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There is a category of legal issues that are both well-known and systematically ignored. Compensation for non-pecuniary damage caused by unlawful criminal prosecution is one such issue. This matter appears to have been settled: there is a law, there is case law, and there is even a specific sum that the state is obliged to pay. But look beneath the surface, and you will find a structure that protects not the individual, but the state budget from real accountability.
The Law of Ukraine ‘On the Procedure for Compensation for Damage Caused to a Citizen by Unlawful Actions of Bodies Carrying Out Operational and Investigative Activities, Pre-trial Investigation Bodies, the Prosecutor’s Office and the Court’ was adopted on 1 December 1994. Over thirty years ago. It existed when there was no current Code of Criminal Procedure, when the modern prosecution system did not exist, when Ukraine was only just beginning its journey in the Council of Europe. Since then, almost everything has changed – except for this law in its essential parts. Compensation for non-pecuniary damage during the period of pre-trial detention or trial is calculated on the basis of an amount not less than one minimum wage for each month spent in pre-trial detention or on trial – this provision of Article 13 still sets the minimum threshold below which the court cannot go. However, the ‘minimum threshold’ and ‘fair compensation’ are fundamentally different concepts, and the case law of the European Court of Human Rights has long confirmed this.
But the archaic nature of the compensation formula is merely the first – and arguably not the most significant – problem. There is another, deeper and more systemic issue: the very title of the law already sets a misleading tone. The list of bodies causing harm includes operational units, the investigation service, the prosecution service and the courts. And not a single word about the bodies and institutions of the penal service. Not a word about remand centres and other penal institutions, nor about the bodies governing the penal system.
This is no minor omission. It is a structural flaw that the state appears to have deliberately chosen to retain.
Let us imagine a typical situation, which in Ukraine is the rule rather than the exception. A person is detained, informed of the charges, and a preventive measure in the form of pre-trial detention is imposed. They spend months or even years in a remand centre. Ultimately, there is an acquittal or the case is closed. Unlawful criminal prosecution has been established. The person goes to court to claim compensation.
And here a scenario unfolds that every experienced lawyer has witnessed time and again: both the police and the prosecution service unanimously declare that they are not the proper defendants in relation to the person’s detention in the remand centre. Technically, they are right. Compensation for damages is paid from the state budget – the Ukrainian state is the defendant. But who represents it in these legal proceedings? The prosecution service that initiated the prosecution – yes. The police – yes. The institution where the person spent 205 days in inhumane conditions? No. Because the 1994 law does not mention it.
The result is a legal loophole with concrete human consequences.
The mental suffering endured by a person as a result of unlawful prosecution stems from at least two distinct sources.
The first is the very fact of persecution: the stigma of being a suspect or accused, the destruction of reputation, fear, and uncertainty.
The second is the conditions of detention, where a person faces overcrowding, inadequate medical care, and sanitary conditions incompatible with human dignity on a daily basis. By conservative estimates, mere detention in a remand centre accounts for 60–70 per cent of the total psychological suffering. Yet this component is not officially recognised in any legal framework.
For example, the Odesa remand centre is not an abstraction. It is a specific institution with a specific, documented history of violations, which has featured for decades in ECHR judgments, in reports by the Council of Europe’s Committee for the Prevention of Torture (CPT), in public information requests, and in the materials of parliamentary hearings. The state of this remand centre is neither a secret nor a matter for debate. It is a recognised fact, confirmed by international bodies. The only question is whether a specific institution will be held accountable for this fact in a specific court case.
That is precisely why, whilst representing clients who had been held for a prolonged period in the Odesa Remand Centre following their unlawful prosecution, lawyer Dmytro Yagunov filed a motion to join the Odesa Remand Centre and the South-Central District Police Department as third parties. Consequently, the court granted the motion and ruled to “involve in the proceedings as third parties, who do not assert independent claims regarding the subject matter of the dispute, the State Institution ‘Odesa Remand Centre’ and the South-Central Interregional Directorate for the Enforcement of Criminal Sentences of the Ministry of Justice of Ukraine”.
This procedural decision is dictated not only by the logic of justice, but also by strict procedural logic: if we want the court to have a complete picture of the suffering and its source – the institution that directly caused this suffering must be involved in the proceedings. It must explain whether the conditions of detention met the standards of Article 3 of the Convention. It must answer questions regarding medical care, cell overcrowding, and access to natural light and fresh air.
This is not merely a matter of a single case. It is a matter of the system of incentives. Currently, the Ukrainian state pays compensation without linking these payments to the specific institution that is the direct cause of the harm. The remand centre faces no institutional consequences from the fact that its conditions of detention have formed the basis for payments from the state budget.
The Ministry of Finance pays out – and that is all. The Odesa remand centre continues to exist in exactly the same state for another thirty years. It is precisely this disconnect between the party causing the harm and the financial consequences that is the structural reason why conditions in Ukrainian remand centres have not changed since independence.
If, however, the institution becomes a party to the proceedings, if its representatives are compelled to explain the conditions of detention to the court, if the court’s decision explicitly establishes a link between the specific conditions of a particular detention centre and the amount of compensation awarded – that is a different logic. It is the logic of institutional accountability. A logic which, at least in theory, could stimulate reform.
There is an inconsistency between Article 1176 of the Civil Code of Ukraine and the provisions of Law No. 266/94-VR, the resolution of which could make the regulation of this legal institution more effective. But the inconsistency of terms is, perhaps, the least of the problems. The main issue is conceptual: the law was based on a model where the state is liable for unlawful prosecution, whilst the conditions of detention are a separate, functionally detached issue. In reality, these two things are inseparable. Every day a person spends in an overcrowded cell in the Odesa remand centre awaiting a verdict that will ultimately prove to be an acquittal is part of unlawful prosecution. Physically, psychologically and legally.
That is precisely why the legal provision that excludes the State Penitentiary Service of Ukraine from the circle of defendants is not merely a technical loophole – it is a fundamental injustice, enshrined in the text of a law dating back thirty years. And until this law is reformed to account for the full range of those responsible for the harm, legal practice must utilise all available procedural tools – motions to join third parties, references to ECHR case law, appeals to the provisions of Article 3 of the Convention – so that the court receives the full picture, and the state cannot continue to evade responsibility through the formal gap between the letter of an archaic law and the reality of Ukrainian pre-trial detention centres.
Compensation for non-pecuniary damage is not merely redress for the past. It is a mechanism for influencing the future. And this mechanism does not work as long as the institutions directly causing the harm remain beyond the reach of judicial oversight.
