In this case, the victim's failure to contact the insurer directly does not in any way prevent the clarification of the circumstances with which the legislator connects the grounds for the payment of compensation. If a person filed a claim with the court to collect from the insurer the damage caused as a result of committing a crime, provided for in Art. 286 of the Criminal Code, then she exercised the appropriate will, choosing at her own discretion one of the alternative possible ways of protecting her violated right. Positions of the courts of the first and appellate instances: according to the verdict of the local court, PERSON_1 was found guilty of committing a criminal offense provided for in Part 1 of Article 286 of the Criminal Code. PERSON_2's civil claim for moral damages was partially satisfied, UAH 40,000 was collected from PERSON_1 in favor of the victim as compensation for moral damages, UAH 2,000 from the insurance company.
The appellate court left the verdict of the local court unchanged.
The position of the CCS: the decision of the courts of the previous instances regarding the resolution of the civil claim was annulled and a new trial in the court of the first instance in the manner of civil proceedings was ordered.
Justification of the position of the Supreme Court: the panel of judges of the Supreme Court found untenable the arguments of the representative of the insurance company in the cassation appeal, which boil down to the fact that the courts unjustifiably charged the insurance company in favor of the civil plaintiff in the amount of UAH 2,000 in compensation for moral damage.
As can be seen from the materials of the criminal proceedings, between the victim PERSON_2 and the accused PERSON_1 there were tortious obligations for causing damage as a result of the road accident. At the same time, there were contractual obligations between the accused and the insurance company under the compulsory civil liability insurance contract. In cases where the tort relationship is combined with the relationship of mandatory civil liability insurance of the owners of land vehicles, the debtor in the tort liability within the amount of the insurance indemnity is the insurer of the person causing the damage. This insurer, although he did not cause damage, is an obligated subject to the victims, to whom he pays insurance compensation instead of the person who caused the damage in the manner prescribed by the Law of Ukraine "On Mandatory Civil Liability Insurance of Land Vehicle Owners".
The court draws attention to the fact that the procedure for the victim's appeal to the insurer with an application for insurance indemnity defined by the Law of Ukraine "On Mandatory Civil Liability Insurance of Land Vehicle Owners" is not a pre-trial dispute settlement procedure defined as mandatory within the meaning of Art. 124 of the Constitution of Ukraine, and the out-of-court procedure for insurance compensation, which in general does not exclude the right of a person to directly apply to the court with a claim for the recovery of the corresponding compensation. The obligation to compensate for damage caused by a road accident, including when it comes to the commission of a crime provided for in Art. 286 of the Criminal Code, caused not by the violation of a certain contractual obligation, but by the fact of causing damage to property, health, and human life.
The application of the provisions of the Law of Ukraine "On Compulsory Civil Liability Insurance of Land Vehicle Owners" in criminal proceedings should not contradict its principles and limit the rights of the victim.
The right of a person in the case of causing damage by a criminal offense provided for in Art. 286 of the Criminal Code, violated precisely by the fact of causing such damage, and therefore a person has the right to independently choose the methods of compensation for such damage. This is also consistent with Articles 15 and 16 of the Civil Code.
The legislator establishes two grounds for payment of insurance compensation to the victim. The first of them, which is defined in Art. 35 of the Law of Ukraine "On Compulsory Civil Liability Insurance of Owners of Land Vehicles" provides for compensation for damages based on the victim's appeal to the insurance company, provided that he submits a corresponding application for such compensation. Another method provides for the possibility of applying for compensation to the court with a demand to the insurance company for compensation for damage and the adoption of a corresponding court decision (clause 36.1. of Article 36 of the Law of Ukraine "On Compulsory Civil Liability Insurance of Land Vehicle Owners").
In view of this, the opposite approach, which would make the victim's right to compensation based on the results of criminal proceedings dependent on the previous appeal or non-appeal to these persons, would lead to a significant limitation, or even complete elimination of his right to judicial protection in criminal proceedings, established by Art. 128 of the CCP.
At the same time, within the framework of criminal proceedings under Art. 286 of the Criminal Code, the fact, the circumstances of the road accident, the person guilty of its occurrence, the nature and extent of the damage are established by the court as circumstances that are of significant importance for the criminal case and belong to the subject of proof. In this case, the victim's failure to contact the insurer directly does not in any way prevent the clarification of the circumstances with which the legislator connects the grounds for the payment of compensation. Therefore, if a person filed a claim with the court to recover from the insurer the damage caused as a result of committing a crime, provided for in Art. 286 of the Criminal Code, then she exercised the appropriate will, choosing at her own discretion one of the alternative possible ways of protecting her violated right.
At the same time, the panel of the CCS agreed with the arguments in the cassation appeal of the representative of the insurance company that the materials of the criminal proceedings lacked proper substantiation of the amount of non-pecuniary damage to be recovered from the insurance company, which actually became the basis for the decision to cancel the verdict of the local court and the decision of the appeals court in terms of meeting the requirements of a civil lawsuit.
You can read more about the text of the resolution dated November 17, 2021 in case No. 333/384/20 (proceedings No. 51-3144км21) at the link https://reyestr.court.gov.ua/Review/101302976 .