On November 15, the Plenum of the Supreme Court adopted Resolution No. 33 “On the Practice of Application by Courts of the Rules on Compensation for Moral Harm” (hereinafter referred to as the “Resolution”). The new interpretations replace the previous interpretations approved in 1994 and amended in 2007. The new Resolution reflects the approaches that have developed in judicial practice and clarifications on controversial issues on which the Supreme Court has not previously expressed its position. The Resolution, in particular, states that the defendant can voluntarily compensate for the physical or moral suffering caused and not only with money, but, for example, transfer property or in the form of services, work, for example, perform actions to care for the victim.

The Resolution did not reflect the opinion that the right to compensation for moral harm is inherited, since at present the claim for compensation for moral harm is considered as a protection of non-property rights.

The Resolution states that moral harm means moral or physical suffering caused by actions (inaction) that encroach on non-material benefits belonging to a citizen from birth or by virtue of the law or violate his/her personal non-property rights (for example, life, health, personal dignity, freedom, personal inviolability, inviolability of private life, personal and family secrets, honor and good name, secrecy of correspondence, telephone conversations, mail, telegraph and other messages, inviolability of home, freedom of movement, freedom of choice of place of stay and residence, the right to freely dispose of one’s abilities to work, to choose the type of activity and profession, the right to work in conditions that meet the requirements of safety and hygiene, the right to respect for family and kinship ties, the right to health care and medical assistance, the right to use one’s name, the right to protection from insults expressed during formulating evaluative opinion, the right of authorship, the right of the author to a name, other personal non-property rights of the author to the result of intellectual activity, etc.) or violating the property rights of a citizen. [1]

Rules on compensation for moral harm when protecting the business reputation of legal entities and individual entrepreneurs

According to Clause 6, the rules on compensation for moral harm do not apply to the protection of the business reputation of legal entities and individual entrepreneurs.

An individual engaged in entrepreneurial activity, including without state registration as an individual entrepreneur, is not deprived of the opportunity to claim compensation for moral harm if, in connection with the implementation of this activity, an encroachment on other intangible benefits belonging to him/her or a violation of his/her personal non-property rights occurred.

Compensation in case of a crime against property

According to Clause 5 of the Resolution, the victim of a crime against property, for example, when committing theft, fraud, misappropriation or embezzlement, causing property damage by deceit or breach of trust, etc., has the right to file a claim for compensation for moral harm in case of physical or moral suffering as a result of violation of personal non-property rights or encroachment on intangible benefits belonging to him/her (Part one of Article 151, Article 1099 of the Civil Code of the Russian Federation and Part 1 of Article 44 of the Code of Criminal Procedure of the Russian Federation.

In such situations, the victim may, inter alia, bring an independent civil action.

The fact of causing moral harm to the victim from a crime, including a crime against property, does not need to be proven if the court, on the basis of an examination of the actual circumstances of the case, establishes that this crime violates the personal non-property rights of the victim or encroaches on his/her intangible benefits [2] .

Transfer of the right to compensation for moral harm

Clause 8. of the Resolution states that since the right to demand compensation for moral harm is inextricably linked with the identity of the victim and is of a personal nature, including in the event of a violation of consumer rights provided for by the laws and legal acts of the Russian Federation governing relations in the field of consumer protection, it cannot be transferred by way of succession, in particular, assignment of a claim (Clause 1 of Article 6, Article 383 of the Civil Code of the Russian Federation).

Clause 9 of the Resolution states that the right to compensation for moral harm, as inextricably linked with the personality of the victim, is not part of the hereditary property and cannot be inherited (Clause 1 of Article 150 and Part two of Article 1112 of the Civil Code of the Russian Federation).

The right to receive the amount of money recovered by the court as compensation for moral harm shall pass to the heirs as part of the estate if the victim was awarded compensation, but he/she died before he/she could receive it.

Limitation on actions

Claims for compensation for moral harm arising from the violation of personal non-property rights and other intangible benefits are not subject to limitation on actions, except as provided by law (paragraph 2, Article 208 of the Civil Code of the Russian Federation).

