The Cabinet of Ministers of Ukraine registered in the parliament the bill about amending some legislative acts of Ukraine (regarding compensating damage caused by actions of inquiry bodies) (bill No 7359) that was elaborated by the Ministry of justice of Ukraine. The project presupposes enlarging the circle of persons who will have the right to demand compensation, and also the obligation of the court to obligatory indicate in its decision which exactly criminal-procedural measures were taken with violation of law.  

The necessity of elaborating this bill is connected with the fact that provisions of the acting legislation don’t conform to requirements of point 5, clause 5 of the European Convention on human rights and fundamental freedoms.

According to point 5, clause 5 of the Convention, everyone who became a victim of detention, keeping under guard during pre-trial investigation and trial conducted not in conformity to clause 5 of the Convention, and also in connection with other violations of clause 5 of the Convention, such as non-observance of the principle of equality of parties during consideration by court of the issue about applying a preventive measure in the form of keeping under guard or continuing the term of keeping under guard, exceeding a reasonable term of keeping under guard till pronouncing sentence, has the right to sue for compensation. 

According to clause 2 of the acting Law a person has the right for compensation of damage at the so-called “rehabilitating circumstances” (court’s acquittal, closing a criminal case due to the absence of corpus delicti and so on).

However, though this law guarantees compensation of the damage caused by illegal convicting or illegal taking under guard and keeping under guard, it is not applied to the persons who were convicted after all, though these persons can also be victims of violation of their right for freedom and personal immunity guaranteed by clause 5 of the Convention. These persons are deprived of the right for compensation, what contradicts requirements of point 5, clause 5 of the Convention. 

Clause 5 of the Convention presupposes a wider circle of reasons for the right of compensation for illegal limitation of liberty, than the Law of Ukraine “About the procedure of compensation of damage caused to a citizen by illegal actions of inquiry bodies, pre-trial investigation, prosecution and court”. For example, a person, regarding whom a court pronounced a sentence and applied a punishment in the form of deprivation of liberty, can demand compensation on the basis of point 5, clause 5, if one was detained or taken under guard with violation of the national legislation. At the same time, in the process of interpreting point 3, clause 5 of the Convention, presupposing that arrest or detention of a person are to be “legal” and accomplished on the base of a grounded suspicion of committing a crime, a grounded necessity to prevent committing a crime or escape after its committing, the European Court for human rights (further – the Court) decided that the term “lawful” and “according to the procedure determined by law” in point 1, clause 5, in fact, concerns the national law and determine obligations to observe its procedural and material guarantees.

Thus, if the term of keeping under guard, indicated in clause 156 of the Criminal procedural code of Ukraine, expired and was not appropriately prolonged, and a person was not released, the Court recognizes the arrest illegal and violating rights of the detained according to point 1, clause 5 of the Convention. In this situation a person will automatically have the right for compensation of damage caused by illegal arrest according to point 5, clause 5 of the Convention, independently from the fact whether a person was discharged.  However, if a person was recognized guilty in committing a crime, one will not have a possibility to demand such compensation on the national level on the base of the Law of Ukraine “About the procedure of compensation of damage caused to a citizen by illegal actions of inquiry bodies, pre-trial investigation, prosecution and court”.

In the case “Rebok vs. Slovenia” the Court recognized the violation of point 5, clause 5, since in the national legislation there was the right for compensation of damage caused by illegal or ungrounded deprivation of liberty according to the criminal procedural legislation of Slovenia only at the rehabilitating circumstances. The Court singled out that because a conviction was pronounced by court regarding the defendant, he wasn’t included in the category of persons who have the right for compensation, what is a violation of point 5, clause 5 of the Convention.  

Thus, the Court’s position is that the subjects of the right for compensation of damage caused by illegal deprivation of liberty are not only unconvicted or acquitted persons. In this part the Ukrainian legislation doesn’t conform to requirements of point 5, clause 5 of the Convention.

RUPOR