Court decision regarding the illegal actions of the bodies of inquiry, pre-trial investigation, the Prosecutor's Office, and the court in the Kharkiv region in relation to citizen I. V. Oliynyk.

JUDGMENT
IN THE NAME OF UKRAINE

19 June 2008, Kharkiv

The local court of the Chervonozavodsky district of Kharkiv, composed of presiding judge S. V. Ostapchyk, with court secretary I. L. Rebryna, having considered in an open court session in the premises of the Chervonozavodsky District Court of Kharkiv the civil case based on the claim of Ihor Viktorovych Oliynyk against the Prosecutor's Office of the Kharkiv region and the State Treasury of Ukraine (third party: Court of Appeal of the Kharkiv region) for compensation for damage caused by the illegal actions of the bodies of inquiry, pre-trial investigation, the Prosecutor's Office, and the court,

ESTABLISHED:
I. V. Oliynyk appealed to the court with a claim against the Prosecutor's Office of the Kharkiv region and the State Treasury of Ukraine (third party: Court of Appeal of the Kharkiv region) for compensation for damage caused by the illegal actions of the bodies of inquiry, pre-trial investigation, the Prosecutor's Office, and the court (case file pp. 1-5, 78-84, 283-291).
The plaintiff indicated that on 21 August 2000, in Kharkiv, he was detained pursuant to Art. 115 of the Criminal Code of Ukraine on suspicion of committing a robbery and the intentional homicide of N. G. Knyazeva, which occurred on 14 April 1989. On 24 August 2000, I. V. Oliynyk was taken into custody. The investigation of the criminal case was conducted by the Prosecutor's Office of the Kharkiv region.
During the preliminary investigation, systematic beatings and torture were applied to the plaintiff, under the influence of which, on 2 March 2001, he was forced to write a confession and admit his guilt in crimes in which he was not involved and during the commission of which he was outside of Ukraine. The prosecutor's office allowed a whole series of gross violations of the law during the investigation, particularly regarding the terms of his detention. Illegal measures of physical and psychological influence were systematically applied to the accused, as a result of which he was forced to provide the testimonies that law enforcement officials demanded from him. Numerous statements by I. V. Oliynyk regarding his lack of involvement in the crimes were ignored and, in fact, not verified. In December 2001, through the artificial creation of falsified evidence by the body of pre-trial investigation, a formal accusation was brought against the plaintiff. On 27 June 2003, by the verdict of the Court of Appeal of the Kharkiv region, I. V. Oliynyk was found guilty of robbery and the intentional homicide of N. G. Knyazeva and was sentenced to 15 years of imprisonment with confiscation of property. During the court proceedings, unreasonable judicial delays were allowed. On 2 March 2004, by a ruling of the Supreme Court of Ukraine, the sentence was reduced to 14 years of imprisonment with confiscation of property. The verdict came into force, and the plaintiff was sent to serve his sentence in the Shostka correctional colony No. 66.
On 25 November 2005, based on materials from the investigation of newly discovered circumstances, the Prosecutor General of Ukraine submitted a motion to the Supreme Court of Ukraine to review the court decisions regarding the conviction of I. V. Oliynyk. On 16 February 2006, by a ruling of the panel of judges of the Judicial Chamber for Criminal Cases of the Supreme Court of Ukraine, the verdict of the Court of Appeal of the Kharkiv region dated 27 June 2003 and the ruling of the Supreme Court of Ukraine dated 2 March 2004 regarding the convicted person, I. V. Oliynyk, were overturned, and the case was sent to the Prosecutor General's Office of the Kharkiv region for further investigation, while maintaining the preventive measure of detention for I. V. Oliynyk.
On 19 August 2006, following the results of the additional investigation, the criminal case against I. V. Oliynyk regarding the fact of the robbery and intentional homicide of N. G. Knyazeva was closed by the prosecutor's office of the Dnipropetrovsk region due to the lack of evidence of his participation in the commission of these crimes, and the preventive measure of detention was cancelled.
Thus, the plaintiff was illegally under criminal prosecution from 2 August 2000 to 19 August 2006, that is, for almost 6 years (2,189 days), and was deprived of his liberty during this entire time.
