Date of publication: 18 April 2013
Oleksandr Denysenko, Attorney at Law
Source: Yuryst i Zakon
Assessing moral damages has been relevant for the Ukrainian law enforcement practice for years. The issue has arisen since the entry into force of the Law of Ukraine “On amending regulations of Ukraine regarding protection of honor, dignity and business reputation of individuals and organizations” dated May 6, 1993, when the Civil Code of the Ukrainian SSR was amended by Article 440 1 on compensation for moral (non-property) damages.
According to Article 440 of the Code, when determining compensation for moral damages subject matter of claim, nature of act of the person responsible for damage, physical or mental suffering of the victim and other negative effects are taken into account.
It should be noted that even at that time the legislator decided to codify the lower limit of compensation for moral damages in the amount of at least five minimum wages.
The lower limit of compensation for moral damages of at least one minimum wage per each month of being on remand and being on trial illegally was also set forth by Article 13(3) of the Law of Ukraine “On compensation for damage caused to a citizen by unlawful actions of investigation agencies, pretrial investigation agencies, public prosecution agencies and court” dated December 1, 1994, No. 266/94-VR.
Obviously, the reasons listed in Article 440 of the Code, which had to be taken into account to determine the amount of compensation, are evaluative and subjective, since it is impossible to evaluate in monetary terms the depth of “physical or mental suffering”, “degree” of the person’s guilt, etc. First and foremost, the question at issue is lack of exact criteria and general method of assessing the amount of compensation for moral damage, as the criteria specified by the legislator in view of their confusion do not help the court to justify even to itself the amount of compensation specified in the decision.
In practice it meant that the amount of compensation for moral damages depended on interpretation of the term “compensation for moral damages” by the court.
Since entry into force on January 1, 2004 of the new Civil Code of Ukraine, a new article on compensation for moral damages was introduced. Thus, Article 23 of the effective Code specifies that the amount of monetary compensation for moral damages is determined by the court depending on nature of offense, depth of physical and mental suffering, degradation of abilities of the victim or deprivation of their feasibility, degree of culpability of the person, who caused non-pecuniary damage, if guilt constitutes sufficient ground for compensation, and taking into account other essential circumstances. When determining the amount of compensation, reasonableness and justice are taken into account.
Indeed, a new Civil Code sets out in more detail the criteria to be taken into account when determining the amount of compensation for non-pecuniary damage. More “vague” criteria have not eased the problem.
In the absence of any reference points by which the court could determine the amount of compensation for moral damages, the judicial practice in Ukraine decided to establish proportionality between the amount of pecuniary and non-pecuniary damage.
Therefore, it should be stated that currently in Ukraine there is no legally regulated procedure that would help the courts in determining the amount of compensation for non-pecuniary damage, and accordingly would unify the case law in this regard.
It is also believed that one way to resolve this problem in Ukraine may be a more active position of the Supreme Court of Ukraine and the higher specialized courts, which, to ensure uniform application of laws in the administration of justice, would offer the courts a common basis and approach to determining the amount of compensation for non-pecuniary damage giving to the courts ample discretion in solving specific cases.