Moral (non-property) damage from russian armed aggression and its role in the criminal law of Ukraine

Abstract

The article examines the issues of crimes against the foundations of national security of Ukraine and criminal offenses against peace, human security and international law and order caused by the armed aggression of the russian federation and the commission of crimes by its agents, along with non-pecuniary damage. It is stated that such damage is larger in size and unlikely to be compensated. Almost every citizen of Ukraine has suffered physical pain and suffering in connection with the russian dictatorial regime’s attempts to revise the existing borders by military force, impose its vision of the world order and establish a new totalitarianism. The author emphasizes that the Criminal Code of Ukraine shows a tendency to exclude moral damage from the mandatory legal elements of specific criminal offenses due to the complexity of its definition and establishment. At the same time, it is pointed out that moral damage may be a consequence of a criminal offense and indicate its social danger even if its occurrence does not in any way affect the criminal law qualification of acts related to the armed aggression of the russian federation. Such non-pecuniary damage characterizes the relevant criminal offense and should be compensated by way of securing a civil claim in criminal proceedings. The author examines the positions of the Grand Chamber of the Supreme Court of Ukraine regarding both the definition of the essence of non-pecuniary damage and the jurisdiction of Ukrainian courts. In case of application of the “tort exception”, any dispute arising on the territory of Ukraine between a citizen of Ukraine and a foreign country, including the russian federation, may be considered and resolved by a Ukrainian court as a proper and authorized body. The author concludes that, along with interviewing witnesses and eyewitnesses to russian war crimes, it is necessary to identify persons who have directly or whose family members or their close relatives have suffered not only property damage but also moral damage, and to involve such persons as civil plaintiffs in criminal proceedings against the aggressor state.