Compensation for non-material damage in EU enactments and in the case-law of the European Court of Justice

The relevance of the study is determined by the lack of thorough studies of the theory and practice of determining non-material damage caused by an international wrongful act covered by compensation and satisfaction in the Ukrainian doctrine of international law. The article examines the content of non-material (moral, moral and political) damage arising from the commission of international wrongful acts. It is about damage to international legal relations, which has a symbolic meaning for the victim subject, which ensures him respect from other members of the international community and normal mutually beneficial cooperation with them. The UN International Law Commission, in its comments to the 2001 Draft Articles on State Responsibility (UNGA resolution 56/83 (A/RES/56/83) of December 12, 2001), noted that in some cases, the causes of such damage can be eliminated by compensation (Article 36 of the 2001 Draft), in others - by satisfaction (Article 37 of the 2001 Project). At the same time, the Commission did not define the criteria for such a distinction. Most international lawyers believe that they depend on the circumstances of each particular case and are difficult to generalize. The purpose of the article is to study the theoretical aspects and the existing international practice of resolving international disputes related to the determination of an adequate form of compensation for non-material damage caused to states, individuals and legal entities. In particular, an attempt has been made to generalize the international practice regarding the application of compensation and satisfaction for the compensation of non-material damage arising as a result of an international offense. Considered the relevant practice of such international courts and arbitrations as the Permanent Chamber of International Justice, the American-German Commission on Mixed Claims, the International Court of Justice of the United Nations, the European Court of Human Rights, the Court of Justice of the European Union, the International Center for Settlement of Investment Disputes, the Arbitration Tribunal in Rainbow Warrior case (1990). The main focus is on non-material damage caused to states, individuals and legal entities (companies). The methodological basis of the research is a complex of general philosophical, special scientific and legal methods, namely: dialectical, formal-logical, analysis and synthesis, systemic-structural, formal-logical, comparative-legal and logical-legal. Conclusions and recommendations were made regarding the application of compensation and satisfaction in the presence of non-material damage committed as a result of an international wrongful act; the range of subjects of international law to whom damages are compensated in such cases is outlined; the content and features of compensation in relation to them are revealed.

In cases of war, large-scale accidents, and crime, victims may suffer serious non-material damage. This article focuses on the compensation of non-material damage in both civil and criminal cases. Compared to other countries, Dutch courts do not honour such claims on a wide scale. The article discusses court decisions concerning claims for non-material damage, both in the Netherlands and in other countries. The functions that compensation for non-material damage may have for the victim are explained. Theories about the goals of punishment and archetypal models of a criminal justice system form the background of this description. It is concluded that in the absence of more sophisticated methods of compensation or redress, a monetary compensation is to be made available for victims suffering from non-material damage.

One of the consequences of wrongful dismissal is the damage sustained by the unlawfully dismissed person. It may occur in two forms: as material damage and as non- non-material damage. In the event of a wrongful termination of employment, material damage is reflected in loss of earnings and other income that could have been received if there had been no wrongful dismissal, as well as in failure to pay contributions for mandatory social insurance. The compensation for material damage (pecuniary damages) for wrongful termination of employment is not a matter of controversy in Serbian theory and practice. Besides material damage, wrongful dismissal may also cause non-material damage. In the spirit of Serbian law, it may be reflected in sustained mental pain (for the violation of dignity and reputation, and/or violation of one's personality rights) and sustained fear. The right to claim compensation for non-material damage (non-pecuniary damages) is a subject matter of debate particularly in legal practice. The major issue of dispute in wrongful dismissal cases is the question whether it is necessary to award non-pecuniary damages for sustained mental pain or distress (in addition to pecuniary damages), or whether the rendered court decision (establishing that the dismissal has been wrongful and that the employee shall return to work) is a sufficient satisfaction. Inter alia, the same question has been posed in respect of the cases involving the unlawfully dismissed judges and prosecutors. The authors advocate the standpoint that a wrongful act cannot be fully remedied in all cases only by awarding declaratory relief and returning the employee to work. Hence, non-pecuniary damages should be awarded as compensation for non-material damage caused by wrongful termination or dismissal whenever it is justified by the circumstances of the case.

