into account the requirements of reasonableness and fairness.

Suffering caused to a citizen as a result of physical or mental influence, which led to the deterioration or deprivation of opportunities to realize their habits and desires, deterioration of relations with others, and other negative consequences of a moral nature.

According to the current legislation, moral damage may consist, in particular: in humiliation of honor, dignity, prestige or business reputation, moral distress due to damage to health, violation of property rights, rights granted to consumers, other civil rights, in connection with connection with illegal detention under investigation and trial, in violation of normal life ties due to inability to continue active public life, violation of relations with others, in the event of other negative consequences (paragraph 3 of the Plenum of the Supreme Court of Ukraine №5 of May 25, 2001 year “On judicial practice in cases of compensation for moral (non-pecuniary) damage”).

Paragraph 5 of this resolution states that in accordance with the general grounds of civil liability, the following must be clarified when resolving a dispute over compensation for moral (non-pecuniary) damage: the presence of such damage, the illegality of its perpetrator, the causal link between the damage and the wrongful act of the perpetrator and the guilt of the latter in its infliction The absence of at least one of these elements excludes liability for damage. Tort liability, as a general rule, occurs only if the perpetrator is at fault.
The European Court of Human Rights has noted that the assessment of non-pecuniary damage is a complex process, except where the amount of compensation is established by law (STANKOV v. BULGARIA (Bulgaria) § 62, ECtHR of 12 July 2007).
Thus in tortious legal relations the plaintiff is obliged to prove existence of damage and its size, illegality of behavior of the inflictor of damage and causal connection of such behavior with the caused damage.

Determining the amount of non-pecuniary damage is not the minimum amount is the right of the court, taking into account Art. 23 of the Civil Code of Ukraine and the Resolution of the Plenum of the Supreme Court of Ukraine of March 31, 1995 № 4 “On Judicial Practice in Cases of Compensation for Moral (Non-pecuniary) Damage”.

Thus, the law determines the minimum amount of non-pecuniary damage that is compensated, and does not set a maximum amount of such damage.

The court counts the beginning of the term of detention under investigation from the moment of his actual detention on suspicion – from 28.11.2019 to 27.04.2020, therefore, the total period of stay of the plaintiff under investigation and court is 5 months.
Thus, taking into account the above, the court concluded that the plaintiff was correctly determined the amount of property damage, which is unconditionally recoverable, because the plaintiff proved the circumstances to which he refers, and the other was not submitted to the court to refute.

At the same time, the court considers the amount of non-pecuniary damage claimed by the plaintiff to be excessive, because in determining the amount of non-pecuniary damage the court must be guided by the principles of moderation, reasonableness, fairness. enrichment, take into account the period of stay of the plaintiff under investigation and trial.

According to Article 77 of the CPC of Ukraine, the subject of proof are the circumstances that confirm the stated requirements or objections or have other significance for the case and are subject to establishment when making a court decision.
In accordance with Part 3 of Art. 12, Part 1, Article 6 81 GIC of Ukraine, each party is obliged to prove the circumstances to which it refers as the basis of its claims and objections, except as provided by this Code. Proof cannot be based on assumptions.

Article 88 of the CPC of Ukraine stipulates that the court evaluates the evidence according to its internal conviction, which is based on a comprehensive, complete, objective and direct examination of the evidence in the case. No evidence is pre-established for the court. The court assesses the relevance, admissibility, reliability of each piece of evidence separately, as well as the sufficiency and interrelationship of the evidence as a whole. The court assesses both the evidence gathered in the case as a whole and each piece of evidence (group of identical evidence) contained in the case, motivates the rejection or consideration of each piece of evidence (group of evidence).
In view of the above, assessing the arguments of the parties, checking the circumstances of the case in conjunction with the evidence in the case, the court concluded that the plaintiff’s claims are subject to partial satisfaction.

The European Court of Human Rights has stated that Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms obliges courts to give reasons for their decisions, but this cannot be seen as requiring a detailed answer to every argument. The limits of this duty may be different depending on the nature of the decision. In addition, it is necessary to take into account, inter alia, the variety of arguments that a party may present in court and the differences that exist in the participating States, given the provisions of law, traditions, legal opinions, wording and wording. Thus, the question whether the court has complied with its obligation to state reasons under Article 6 of the Convention can be determined only in the light of the particular circumstances of the case (Pronina v. Ukraine, § 63566/00 § 23, ECtHR of 18 July 2006). year).

As a result, there is a lawsuit against the Kyiv City Prosecutor’s Office (address: 03150, Kyiv, Predslavynska Street, building 4/9; USREOU code 02910019) for compensation for damage caused by illegal decisions, actions or inaction of the body conducting operational search activity, pre-trial investigation, prosecutor’s office or court – partially satisfied. Collected from the State Budget of Ukraine property damage in the amount of UAH 422,408.56 and moral damage in the amount of UAH 100,000.00.

  • The first victory of JSB “Prikhodko and Partners” – a closed criminal case and the release of a person from jail.
  • The second is the recovery of material and moral damage from the prosecutor’s office.

We are currently awaiting an appeal.

The full text of the decision is available at 

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