Compensation for non-material damage for mental anguish suffered due to unlawful deprivation of liberty and wrongful conviction

Compensation for non-material damage for mental anguish suffered as a result of unlawful deprivation of liberty and wrongful conviction represents one of the forms of compensation for non-material damage. The Constitution of the Republic of Serbia directly guarantees the fundamental rights and freedoms of every person. Violation of an individual’s psychophysical integrity is prohibited. Everyone has the right to personal liberty and security (Article 27(1) of the Constitution of the Republic of Serbia). Deprivation of liberty is permitted only on grounds and in a procedure prescribed by law. In the event of unlawful deprivation of liberty or wrongful conviction, the injured party’s freedom and dignity—and consequently their reputation in society—are jeopardized. Although the presumption of innocence applies, the proceedings themselves constitute a source of discomfort and stress for the person against whom they are conducted. Such a person suffers mental anguish as a result of unlawful deprivation of liberty and wrongful conviction. In view of the foregoing, the aim of this paper is, on the basis of statutory regulation and relevant judicial decisions, to present general legal solutions in a more concise and systematic manner, as well as to outline the procedure for exercising the right to this type of compensation for non-material damage. The paper also seeks to clarify the subjective and objective circumstances that courts assess when determining the amount of compensation and the merits of the injured party’s claim for nonmaterial damage, and to point to inconsistent judicial practice that should be harmonized.