n modern internet age, demand of society on using the technology is growing, however, development of technology expands possibility of private interest infringement. Accordingly, legal grounds of personal data protection, especially, in the framework of relationships between private individuals should be studied. Structural analysis of Article 18 prima of Civil Code of Georgia (hereinafter the Code) is essential from this approach. Firstly, considering the aim of the research, the scope of the term ‘personal data’ and limits of its protection should be established, where does the interest of informing the society commence and end. From this approach, in order to define correspondence between national and European approaches, main essence of public and private interest conflict should be shown in accordance with European standards. Research established that personal data is one of the parts of private life. Moreover, personal information includes data of different form and content that are directly or indirectly connected to an identified or identifiable physical person. In order to avoid private interest infringement, personal data should be processed with strict protection of regulations stipulated by the law. The law has legal gap. Accordingly, it should be determined, how should private individual protect its own interest on personal data, while the law on Personal Data Protection sets forth measures that should be used during infringement mainly having public law nature. Research has revealed that Civil Code does not include sanctions that should be used during infringement and Georgian Civil legislation is not in compliance with European standards, as the law should be clear, precise, stipulate effective, corresponding and efficient sanctions. It should be noted that if the content of personal data is connected to illicit and faulty infringement of different private goods (respect, honor, private life secrecy etc.), victim is entitled to request compensation of relevant damages. In order to protect private interests, this gap could be filled with using analogy of Article 18 and interpretation of delict responsibility under Article 992 of the Code expended for purposes of solving this problem. Different regulation exists in relation to non-material damage compensation. According to Article 413.1 of the Code, events of non-material damage compensation is narrowed and issue should be considered in the limits of teleological reduction. Article 18 prima of the Code does not indicate on damage compensation for violating rules of personal data distribution. Accordingly, on legislation level, Article 18 prima of the Code does not compensate non-material damages. It is reasonable, that the following sentence - “person is entitled to receive damage compensation for non-material damage in case of violation private information or confidentiality” should be added to Article 18 prima of the Code. At this stage, legal burden of proof is complicated for the claimant, until there is no indication on such possibility in Civil Code. If faulty and impermissible exposure of personal data results in non-material damages, in order to satisfy the claim on its compensation, the victim should prove that issuing private information was determinant of infringement of any right protected under Article 18. Accordingly, if both facts will be confirmed, non-material damage may be compensated based on Article 18.6 of Code and generalization of Article 992.

The language meaning of the word damage usually does not imply only property but also moral losses. In order to properly interpret the compensation of non-material damage, it is necessary to get acquainted with the rights of the person, because they are the rights recognized by the legal protection of the individual against injuries inflicted on his being, his body or his psyche. The elimination of the harmful effect is the objective of the compensation of damages, the compensation must be adequately damaged. Considering that non-material damage can not have a price, the question arises as to whether or not compensation for damage resulting from a violation of a person's right can be overturned. The conclusion was found in the court practice itself, where practical examples show how and how to compensate for non-material damage and to what extent certain legal provisions and court decisions are effective. In this sense, it can be said that in all forms of non-material damage, the court is entitled to the right to compensation for non-material damage, when a person has suffered fear, pain of a psychic or physical nature, or is seriously injured in the reputation of the injured person in the community in which he resides.

This study aims to explore the possibility of compensation of non-material damage in detail, as in the other laws, through define the relationship between the non-material damage and material damage.This study includes two chapters;the first one discussed the nature of non-material damage, and the second one discussed the compensation of non-material damage. Keywords: Material Damage, Non-Material Damage, Compensation. DOI: 10.7176/JLPG/122-02 Publication date: July 31 st 2022

This article examines the recognition and compensation of non-material damage to legal entities by the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECHR). Both courts acknowledge the moral dimension of legal entities, addressing non-material damage that is inherently intertwined with these entities and challenging to quantify. While neither court provides a precise definition of non-material damage, this ambiguity enables adaptable interpretations tailored to specific cases. The absence of a comprehensive definition results in a lack of a singular criterion for determining compensation amounts, given the multifaceted nature of non-material damage encompassing subjective and objective elements. Legal entities primarily seek compensation for harm to goodwill and associated intellectual property issues, as well as the frustration stemming from prolonged legal proceedings. The divergence between the CJEU and ECHR becomes evident in the awarded compensation, with the latter typically granting amounts four times smaller. This discrepancy can be attributed to the CJEU's focus on economic competition-related claims involving substantial sums. Notably, the analysis of court decisions reveals an escalating trend in cases related to non-material damage compensation for legal entities, particularly since 2010.