Claims for compensation for moral harm arising from a violation of property or other rights, for the protection of which the law establishes a limitation period or a period for applying to a court, shall be subject to the limitation on actions or applying to a court established by law for the protection of rights, the violation of which caused moral harm. For example, a claim for compensation for moral harm caused to an employee by a violation of his/her labor rights can be filed with the court simultaneously with a claim for the restoration of violated labor rights (in compliance with the established deadlines for applying to the court with a request for the restoration of violated labor rights) or within three months after the entry into force of a court decision by which these rights were restored in full or in part (Part 3, Article 392 of the Labor Code of the Russian Federation).

Moral harm caused in the performance of labor duties

Clause 20 of the Resolution indicates that moral harm caused by an employee in the performance of labor (service, official) duties is subject to compensation by the employer (paragraph one, Clause 1, Article 1068 of the Civil Code of the Russian Federation).

Conviction or bringing to administrative liability of an employee as a direct harm-doer, termination of a criminal case and (or) criminal prosecution, proceedings on an administrative offense do not relieve the employer from the obligation to compensate for moral harm caused by such an employee in the performance of labor (service, official) duties.

The obligation to compensate for moral harm caused by a citizen performing work on the basis of a civil law contract may be assigned to a legal entity or a citizen who concluded such an agreement with the harm-doer, provided that the harm-doer acted or should have acted on the instructions of this legal entity or citizen and under its/his/her control over the safe conduct of work (paragraph two, Clause 1, Article 1068 of the Civil Code of the Russian Federation).

Form and degree of guilt

Clause 22 of the Resolution states that moral harm is subject to compensation, regardless of whether the harm was caused intentionally or through negligence. But the form and degree of guilt of the harm-doer should be taken into account by the courts when determining the amount of compensation.

Form of compensation for moral harm

As a general rule, moral harm is compensated in cash (Clause 1, Article 1099 and Clause 1, Article 1101 of the Civil Code of the Russian Federation). However, Clause 24 of the Resolution states that the harm-doer may voluntarily provide compensation to the victim in a different form. For example, take care of him/her, transfer some property, provide services. But this does not exclude the possibility of recovering compensation for moral harm in civil proceedings.

The fact that the victim received compensation voluntarily provided by the harm-doer, both in cash and in another form, as well as the statement made by the victim in the framework of criminal proceedings for full compensation for moral harm caused to him/her, does not exclude the possibility of recovering compensation for moral harm in civil proceedings. The court has the right to recover compensation for moral harm in favor of the victim, to whom compensation was paid (provided in non-monetary form) extrajudicially, if, based on the circumstances of the case, taking into account the provisions of Articles 151 and 1101 of the Civil Code of the Russian Federation, it comes to the conclusion that the compensation received by the victim, does not allow to compensate in full for the physical or mental suffering caused to him/her [3] .

Compensation amount

According to Clause 30 of the Resolution, when determining the amount of compensation for moral harm, the court shall take into account the requirements of reasonableness and fairness (Clause 2, Article 1101 of the Civil Code of the Russian Federation).

The amount of compensation may be affected by:

  • the difficult financial situation of the defendant being a citizen;
  • the insignificance of the amount of compensation in comparison with the general level of income of a citizen. An exception is the case when such amount of compensation was indicated by the claimant himself/herself.

The amount of compensation does not depend on the degree of satisfaction of property claims.

If the claimant does not indicate the amount of compensation for moral harm, this issue shall be submitted by the court for discussion (Part 2, Article 56 of the Code of Civil Procedure of the Russian Federation). If the determination of the amount of compensation for moral harm is left to the discretion of the court by the claimant, then the court, having come to the conclusion that it is necessary to award this compensation, shall determine its amount, guided by Articles 151 and 1101 of the Civil Code of the Russian Federation.

The court may collect an additional payment for compensation if it decides that the pre-trial payment does not fully compensate for the suffering of the victim.

  • [1] Clause 1 of Resolution No. 33 of the Plenum of the Supreme Court of the Russian Federation “On the Practice of Application by Courts of the Rules on Compensation for Moral Harm” dated November 15, 2022
  • [2] Clause 17 of the Resolution
  • [3] Clause 24 of the Resolution