The Compensation of Moral Damages

Abstract

Plaintiffs in civil lawsuits and injured parties in criminal lawsuits request monetary compensations for moral damages with increasing frequency and in increasing amounts. If, during the implementation of the new Civil Code in 2003, courts were convinced that only natural persons could claim moral damages, then, for the past several years, legal entities also started seeking and receiving compensation for moral damages, provided the European Convention on Human Rights and Fundamental Freedoms (European Convention), as well as under the case-law of the European Court of Human Rights (ECHR or the Court) and special laws. The compensation of moral damages raises multiple issues that arise out of the intent to avoid the risk of fraudulent or imaginary claims. That is, one of the roles of courts is to reject and discourage purely speculative legal action that is based on:

• a sort of blackmail of the alleged victim via legal costs and the uncertainty of the judicial process; • a lack of strict evidence rules and the subjectivity inherent to the assessment of the compensation amount; • the task of providing equitable satisfaction to the plaintiff, without unduly impoverishing the defendant; • the need to respect the principle of equal treatment, which calls for avoiding undue variations in the damages amount when the gravity of the offense is the same in various similar cases (principle of horizontal justice), but also for the differentiation of the compensation amount in various cases in proportion with the gravity and duration of the offense (the principle of vertical justice).

Judges should thus not be under the false impression that, in disputes relating to claiming compensation for moral damages, the only role of the court is to do justice by determining the compensation amount and ordering it paid to the victim. Such disputes raise first of all significant preliminary issues of law, such as: in what cases of illegal action the law should recognize reparation via compensation, what the statute of limitations in such actions is, whether the succession of rights is allowed in such cases, what the state fee is, how the compensation is to be paid.

Note: Downloadable document is in Romanian.

Keywords: moral damage, civil cases, CEDO, jurisprudence

JEL Classification: K12, K20