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 Yu. V. Vysochynenko.

JUDGMENT
IN THE NAME OF UKRAINE

13 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 Yuriy Volodymyrovych Vysochynenko 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:
Yu. V. Vysochynenko 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 (Vol. 2, pp. 316-325).
The plaintiff indicated that on 22 July 2000, in Kharkiv, he was illegally detained by police officers and, as a result of abuse, systematic beatings, and torture, was forced on 25 July 2000 to sign a confession and admit his guilt in committing a robbery and the intentional homicide of N. G. Knyazeva, which occurred on 14 April 1989. On 26 July 2000, Yu. V. Vysochynenko was detained on suspicion of committing a crime pursuant to Art. 115 of the Criminal Procedure Code of Ukraine, and on 28 July 2000, he 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, the prosecutor's office committed a whole series of gross violations of the law, 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 sign all documents prepared by the prosecutor. Yu. V. Vysochynenko's statements regarding his lack of involvement in the crimes were ignored and, in fact, not verified. In December 2001, through the intentional and conscious 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, Yu. V. Vysochynenko was found guilty of robbery and the intentional homicide of N. G. Knyazeva and was sentenced to life 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 15 years of imprisonment with confiscation of property; the sentence came into force, and the plaintiff was sent to serve his sentence in the Poltava correctional colony No. 64.
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 Yu. V. Vysochynenko. 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 were overturned in the part concerning the conviction of Yu. V. Vysochynenko under 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 Yu. V. Vysochynenko.
On 19 August 2006, following the results of the additional investigation, the criminal case against Yu. V. Vysochynenko 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 involvement in these crimes, and the preventive measure of detention was cancelled.
Thus, the plaintiff was illegally under criminal prosecution from 22 July 2000 to 19 August 2006, that is, for more than 6 years (2,218 days), and was deprived of his liberty during this entire time, 300 days of which he held the status of a person sentenced to life imprisonment.
As a result of his illegal criminal prosecution and long-term detention, the plaintiff suffered unbearable mental anguish, which was expressed, in particular, in the loss of meaning to continue living and thoughts of suicide, the destruction of life plans and social ties, prolonged separation from his family, a negative impact on his honour, dignity, and professional reputation, and the tragic death of his wife's father and the injury of his wife during a road traffic accident, which occurred on the way to Moscow, where they were travelling to collect evidence of his innocence regarding the crimes. The plaintiff's health significantly deteriorated; somatic diseases appeared: exacerbation of chronic gastritis, urolithiasis, vegetative-vascular dystonia, and exacerbation of chronic cholecystitis. During his time in places of deprivation of liberty, the plaintiff experienced mental disorders in the form of hysteria and a tendency toward suicide, as well as exacerbations of radiculitis, heart pain, lower back and stomach pain, breathing disorders, numbness of the hands and upper lip, and convulsions. The administration of the colony where the plaintiff was held paid no attention to his health complaints, yet for any minor infraction, it groundlessly applied harsh disciplinary punishments against him. After his release, Yu. V. Vysochynenko was hospitalized twice with a diagnosis of mixed encephalopathy with liquor-hypertensive, vestibulo-ataxic, and vegetative-dystonic episodes on the background of developed osteochondrosis. Treatment requires significant funds, which the plaintiff lacks.
In his claim, Yu. V. Vysochynenko 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 3,000,000 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 reliable evidence of Yu. V. Vysochynenko's involvement in the robbery and intentional homicide of N. G. Knyazeva. In particular, 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. Furthermore, by the verdict of the Court of Appeal of the Kharkiv region, Yu. V. Vysochynenko was also found guilty of a crime under Part 1 of Art. 212 of the Criminal Code of Ukraine and sentenced to 3 years of imprisonment. This part of the court verdict was not overturned. 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 his health, as well as the tragic events in his family.
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 (Vol. 2, pp. 213, 352).
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 26 July 2000, Yu. V. Vysochynenko was detained on suspicion of committing this crime; he wrote a confession and pleaded guilty to the robbery and murder of N. G. Knyazeva together with G. M. Kytaynyk, I. V. Oliynyk, and S. M. Rovensky (Vol. 2, pp. 355-378).
On the day of Yu. V. Vysochynenko's arrest, his son was 15 years old (Vol. 1, p. 69).
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 (Vol. 2, pp. 245-249).
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 Yu. V. Vysochynenko'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 (Vol. 2, pp. 297-313).