As a result of his illegal criminal prosecution and long-term detention, the plaintiff suffered significant mental anguish, which was expressed, in particular, in the destruction of life plans and social ties, the loss of friends, prolonged separation from his family, a negative impact on his honour, dignity, and professional reputation, the inability to participate in the upbringing of his children, the inability to help his minor sister, and the inability to provide help to his sick father or personally bury his mother, who died in September 2001. The plaintiff's health significantly deteriorated; diseases appeared: vegetative-vascular dystonia, ischaemia, osteochondrosis, insomnia, etc. During his time in places of deprivation of liberty, the plaintiff experienced heart pain, nasopharyngitis, and vegetative-vascular dystonia. After his release, I. V. Oliynyk was hospitalized with a diagnosis of ischaemic attack, osteochondrosis with vegetative-vascular dystonia and asthenic syndrome. Treatment requires significant funds, which the plaintiff lacks.
In his claim, I. V. Oliynyk requested compensation at the expense of the state for the moral damage caused to him by the illegal actions of the bodies of inquiry, pre-trial investigation, the Prosecutor's Office, and the court; he also requested payment of monetary compensation in the amount of 2,500,000 hryvnias, and requested that the Prosecutor's Office of the Kharkiv region be obliged, within one week after the entry into force of the court decision, to send him an official written apology for the illegal accusation of committing the robbery and intentional homicide of N. G. Knyazeva.
In the court session, the plaintiff and his representatives supported the claims.
The representative of the Prosecutor's Office of the Kharkiv region objected to the claim, arguing that at the time the criminal case was transferred to the court, the prosecutor's investigator had collected reliable evidence of I. V. Oliynyk's guilt in the robbery and intentional homicide of N. G. Knyazeva. Furthermore, the plaintiff voluntarily wrote a confession and pleaded guilty to these crimes; thus, by self-incrimination, he hindered the ascertainment of the truth in the case, and therefore he does not have the right to compensation for damage caused by an illegal conviction. The defendant's representative also believed that the plaintiff did not prove in court the facts of the use of illegal methods of inquiry and pre-trial investigation, the existence of a causal link between the actions of the Prosecutor's Office of the Kharkiv region and the deterioration of the health of the plaintiff and his family members, as well as the death of his mother.
The representative of the State Treasury of Ukraine objected to the claim, arguing that the satisfaction of the claims would lead to significant losses to the state budget of Ukraine.
The third party, the Court of Appeal of the Kharkiv region, did not send its representative to the court session and requested that the case be considered in its absence (case file pp. 169, 294).
Having heard the arguments of the parties, having investigated the documentary evidence provided by them, and having interrogated the witnesses, the court came to the conclusion that the plaintiff's demands are subject to partial satisfaction.
According to Part 4 of Art. 62 of the Constitution of Ukraine, in the event of the overturning of a court verdict as unjust, the state compensates for the material and moral damage caused by an unjustified conviction. In accordance with Articles 23, 1167, and 1176 of the Civil Code of Ukraine, a person has the right to compensation for moral damage caused as a result of the violation of their rights. Moral damage consists of physical and mental suffering that a natural person has experienced in connection with unlawful behaviour towards them. The amount of monetary compensation for moral damage is determined by the court depending on the depth of physical and mental suffering, the deterioration of the victim's capabilities, or the deprivation of their opportunities to realize them. When determining the amount of compensation, the requirements of reasonableness and justice are taken into account. Compensation for moral damage is carried out in the event that illegal actions of the bodies of inquiry, preliminary investigation, the Prosecutor's Office, and the court have caused moral loss to a citizen, led to the disruption of their normal life ties, and require them to exert additional efforts to organize their life. Damage caused to a natural person as a result of their illegal conviction, illegal criminal prosecution, and the illegal application of detention as a preventive measure is compensated by the state in full, regardless of the fault of the officials and employees of the body of inquiry, preliminary (pre-trial) investigation, the Prosecutor's Office, or the court.
According to Articles 2 and 4 of the Law of Ukraine 'On the Procedure for Compensation for Damage Caused to a Citizen by Illegal Actions of Bodies of Inquiry, Preliminary Investigation, the Prosecutor's Office, and the Court', the right to compensation for damage as a result of an illegal conviction arises in the case of the closure of a criminal case due to the lack of evidence of the accused's participation in the commission of the crime. Compensation for damage is carried out at the expense of funds from the state budget.
From the case materials, it is evident that on 15 April 1989, the Prosecutor's Office of the Moscow district of Kharkiv initiated criminal case No. 27890043 regarding the fact of the intentional homicide of N. G. Knyazeva, which occurred on 14 April 1989. On 21 August 2000, I. V. Oliynyk was detained on suspicion of committing this crime; he subsequently wrote a confession and pleaded guilty to the robbery and murder of N. G. Knyazeva together with G. M. Kytaynyk, Yu. V. Vysochynenko, and S. M. Rovensky (case file pp. 68, 296-322).
