Point of View

Legislative initiative to implement the concept of compensation for non-pecuniary damage is under discussion

07.05.2014

The National Assembly introduces a draft law on making amendments and supplements to the Civil Code attempting to implement the institution of compensation for moral damage in Armenia.

The project has been worked out by the Ministry of Justice and has passed the discussion phase. It is suggested to come into effect from November 1, 2014.

To date, the compensation mechanism for non material (moral) damage has not been defined in Armenian legislation. The 2010 code includes provisions on the protection of honor, dignity and business reputation (article 1087.1), which, nevertheless, only partially reflects the concept of non-pecuniary damage.

It is suggested to stipulate, that in case of violation of an individual person’s rights secured by Article 2 (the right to life), Article 3 (the prohibition of torture) or Article 5 (the right to liberty) of the European Convention, when such violation is a result of a decision of governmental agency or other person acting in an official capacity, be it any act or omission, the individual has the right to claim compensation for the non-pecuniary damage caused to him in a court or law. In addition, a convicted person who was later acquitted also has a right of compensation when conditions of Article 3 of Protocol 7 to the European Convention are met.

In particular the draft law covers the following cases:

  • Unlawful killing or torture committed by an authorized governmental agency;
  • Not carrying out an appropriate investigation on the death or alleged torture of a person as a result of an act or omission of a governmental agency or other person acting in an official capacity;
  • Unlawful deprivation of liberty;
  • Acquittal of previously convicted person on the ground of a new or newly discovered circumstances (except for the cases when the conviction is the convicted person’s full or partial fault, e.g. in case of a confession).

The draft law establishes that “non-pecuniary damage is physical suffering or mental anguish caused by a decision, act or omission infringing nonmaterial values owned by a person by birthright or by law or violating his property or non-property rights”.

The compensation of non-pecuniary damage is implemented at the expense of the state budget. The compensation amount is defined by the court, based on principles of reasonableness, fairness and proportionality, taking into consideration the character, degree and duration of physical suffering or mental anguish, the consequences of the damage, the guilt in causing the damage and other circumstances.

It is indicated in the rationale to the proposal that it is important to enshrine such a mechanism in legislation for the purposes of proper implementation of international obligations which Armenia took upon itself and this necessity was also noted in the judgments of the European Court of Human Rights against Armenia.

In particular, in its judgment in Khachatryan and others v Armenia case the European Court found that owing to the absence of the compensation mechanism for non-pecuniary damage, the person who was a victim of violation of the safeguards defined by Article 5 Paragraphs 1-4 of the European Convention of Human Rights, loses the opportunity to get the compensation, and this, in its turn is a violation of Article 5 Paragraph 5. Therefore, the domestic code must provide such an opportunity.

In “Poghosyan and Baghdasaryan v Armenia case (2012) the ECHR concluded that “the applicant should have been able to apply for compensation for the non-pecuniary damage suffered by him as a result of his ill-treatment. Since no such compensation had been available to him under Armenian law, the applicant was deprived of an effective remedy. There has accordingly been a violation of Article 13 of the Convention.”

In the rationale to the draft law the Ministry of Justice also noted that the adoption of this law is expected to raise the level of legal protection of citizens of Armenia, secure the proper implementation of the obligations vested in Armenia by the European Convention, the proper implementation of judgments issued by the ECHR against Armenia and the decrease in number of such judgments.

We’d like to add that earlier on, in November 2013, the Constitutional Court found part 2 of Article 17 of the RA Civil Code unconstitutional, as it does not define non-pecuniary damage and does not secure possibility for compensation for moral damage.

Source www.hra.am