Is compensation for physical and moral harm предусмотрена in CRSV cases

Since the beginning of the full-scale invasion of Ukraine, the risks of grave human rights violations, including conflict-related sexual violence (CRSV), have increased. Such crimes have serious consequences for survivors and require proper legal assessment and protection.

Under martial law, the issue of exercising the right of survivors to compensation for physical and moral harm caused by criminal offences becomes particularly relevant. This is explained in detail by specialists of the Mykolaiv Charitable Foundation “Liubystok” — an organization that is a member of the Counter–Trafficking NGO Coalition and operates in the field of providing legal assistance, support for survivors, and raising awareness of the risks of exploitation, human trafficking, and violence in wartime.

Compensation for harm caused by a crime is the process of compensating the injured party for losses suffered as a result of a criminal offence. This may include property, physical, or moral harm, which is subject to compensation at the request of the injured party.

The crime of CRSV is classified under Article 438 of the Criminal Code of Ukraine as a war crime. It should also be noted separately that, under criminal law provisions, the commission of a crime by taking advantage of the conditions of martial law is regarded as a circumstance that aggravates punishment.

In general, the current legislation of Ukraine provides for two ways of obtaining compensation for harm – within criminal proceedings and within civil proceedings.

Within criminal proceedings, such compensation is provided in accordance with Article 128 of the Criminal Procedure Code of Ukraine, which establishes that a person who has suffered property and/or moral harm as a result of a criminal offence or another socially dangerous act has the right, during criminal proceedings and before the start of the trial, to file a civil claim against the suspect, the accused, or a natural or legal person who bears civil liability under the law.

It should be noted that, in order to obtain such compensation, it is necessary to submit relevant evidence to the court to substantiate the circumstances. Such evidence may include expert opinions, documents confirming expenses for treatment and recovery of health, as well as other materials. At the same time, in practice, specialists working with survivors of CRSV encounter difficulties in collecting such evidence, in particular due to delayed обращения or limited access to medical and legal services in wartime.

Within civil proceedings, compensation is provided in accordance with Article 23 of the Civil Code of Ukraine, which establishes that a person has the right to compensation for moral harm caused as a result of a violation of their rights. Moral harm, in particular, consists of physical pain and suffering experienced by an individual in connection with injury or other damage to health.

In its ruling of 12 January 2022 in case No. 265/3896/19, the Supreme Court stated that, when deciding on compensation for harm, it is necessary to determine what confirms the fact that the claimant has suffered moral or physical suffering or losses of a non-property nature, under what circumstances or by which actions (or omissions) they were caused, in what monetary amount or in what material form the claimant assesses the harm caused to them and on what basis, as well as other circumstances relevant to the resolution of the dispute.

Under the requirements of civil procedural law, filing such a claim does not require the existence of a conviction against the person who caused harm to the injured party. At the same time, difficulties may arise during the consideration of the case in proving the fact that such harm was caused. The mere fact of applying to law enforcement authorities regarding the offender’s unlawful actions will not in itself unconditionally prove the unlawfulness of the actions and the person’s guilt, given the presumption of innocence. However, a conviction will have prejudicial significance in such a case. At the same time, the amount of the claimed harm itself must be proven by appropriate evidence.

Practice in working with survivors of CRSV shows that timely access to legal assistance and proper documentation of evidence are key to the further protection of rights and obtaining compensation for the harm caused. In the event of such an offence, it is important to apply to law enforcement authorities in a timely manner and obtain qualified legal assistance, in particular from organizations specializing in support for survivors.