Compensation for non-material damage in the case of trademark infringement, particularly in the context of harm to business reputation, is an important yet unjustly overlooked topic in the light of technological and economic progress. Trademark, as a part of industrial property law, provides protection for marks associated with specific goods and services, which can be subject to infringement, resulting not only in property damage, but also non- material damage. Such harm can negatively affect the business reputation of a legal entity operating in the market, leading to a tarnished reputation and, consequently, long-term negative economic effects. Our Law on contracts and torts does not offer significant avenues for protecting business entities in cases of non-material damage compensation. Therefore, the aim of this paper is primarily to introduce relevant concepts, explain non-material damage in the context of obligation law, and attempt to identify solutions and legal mechanisms that could provide protection in such situations.

The role of the state in providing legal and financial support to crime victims is vital, particularly for all individuals or groups affected by various criminal acts. This paper explores the mechanisms through which states offer assistance to victims, including counseling, healthcare, ongoing education on victims rights, and financial compensation for both material and non-material damages. Legislation enacted by states outlines specific criteria and programs aims at aiding crime victims in their rehabilitation and return to their normal life. The compensation system for crime victims varies from one country to another. This paper focuses on the compensation of crime victims in the Republic of Kosovo, a relatively new institute, not only in our country but also in the entire region. It examines the compensation of material and non-material damages as a fundamental right of victims, considering instances where the damages result from criminal offences and the corresponding obligations of the state. Furthermore, it analyzes the effectiveness of state compensation of victims well-being, drawing insights from relevant data on access to compensation by crime victims in Kosovo. This study highlights the importance of the state intervention in compensating crime victim, aiming to mitigate the impact of criminal acts and facilitate the victims recovery and reintegration into society.

The paper deals with the Croatian legal framework regulating civil liability for damages caused by personal injury, health impairment and loss of life of seafarers. Although the basic rules concerning the basis of liability, circle of liable persons and applicable law are provided by the Maritime Code of the Republic of Croatia, when it comes to regulations on various types and amount of compensation for damages suffered by crew members, the relevant provisions are contained in the Civil Obligations Act. The first part commences with the overview of the types of compensation, which are natural restitution, monetary compensation and satisfaction, it continues with analysis of legal solutions for cases of compensation for property damages caused by death, personal injury or health impairment of crew members, as well as rules relevant for compensation for non-property damages, which are manifested as physical pain, mental anguish or suffered fear. In the final part, paper focuses on the issues on amount of compensation and its limitations, elaborating concepts of contributory liability, deductions of advance payments and insurance indemnity, payment of interest and statute of limitations.

The right to monetary compensation for non-property damage is not enjoyed in the same way by all legal entities, i.e. legal entities and natural persons. In theory and practice, there are different approaches regarding the issue of whether a legal entity can suffer non-material damage of the same intensity and in the same form as is the case with natural persons. In this regard, it was pointed out that a legal entity can have a reputation, and therefore a damaged reputation can be the basis for an obligation to pay compensation for the damage suffered as a result. The discussion on the merits of monetary compensation for non-material damage to legal entities continued until the adoption of the legal understanding of the Civil Department of the Supreme Court of Serbia on February 5, 2001. The more recent theory of obligation law discusses this issue in the context of the need to review the current rules of tort law. In this sense, it is emphasized that the objective concept of non-property damage, which excludes physical or psychological pain and fear from the conceptual definition, provides a legal basis for monetary compensation of such damage to legal entities. Such changes have already been implemented in some countries of the former Yugoslavia. When it comes to Serbia, theory and practice are still waiting for reform, although there are indications that reform has already taken place on the normative level. Therefore, the aim of this paper is to answer the question whether in our law there is a right of a legal entity to compensation for non-property damage.

