Protection of feelings, emotions, and experiences in disputes with the Social Fund of Russia on compensation for moral damage

Grigor'ev Ivan Vladimirovich ORCID: 0000-0003-1956-4650 PhD in Law Associate Professor, Department of Labor Law, V.F. Yakovlev Ural State Law University 620137, Russia, Sverdlovsk region, Yekaterinburg, Komsomolskaya str., 21 adarichi@mail.ru Other publications by this author     Kushnarev Aleksandr Sergeevich Student; Department of Prosecutorial Activity; V.F. Yakovlev Ural State Law University 620137, Russia, Sverdlovsk region, Yekaterinburg, Komsomolskaya str., 21 kushnarev-02@list.ru

Stepanov Kirill Alekseevich ORCID: 0000-0002-1855-9481 Assistant Prosecutor of the city of Usinsk; Prosecutor's Office of the city of Usinsk 10 Lenin St., Usinsk, Komi Republic, 620066, Russia minerality@yandex.ru Other publications by this author

Compensation for moral damage is the most effective way to protect civil rights. The existence of such an institution is an important part of the modern legal system for many countries, characterizing the development of legislation that provides for the possibility to protect not only the property, but also the non–material side of people's lives ^[1]. Such well-known legal scholars as A.V. Vorobyov ^[2], S.V. Kiselyov ^[3], P.V. Kirsanov ^[4], B.I. Sosna ^[5] and others devoted their works to the study of the possibility of compensation for moral harm. In the works of these authors, researchers come to an unequivocal conclusion – that it is necessary to consolidate in domestic legislation the possibility of compensation for moral damage in case of violation of property rights, however, they formulate the limits of compensation for moral damage in different ways, which indicates the absence of a unified doctrinal approach to the problem and actualizes the need for further research of this issue. The relevance of the work is given by the fact that the above studies were conducted before the adoption of Resolution No. 33 of the Plenum of the Supreme Court of the Russian Federation dated November 15, 2022 "On the practice of Courts applying norms on compensation for moral damage" (hereinafter referred to as Resolution No. 33 of the Plenum), which established the possibility of compensation for moral damage in case of violation of property rights.

In this work, the authors use such methods of scientific knowledge as formal legal (the study of doctrinal approaches to compensation for moral harm in doctrine and practice) and comparative legal (the study of legal positions on the problems of the Supreme Court of the Russian Federation and the Constitutional Court of the Russian Federation).

Moral harm refers to moral or physical suffering caused by actions (inaction) that infringe on a citizen's intangible assets or violate his personal non-property rights, or violate the property rights of citizens. It is worth saying that the legislator has not formed a legal definition of the concept of "suffering" or unambiguous parameters that would cover the concepts of "physical suffering" or "moral suffering", which is very logically explained by the evaluative nature of these concepts. However, one can turn to the doctrine, which has developed different approaches to understanding the category of suffering. Thus, according to A.M. Erdelevsky, "the content of moral harm as suffering means that the actions of the harm-doer must necessarily be reflected in the victim's mind, cause a certain mental reaction, while adverse changes in legally protected goods are reflected in the human mind in the form of negative feelings or experiences" ^[6]. Such an interpretation leads to another, equally significant question: what are feelings – the subject of proof of a violated right or a separate legally protected benefit that may be harmed? Of course, if we are talking about feelings related to religious and other worldviews ^[7], then the answer will be yes, since the current legislation is based on giving such feelings a special status, elevating them into a separate intangible good protected by law. However, it is important to understand that not only believers can have "offended feelings," but also "ordinary people." In order not to be accused of blasphemy, we just want to emphasize that every person is capable of experiencing emotions, whether positive or negative, feeling, experiencing… In this connection, we dare to put forward the thesis about the need for independent protection of "human feelings, emotions", since they are a separate intangible asset.

