Moral damage is a negative psychological experience endured by a person, consisting of mental pain and anguish. War brings with it an inconceivable amount of such experience. However, not all such experience can be compensated through legal mechanisms. There is a certain threshold of severity of moral damage below which compensation is not provided. Such a ‘threshold’ of compensability is often dependent on the functioning and purpose of a particular compensation mechanism. The chapter aims to explore the practice of Ukrainian courts, the UN Compensation Commission, and the ECtHR in matters concerning compensation for war-related moral damage. The chapter addresses evidentiary matters (burden of proof, standard of proof and presumptions) and provides some guidance on the calculation of monetary compensation for mental pain and anguish. The author concludes that the awarded sum should not be viewed as a precise monetary representation of the ordeal. Rather, it serves as a relative indication of the severity and duration of the pain and suffering endured. Determining the monetary unit of measurement hinges on various political, economic, and practical factors, such as the nature and responsibilities of the adjudicating body, the socioeconomic conditions in the applicant’s country, and the resources available to the responsible entity.

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War-Related Moral Damage: Ukrainian and International Practice

  • Bohdan Karnaukh

摘要

Moral damage is a negative psychological experience endured by a person, consisting of mental pain and anguish. War brings with it an inconceivable amount of such experience. However, not all such experience can be compensated through legal mechanisms. There is a certain threshold of severity of moral damage below which compensation is not provided. Such a ‘threshold’ of compensability is often dependent on the functioning and purpose of a particular compensation mechanism. The chapter aims to explore the practice of Ukrainian courts, the UN Compensation Commission, and the ECtHR in matters concerning compensation for war-related moral damage. The chapter addresses evidentiary matters (burden of proof, standard of proof and presumptions) and provides some guidance on the calculation of monetary compensation for mental pain and anguish. The author concludes that the awarded sum should not be viewed as a precise monetary representation of the ordeal. Rather, it serves as a relative indication of the severity and duration of the pain and suffering endured. Determining the monetary unit of measurement hinges on various political, economic, and practical factors, such as the nature and responsibilities of the adjudicating body, the socioeconomic conditions in the applicant’s country, and the resources available to the responsible entity.