The dissertation is devoted to the research of the institution of reimbursement (compensation) for harm caused to a person by illegal decisions, actions or omissions of the bodies carrying out operational-search activities, pre-trial investigation, prosecutor’s office or court in Ukraine.
The author argues that compensation for harm caused by illegal actions of criminal justice agencies should be considered in the broader context of state responsibility to the individual, as well as in connection with the concepts of the supremacy of law, the rule of law and democracy. Such an institution is directly related to the CPC task of protecting the rights, freedoms and legitimate interests of participants in criminal proceedings, which further demonstrates its importance in the context of fulfilling the state constitutional obligation to establish and ensure human rights and freedoms.
It is emphasized that the problem of compensation for damage caused by illegal actions within the criminal process is universal. Around the middle and second half of the XIX century in the criminal procedural doctrine of different countries there was a turning point associated with the realization of the need for state responsibility for the harm caused by illegal or unjustified criminal prosecution.
The author of dissertation concludes that all the classical characteristics of the institution of law are fully inherent in the set of rules governing the problem of compensation for harm caused by illegal decisions, actions or omission. At the same time, it is a complex institution of law, the elements of which relate to various substantive and procedural branches of law (primarily civil law and criminal procedural law). At the same time, there are no sufficient grounds to define the procedure for compensation for harm caused by illegal actions of criminal justice system as one of the types of criminal proceedings.
It is substantiated that at the present stage of development of domestic legal science and practice the use of the term “rehabilitation” as a synonym of indemnification (compensation) for damage caused to a person by illegal decisions, actions or omissions of the body carrying out operational-search activities, pre-trial investigation, prosecutor’s office or court is impractical.
The paper emphasizes that the optimal solution to the problem of compensation for harm caused by illegal actions of the criminal justice agencies can be proposed on the basis of the theoretical model underlying the institution of civil action in criminal proceedings. It is emphasized that the concept of “associated (connected) process” (civil ↔ criminal procedural law) can be used in the legal regulation of compensation for harm caused by illegal actions of criminal justice.
Large focus is paid to the grounds and conditions for reimbursement (compensation) for harm caused to a person by illegal decisions, actions or omissions of the bodies carrying out operational-search activities, pre-trial investigation, prosecutor’s office or court. Thus, it is concluded that the legal basis for compensation for such harm is Part 1 of Art. 1176 of the Civil Code and the provisions of the Law of Ukraine “On the procedure for compensation for harm caused to a citizen by illegal actions of bodies carrying out operational-search activities, pre-trial investigation, prosecutor's office and court” dated December 1, 1994. The factual grounds in these legal relations are offense (tort), the composition of which is determined by Art. 1176 of the Civil Code; and procedural, which are a court decision, investigator's warrant or a resolution of the prosecutor that determine the set of elements of this offense. Establishing all the conditions necessary and sufficient for liability for damage by illegal decisions, actions or omissions of the criminal justice body, allows establishing the existence of this tort, which indicates the existence of grounds for prosecution.