The most interesting example for considering the stated thesis is the Resolution of the Constitutional Court of the Russian Federation dated October 26, 2021 No. 45-P in the case of S.F. Shilovsky (hereinafter referred to as Resolution No. 45-P). According to the factual circumstances of the case, I., who worked as an employee of the Bureau of Forensic Medical Examination, committed a crime under the second part of Article 159 of the Criminal Code of the Russian Federation against citizen S.F. Shilovsky, who was obviously in a difficult life situation for I. caused by the loss of his mother as the person closest to him, which resulted in suffering physical and moral suffering (moral damage). I. fraudulently received 6,000 rubles from the victim under the pretext of paying for services related to the preparation of the body for burial, provided by the morgue, allegedly without fail, for cash. Until the moment of handing over the money to him, I. refused to give S.F. Shilovsky the body of his deceased mother on the day of the funeral, which caused damage to the latter.

During the proceedings, the Constitutional Court found that this circumstance does not exclude the possibility of the constitutional right to compensation for damage caused and civil tort obligations related to compensation for moral damage, including in cases where the direct object of criminal encroachment is the property rights of the victim, but the crime violates and his personal non-property rights or encroaches on his intangible assets. Further, the Constitutional Court points out that any crime against property encroaches on the dignity of the individual, and under certain circumstances it can cause both physical and moral suffering (moral harm) to the victim of the crime. In this case, the Constitutional Court sees a violation of non-property rights in the fact that a crime against property diminishes the constitutional right of everyone to own, own, use and dispose of property both individually and jointly with other persons (Article 35, Part 2) and may cause moral harm. However, according to the factual circumstances of the case, as a result of I.'s criminal actions, citizen S.F. suffered physical and moral suffering neither from the fact that he incurred additional and significant material costs for him, nor from the fact that his constitutional right to property was diminished, but because Shilovsky, wishing to pay a well-deserved tribute of respect and conduct a dignified As a result of I.'s criminal actions, he was forced to endure strong emotional experiences from I.'s creation of obstacles to his mother's funeral, thereby, in the opinion of the Constitutional Court, harming the dignity of the victim. But is it true? Is the dignity of a person really harmed, or is it caused to feelings, emotions, and experiences due to the impossibility of burying a loved one?

To begin with, it is worth mentioning the difference between protecting dignity and protecting offended feelings. Thus, the right to personal dignity, being constitutional and legal in its content, is based on a public law component, since encroachment on personal dignity is characterized as a public law tort ^[8]. The offender in this situation causes significantly more harm to society than to a specific person, since the object of this offense is dignity in general, as a legal value and an undoubted property of any person inherent in it, regardless of any circumstances.

Whereas human feelings have a predominantly private component and are a specific object, representing attitudes and long-lasting emotional states that can be experienced in relation to various subjects, on different occasions and in different situations. The presence of feelings can be equated to the presence of certain physical, mental or intellectual qualities, the differences of which from person to person do not form differences in dignity as such. At the same time, feelings are changeable and fickle, they can vary dramatically from one person to another for the same reasons, therefore, having a clear understanding of what an insult to honor and dignity is, we do not have any clarity on the issue of insulting feelings. In fact, public protection of dignity is based on ideas about the essence of man as such, so that by protecting the dignity of one person, in his person we protect the right to dignity of all people ^[9], in the case of feelings, the object of protection is not the right to have them, but a specific feeling about a specific occasion.

In this case, the Constitutional Court focuses only on the harm to the dignity of the individual caused as a result of the violation of non-property property rights, completely ignoring the intangible benefits in the form of feelings, which were also damaged.

In turn, in our opinion, in disputes about compensation for moral damage in similar cases involving violations of property rights, it is necessary to distinguish between harm that detracts from the constitutional right to property, as well as the right to dignity, and harm related to feelings, emotions, and experiences, because based on the position formulated by the Constitutional Court, the latter remain without proper protection. In this connection, the conclusion suggests itself that the harm caused to feelings, emotions and experiences occurs as a result of committing an independent tort, while the harm caused to the constitutional right of property, expressed in violation of the right to dignity, is inherently accessory to the violated property rights of the victim. The latter fits very succinctly into the presumption formulated by Resolution of the Plenum No. 33, according to which a citizen who has suffered from a crime against property has the right to file a claim for compensation for moral damage, since "a civil offense always entails a violation of the subjective rights of the creditor (victim).

