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 provided for by the Constitution and laws of Ukraine.

The general grounds for liability for property and moral damage caused are provided for by the provisions of Articles 1166, 1167 of the Civil Code of Ukraine, according to which damage caused to an individual or legal entity by unlawful decisions, actions or inactions is compensated by the person who caused it, if there is fault.

Special grounds for liability for harm caused by a public authority, in particular bodies of inquiry, preliminary (pre-trial) investigation, prosecutor's office or court, are defined in Article 1176 of the Civil Code of the Russian Federation.

These grounds are characterized by the peculiarities of the subject composition of the causers of harm, among which the legislator identifies officials or officers of the body carrying out operational investigative activities, pre-trial investigation bodies, the prosecutor's office or the court, and a special method of causing harm. The totality of these conditions is the basis for imposing civil liability for damage caused specifically to the state.

Damage caused by illegal decisions, actions or inaction of the body carrying out operational investigative activities, the investigative body, the prosecutor's office or the court is compensated by the state only in cases of illegal actions, an exhaustive list of which is covered by part one of Article 1176 of the Civil Code of Ukraine, namely in the case of an unlawful conviction , illegal prosecution, illegal application of a preventive measure, illegal detention, illegal imposition of an administrative penalty in the form of arrest or correctional labor.

In the absence of grounds for applying part one of Article 1176 of the Civil Code of Ukraine, in other cases of damage caused by these bodies, the rules of part six of this article apply - such damage is compensated on a general basis, that is, based on the general rules on compensation for damage caused by a public authority, their officials and officials (Articles 1173, 1174 of this Code).

Damage caused by illegal decisions, actions or inaction of the body carrying out operational investigative activities, the investigative body, the prosecutor's office or the court is compensated by the state only in cases of illegal actions, an exhaustive list of which is covered by part one of Article 1176 of the Civil Code of Ukraine, namely in the case of an unlawful conviction , illegal prosecution, illegal application of a preventive measure, illegal detention, illegal imposition of an administrative penalty in the form of arrest or correctional labor.

In the absence of grounds for applying part one of Article 1176 of the Civil Code of Ukraine, in other cases of damage caused by these bodies, the rules of part six of this article apply - such damage is compensated on a general basis, that is, based on the general rules on compensation for damage caused by a public authority, their officials and officials (Articles 1173, 1174 of this Code).

Damage caused to an individual by illegal decisions, actions or inactions of an official of a public authority in the exercise of his powers is compensated on the basis of Article 1174 of the Civil Code.

In accordance with this norm, the obligation to compensate the harm caused to the victim is assigned not to the official whose illegal decision, action or inaction caused the harm, but to the state.

According to Article 23 of the Civil Code of Ukraine, a person has the right to compensation for moral damage caused as a result of a violation of his rights. Moral damage, in particular, may consist of mental suffering that an individual experienced in connection with unlawful conduct against him. Moral damage is compensated by money, other property or other means.

The amount of monetary compensation for moral damage is determined by the court depending on the nature of the offense, the depth of physical and mental suffering, the deterioration of the victim’s abilities or deprivation of the opportunity to realize them, the degree of guilt of the person who caused the moral damage, if guilt is the basis for compensation, as well as taking into account other circumstances , which are significant.

When determining the amount of compensation, the requirements of reasonableness and fairness are taken into account.

Consequently, moral harm is understood as losses of a non-property nature as a result of moral or physical suffering or other negative phenomena caused to an individual or legal entity by the illegal actions or inaction of other persons.

The court determines the amount of compensation for moral (non-property) damage depending on the nature and volume of suffering (physical, mental, mental, etc.) suffered by the plaintiff, the nature of non-property losses (their duration, possibility of recovery, etc.) and with taking into account other circumstances. In particular, the state of health of the victim, the severity of forced changes in his life and work relationships, the degree of decline in prestige, business reputation, the time and effort required to restore the previous state are taken into account. In this case, the court must proceed from the principles of reasonableness, balance and fairness.

According to Article 1167 of the Civil Code of Ukraine, moral damage caused to an individual or legal entity by unlawful decisions, actions or inactions is compensated by the person who caused it, if he is at fault, except for the cases established by part two of this article.

Material damage is not properly compensated

The state leadership is not taking appropriate measures to restore the housing of Ukrainian citizens who were forced to move from the occupied territories or territories where hostilities are taking place, as well as those who lost their housing and other property due to the occupation.Although it was the law enforcement agencies who were entrusted with the responsibility of preventing the seizure of power in Crimea, Lugansk and Donetsk.

