The Civil Cassation Court of the Supreme Court has ruled on whether the period of suspension of pre-trial investigation is taken into account when determining the amount of monetary compensation for non-pecuniary damage during the period of stay under inv

The suspension of a pre-trial investigation as a temporary, enforced break in the proceedings of that investigation due to circumstances that make it impossible to proceed further does not mean that a person is no longer under investigation. Therefore, a person whose criminal proceedings are discontinued due to the lack of sufficient evidence to prove his or her guilt in court and the exhaustion of the possibility of obtaining such evidence is entitled to compensation for non-pecuniary damage for the entire period of the suspension of the investigation.

This conclusion was reached by the Civil Cassation Court of the Supreme Court.

The plaintiff was under investigation for more than 5 years and 6 months, after which the criminal proceedings against him were closed on the basis of paragraph 3, part 1, Article 284 of the Criminal Procedure Code of Ukraine due to the failure to establish sufficient evidence to prove his guilt in court and the exhaustion of the possibility of obtaining it. In this regard, the plaintiff filed a claim for compensation for property and non-pecuniary damage caused by unlawful acts and omissions of the bodies conducting operational and investigative activities, pre-trial investigation bodies, the prosecutor's office and the court.

The court of first instance partially upheld the claim and awarded the plaintiff compensation for property and non-pecuniary damage from the Ukrainian state budget for the entire period of his detention under investigation. The court of appeal overturned this judgment and issued a new one, which, in particular, increased the amount of non-pecuniary damage compensation.

In filing a cassation appeal regarding the satisfaction of claims for non-pecuniary damage, the Prosecutor General's Office pointed out that the court of appeal did not specify in its judgment how it had determined this particular amount of compensation. The considerable length of the pre-trial investigation was due to the actions of the plaintiff himself, who evaded the investigation and the court, resulting in his being placed on the wanted list and the pre-trial investigation being suspended for 4 years and 8 months. At the same time, pursuant to paragraph 2, part 3, Article 28 of the Criminal Procedure Code of Ukraine, the conduct of participants in criminal proceedings is one of the criteria for determining the reasonableness of the terms of criminal proceedings.

After considering the case, the Civil Cassation Court of the Supreme Court concluded that, since all the criminal proceedings against the plaintiff had been discontinued due to the lack of corpus delicti in his actions, he was entitled to compensation under the provisions of paragraph 2, part 1, Article 2 of the Law of Ukraine "On the procedure for compensation for damage caused to a citizen by unlawful actions of bodies conducting operational and investigative activities, pre-trial investigation bodies, prosecutors and courts".

The Civil Cassation Court of the Supreme Court stated that the interpretation of part 3, Article 13 of the said Law indicates that the legislator determines only the minimum amount for each month of staying under investigation or on trial. The suspension of a pre-trial investigation as a temporary, enforced break in the proceedings of that investigation due to circumstances that make it impossible to proceed further does not mean that a person is no longer under investigation. Therefore, a person is entitled to compensation for damages in the amounts and in the manner prescribed by the Law.

The Resolution of the Supreme Court of 4 October 2023 in case No. 757/5351/21-ц (proceedings No. 61-5502св22) - https://reyestr.court.gov.ua/Review/114020813.

This and other legal positions of the Supreme Court can be found in the Database of Legal Positions of the Supreme Court - lpd.court.gov.ua.