Expertise in cases of compensation for moral damage caused by a crime

On 15 November 2022, the Plenum of the Supreme Court of the Russian Federation published Resolution No. 33 "On the Practice of Application by Courts of the Norms on Compensation for Moral Damage", which replaced the 1994 clarifications. The peculiarity of the new ruling was an expanded list of circumstances, which, in the opinion of the highest court, the courts should be guided by when deciding the most difficult issue of applying compensation for moral harm in general - determining its amount. Numerous doctrinal studies are also devoted to the solution of this problem, the authors of which propose the introduction of appropriate formulas for calculating the amount of compensation, taking into account both the individual characteristics of the injured person and other circumstances relevant to the case (the degree of guilt of the offender, the intensity of the offence, etc.). At the same time, both the guidelines formulated by the Supreme Court and the formulas proposed in science do not take into account the difficulty in establishing the most important circumstance for the case of compensation for moral harm, the basis for its award - the presence of moral suffering as such. No matter how many reference points there are and no matter how accurate and unfolded the formulas are, the suffering caused by the offender, its depth, the degree of influence of the violation on the victim will always remain inaccessible for objective reasons for the court. As a consequence, these sufferings will inevitably be assessed by specific law enforcers on the basis of their own life experience, through the prism of their own perceived experiences and value systems, which means that the final amount of compensation will by definition be extremely subjective. The foregoing actualises the need to find such a way of establishing the existence of moral harm and the degree of moral suffering actually incurred by a person, which would allow the court to form a real picture of the actual psychological state of the victim in the most possible exhaustive way. The analysis of doctrinal studies shows a significant attention of authors to psychological and (or) psychiatric expertise - a mechanism, the use of which would significantly simplify the process of establishing the existence of grounds for compensation and, consequently, the determination of its amount. At the same time, despite a number of obvious advantages of such procedural measures, they also have a number of disadvantages: limited use in criminal proceedings, problems in the distribution of costs for their conduct and in the assessment of their evidentiary value in general. The use of forensic psychological and forensic psychiatric examinations is also complicated by the current narratives in law enforcement, which have become a consequence of contradictions in the positions of the Supreme and Constitutional Courts of the Russian Federation. The author declares no conflicts of interests.

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