Compensation for moral damages in civil cases
Aldis Laviņš
Judge of the Constitutional Court of the Republic of Latvia
Maetaguse 26 September 2019
1. Legal basis
Article 92 of the Constitution of the Republic of Latvia provides that in case of unjustified infringement of rights everyone has the right to appropriate compensation. In civil relations, the right to compensation for moral damages is regulated in more details by Article 1635 of the Civil Law (hereinafter – CL) and other articles, e.g. Articles 79, 2352, etc.
2. Prerequisites for compensation for moral damages
Compensation for moral damages could be granted, if the following circumstances are stated:
1) an infringement of rights (an unauthorized action);
2) infringes upon non-material rights of the person or any non-material benefits (protected by law – human life, health, personal inviolability, reputation, honor, dignity, authorship and other benefits that determine a person’s ability to function and position in society);
(3) infringement of rights has led to physical or mental suffering.
The infringements of rights that give rise to the right to compensation for moral damages are divided into two groups:
(1) offences that are themselves so dangerous to society as to create a presumption of the need, at the discretion of the court, to compensate the victim and strengthen the general warning (e.g. Art. 79 CL: unless one of the former spouses knew during the marriage that the marriage could be declared invalid, the other spouse, who did not know of it, is entitled to claim compensation for non-material damage. “CL 1635 (3):” If the unlawful act referred to in paragraph 2 of this Article constitutes a criminal offence against the life, health, morals, sexual integrity, freedom, honour, dignity of a person, the victim shall be deemed to have suffered moral harm.
(2) other cases where the offence has caused physical or mental suffering and the victim can prove it. In other cases, the victim must prove moral damage.
The question for a debate – How to prove the existence of moral damages, namely mental and physical suffering?
The evidence in a civil case is an information about the facts (Article 92 of the Code of Civil Procedure (hereinafter referred to as CPL)), and each party must prove the facts on which it bases its claims or objections (Article 93 CPL). Mental suffering is not a fact that can be proven. Thus, some of the facts that can be proven must be subject to a legal assessment as to whether they are indicative of a person’s mental or physical suffering.
3. Determining the amount of compensation
The amount of compensation for moral damages is determined by the court on a case-by-case basis, in accordance with principles of fairness and general principles of law. It should be noted that there is no single rate for determining the amount of compensation for moral damages. It is determined in the light of the gravity and nature of the moral damages, the circumstances in which they occurred and their consequences, as well as other relevant circumstances. The amount to be awarded or reimbursed must perform the functions of justice, conciliation and prevention. This should not only provide some satisfaction to the person whose rights have been violated, but also prevent the offender from committing similar violations in the future. Consequently, compensation should be proportionate. Compensation should not be understood to mean, for example, that if a relative dies, the amount of compensation is equivalent to the cost of living.
From a legal point of view, the so-called comparison and typing method facilitates the determination of fair compensation, i.e., in comparable cases compensation should be the same, not different.
If compensation is well below the minimum normally granted by the European Court of Human Rights (ECtHR) for a similar offence, the person retains the status of victim within the meaning of Article 34 of the European Convention on Human Rights.
4. Examples from the jurisprudence of the courts
4.1 Compensation in case of violation of life and health
4.1.1. The Talsi tragedy case – the child died. The deceased’s parents received compensation in the amount of LVL 20,000 (EUR 28,457.44).
In 2013, the court awarded LVL 20,000 (EUR 28,457.44) to the mother for the death of an adult son (soldier) who died during an exercise organised by the National Armed Forces.
4.1.2 The Talsi tragedy case – a child survived, partially paralyzed, almost on the bed.
The applicant suffered serious injuries, irreversible effects on his physical and mental health – partial paralysis of the body, loss of the ability to speak, independent movement, very limited hand movements – the young man is completely dependent on the care of others. Compensation for moral damages in the amount of 50,000 lats, as well as for mutilation in the amount of 50,000 lats.
4.1.3 The Talsi tragedy case – the child survived (suffered various injuries).
The child suffered serious injuries, bruises, concussion, injury to the lower lip and right ear, fracture of the lower jaw, open fracture of the left femur, dislocation of the right clavicle and traumatic shock of II degree. Compensation for moral damages of LVL 15,000, for mutilation of LVL 15,000 (see Senate Decision of 17 November 2011 in case no. SKC-627).
The questions for the debate:
- Compensation for each family member or one amount per family?
Compensation for moral damages caused by the death of a child is awarded to the family upon the fact of the crime and not to each family member individually for his or her suffering (see Senate Decision in SKC-579/2009; SKC-22/201; 9393). One amount to be compensated to the family, unless there are special circumstances (ECtHR decision Oyal v. Turkey, No. 4864/05, 23 March 2010; Gelayevs v. Russia, No. 20216/07, 15 July 2010).
- Will compensation for mutilation be included in compensation for moral damages (in practice, courts adopt different legal positions)?
