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15.12.2003 | Konstantin Ustimenko, Dnepropetrovsk

How the judges of the Supreme Court establish the sum of compensation of moral damage

   

Now there are many discussions about the unbelievably great sums of compensation of moral damage inflicted by inauthentic information published in mass media. The claims on such compensations are frequently satisfied by courts.

In order to prevent the liquidation of mass media, against which such decisions are issued, the debates were hold about the legislative stipulation of the maximal sum of compensation for moral damage that may be imposed by court.

Yet, now the judges apply Article 220-1 of the Civil Code of Ukraine, which stipulates only minimal sum of compensation, which is equal to five minimal incomes (925 UAH).

Since January 2001 the procedure of recompensing the moral damage is also mentioned in the Labor Code, Article 237-1 of which states: “the procedure of recompensing the moral damage is stipulated by laws”, and according to these laws, the sum may not be less than 925 hryvnas.

It should be interesting to compare the court practices concerning the compensation of moral damage to state officials and to common citizens, the taxpayers, who, in fact, are breadwinners for these officials.

I am a worker of a boiler-house at a communal enterprise. More than once I obtained my salary through court, and in my last claim I demanded to recompense the moral damage inflicted to me by the systematic violation of my right for remuneration of labor (the demanded sum of compensation was 925 hryvnas).

On 4 April 2002 the court partially satisfied my claim, the moral damage was estimated at 50 hryvnas. The Appeal court of Dnepropetrovsk oblast agreed with this decision.

In my cassation complaint to the Supreme Court of Ukraine I referred to the above-mentioned norms of the constitutional rights – Articles 237-1 of the Labor Code and 440-1 of the Civil Code, as well as the norm of the procedural right – Article 112 part 3 of the Civil Code, which reads: “in the case of absence of the law that regulates the controversial relations the court must apply the law that regulates similar relations”. The reference to Article 11 of the CC was necessary, since the judges orally stated that the norms of the Civil Code might not be applied to the labor relations, and the Labor Code did not envisage the minimal sum of recompensing the moral damage.

The panel of judges of the Court chamber in civil cases of the Supreme Court of Ukraine consisting of P. Pantalienko, Yu. Prokopchuk and Yu. Senin issued the decision of 26 May 2003: “According to part 2 Article 320 of the Civil-Procedural Code of Ukraine the cassations against court decisions are grounded on the incorrect application by the court of the norms of material right or on violation of the norms of procedural right.

The arguments adduced in the complaint give no reasons for the conclusion that the court committed the violations of the norms of material or procedural right, which are stipulated by parts 3 and 4 of Article 328 of the CPC of Ukraine as the grounds for the reconsideration of the case by the composition of the Court Chamber… The cassation complaint will not be satisfied”.

Taking into account that the resolution does not contain the arguments of the cassation complaint, the resolution looks rather well-founded and legal. Yet, if you cannot obtain your salary, you get the compensation of 50 hryvnas, but if you criticize the swindlers, who rule the country, you must pay 50000 hryvnas!

The given example creates the impression that the size of moral compensation depends on the social status of the claimant. And the judges evaluate the moral damage in the accordance with their social status.

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