In cases concerning compensation for damage caused by pre-trial investigation authorities, legal-aid costs are recoverable irrespective of the proportion of the claims upheld – SC CivCC

Sums paid by a citizen for legal assistance during the pre-trial investigation and the judicial examination of criminal proceedings are recoverable on the basis of the direct provision of the Law of Ukraine of 1 December 1994 No. 266/94-VR “On the Procedure for Compensation for Damage Caused to a Citizen by the Unlawful Acts of Bodies Conducting Operational-Search Activities, Pre-trial Investigation Authorities, the Prosecutor’s Office and the Court”. Such compensation does not constitute the allocation of costs of professional legal assistance in civil proceedings; consequently, its amount is not determined proportionally to the claims that have been upheld.

This conclusion was reached by the Supreme Court, sitting as a panel of judges of the First Judicial Chamber of the Civil Cassation Court.

In the case under review, a civil servant had been subjected to criminal liability, remanded in custody and suspended from office. He was subsequently acquitted on the ground that the commission of a criminal offence had not been proved. After the acquittal became final, he brought proceedings seeking compensation for material damage, including loss of earnings and material losses connected with his engagement of professional legal assistance from advocates.

The court of first instance dismissed the claim. The appellate court set aside that judgment and partially allowed the claim, awarding UAH 109,286.27 in respect of loss of earnings and UAH 64,322.50 in respect of material losses connected with the engagement of professional legal assistance from advocates, the latter sum being fixed proportionally to the amount of the claims that had been upheld.

The Civil Cassation Court of the Supreme Court agreed with the appellate court’s conclusion as to the claimant’s right to compensation for loss of earnings in respect of the period during which he had been unable to work in his previous post by reason of the criminal proceedings.

Article 56 of the Constitution of Ukraine provides that everyone has the right to compensation, at the expense of the State or of local self-government bodies, for material and moral damage caused by the unlawful decisions, acts or omissions of bodies of State power, bodies of local self-government, or their officials and office-holders in the exercise of their powers.

At the same time, the Supreme Court observed that the special grounds and procedure for such compensation are laid down by Article 1176 of the Civil Code of Ukraine and by Law No. 266/94-VR.

Paragraph 1 of part 1 of Article 1 of Law No. 266/94-VR provides that, in accordance with the provisions of that Law, compensation is payable for damage caused to a citizen as a result of unlawful conviction, unlawful notification of suspicion of having committed a criminal offence, unlawful detention and custody, unlawful search or seizure conducted in the course of criminal proceedings, unlawful attachment of property, unlawful suspension from work (office) and other procedural acts that restrict citizens’ rights.

Pursuant to paragraph 4 of Article 3 of Law No. 266/94-VR, in the cases listed in Article 1 of that Law the sums paid by a citizen in connection with the provision of legal assistance to him or her are to be reimbursed (returned).

The Civil Cassation Court of the Supreme Court emphasised that the right to such compensation arises by virtue of the direct provision of the law and covers legal assistance rendered both during the pre-trial investigation and during the judicial proceedings. These sums are not identical to the costs of professional legal assistance provided for by Article 137 of the Civil Procedure Code of Ukraine. Consequently, the grounds laid down in that Article for reducing the costs of professional legal assistance do not apply to such legal relations.

At the same time, in order for those sums to be recoverable it is necessary to document the fact and the amount of the expenses incurred. The court must examine the agreements for the provision of legal assistance, the payment documents, the calculations and other evidence, and must establish whether the relevant expenses were connected precisely with the provision of legal assistance in the specific criminal proceedings and whether their amount is justified.

Since the appellate court had not properly examined that evidence and had not clarified the circumstances in question, the Civil Cassation Court of the Supreme Court set aside the appellate court’s judgment in so far as it concerned the claims for compensation for material losses connected with the engagement of professional legal assistance from advocates, and remitted the case in that part for a fresh examination by the court of appeal.

Judgment of the Civil Cassation Court of the Supreme Court of 1 September 2026 in case No. 522/1821/23 (proceedings No. 61-13672sv25) – https://reyestr.court.gov.ua/Review/139404253.

This and other legal opinions of the Supreme Court are available in the Database of Legal Positions of the Supreme Court - https://lpd.court.gov.ua.