Intrauterine moral harm – Newspaper Kommersant No. 39 (7484) dated 03/07/2023

A child, even if he was born after the death of one of the parents, has the right to compensation for moral damage from such a loss, follows from the decision of the Constitutional Court, published on Monday. Now the Russian courts will have to reconsider their position on this issue, the expert says. Until now, they proceeded from the fact that the death of a parent in an unborn child could not cause physical and moral suffering. However, the Constitutional Court decided that such an approach violated the legal principle of equality.

The reason for checking the constitutionality of paragraph 2 of Art. 17 of the Civil Code of the Russian Federation (it says that “the legal capacity of a citizen arises at the moment of his birth and ends with death”) was a complaint from a resident of the Arkhangelsk region, Maria Grigoryeva. Her husband died in 2015 in a car accident. Almost a month later, she gave birth to a son. The widow applied to the court demanding compensation from the driver, found guilty of the traffic accident, for moral damages caused to her two sons by the death of their father. The court of first instance upheld the applicant, but the higher courts upheld only the decision to award compensation in favor of the eldest son. They pointed out that the younger one had not yet been born at the time of his father’s death, did not have legal capacity, and the death of a parent could not cause him physical and moral suffering.

Mrs. Grigorieva did not agree with this approach. In her complaint, she referred to the fact that the absence of one of the parents is an irreparable loss, which her child will feel throughout his life, therefore, the general theoretical construction of legal capacity cannot be mechanically applied to such a situation. In addition, she recalled, the Civil Code takes into account the interests of unborn children in situations where it comes to the right to an inheritance or to compensation for harm in connection with the loss of a breadwinner. Thus, the differentiation of legal guarantees regarding compensation for moral damage violates the principle of legal equality.

The Constitutional Court eventually agreed with the applicant, although it did not find grounds for recognizing the controversial norms of the Civil Code as contrary to the Basic Law of the country. Legal regulation does not imply an unconditional refusal to compensate for moral harm to a person who has suffered physical or moral suffering as a result of the loss of a loved one, the court ruling says. Cases where by the time of death or the onset of the circumstances that led to it, the child had not yet been born are no exception. A different approach would not only reduce the level of protection of the rights of such children, detracting from the importance of family ties between the deceased father and the child born after his death, but would also create unreasonable obstacles to the application of constitutional guarantees for the realization of the rights of these children, the Constitutional Court emphasized. Therefore, the case of Maria Grigoryeva should be reconsidered, and the application of the contested norm should be corrected, taking into account the legal position formulated by the court, the decision says.

The lawyer Vladimir Tsvil, who represented the applicant, considers it logical that the Constitutional Court upheld the challenged norm. The main thing that the court confirmed is that the law should serve the person, and not vice versa, the lawyer emphasizes. The reason for the conflict is that when the situation is not directly stipulated in the law – such as the right of unborn children to inherit – the courts apply the general rule and follow the formal path, Mr. Zvil explains: according to his data, in similar cases, now the courts most often denied compensation for non-pecuniary damage. The Constitutional Court succeeded in overcoming this formal approach, emphasizes the applicant’s representative. According to him, he has already sent an application to the court to review the case of his client.

Now, when considering such cases, the courts will have to take into account the position of the Constitutional Court, confirms Dmitry Gorbunov, partner of the law firm Rustam Kurmaev and Partners. Procedural decisions of the Constitutional Court are in fact high-level verdicts, they are able to change both the practice of legal proceedings and legislation in general, he recalls. “Therefore, potentially after the publication of the position of the Constitutional Court, the practice of considering similar or related disputes will move in the same direction,” the expert concludes.

Anastasia Kornya