Background: Extremism poses a cross-border social problem, lacking a universally accepted definition. In principle, so-called hate crimes are specific types of criminal offences that cut across all types of extremism. We can even talk about their conceptual overlap. A special category of hate crimes is represented by so-called verbal attacks, known as hate speech, which are considered an abuse of freedom of expression from an international perspective as well as in jurisprudence of the European Court on Human Rights. As a result of such a perception, their criminal sanction comes into consideration. In accordance with the principle of subsidiarity of criminal law repression, another method of sanctioning hate crimes and hate speech is also possible, namely by administrative law. The existence of “multiple legal regulations” on extremism as delict caused a dual sanctioning system of extremism. It leads to application problems in legal practice, for example, an unclear understanding of offences from criminal and administrative perspectives or even the weak possibility of investigating such acts by State power. The main objective of the contribution is to point out the dual legal regulation (criminal and administrative) of the sanctioning of extremism, in particular its special category – hate crimes and hate speech. Moreover, the objective of the contribution is to assess its unclear issues in legal understanding and to identify specific application problems caused by its dual system (criminal and administrative). Special attention is focused on applicable sanctions in both the criminal law area and administrative law areas. At the end, suggestions on how to solve indicated problems are introduced. Methods: The primary sources used for the elaboration of the contribution are scholarly sources (books, studies, scientific papers, etc.), legislative instruments (national and international legislation) and case law (of Slovak national courts and the European Court of Human Rights and the Court of Justice of the European Union). The authors use traditional methods of legal scientific (jurisprudential) research – general scientific methods and special methods of legal science (jurisprudence). The general scientific methods used in the paper are predominantly logical methods, namely, the method of analysis, the method of synthesis, the method of analogy, and the descriptive method. The descriptive method has been used to familiarise the reader with the current legal regulation of extremism. The method of analysis has been used regarding relevant legal provisions and case-laws of courts. The method of synthesis has also been used. The special methods of legal science used here predominantly include methods belonging to a group of interpretative methods, namely, the teleological method, the systematic method and the comparative method. The teleological method has been used to explain the purpose of legislative instruments. The systematic method has been used to classify the relevant applicable law. The comparative method has been used to examine the relationship between legislative perspectives – criminal and administrative. Results and Conclusions: Regarding extremism offences committed in the Slovak Republic, in specific cases, the decision making whether the committed offence is criminal or of an administrative nature depends on the attitude of the person who committed it. In the Slovak Republic, legislative amendments are intended to address the area of extremism offences, but they have not been introduced as final. A new legal regulation of the administrative offences of extremism is envisaged in terms of their definition. A new sanctioning policy of extremism administrative offences by juvenile offenders is also expected. Moreover, the application of probation in case of offences committed by juvenile delinquents in the area of extremism is recommended and preferred. It would highlight the importance of restorative justice, including its strengthening. Probation would allow the court, when sanctioning extremism in the criminal law area, to create a so-called tailor-made sanction, which would strengthen the individualisation of the sanction, the educational purpose of the sanction and the achievement of both the purpose of the sanction and the purpose of the Criminal Code, which is to protect society from criminal offences and their perpetrators. Even the Constitutional Court of the Slovak Republic partially examined the modification of the elements of criminal offences of extremism.

The article explores the main problems of the application by the national courts of the case law of the European Court of Human Rights as a source of law. Analyzing the rules of the law and examining the views of the Supreme Court have highlighted the problematic issues of the obligation to apply the case law of the European Court of Human Rights to national courts as a source of law. The researchers' positions on the obligation of national courts to apply the case law of the European Court of Human Rights in cases against other states are examined and the importance of the application of the case law of the European Court of Human Rights is highlighted. Analyzing the views of scholars and experts, we have proposed ways to address the issues of the binding application of the case law of the European Court of Human Rights by reviewing the plenary sessions of high courts. The problems of the application of the case law of the European Court of Human Rights by national courts, such as the selective application of the case law of the Court, references to general principles and interpretations, ignoring the conditions of their application, absolutization of the binding position of the Court, application of the decisions of the Court by analogy, reference to the practice Court in the presence of clear and consistent provisions of national law, etc. The following ways of solving these problems are proposed: 1) revising the concept and content of the Law of Ukraine "On the implementation of decisions and application of the practice of the European Court of Human Rights" and amending the legislation in order to bring it in line with the provisions of the new procedural legislation and modern ideas of theorists and practitioners about the legal nature of decisions The European Court of Human Rights; 2) preparing a resolution of the Plenum of the Supreme Court on the application of the Convention and the case-law of the Court, which should be based on a thorough analysis of the shortcomings and peculiarities of the case-law of the national courts. The problematic issues of the application of the case law of the European Court of Human Rights in the absence of official translations of the Court's decisions are examined. Analyzing the views of scholars and experts, we have proposed ways to solve these problems by creating a single electronic database that will contain official translations of Court decisions in the Ukrainian language that will ensure their accessibility and dissemination.