Many Ukrainian citizens still have relatives in the occupied territory who need help and protection, but the state does not take measures to protect them and does not allow relatives to meet. By prohibiting movement across the demarcation line with the occupied territories.

Is it really possible to compensate for damage from illegal actions of the state?

On January 16, 2024, the Shevchenkivskyi District Court of the city of Chernivtsi (judge Boyko M.E.) considered, in the manner of general claims proceedings, a civil case on a citizen’s claim against the Main Directorate of the National Police in the Chernivtsi region, the State Treasury Service for compensation for damage caused to a person by illegal due to the inaction of the authorities carrying out the pre-trial investigation, it decided:

- the claim against the Main Directorate of the National Police in the Chernivtsi region, the State Treasury Service for compensation for damage caused to a person by the illegal inaction of the authorities carrying out the pre-trial investigation, to be partially satisfied,

- recover from the State budget in favor of the citizen 5,000 UAH. for compensation for moral damage caused by the illegal inaction of the authorities carrying out the pre-trial investigation,

- to recover from the Main Directorate of the National Police in the Chernivtsi region in favor of the citizen 5,027 UAH. expenses for legal assistance from a lawyer.

The citizen became a student at a Polish university and in June of this year 2022, he went to Poland to receive education at the specified educational institution, but when crossing the border of Ukraine, documents were confiscated from him along with other materials and were transferred to the investigative department of the police department No. 4 of the OP GUNP in Chernivtsi areas. No court rulings on the seizure of these documents were adopted.

On July 22, 2022, a petition was submitted to the investigative department of police department No. 4 of the OP GUNP in the Chernivtsi region, by which the applicant asked to return the unlawfully seized documents to him. However, there is no reaction from authorized employees of the investigation department.

The investigator was supposed to petition the judge for the temporary seizure of documents with justification for the advisability of such a measure, but the petition was not filed.

In addition, at customs, the citizen’s international passport was confiscated - an identification document confirming the citizenship of Ukraine of the person and giving the right to leave Ukraine and enter Ukraine.

The issue of a ban on leaving the country can only be decided by the court, however, the investigator took upon himself the responsibility, without any regulatory basis, to restrict his right to movement.

The above decision of the investigating judge entered into legal force.

According to the contents of the receipt dated 09/08/2022, the representative of the plaintiff, acting in the interests of the latter, received his international passport, a registration certificate with a deferment from conscription for studying at a university, permission to travel abroad, a student card, an Agreement with the university with a notarized translation, 2 certificates about training, a document about the procedure for paying for training.

Consequently, the court decision, which entered into legal force, established the illegality of the actions of the responsible person of the investigative department of the police department No. 4 of the OP GUNP in the Chernivtsi region regarding the non-return of temporarily seized documents to the plaintiff and refuted the defendant’s arguments about returning the passport of a citizen of Ukraine to the plaintiff for traveling abroad in accordance with resolution 25.07. 2022, and it was also established that the citizen was obstructed by the actions of state government officials, which is unacceptable and it was established that the subject of the appeal actually evaded the exercise of his competence.

Taking into account the above, the court considers that the plaintiff experienced moral suffering associated with the failure of the responsible person of the investigative department of the police department No. 4 of the OP GUNP in the Chernivtsi region to return the documents seized at the border, the inconvenience associated with this, the need to make efforts to restore and renew his violated rights.

Such forced changes in the life of the plaintiff, as a result of which he experienced mental suffering, deterioration of his emotional state, etc., are in a causal relationship with the inaction of officials of the defendant of the Main Directorate of the National Police in the Chernivtsi region, and therefore certainly caused him moral damage, therefore the latter has the right to its compensation, and therefore the defendants’ arguments in this part cannot be taken into account, in particular that the presence of certain shortcomings in the procedural activities of officials cannot in itself indicate the illegality of their activities as such, accordingly, cannot serve as a basis for unconditional compensation for moral damage.

Thus, the plaintiff appealed the inaction of the pre-trial investigation body to the court and only after that the seized documents were returned to him. In controversial legal relations, the legal basis for compensation for harm is proven unlawful inaction of officials of the pre-trial investigation body.

Taking into account the circumstances of the case established by the court, the peculiarities of the impact of the event on the plaintiff, based on the presumption that violation of human rights by the state represented by its bodies always causes negative emotions in a person, taking into account the psychological stress, disappointment and inconvenience caused to the citizen based on the principle of reasonableness and balance and justice, the court considers that the amount of compensation is 5000.00 UAH. is proportionate and sufficient to compensate the plaintiff for negative moral consequences.

