MECHANISM OF COMPENSATION FOR DAMAGE CAUSED BY ILLEGAL DECISIONS, ACTIONS OR OMISSIONS OF PROSECUTOR’S OFFICE: CIVIL LAW AND PROCEDURAL ASPECTS

Abstract

The article examines the mechanism of compensation for damage caused by unlawful decisions, actions or omissions of prosecution authorities and demonstrates that its regulatory foundation is based on the principle of the state’s strict liability. The regulatory framework of this institution is analyzed through the lens of constitutional guarantees, Articles 1174 and 1176 of the Civil Code of Ukraine, Law of Ukraine No. 266/94-VR, and the provisions of the Law of Ukraine “On the Prosecution Service,” which define the scope of a prosecutor’s powers and serve as a benchmark for assessing unlawfulness. The study highlights the relationship between general and special compensation rules, proving that the competition between these approaches, coupled with fragmented procedures, diminishes the practical effectiveness of the recovery mechanism: it remains relatively predictable primarily in cases of rehabilitating grounds, whereas violations outside these limits or in “borderline” situations between criminal proceedings and non-procedural prosecutorial activities lack a unified legal response algorithm. The study clarifies the content of the categories “unlawful decision,” “unlawful act,” and “unlawful omission” as legal facts giving rise to the obligation of compensation, emphasizing the lack of legislatively established criteria of unlawfulness for civil, administrative, and economic manifestations of prosecutorial activity. The elements of the obligation (subjects, object, content) are systematized, distinguishing between material and moral damages, and the procedural trajectories for their recovery are outlined. Key regulatory gaps are identified: the lack of uniform standards of proof and damage assessment methodologies, inconsistency in judicial practice, the combination of litigation and non-litigation procedures, and the obsolescence of bylaws. The necessity of transitioning to a holistic procedural model that ensures a clear “chain” from establishing unlawfulness in a procedural decision to the actual payment of compensation is substantiated. Proposed areas for improvement include: the unification (codification) of the compensation procedure; a clear separation between the consequences of judicial review and compensation claims; updating subordinate legislation in accordance with the current Criminal Procedure Code and judicial practice; harmonizing the application of Article 1176 of the Civil Code of Ukraine and Law No. 266/94-VR with the introduction of conflict-of-laws rules and procedural presumptions (particularly regarding causation); and strengthening the role of the Supreme Court in unifying approaches while considering international standards for effective legal remedies and compensation. The need to revise the 1996 Regulation (given its obsolescence) and to clarify approaches regarding compensation for legal entities and liability for joint unlawful actions by multiple authorities is noted.