THE RELATIONSHIP BETWEEN GENERAL AND SPECIAL GROUNDS FOR COMPENSATION FOR DAMAGE CAUSED BY ILLEGAL DECISIONS, ACTIONS OR INSECURITY OF THE PROSECUTOR’S OFFICE

Abstract

The article explores the grounds for the emergence of obligations to compensate for damage caused by unlawful decisions, actions, or omissions of prosecution authorities. The baseline thesis is the competition between two legal regimes: the special rehabilitation regime (Art. 1176 of the Civil Code of Ukraine in conjunction with Law No. 266/94-VR) and the general tort regime (Art. 1176, part 6, in combination with Art. 1174 of the Civil Code of Ukraine), applied to “other” unlawful acts of prosecutorial activity. Based on a systemic interpretation of the Civil Code, the special law, and the Law of Ukraine “On the Prosecution Service,” the author substantiates the criteria for wrongfulness as exceeding legal powers and violating procedural guarantees. An algorithm for qualifying legal relations and selecting the proper cause of action is proposed, depending on the presence of a procedural “trigger” (acquittal, dismissal of proceedings on rehabilitating grounds, etc.), the subject harmed, and the method of establishing unlawfulness. Supreme Court generalizations are used to identify typical errors of the parties regarding the proper debtor (the state), the subject of claims, preliminary administrative procedures, and proving the causal link, as well as the amount of pecuniary and non-pecuniary damage. The study separately analyzes the conventional standards of the European Court of Human Rights regarding the right to compensation for unlawful deprivation of liberty and the requirements for an effective remedy (Articles 5 § 5 and 13 of the Convention). It is concluded that the harmonized application of special and general regimes enhances the predictability of judicial practice and ensures the effectiveness of damage compensation in disputes related to the activities of prosecution authorities.