The decision of the Constitutional Court of Ukraine dated October 3, 2001 in case No. 1-36/2001 (case on compensation for damage by the state) states that compensation for harm (material or moral) caused to individuals by illegal decisions, actions or inactions of public authorities, their officials and officers in the exercise of their powers, is assigned specifically to the state, and not to the relevant government bodies, that is, compensation for damage in such cases is carried out at the expense of the state, and not at the expense of funds for the maintenance of state bodies.

Thus, compensation for property damage caused to an individual by illegal decisions, actions or inactions of public authorities, their officials and officers in the exercise of their powers is carried out precisely at the expense of the state.

Thus, the plaintiff appealed the inaction of the pre-trial investigation body to the court and only after that the seized documents were returned to him. In controversial legal relations, the legal basis for compensation for harm is proven unlawful inaction of officials of the pre-trial investigation body.

At the same time, when determining the amount of moral damage, the court proceeds from the fact that it must be compensated by an appropriate amount of compensation sufficient to restore the lost psychological balance of the plaintiff, but should not be a source of enrichment for the latter at the expense of the defendants.

The Grand Chamber of the Supreme Court, in its decision dated December 15, 2020 in case No. 752/17832/14-ts, noted that in civil proceedings the state participates in the case as a party through its relevant body, vested with powers in controversial legal relations, in particular to represent the state in court. In cases of compensation for harm by the state, the latter takes part as a defendant through the body whose actions caused the harm.

Although the presence of such a body in order to file a corresponding claim against the State of Ukraine is not necessary.
Consequently, in this case, the state of Ukraine, which is a participant in civil relations, represented by the State Treasury Service of Ukraine, is the proper defendant in the case.

The decision of the Grand Chamber of the Supreme Court dated June 19, 2018 in case No. 910/23967/16 concluded that funds for compensation of damage by the state are subject to recovery from the State Budget of Ukraine, therefore there is no need to indicate in the operative part of the decision such information as body through which funds should be transferred, or the number or type of account from which collection/write-off should be carried out, since such information does not affect either the grounds or the obligation to restore the plaintiff’s right if the court determines its violation and in its essence is regulation of the method and procedure for executing a court decision, which should be reflected in the relevant regulations, and not in the operative part of the decision.

At the same time, the court noted that the arguments of the claim in this part about the unlawful opening of criminal proceedings are not supported by adequate evidence, therefore the court does not take them into account.

The mere fact of an ongoing pre-trial investigation of criminal proceedings does not entail a civil investigation and cannot be unconditional evidence that the actions and/or inaction of the defendant caused moral harm to the plaintiff.
Moral damage is not sufficiently compensated

As a result of violation of rights, citizens of Ukraine suffer moral and material damage.

Moral harm is recognized as suffering caused to a citizen as a result of physical or mental impact, which led to a deterioration or deprivation of opportunities for him to realize his habits and desires, deterioration of relationships with people around him, and other negative consequences of a moral nature.

Compensation for moral damage is made in cases where illegal actions of state bodies caused moral loss to a citizen, led to a disruption of normal life connections, and require additional efforts from him to organize his life.

Due to the actions of officials, rights and freedoms were limited and violated.

Compensation for moral damage during stay in a country that is in a de facto state of war and in which martial law has been introduced must be made based on the amount of at least one minimum wage for each day.

The disturbances caused required constant additional efforts from me to organize my life as a limited person, influencing the entire future life of a person and disrupting people's plans in the future.

In addition, citizens constantly have to enter into disputes with representatives of the state, prove their case in the courts, and receive professional legal assistance so that a person can restore his rights, although in fact Ukrainian courts do not make decisions on adequate compensation for moral damage caused, but are limited to ridiculous amounts. approximately the equivalent of 100 euros, humiliating a person’s dignity.

Also, violation of the constitutional right to non-discrimination causes moral pain to many citizens, since other categories of Ukrainian citizens can enjoy rights, but he cannot.

In addition, this situation brings emotional unrest to the relatives of the person whose rights are violated, who worry about him, because the person has to fight with government agencies in a situation of non-compliance with human rights in the country, which negatively affects the psychological state of Ukrainian citizens.

Due to the fact that people cannot restore their violated rights and due to the constant threat to their life, health and psychological state due to constant shelling of the territory of Ukraine and armed aggression from the armed forces of the Russian Federation, which were actually the result of illegal behavior state leadership until 2022. years, all this can lead to more serious consequences at any time.

This causes particular inconvenience, requiring additional efforts from a person to organize his life.