In the researcher of the case law concludes that compensation for injury (mutiliation) should be part of a broader concept of compensation for moral damages.
- Does the court of cassation have jurisdiction to determine the amount of compensation?
The case of a trolleybus driver hitting a mother and her five-year-old daughter at a pedestrian crossing. The victim’s husband demanded 5 million euros from the insurance company, but the insurer reimbursed just 150 euros for each victim. The Court of First Instance awarded the victim’s husband the compensation €100,000 for moral damages, the Court of Appeals ruled in the same way, but the Senate reversed the decision of the Court of Appeals and, following similar decisions, awarded compensation of €60,000 (€30,000 for each fatal injury).
(Note the decision of the Constitutional Court of 29 December 2014 in case No. 2014-06-03).
4.2 Poor quality of treatment
4.2.1 Surgery based on an erroneous diagnosis of aggressive cancer; in result loss of prostate, lymph nodes and seminal vesicles; serious injuries – mutilation (injuries). There can be no offspring, erectile dysfunction and urinary incontinence, which has reduced the quality of life. Compensation for moral damages is LVL 10,000, and compensation for mutilation (injury) is LVL 10,000 (see Senate decision of 06.03.2013 in the case of SKC-10).
4.2.2 Due to an inaccurate diagnosis, the child suffered from physical pain for several days, then underwent surgery, lost one testicle and its application. Moderate injuries are deemed as mutilation. This further reduces the quality of life, limits the ability to participate in any activity (risk of traumatizing another testicle cause a tension), and creates difficulties with the opposite sex and marriage. Compensation is set at 10,000 lats.
Currently, the Medical Risk Guarantee Fund has been established in Latvia, which is used to pay compensation for moral damage caused by poor quality treatment. (Note the decision of the Constitutional Court of 18 October 2018 in case No. 2017-33-03).
The questions for the debate:
Who has the right to claim compensation for moral damages? The victim can claim, but if he is dead. Do the heirs have the right to claim compensation for the moral damage that the deceased suffered? Does the situation differ when the victim himself has already filed a lawsuit in court during his lifetime?
The position of the Supreme Court is that the Civil Law does not provide that the heir would have the right to inherit purely individual rights. Proceedings were terminated as well in a situation where the victim had time to file a lawsuit in court demanding compensation for moral damages.
4.3 Unjustified prosecution
4.3.1 Unsubstantiated prosecution as well as dismissal from office causes mental complications. The case also concerned an official (police officer). Compensation for moral damages is set at LVL 3,000 (see Senate Decision, 09.09.2011, Case No. SKC-449).
4.3.2 Compensation for moral damages to a person in connection with initiation and subsequent acquittal of a criminal case (the duration of criminal proceedings is eleven years), as well as publication in the press in this regard – 10,000 lats.
4.3.3 In case of unjustified detention of a person for more than one year – compensation in the amount of LVL 20,000.
4.4 Unlawful infringement of the right to privacy
4.4.1 In accordance with the Law on Press and Other Mass Media, if information is published in violation of the human right to inviolability of private life, mass media are responsible for the moral damage caused. Compensation for the illegal publication of a photography is set at LVL 1,000 (see Senate decision of 28 February 2013 in the case of SKC-11).
4.4.2 By publishing nude photography of the plaintiffs without their consent, the defendant violated their right to privacy by violating the plaintiffs’ physical inviolability, personal secrecy and right to their own image. Compensation for moral damages amounted to LVL 3000 (see Senate decision of 20.04.2011 in the case of SKC-161).
4.4.3 Publication of false information in the debtors’ debt database reduces public opinion; as a result, services were denied. The reputation of the applicant is negatively affected and personal damage is caused. Compensation for moral damages is set at LVL 300 (see Senate Decision of 05.10.2012 in case No. SKC-1178).
4.4.4 In cases of invalidation of a marriage, the court of first instance ruled to award compensation for moral damages in the amount of 6 000 euros and the court of appeal reduced the amount to 1,000 euros. The court decision was appealed against in cassation.
4.5 Compensation for moral damages in employment relations
4.5.1 The legal position on the issue of compensation for moral damages in employment relations is such that only the Labour Act provides exhaustive grounds for compensation for moral damages. (See Senate decision of 6 June 2012, SKC case – 761). Compensation for moral damages in Labour Act must be assessed in accordance with Article 29 of the Labour Act, which provides for such compensation in the case of violation by the employer of the prohibition of unequal treatment and the prohibition of causing adverse (negative) consequences.
4.6. Other cases
4.6.1 Compensation for moral damages of €1 000 was awarded in connection with a lengthy trial in paternity case (it should be noted that the compensation was awarded by the European Court of Human Rights directly);
4.6.2 Compensation for moral damages of LVL 200 was awarded in connection with a wrongful act of the Supreme Court by sending a ruling in the criminal case to the former employer of the accused person.