Can a serviceman receive compensation for non-pecuniary damage associated with military service? According to the Law of Ukraine “On Social and Legal Protection of Servicemen and Members of Their Families”, such a possibility is provided.
However, what are the chances of receiving moral compensation in practice? In what situations is compensation for moral damages most often paid? What amounts can be reimbursed in this way? Where and how to apply to get a refund without hindrance? - Read in our selection of case law.
1. Moral damage for damaged health during military service.
Unfortunately, recent case law has consistently confirmed that the State should not be held liable for cases where a serviceman is injured or disabled during military service.
Thus, in particular, in the Resolution on case №333 / 6091/16-ts of 15.08.2018 the Supreme Court came to the conclusion that since the Ministry of Defense of Ukraine is not guilty of injuring a serviceman, accordingly, there are no grounds for compensation for non-pecuniary damage. Thus, the Supreme Court overturned the decisions of the courts of first and appellate instances in this case, which satisfied the serviceman's claim for UAH 30,000 in moral damages.
The Supreme Court reached the same conclusions in the Resolution of April 10, 2019 in case № 333/6088/16. The plaintiff served in the military and was injured in the line of duty. In the courts of first instance, the plaintiff obtained compensation in the amount of UAH 40,000. However, the Supreme Court upheld the cassation appeal of the Ministry of Defense of Ukraine and agreed that the absence of unlawful actions on its part did mean the absence of an obligation to compensate for moral damages. At the same time, the Court stressed that the legislation of Ukraine provides for a number of other guarantees, including the payment of one-time cash benefits, which include compensation for non-pecuniary damage caused during military service. Therefore, individual claims for non-pecuniary damage should not be satisfied.
2. When discharge from military service does lead to moral suffering
Article 8 of the Law of Ukraine "On Social and Legal Protection of Servicemen and Members of Their Families" provides for the possibility of compensation for non-pecuniary damage by a court decision in the event of its illegal dismissal or transfer. However, in practice one can find quite different positions of courts in this category of cases.
For example, in a recent decision of 14 June 2021 in case № 580/1899/21, the Cherkasy District Administrative Court agreed to compensate the plaintiff, who had been illegally discharged from military service for unfitness, and ordered him to pay UAH 2,000 (of the claimed UAH 5,000). Substantiating the moral damage caused, the plaintiff noted that the unfitness was the result of an illness that had been acquired during military service, and a few months before the acquisition of the right to a pension for years of service. The dismissal caused him "a feeling of neglect by the state of his life choice to protect the Fatherland and territorial integrity of Ukraine, loss of confidence in their ability to provide a sufficient level of security and the ability to properly ensure the life of his family. Depressed psychological state , sleep disorders. "
Instead, under similar circumstances, the Kharkiv District Administrative Court ruled on 26.12.2017 in case 820/1618/17, which refused to compensate the non-pecuniary damage caused to the plaintiff in the amount of UAH 60,000. as a result of illegal dismissal from service in the State Border Guard Service of Ukraine. The plaintiff provided a medical certificate to the case file to confirm the deterioration of his health. However, the court noted that such evidence did not support an objective link between the illness and the defendant's unlawful order, as the "current illness related to her and her husband's work problems" stated in the certificate was taken only from the plaintiff himself.
3. 1 hryvnia for incorrect calculation of military pension.
Interestingly, in the practice of national courts, situations where the plaintiff requests are not uncommon
to reimburse moral damage, which is estimated at UAH 1. For example, in case №818 / 3631/15-a, as a result of which on September 7, 2021 the Supreme Court issued a ruling. The plaintiff believed that the incorrect calculation of the military pension caused him significant moral suffering and humiliation of his dignity, significantly limited the opportunities for a dignified life and effective fight against an incurable disease.
However, the Supreme Court ruled that such non-pecuniary damage had not been duly substantiated and refused to satisfy the claim for 1 hryvnia in his favor.
4. The lawsuit against the Russian Federation as an aggressor state.
The war in eastern Ukraine has caused great losses to many Ukrainian military and civilians. Many wounded servicemen and families of those killed during the war suffered moral damages that can hardly be estimated in monetary terms. Such losses are obviously connected with the armed aggression of the Russian Federation, the armed conflict, the temporary occupation of the territory of Ukraine.
The case №752 / 7929/16-ts in the Holosiivskyi District Court of Kyiv has recently become public. In this case, the claim of a citizen of Ukraine to the Russian Federation was satisfied. Given the nature and extent of the plaintiff's moral suffering, significant violations of her constitutional rights, the intentional nature of the Russian Federation's actions, and the feelings of helplessness and frustration she has felt for years at her inability to use housing, work, communicate with relatives, the court ruled. sufficient amount of compensation for non-pecuniary damage caused to her in the amount of UAH 985,950.
However, it should be noted that this decision of the Holosiivskyi Court was rather ambiguously perceived, and such conclusions were practically not encountered in further practice.
In any case, each case is individual. And even the Supreme Court can sometimes change seemingly established positions.
If you believe that you, as a serviceman, have suffered non-pecuniary damage, do not hesitate to contact our specialists to find out whether there is a prospect of compensation for such damage and how this can be achieved in court.
Call the number or write a question in the CHAT.
Comments