On 4 September 2001, while I. V. Oliynyk was in custody, his mother, Nataliya Ivanivna Oliynyk, died (case file p. 102).
On 5 December 2001, the Prosecutor's Office of the Kharkiv region concluded the preliminary investigation and sent the criminal case for trial to the Court of Appeal of the Kharkiv region (case file p. 241).
Interrogated in the court session as a witness, criminal prosecutor of the Prosecutor's Office of the Kharkiv region V. V. Litvinova confirmed in the court session that the evidence collected during the preliminary investigation proved I. V. Oliynyk's guilt in the robbery and murder of N. G. Knyazeva.
During the consideration of the case in the Court of Appeal of the Kharkiv region, there were numerous adjournments of court sessions due to the illness of the judge and people's assessors, as well as due to the temporary lack of powers of the presiding judge (case file pp. 242-256).
On 27 June 2003, the Court of Appeal of the Kharkiv region, having considered the criminal case, passed a guilty verdict finding I. V. Oliynyk guilty of the robbery and murder of N. G. Knyazeva, and sentenced him in accordance with clauses 'a' and 'e' of Art. 93 of the Criminal Code of Ukraine to 15 years of imprisonment with confiscation of property, and under Part 3 of Art. 187 of the Criminal Code of Ukraine to 11 years of imprisonment with confiscation of property. For the totality of crimes, the court finally assigned a sentence in the form of imprisonment for a term of 15 years, starting from 21 August 2000 (case file pp. 118-152).
On 2 March 2004, by a ruling of the panel of judges of the Judicial Chamber for Criminal Cases of the Supreme Court of Ukraine, the sentence assigned to I. V. Oliynyk was mitigated and reduced to 14 years of imprisonment with confiscation of property. The verdict came into force, and the plaintiff was sent to serve his sentence in places of deprivation of liberty (pp. 153, 154).
While in custody in the pre-trial detention centre and in the Shostka correctional colony No. 66, I. V. Oliynyk repeatedly complained about the deterioration of his health (case file p. 70).
Interrogated in the court session as a witness, the plaintiff's father, Viktor Mykolayovych Oliynyk, explained that his son's health condition significantly deteriorated after his time in custody.
Witness I. V. Suchkova, the plaintiff's sister, explained in the court session that when her brother was accused of murder, their mother was very worried and died a year later. In the absence of I. V. Oliynyk, the family experienced significant material difficulties. The brother's health deteriorated after his time in custody.
Witnesses Yu. V. Bondarenko and V. Yu. Sidorov also confirmed in the court session that during the time the plaintiff was in custody, his family experienced significant material difficulties.
On 16 February 2006, the panel of judges of the Judicial Chamber for Criminal Cases of the Supreme Court of Ukraine, having considered the motion of the Prosecutor General of Ukraine, overturned the verdict of the Court of Appeal of the Kharkiv region dated 27 June 2003 and the ruling of the Supreme Court of Ukraine dated 2 March 2004 in the part concerning the conviction of I. V. Oliynyk for crimes provided for by clauses 'a' and 'e' of Art. 93 and part 3 of Art. 187 of the Criminal Code of Ukraine. The criminal case was sent to the Prosecutor General's Office of the Kharkiv region for further investigation, while maintaining the preventive measure of detention for I. V. Oliynyk. Overturning the conviction against I. V. Oliynyk, the judicial panel of the Supreme Court of Ukraine noted that I. V. Oliynyk gave his testimonies under psychological pressure from the persons who participated in the conduct of investigative actions (case file pp. 85-89).
Subsequently, the rapid conduct of the additional investigation was hindered by misunderstandings and inconsistencies in the actions of judicial and prosecutorial bodies regarding the timely forwarding of criminal case materials and physical evidence to the investigator (case file pp. 269-280, 282).
On 19 August 2006, following the results of the additional investigation, the criminal case against I. V. Oliynyk regarding the fact of the robbery and intentional homicide of N. G. Knyazeva under clauses 'a' and 'e' of Art. 93 and part 3 of Art. 187 of the Criminal Code of Ukraine was closed by the prosecutor's office of the Dnipropetrovsk region due to the lack of evidence of his participation in the commission of the crimes, and the preventive measure of detention was cancelled. The investigator justified his decision by numerous violations of procedural law, as well as the falsification of evidence that took place during the investigation of the case by the Prosecutor's Office of the Kharkiv region, which significantly influenced the court's passing of the guilty verdict. During the additional investigation of the case, circumstances were established that indicate I. V. Oliynyk's non-involvement in the crimes against N. G. Knyazeva (case file pp. 6-66, 281, 197, 203).
