Illegal drawing up of administrative protocols is the basis for bringing to administrative responsibility and collecting moral damage, - the Supreme court

The Supreme Court overturned the unfounded decisions of the courts of previous instances that refused to restore the violated rights of a person who had been illegally brought to administrative responsibility.

THE ESSENCE OF THE DISPUTE

Administrative protocols on the commission of offenses under Art. 173, 185 of the Code of Administrative Offenses and administrative detention was carried out. The court closed the proceedings in these cases due to the absence of the said administrative offenses in the actions of the said person. After that, the person, who was illegally prosecuted, filed a lawsuit to recover from the patrol police department moral and material damage.

POSITION OF COURTS OF FIRST AND SECOND INSTANCES

The district court, whose decision was agreed by the appellate court, refused to satisfy the claims of the person, citing the fact that these protocols are not acts that establish, change or repeal the law in the relevant field of relations, or give rise to rights and obligations for plaintiff. The report on an administrative offense is only a fixation of the violation, which was detected by a police officer, and in accordance with Article 251 of the Code of Administrative Offenses is one of the sources of evidence and grounds for further proceedings. The protocol, as evidence, is subject to assessment when the authorized person considers the case of an administrative offense and cannot be revoked. According to the courts, the plaintiff did not provide proper and admissible evidence to prove the illegality of the actions of a police officer, and court rulings, which closed the proceedings to bring the plaintiff to administrative responsibility under Articles 173 and 185 KUpAP in the absence of administrative offenses, are not evidence to prove the illegality of the actions of police officers.

POSITION OF THE SUPREME COURT

The Supreme Court defended the plaintiff's rights, arguing that the damage caused by illegal decisions, actions or inaction of the body carrying out operational and investigative activities, investigation, prosecution or court, is reimbursed by the state only in cases of illegal actions, an exhaustive list of which covered by part one of Article 1176 of the Civil Code of Ukraine, namely in the case of illegal conviction, illegal criminal prosecution, illegal application of a preventive measure, illegal detention, illegal imposition of an administrative penalty in the form of arrest or correctional labor.

The legal basis of civil liability for compensation for damage caused by decisions, actions or omissions of public authorities is an offense, which includes as constituent elements: damage, wrongful act of the person who caused it, the causal link between them. Damage is reimbursed regardless of fault.

According to the norms of item 2 of part 1 of Art. 1, item 4 part 1 of Art. 2 of the Law of Ukraine "On the procedure for compensation for damage caused to a citizen by illegal actions of investigative bodies, pre-trial investigation, prosecutor's office and court" proceedings in the case of administrative prosecution, which is subsequently closed by the court for lack of administrative offense, testifies to the illegal actions of officials who initiated and carried out the said proceedings (drawing up a report, detaining a person, obtaining explanations, etc.). Compensation for non-pecuniary damage is provided regardless of whether any coercive measures have been applied by the state or whether the person has incurred costs to repay the fine imposed by the court.

Based on the above arguments, the Supreme Court found the decisions of the courts of previous instances unfounded and overturned them.

The full text of the relevant decision of the Supreme Court / CCC in the case № 640/16169/17 of 05.02.2020 is available at the link

 

Read 307 times