Determination of compensation upon due judgment?

At the end of 2019, the Supreme Court of Cassation (VKS) answered the question of what compensation you can receive if you have spent more time in prison than you should have ("due sentence") by accepting:

„"The assessment of moral damage, except in cases where the amount of compensation is determined by law, is by nature a difficult activity, often requiring the person concerned to carry out research into case law in order to try to assess, by comparing his case with similar cases, the damages and interest that may be awarded for it."”.

The Supreme Court Justices

In order to determine the amount of such compensation, one must assess the emotional and psychological concerns for the individual, as well as the extent to which honor and dignity have been violated. The right size The amount of compensation is determined depending on the facts of each case.

How is this „fair size“ determined?

The fair amount is derived from the objectively existing and established circumstances of the case. These circumstances in all hypotheses of Art. 2 of the Law on the Liability of the State and Municipalities for Damages (ZODOV), the courts assume to be:

• the type of non-material damage;
• their duration and intensity;
• the personality of the injured party;
• his lifestyle and usual environment;
• his interests and value system;
• his work history;
• the impact on personal, social and professional life;
• Has there been any health impairment as a result of this appropriate sentence?.

“"The court determines the monetary equivalent of the non-pecuniary damage as of the date of the tort, based on the socio-economic conditions in the country, and the interest awarded from that moment has a compensatory nature, and the amount of the awarded compensation also cannot serve as a source of unjust enrichment," the Supreme Court of Cassation decision also states.

The judges draw attention to the fact that when determining the amount of compensation, "the conditions in the place where the imposed punishment of "deprivation of liberty" was served, the regime, the attitude of the prison administration, data on mental or physical harassment and discrimination carried out by employees or other prisoners, taking adequate measures in the event of data on such acts, etc. are also important."“

How much are the damages for 34 days of a prison sentence?

To make its decision, the court is considering a claim by a 27-year-old man convicted of stealing nearly 8,000 leva worth of belongings from a home. His conviction was his third in a row, with previous convictions being suspended and probation.

For his latest act, he was sentenced to three months of imprisonment under an initial general regime in an open-type prison dormitory. The man remained in prison for 34 more days, which is 1/3 more than his sentence (i.e., it is already a valid sentence).

The young man filed a lawsuit against the prosecutor's office under Article 2, Paragraph 1, Item 6 of the ZODOV and claimed compensation of 10,000 leva. The Sofia City Court determined compensation of 3,000 leva, but the Court of Appeal reduced it to 1,000 leva. Therefore, the case reached the Supreme Court of Cassation, which determined 3,400 leva in compensation for a due sentence.

To determine this amount, the Supreme Court takes into account that when he entered prison, the man was 20 years old, criminally active, with numerous convictions that continued after that. The young man complained that he was harassed in prison, beaten, and had problems with other prisoners. "It is normal to assume that during the entire stay in prison the person experienced inconvenience, felt humiliated, and was also worried, and his social communication was impaired. For the period after the term of the sentence imposed by the verdict, these negative experiences are preserved, and compensation is due for them, because the detention and restriction of personal freedom are now unlawful. In this case, circumstances have also been established indicating moral, physical, and emotional damage beyond the usual," the supreme judges agree.

They note in the decision that the compensation they award is in line with the victim's age, personality and lifestyle, the type of crime, the length of the unlawful detention in prison, the adverse impact on his emotions and psyche, feelings of insecurity and anxiety. The decision cites other cases from the case law on compensation for a wrongful conviction:

• in 2014, for 5 days of a prison sentence, the Sofia City Court determined compensation of 300 leva;
• with a 26-day sentence, the Supreme Court of Cassation awarded 2,000 leva;
• For a man who in 2003 served 29 days of a sentence, the Court of Appeal in Veliko Tarnovo ruled that he should receive 3,000 leva in compensation.

Based on the data of The National Statistical Institute for the year of the crime (average annual income 4327 leva, average annual expenses – 4058 leva and high annual inflation of 4.2%), the supreme judges determined that the man is entitled to 3400 leva with interest from the day of his release almost 7 years ago. The prosecutor's office was also ordered to pay his lawyer's fees, which for the three instances of the case total 1088 leva.