Personal origin is reflected in civil law in personal rights, which are closely linked to and the inner self of a human. Accordingly, private legal protection of personal is a guarantee of Individuality. Though guaranties of defense of have been reflected in Georgian civil law accounting for the European experience, but with some specificities. The purpose of the research is to understand the European standard in order to clarify the relation between Georgian and European approaches. IT should be mentioned right from beginning that besides term of “personal right”, The Civil Code of Georgia (hereinafter - CCG) envisages a term of “personal non-property rights”. But it is appropriate to also use a term of personality rights recognized in Europe for a comprehensive protection individuals. Objects of some personal can be separated from the person (name, image, personal data and etc.), while some of them cannot (honor, dignity...). There are protected by Article 18, 181 , 992 of CCG. Also, the personal non-property were nominated in general part of CCG, meanwhile Article 992-993 of CCG strengthened the extended protection of in tort law, accounting for the European experience, which created a solid mechanism for protection of Personality. In addition, the Georgian legislation moved much closer to the European standards on one hand with the adoption of “Personal Data Protection Act” and implementation of international demans and on the other hand by spreading private law protection by CCG Article 18¹ on additional personal data. Compensation of non-material damage, which in itself is quite a difficult problem because it is linked to many aspects, plays an important role for civil legal protection of personal non-property rights. Research showed that a common characteristic rule of Continental Europe is actually laid out in Article 413, paragraph 1, in which it is stated that the non-property damages shall be compensated only in cases prescribed by the law. Accordingly, the amount of cases of compensation for non-material damages is limited and only substantial non-property damage is compensated. It is important to generalize the problems by using a deep theoretical knowledge and in full compliance with the law. Considering these details would help create a higher standard of protection for Personality.

The article discusses current problems related to compensation for damage caused to a citizen as a result of illegal criminal prosecution. This issue takes on particular significance in the context of reforming the law enforcement and judicial systems of Ukraine, since the violation of citizens' rights during criminal prosecution contradicts the principles of the rule of law and justice. The authors examine the provisions of national civil legislation, which establish the grounds and mechanisms of compensation for material and moral damage caused by illegal actions of law enforcement agencies or judicial institutions. Special attention is paid to the analysis of the current legal regulation of damage compensation at the expense of the state, as well as to the problems of the realization of such rights by victims. The article presents statistics on acquittals that show a discrepancy between the number of cases of wrongful prosecution and actual cases of damages. The main problems are highlighted, in particular, the lack of unified approaches to determining the amount of compensation for moral damage, the length of court proceedings, the difficulties of proving the amount of damage, and the limited practical application of legal norms. Particular attention is paid to the analysis of the practice of the European Court of Human Rights, in particular cases related to the violation of Article 5 of the European Convention on Human Rights, which guarantees the right to freedom and personal integrity. Key decisions that set international standards for compensation for damages caused by illegal criminal prosecution are considered. The authors offer a number of recommendations for improving mechanisms of compensation for damages in Ukraine. Among them are the introduction of clear criteria for assessing moral damage, simplification of procedures for obtaining compensation, expansion of state guarantees to ensure the actual execution of court decisions. Attention is also focused on the need to harmonize national legislation with international standards and increase the level of legal awareness of citizens. Key words: compensation for damage, illegal prosecution, moral damage, material damage, criminal proceedings, arrest, notification of suspicion.