What is non-pecuniary damage, for the violation of which right and under what conditions is it compensated, as well as what are the specifics of compensation for such damage in family, labor and other relationships, how is the amount of non-pecuniary damage determined, etc. – said Vasyl Krat, judge of the Supreme Court as part of the Civil Court of Cassation under the time of the online workshop.
Resolution No. 752/17832/14-ts of the Grand Chamber of the Supreme Court of December 15, 2020 defines moral damage as suffering caused to a citizen as a result of physical or mental impact, which led to the deterioration or deprivation of the opportunity to realize his habits and desires, deterioration of relationships with the people around him, other negative consequences of a moral nature.
Vasyl Krat noted that compensation for moral damage should occur in any case of its occurrence – the right to compensation for moral (non-property) damage arises as a result of a violation of a person’s right, regardless of the presence of special legislation (resolution of the Supreme Court of the Supreme Court of September 1, 2020 in case No. 216 /3521/16-ts). This position corresponds to the practice of the ECtHR (decision dated February 22, 2005 in the case “Novoseletskiy v. Ukraine” (Novoseletskiy v. Ukraine, application No. 47148/99).
The Central Committee of the Supreme Court has repeatedly applied this position. In particular, recently in the resolution dated March 1, 2023 in case No. 496/1691/19, the court indicated that Art. 23 of the Civil Code of Ukraine is a norm that should apply to any civil law relationship in which moral damage was caused to one or another person. That is, the possibility of collecting compensation for moral damage depends not on the fact that it is provided by the law or the provisions of the contract, but on the violation of a person’s civil right.
The speaker cited as an example the decision of the Supreme Administrative Court of Ukraine dated April 4, 2018 in case No. 212/2362/16-ts. It concluded that, taking into account justice and reasonableness (Article 3 of the Civil Code of Ukraine), children conceived but born after the death of the victim should be included among the subjects who are compensated for moral damage as a result of the victim’s death. A contrary conclusion would put children conceived but born after the victim’s death in an unequal position, in relation to children born at the time of the victim’s death, and would contradict the principle of the rule of law.
In the resolution of December 5, 2022, in case No. 214/7462/20, the Joint Chamber of the CCS noted that the obligation to compensate moral damage arises under the following conditions: presence of moral damage; the illegality of the behavior of the person who caused moral damage; presence of a causal connection between the illegal behavior of the person who caused moral damage and its result – moral damage; the fault of the person who caused moral damage.
Also, in this resolution, the OP of the CCS noted that the following distribution of the burden of proof is taking place: a) the plaintiff must prove the existence of moral damage and a causal connection; b) the defendant proves the absence of wrongdoing and guilt. Imposition of the obligation to compensate the moral damage caused can take place only if the damage was caused by the illegal behavior of the person responsible for it.
At the same time, in the resolution of November 30, 2022, in case No. 344/3764/21, the Supreme Court of Ukraine drew attention to the specificity of the burden of proof in cases related to the provision of medical services. Taking into account the principle of reasonableness, a patient who has applied to the court for the protection of violated rights, which consist in causing harm to health, should only point out the violation, and then the burden of proof rests on the medical institution or the doctor.
Vasyl Krat noted that the general conditions for the performance of the obligation apply to the obligation to compensate for moral damage (the decision of the Supreme Court of Ukraine dated May 23, 2018 in case No. 537/4905/15-ts). He also analyzed the resolution of the OP of the Supreme Court of Ukraine dated March 1, 2021 in case No. 180/1735/16-ts. It specifies the main principles in the field of fulfillment of obligations, in particular attention is drawn to p. 6 Art. 3 of the Civil Code of Ukraine, according to which the general principles of civil legislation are, among other things, justice, good faith and reasonableness, it is specified what the proper performance of an obligation is, how it should be carried out: by the proper parties; regarding the proper subject; in a proper manner; in due time (term); in the right place.
The judge raised the issue of the possibility of compensation for non-pecuniary damage in several payments. In the resolution of the Supreme Court of Justice of March 25, 2020 in case No. 641/8857/17, it is stated that the current legislation does not provide for multiple compensation for moral damage for the illegal prosecution of a person. In the decision of the Supreme Court of Ukraine dated August 10, 2022, in case No. 210/5096/19, it is stated that an exception to one-time compensation for non-pecuniary damage may be provided for by a contract or by law. At the same time 1 Art. 168 of the Civil Code of Ukraine allows compensation of moral damage by periodic payments, if it is caused by mutilation or other health damage.
Vasyl Krat analyzed the practice of the Supreme Court in determining the amount of compensation for moral damage. In the resolution of the OP of the Supreme Court of Justice dated December 5, 2022 in case No. 214/7462/20, it is indicated that when determining the monetary amount of compensation for moral damage, the nature of the offense, the depth of physical and mental suffering, the deterioration of the victim’s abilities or the deprivation of his ability to realize them, the degree of guilt are taken into account the person who caused moral damage, if fault is the basis for compensation, other circumstances that are of significant importance, the requirements of reasonableness and justice. In some cases, the legislation defines the minimum amount of moral damage. At the same time, the amount of compensation for moral damage should not be more than sufficient to reasonably meet the needs of the victim, and should not lead to her unjust enrichment (decision of the Supreme Court of Ukraine dated December 15, 2020 in case No. 752/17832/14-ts).
Also, the judge cited as an example the resolution of the Supreme Court of Ukraine dated August 3, 2022 in case No. 607/11755/20. The court took into account that the plaintiffs suffered mental suffering in connection with the death of their son; the loss of a loved one is the highest non-property loss that cannot be restored; the plaintiffs are deprived of the possibility of material and moral support for their son in his later life and in old age; it is impossible to restore the previous state of life of the plaintiffs. Therefore, the CCS of the Supreme Court agreed with the established amount of moral damages in favor of the plaintiffs – 700,000 each. hryvnias for each.
The speaker recalled the rule of non-reformation for the worse ( non reformatio in peius ) in the context of moral damages cases. The CCS of the Supreme Court applied this rule in the resolution of May 24, 2023 in case No. 179/363/21. It means the inadmissibility of worsening the situation of the party who appeals the court decision. That is, a person who appeals a court decision cannot be in a worse position, if compared with what such a person achieved in the previous instance as a result of his appeal.
In addition, Vasyl Krat spoke about the inheritance of the right to compensation for moral damage and the inheritance of the obligation to compensate for such damage; moral damage in certain areas (in family legal relations, in case of violation of non-property rights, in public service, in tax legal relations, in connection with failure to respond to a request for public information, etc.). The speaker raised the issue of the statute of limitations in relevant disputes, drew attention to certain procedural aspects when presenting a claim for compensation for moral damage.
The online workshop was organized by the legal portal “Ratio Decidendi” and the journal “Law of Ukraine”.
Vasyl Krat’s presentation – https://cutt.ly/3wtkhJmo .