The Supreme Court resolved the dispute on compensation for non-pecuniary damage caused by the death of a father to a child born after his death

The Supreme Court of the Russian Federation (SC) resolved the dispute on compensation for non-pecuniary damage caused by the death of a father to a child born after his death. The courts rejected this claim, considering that a child who never knew his father, in principle, does not suffer from his absence. The Supreme Court did not agree with this, emphasizing that such a child “inevitably realizes the deprivation of paternal care and guardianship”, and the refusal of the courts “detracts from the legal and social significance of family ties.” According to lawyers, the decision of the Supreme Court following the Constitutional Court (CC) “gives a signal” to reconsider the approach to such cases and develops a socially oriented trend in practice.

The Supreme Court considered a dispute on compensation for non-pecuniary damage to a child in the event of the death of a close relative. As part of the bankruptcy of MaxiSklad LLC, Elena Ofitserova, in the interests of her minor son Vyacheslav, asked the court to include 1 million rubles in the register of creditors of the company. compensation for moral damage. She explained that in September 2018, Pavel Ofitserov, the father of a child born two weeks later, died as a result of an accident at work. The company was found liable for the death of an employee due to violation of labor protection standards, and in February 2021, the LLC was declared bankrupt. According to the widow, the incident caused the child “deep moral suffering.”

The Moscow Arbitration Court rejected the claim, considering that the issue of recovery of moral damage should be resolved in a court of general jurisdiction, outside of a bankruptcy case. The appeal added to this the thesis that, since Vyacheslav Ofitserov was born after the death of his father and “did not have a deep, stable affection for him,” he “did not realize the loss and could not experience physical and moral suffering.” Cassation found the conclusions correct.

Ms. Ofitserova appealed against the refusal to the Supreme Court, insisting that the death of her father as a result of the actions of the debtor was “an irreparable loss for the child” and the fact of causing moral harm “is obvious and indisputable.” Case transferred to the Economic Board, which canceled all court decisions, follows from the definition of the Supreme Court published on June 14 (.pdf).

The Supreme Court noted that according to the Constitution of the Russian Federation, the state is obliged “to contribute to the maximum possible compensation for the harm caused and thereby ensure effective protection of the dignity of the individual as a constitutionally significant value.”

The right to compensation for non-pecuniary damage arises “in the presence of physical or moral suffering of the victim.” Moreover, the decision says, there are no “restrictions on actions that can be considered as a basis for compensation” in the law.

In the situation of the death of one of the parents, “the fact of causing moral harm to the child must be assumed, including if at the time of the father’s death the child had not yet been born.” Such a child, according to the Supreme Court, “will inevitably realize the deprivation of paternal care (spiritual warmth) and guardianship.” A different approach “would not only reduce the level of constitutional and legal protection,” the board pointed out, but would also “create unreasonable obstacles to the application of guarantees for the realization of children’s rights to special protection and assistance, the principles of priority of their interests and well-being in all spheres of life, which did not meet to the demands of justice.”

Thus, the position taken by the courts is “inadmissible” because it “detracts from the legal and social significance of family ties between the deceased father and the child born after his death,” the Supreme Court concluded, sending the dispute for a new consideration.

Nikita Sattarov, a lawyer at the Delcredere Bar Association, notes that the lower courts issued their decision before the Constitutional Court expressed its position on the issue, which in March “presumed causing moral harm to an unborn child due to the death of one of the parents” (see Kommersant of March 7). At that time, lawyers told Kommersant that before that, the practice was dominated by the refusal approach of the courts, proceeding from the fact that the death of a parent could not cause suffering for an unborn child.

The case of Elena Ofitserova in the Supreme Court is the first known case of applying the position of the Constitutional Court in a specific dispute, giving a direct signal to the courts about a fundamental change in approach. In general, Sergey Domnin, the arbitration manager, emphasizes that the Supreme Court has recently seen a “socially-oriented trend” that reminds judges that “there is life outside their offices, too.”

According to Mr. Domnin, the decision of the Supreme Court will be useful not only for arbitration courts in bankruptcy cases – it can also be applied by courts of general jurisdiction, which usually consider disputes about moral damage. Especially, adds Case by Case lawyer Yulia Mikhalchuk, given that this mechanism “works out of hand in Russian courts” and “one can count on one hand the cases” in which large compensations were awarded for a serious injury, disability or loss of a close relative: “ So far, in our legal system, moral experiences, health and life are not valued too highly.

Ekaterina Volkova, Anna Zanina