IS IT LAWFUL TO RECOVER STOLEN PROPERTY FROM OFFICIALS (INVESTIGATOR, HEAD OF INVESTIGATION DEPARTMENT) FOR THEIR POSSIBLE INACTION IN THE CRIMINAL PROCEEDING: THEORY AND PRACTICE
Authors: Basysta I. 
Published: June 2020

This publication is the author’s attempt to conduct academic and practical research on the intersection of civil and criminal procedural law of Ukraine to answer the following key questions: can the fact of inaction of an investigator and the head of investigations department in a criminal proceeding on theft, established by the court, be a basis for them to bear liability to the victim of the crime for the damages caused by it, equal to the value of the stolen property? What are the differences in establishing the damages caused by a crime and of the damages caused by investigators’ inaction? Is it possible to apply part six of Article 1176 and Article 1177 of the Civil Code of Ukraine in an integrated fashion in the cases on collecting property damages from the state where such damages are caused to the property of a legal entity as a result of a criminal offence, if the perpetrator was never identified due to inaction of a pre-trial investigation body?

It was established that only under the combination of following conditions: 1) it was proven based on the established procedure, that there was a fact or facts of inaction of officials in the pre-trial investigation in a criminal proceeding; 2) fact(s) of inaction of officials show(s) evidence of damages caused by their inaction, that is, there is a causal relationship between such inaction and the damages, we can discuss the existence of the grounds for the investigator and investigations department head to be held liable to the victim for damages, the amount of which needs to be supported by evidence. With absence of such element of the delict as the causal relationship, one should state that it is not a legally defined civil offence.

The claimant with a claim on recovering damages based on Article 1173 of the Civil Code of Ukraine needs to prove both the inaction itself, and the presence, nature, and amount of damages, as well as the causal relationship between the two, which is the definition of the civil offence.

The value of the stolen property is the damage caused by the crime, and must be compensated by the person who caused it, not by the defendants.

The Criminal Procedural Code of Ukraine provides for the guarantee of indemnification of damages to the victim, who in the criminal proceeding, if he or she files the relevant claim, acquires the status of a civil claimant. The burden of proving the type and amount of damages caused by the criminal offence is on the prosecution (the prosecutor, the body that conducts pre-trial investigation).

In the cases on indemnification by the state for damages caused to the legal entity due to a criminal offence, if due to a pre-trial investigation body’s inaction the perpetrator who committed the crime was not identified, we cannot apply part six of Article 1176 and Article 1177 of the Civil Code of Ukraine in an integrated fashion, and the same was confirmed by the Grand Chamber of the Supreme Court in the ruling as of September 3, 2019, for the case No. 916/1423/17, proceeding No.12-208гс18.