The adoption of this Resolution by the Constitutional Court of the Russian Federation served as the basis for reviewing the position previously established in judicial practice, according to which the refusal to compensate for moral damage only on the basis of the property nature of the violation was legitimate. Despite the fact that the Resolution of the Plenum No. 33 still contains a provision (paragraph 3), according to which moral damage caused by actions (inaction) violating a citizen's property rights, by virtue of paragraph 2 of Article 1099 of the Civil Code of the Russian Federation, is subject to compensation in cases provided for by law, the Supreme Court of the Russian Federation, taking into account the legal position, formed by the Constitutional Court of the Russian Federation in Resolution No. 45-P, established that the possibility of compensation for moral damage is no longer limited only to cases explicitly provided for in the law. Paragraph 4 of the Plenum Resolution No. 33 introduced a new criterion under which a dispute should fall in order for a court to decide on the application of norms on compensation for moral damage in case of violation of property rights – non-property rights that cause physical or moral suffering to a person should be violated at the same time as property rights.

We note the correctness of the approach of the Supreme Court outlined in paragraph 4 of the Plenum Resolution No. 33, since it corresponds to the spirit and meaning of the legal institution of compensation for moral damage, since causing property damage to a person can cause no less significant moral suffering than violations of non-property rights. Following a purely formal approach by a law enforcement officer – the presence or absence of a special law regulating compensation for moral damage in violation of property rights – led to unjustified restrictions on citizens' rights to compensation for moral damage in cases of torts for which no special regulation is provided.

It is worth noting that a number of courts continue to refuse compensation for moral damage in cases of torts violating the property rights of citizens, citing the lack of special legislation regulating the procedure for compensation for moral damage in a particular category of disputes (in particular, the Decision of the Seventeenth Arbitration Court of Appeal dated 02/16/2022 No. 17AP-260/2022-AK in case no. A60-35171/2021). An important factor influencing the adoption of such decisions by the courts in the field of social rights of citizens is the position set out in paragraph 31 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 11.12.2012 No. 30 "On the practice of court consideration of cases related to the exercise of citizens' rights to labor pensions" (hereinafter referred to as Resolution of the Plenum No. 30), according to which the requirements compensation for moral damage for violations of citizens' pension rights is not subject to satisfaction based on the provisions of paragraph 2 of Article 1099 of the Civil Code of the Russian Federation, since there is no special law allowing in this case the possibility of involving pension provision authorities to such responsibility.

In our opinion, the provision of paragraph 31 of the Resolution of the Plenum No. 30 dated 11.12.2012 is inconsistent with the current legal regulation and legal positions set out in the Resolution of the Plenum No. 33. In this regard, in order to form a uniform judicial practice, we consider it correct to invalidate it, which will allow the courts to be guided by the only correct criterion when resolving claims for compensation for moral damage in social disputes – the violation, along with property rights, of non-property rights that cause physical or moral suffering to a person.

In fairness, it should be noted that there are also court decisions in which courts have awarded compensation for moral damage in disputes over the non-provision or improper provision of social benefits (in particular, the Ruling of the Sixth Court of Cassation of General Jurisdiction dated March 07, 2023 in case No. 88-5920/2023; the Appeal Ruling of the Belgorod Regional Court dated December 15, 2022, No. 33-5891/2022). The courts, as a rule, consider that in such a case, when the property right to receive a certain benefit is violated, a person, being in need and having certain life difficulties, experiences special moral suffering, since such a benefit is introduced specifically to support vulnerable segments of the population. This decision seems to be the right one, since it is the position of these citizens, as those in need of social protection, that highlights non-property damage in such cases as more significant than property damage ^[10].

Thus, it is necessary to conclude that harming a person's feelings, emotions and experiences as a result of a violation of his property rights is an independent tort, and therefore a citizen has the right to file a separate civil claim for compensation for moral damage caused to his feelings, emotions and experiences. In this regard, the Supreme Court of the Russian Federation needs to bring into uniform compliance the provisions of Plenum No. 30 and Plenum No. 33. Additionally, we note that in the case of feelings, emotions and experiences of a citizen, the fact of causing physical or moral suffering is not in all cases unconditional and obvious. In addition, the nature and degree of this kind of suffering may vary depending on the type, conditions and accompanying circumstances of the act itself. In this sense, the realization by citizens of the right to compensation for moral damage from violation of property rights that have caused harm to emotions, feelings and experiences is possible only on condition that they were actually inflicted on the person as a result of a tort.