Basic discourse on tort law in the context of the Supreme Court’s explanations on compensation for moral harm

Introduction: the authors examine the jurisprudence on claims concerning compensation for moral harm including that systematized in the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 33 of November 15, 2022. The first explanations concerning compensation for moral damage were published almost 30 years ago, in 1994. Since then, great changes have occurred in social, economic, and cultural spheres, not to mention the development of legislation. The emergence of the citizens’ new legal interests and expectations with regard to the level of protection has required a more modern interpretation of the institution in question. Purpose: to identify trends in the interpretation and application of the rules on compensation for moral harm; to assess the legal positions set out in Resolution No. 33 in terms of their compliance with the legal doctrine, the potential for filling gaps in the legislation, the significance for the distribution of the burden of proof and more effective resolution of relevant disputes. Methods: dogmatic, historical, and comparative legal analysis. Conclusions: Resolution No. 33 generally reflects the approaches developed in the legal doctrine and judicial practice with regard to the grounds and conditions under which compensation for moral harm can be recovered, to the understanding of who the parties to this obligation are. The Resolution reflects the tendency toward expansion of the list of grounds for awarding compensation (for example, in case of damage to things of great non-property value to the victim; in case of illegal seizure of part of income and inability to maintain the previous standard of living). At the same time, the positions of the Supreme Court are characterized by excessive caution with respect to proof issues. The Plenum limited the effect of the presumption of moral harm to only some cases of violation of a natural person’s rights (damage to life or health, violation of consumer rights). There is no attempt in the Resolution to explain the criteria of causation and no mention of presumption of a causal link in certain circumstances, including in relation to illegal acts of public authorities and medical malpractice, where proving this precondition of liability may be difficult for the victim. Provision of detailed criteria for establishing the amount to be recovered as compensation for moral harm, instead of focus on the application of average amounts recovered in similar cases, is unlikely to have a significant impact on the practice of courts determining the amount of compensation in a rather arbitrary manner.