Court practices on civil responsibility of the state.
Our readers know that the Kharkov group for human rights protection realizes the three-year project «The campaign against torture and cruel treatment in Ukraine», which is financially supported by the European Commission. One of the important tasks of this project is the promotion of the creation of the legislation, which would be able to provide the reliable protection from the application of torture in various spheres of
It should be noted that this decision solves a collision existing in the legislation. According to the general rule, everyone must recompense the damage inflicted to other person. Article 443 of the Civil Code of Ukraine contains the special norm, which envisages the responsibility of the state for the illegal actions of
«Article 2. The right for recompensing the damage, according to the procedure envisaged by this Law, appears in the following cases:
1) verdict of «not guilty» issued by court;
2) closure of the criminal case because of the absence of criminal event, absence of corpus delicti or failure to prove the participation of the accused in the crime;
3) refusal to institute the criminal case or closure of the criminal case on the basis of the reasons listed in item 2 of this article;
4) closure of the case on administrative felony.
The right for recompensing the damage inflicted during the ODA, listed in Article 1 of this Law, before the institution of the criminal case appears if the decision on the institution of criminal case on the basis of the results of the ODA was not taken within six months after these activities, or such decision was abolished«.
Under the shelter of this norm the state has the opportunity to violate any citizens« rights, without the risk of financial losses, if the state managed to obtain the verdict of guilty or other
This norm not only contradicts Article 56 of the Ukrainian Constitution, but also Article 5 §5 of the European Convention on human rights, which guarantees the right for the compensation in the case of the illegal deprivation of liberty. The court decision mentioned below is very interesting just from the viewpoint of the collision between the standards of the protection of personal freedom and the national legislation.
Arkadiy Bushchenko, an advocate,
the KhG expert in the sphere of legal proceedings on criminal cases
On 29 August 2003 the local court of the Tsentralny district of Simferopol:
Chairman Yu. Gulevich
Secretary G. Grimova,
considered the case after the claim of Djemil Izzetov against the State Treasury of Ukraine on recompensing the damage inflicted by the illegal holding in custody and
D. Izzetov turned to court with the claim about recompensing the moral damage equal to 5000 hryvnas inflicted to him by the illegal holding in preliminary prison No. 15 of Simferopol during 7 days, from 3 to 10 October 2000, without any legal grounds. The
The violation was committed under the following circumstances: on 3 April 2000 D. Izzetov was detained as a suspected by E. Selemetova, an investigating officer of the Crimean militia directorate. Later, on the basis of the resolution of the investigator, the prosecutor of the Crimean Republic sanctioned the preventive measure: holding in custody during 6 months, i.e. until 3 October 2000. After 3 October 2000 the term of Izzetovs incarceration was not prolonged in the accordance with the legal procedure (i.e. by the General Prosecutor of Ukraine or his deputy). However, D. Izzetov was not released after the expiration of the term stipulated by prosecutors sanction, he was kept in preliminary prison No. 15 until 10 October 2000. The essential damage was inflicted to his right for personal freedom and inviolability (Article 29 of the Constitution of Ukraine). D. Izzetov was coercively kept under the unpleasant and severe prison conditions, was isolated from his relatives, deprived of needed things, improvements, proper nourishment; he experienced physical and moral sufferings, desperation, fear of the arbitrariness of state agencies and the feeling of helplessness.
The representative of the State Treasury of Ukraine did not acknowledge the claim. The motives are the following: according to Article 32 of the Law of Ukraine «On budget», the damage is recompensed from the state budget, if the damage was inflicted by the organs of prosecution or by court, when the case was closed or the verdict of «not guilty» was issued. In the considered case the state may not be responsible for the damage inflicted by the defendant.
The representative of the third party, preliminary prison No. 15, reckons that they may not be brought to responsibility, since they had no documents on the release of D. Izzetov.
The court listened to the parties, studied the materials of the case and decided to satisfy the claim.
The plaintiff stayed in preliminary prison No. 15 until 10 October 2003, although I. Kirsanov, a senior investigating officer of the investigation department of the Crimean militia directorate, issued the decision about the change of the preventive measure to the written undertaking not to leave the place. Thus, the court undoubtedly established that the plaintiff was illegally kept in custody during 7 days, since, according to part 3 Article 20 of the Law of Ukraine «On the preliminary incarceration», a citizen had to be immediately released after the expiration of the term of preliminary incarceration.
As a consequence of substantial sufferings caused by the illegal holding in custody, the moral damage was inflicted to the plaintiff through the fault of the administration of preliminary prison No. 15 and the investigation department of the Crimean militia directorate.
According to the message of senior investigating officer V. Kirsanov, the preliminary investigation of the criminal case on the accusation of D. Izzetov was completed on 4 August 2003, and, after the familiarization of the accused with the materials of the criminal case, the case will be directed to court.
Thus, the verdict on the criminal case of D. Izzetov is not issued until now, 2 years and 10 months after his illegal incarceration. So, the court reckons that it is possible to apply the demands of Article 443 of the Civil Code of Ukraine and Article 56 of the Constitution of Ukraine, according to which every citizen has the right for the compensation, at the expense of the state, of the moral damage inflicted by the illegal actions of the organs of state power, in the considered case — by the administration of preliminary prison No. 15 and the investigation department of the Crimean militia directorate.
On the basis of Articles 19, 29, 56 and 124 of the Constitution of Ukraine, Articles
To collect 5000 hryvnas from the state budget through the State Treasury of Ukraine for recompensing the moral damage to Djemil Izzetov.
The appeal against the resolution may be handed to the Appeal court of the Crimean Autonomous Republic through the local court of the Tsentralny district of Simferopol within 15 days after the pronouncement of the verdict.
Judge Yu. Gulevich