On 19 August 2006, after 2,218 days of imprisonment, I. V. Oliynyk was released from custody from the Kryvyi Rih pre-trial detention centre (case file p. 68).
Under such circumstances, I. V. Oliynyk, in accordance with the Constitution and current legislation of Ukraine, has an undeniable right to compensation by the state for damage caused to him as a result of illegal criminal prosecution, detention, and unjustified conviction.
Unjustified criminal prosecution and deprivation of liberty for over 6 years undoubtedly caused the plaintiff significant moral suffering, the fact of which does not raise any doubts in the court and does not require additional proof. Prolonged isolation from his family became the cause of deep mental anguish for a person who was deprived of the opportunity to participate in the upbringing of his children and bury his deceased mother. Isolation from society undoubtedly led to the destruction of life plans and the violation of I. V. Oliynyk's normal social ties and now requires him to exert additional efforts to organize his life. Harsh conditions of detention could not but negatively affect the plaintiff's general health.
Having analysed the circumstances of the case and taken into account the depth and duration of the moral suffering caused to I. V. Oliynyk as a result of his illegal criminal prosecution, detention, and conviction, the court concluded that it would be reasonable and fair in this case to pay the plaintiff monetary compensation in the amount of 1,000,000 hryvnias.
Determining the amount of compensation to be significantly lower than what I. V. Oliynyk demanded in his claim, the court, in addition to the above, proceeded from the fact that during the court proceedings, the plaintiff did not provide proper and reliable evidence of the use of torture against him during the inquiry and preliminary investigation. The court also considers the existence of a causal link between the plaintiff's detention and the onset of his specific illnesses (diagnoses) to be unproven by proper evidence. The presence in the case of medical documents regarding I. V. Oliynyk's state of health after his release (case file p. 71) cannot be sufficient proof of such a causal link. Establishing such facts is possible exclusively with the involvement of specialists in the field of medicine; however, during the consideration of the case, the parties did not initiate the conduct of expert research.
The plaintiff's demand to oblige the Prosecutor's Office of the Kharkiv region to send him an official written apology for the illegal accusation of committing the robbery and intentional homicide of N. G. Knyazeva is not subject to satisfaction because such a form of compensation for moral damage caused by the illegal actions of the bodies of inquiry, pre-trial investigation, the Prosecutor's Office, and the court is not provided for by current legislation.
Passing the decision on the partial satisfaction of the claims, the court rejected the arguments of the representative of the Prosecutor's Office of the Kharkiv region about the allegedly existing proof of I. V. Oliynyk's guilt in the robbery and intentional homicide of N. G. Knyazeva. This assertion has been refuted by procedural decisions regarding the absence of evidence of the plaintiff's involvement in these crimes. The specified decisions are in force and have prejudicial significance for the resolution of this civil dispute.
Also unfounded is the reference by the representative of the Prosecutor's Office of the Kharkiv region to the obstruction by I. V. Oliynyk of the ascertainment of the truth in the case through self-incrimination. Expert conclusions and current procedural decisions of the court and the prosecutor's office have established that I. V. Oliynyk gave his testimonies involuntarily.
Taking the above into account, on the basis of Part 4 of Art. 62 of the Constitution of Ukraine, Articles 23, 1167, and 1176 of the Civil Code of Ukraine, Articles 2 and 4 of the Law of Ukraine 'On the Procedure for Compensation for Damage Caused to a Citizen by Illegal Actions of Bodies of Inquiry, Preliminary Investigation, the Prosecutor's Office, and the Court', guided by Articles 212-215 of the Civil Procedure Code of Ukraine,

DECIDED:
The claim of Ihor Viktorovych Oliynyk against the Prosecutor's Office of the Kharkiv region and the State Treasury of Ukraine (third party: Court of Appeal of the Kharkiv region) for compensation for damage caused by the illegal actions of the bodies of inquiry, pre-trial investigation, the Prosecutor's Office, and the court is satisfied partially. Compensate for the moral damage caused to Ihor Viktorovych Oliynyk at the expense of the state budget of Ukraine. Oblige the State Treasury of Ukraine to pay 1,000,000 (one million) hryvnias from the state budget account to Ihor Viktorovych Oliynyk.
The remainder of Ihor Viktorovych Oliynyk's demands are left without satisfaction.
The decision may be appealed. An application for an appeal of the court's decision may be submitted to the Court of Appeal of the Kharkiv region through the local court within 15 days from the day of the announcement of the decision. An appeal against the court's decision is submitted within 20 days after the submission of the application for an appeal.

Judge
S. V. Ostapchyk