Publication date: 30.05.2024
lawyer, 23 years of experience in enforcement.
Going to court through the court system is a legal way for individuals to recover moral damages caused by wrongful actions.
According to Clause 9 Part 2 of Art. 16 of the Civil Code of Ukraine, natural persons have the opportunity to apply for compensation for moral (non-property) damage as a means of protecting their personal non-property or property rights and interests.
Although there is no clear definition of the concept of "moral damage" in national legislation, various interpretations of it have appeared in judicial practice.
The Plenum of the Supreme Court of Ukraine in Resolution No. 4 dated 31.03.95 "On judicial practice in cases of compensation for moral (non-pecuniary) damage" defines non-pecuniary damages as those caused by moral or physical damage. suffering or any other negative events caused by illegal actions or inaction of individuals or legal entities.
The suffering an individual experiences, whether physical or mental, can have a detrimental effect on his ability to follow his personal habits and desires. It can also cause their relationships with others to deteriorate and lead to various negative moral consequences. This understanding is confirmed by the decision of the Grand Chamber of the Supreme Court dated December 15, 2020 under number 752/17832/14-c.
Compensation for non-pecuniary damage is important in any case where it arises, because a violation of a person's rights guarantees the right to compensation for moral damage, regardless of the specific legislation. This view is consistent with the approach of the European Court of Human Rights, which was demonstrated in the case of Novoseletskyi v. Ukraine (application no. 47148/99), where the decision of 22 February 2005 further reinforced this position.
Below are the main elements involved in the process of claiming compensation for non-pecuniary damage:
- unlike property damage, which involves the destruction or loss of physical property, moral damage is not monetary in nature. Its value cannot be accurately measured in money.
- determining the amount of moral damage, the court takes into account various factors to assess the damage caused.
- when assessing the suffering suffered by a person, the court takes into account such factors as the degree and duration of mental suffering, physical discomfort, damage to reputation and self-esteem and any other adverse consequences suffered by this person.
- in cases of intentional damage or gross negligence, the responsibility for the damage lies solely with the guilty person, and the severity of the damage may increase.
- the court has the right to reduce the amount of compensation for damage caused by a person, taking into account his material and social situation, if the damage was not caused by a criminal offense.
- for the purpose of a fair decision of the case, the court has the right to take into account other relevant circumstances. The court determines the monetary compensation, which is provided in monetary form.
Compensation for non-pecuniary damage is granted independently of any property damage, ensuring that there is no need to rely on property damage for compensation.
As for the legal appeal, the general statute of limitations for moral damages is set at three years.
In order to accurately calculate moral damages, it is necessary to take into account the existing judicial precedent.
In the decision in case No. 372/1652/18 issued by the Supreme Court of Ukraine dated November 9, 2022, it was established that even if a psychologist does not have the procedural status of a specialist or expert according to the Code of Criminal Procedure of Ukraine, their opinion can still be considered as written evidence in judiciary This is especially true in cases where the psychologist's report contains important information about the relevant circumstances, in particular about the suffering suffered by the victims. It is important to note that the courts of previous instances cannot be accused of not taking into account the emotional and mental suffering pointed out by the psychologists in the relevant conclusions. Determining the amount of monetary compensation for moral damage belongs to the competence of the court, and is not determined solely by the conclusion of a psychologist.
The judge can use this finding as a reference point to assess the degree of both physical and mental suffering suffered by the victim, as well as any impairment or loss of ability to fulfill his or her potential. In addition, other relevant factors such as the potential monetary cost of suffering should be taken into account. Nevertheless, the judge is ultimately responsible for determining the appropriate amount of compensation, even if the psychologist's point of view is not available, following the principles of fairness and justice.
The ECtHR recognized that national courts are better equipped to determine the existence and extent of pecuniary damage in cases involving compensation. However, the situation is different with respect to moral damage. There is a well-founded and rebuttable presumption that lengthy legal proceedings will result in compensation for non-pecuniary damage (Scordino v. Italy, application no. 36813/97, §§ 203-204, and Wasserman v. Russia, application no. 21071/05, § 50). The Court considers this presumption to be particularly irrefutable in cases where the State excessively delays the execution of the judgment rendered against it. This is because the failure of the state to fulfill its obligation to repay the debt after the successful conclusion of the legal process will undoubtedly cause the applicant a feeling of despair.
The European Court of Human Rights has established a precedent where it is presumed that the applicant is entitled to compensation for non-pecuniary damage in cases where the final decision is excessively delayed and the State is at fault.
Going to court through the court system is a legal means of redress for moral damages caused by wrongful actions.
Legal service "Consultant" will select a lawyer or an attorney who will conduct a legal analysis of the situation, form a claim on the issue, and also help in gathering the evidence base for the most effective resolution of the issue. Service specialists will accompany the process from the beginning to the execution of the court decision. They will also provide consultation and help in solving such issues as: preparation of amicable settlement with the creditor, amicable settlement,bankruptcy of an individual, change of the debtor and also.