On 27 June 2003, the Court of Appeal of the Kharkiv region, having considered the criminal case, passed a verdict finding Yu. V. Vysochynenko guilty of the robbery and murder of N. G. Knyazeva, as well as the intentional infliction of bodily injuries of medium and severe gravity upon I. V. Koptenko, and sentenced him in accordance with clauses 'a' and 'e' of Art. 93 of the Criminal Code of Ukraine to life imprisonment with confiscation of property, under Part 3 of Art. 187 of the Criminal Code of Ukraine to 12 years of imprisonment with confiscation of property, and under Part 1 of Art. 122 of the Criminal Code of Ukraine to 3 years of imprisonment. For the totality of crimes, the court finally assigned a sentence in the form of life imprisonment with confiscation of property, starting from 22 July 2000 (Vol. 2, pp. 59-93).
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 Yu. V. Vysochynenko was mitigated - reduced to 15 years of imprisonment with confiscation of property; the verdict came into force: the plaintiff was sent to serve his sentence in places of deprivation of liberty (Vol. 2, pp. 49-58).
While in custody in the pre-trial detention centre and in the Poltava correctional colony No. 64, Yu. V. Vysochynenko was registered as a person prone to suicide, repeatedly complained about the deterioration of his health, and was subjected to disciplinary liability for violating the regime of serving his sentence (Vol. 1, pp. 71-76, Vol. 1, pp. 8-45, 94-176, 178-181).
Interrogated in the court session as a witness, the plaintiff's wife, Diana Borysivna Vysochynenko, told how the detention, arrest, and conviction of her husband ruined all their life plans. She also explained that during a trip to Moscow, where she planned to find evidence of her husband's non-involvement in the crime, a road traffic accident occurred, as a result of which her father died and she received severe bodily injuries and ended up in the hospital. The witness also explained that her husband's health condition significantly deteriorated after his time in custody.
Witness Spartak Yuriyovych Vysochynenko, the plaintiff's son, explained in the court session that he was shocked when he learned that his father had been accused of murder. All his friends changed their attitude towards him, and the family, in the absence of the father, experienced significant material difficulties. The father's health deteriorated after his time in custody.
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 Yu. V. Vysochynenko 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 Yu. V. Vysochynenko. Overturning the conviction against Yu. V. Vysochynenko regarding the accusation of robbery and intentional homicide of N. G. Knyazeva, the judicial panel of the Judicial Chamber for Criminal Cases of the Supreme Court of Ukraine noted that the author of the confession dated 25 July 2000 is not Yu. V. Vysochynenko but another person, its text was performed under dictation, and the vast majority of testimonies were given by the convicted person under the psychological pressure of those who participated in the investigative actions (Vol. 1, pp. 95-99).
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 (Vol. 2, pp. 336-347, 349).
On 19 August 2006, following the results of the additional investigation, the criminal case against Yu. V. Vysochynenko regarding the fact of the robbery and intentional homicide of N. G. Knyazeva under clauses 'a' and 'e' of Art. 93 and part 1 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 Yu. V. Vysochynenko's non-involvement in the crimes against N. G. Knyazeva (Vol. 1, pp. 7-67, Vol. 2, pp. 211, 234, 279, 348).
On 19 August 2006, after 2,218 days of imprisonment, Yu. V. Vysochynenko was released from custody from the Dnipropetrovsk pre-trial detention centre No. 3 (Vol. 1, p. 70).
Under such circumstances, Yu. V. Vysochynenko, 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 father whose son reached adulthood during this time. Isolation from society undoubtedly led to the destruction of life plans and the violation of Yu. V. Vysochynenko'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 Yu. V. Vysochynenko 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 Yu. V. Vysochynenko 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 Yu. V. Vysochynenko's state of health after his release (Vol. 1, pp. 77, 78, Vol. 2, pp. 186, 190) 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 also did not prove the existence of a direct causal link between his illegal criminal prosecution and the road traffic accident, as a result of which his wife's father, M. V. Lekarev, tragically died, and his wife, D. B. Vysochynenko, received bodily injuries (Vol. 2, pp. 191-195).
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 Yu. V. Vysochynenko'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 Yu. V. Vysochynenko 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 Yu. V. Vysochynenko gave the confession and the vast majority of his testimonies involuntarily.
Also unconvincing are the references by the representative of the Prosecutor's Office of the Kharkiv region to the effect that Yu. V. Vysochynenko allegedly served 3 years in places of deprivation of liberty quite legally, as he was convicted of a crime provided for by Part 1 of Art. 212 of the Criminal Code of Ukraine. By a ruling of the panel of judges of the Judicial Chamber for Criminal Cases of the Supreme Court of Ukraine, Yu. V. Vysochynenko was released from the sentence under Part 1 of Art. 212 of the Criminal Code of Ukraine on the basis of Art. 49 of the Criminal Code of Ukraine in connection with the expiration of the statute of limitations for criminal prosecution (Vol. 1, pp. 95-99).
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 Yuriy Volodymyrovych Vysochynenko 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 Yuriy Volodymyrovych Vysochynenko 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 Yuriy Volodymyrovych Vysochynenko.
The remainder of Yuriy Volodymyrovych Vysochynenko'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 10 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