How to get moral compensation in case of illegal refusal to grant a one-time cash benefit for the death of a serviceman?
Read in the new decision of the Kyiv Court of Appeal of September 22, 2021 in case №760 / 4112/19!
In this case, the court ordered the Ministry of Defense of Ukraine to pay 20,000 hryvnias in favor of the wife and young son of the deceased serviceman as non-pecuniary damage caused by an illegal decision of the commission of the Ministry of Defense of Ukraine on the appointment and payment of lump sum and compensation sum.
According to the circumstances, the plaintiff's husband died as a result of a gunshot wound during military service in the anti-terrorist operation zone.
She appealed to the Vinnytsia DEC on the appointment of one-time financial assistance under Article 16 of the Law of Ukraine "On Social and Legal Protection of Servicemen and Members of Their Families."
However, the commission of the Ministry of Defense of Ukraine decided to refuse to grant payment due to the lack of a certificate stating that the man's death was not the result of alcohol consumption.
The plaintiff appealed the decision of the Ministry of Internal Affairs in the Vinnytsia District Administrative Court and on November 23, 2017 the claim was satisfied, and the financial assistance must be assigned and paid. Despite the court's decision, the Ministry of Defense of Ukraine continued to take no action to assist the plaintiff.
The inaction of the MOU caused the plaintiff irreparable moral suffering, damage to her psychological, moral and mental condition and obstacles to the normal development of her son as a person.
Solomyansky District Court of Kyiv, with the decision of which the Kyiv Court of Appeal agreed, supported the position of the plaintiff. With the participation of the lawyer of the Podolsk Legal Center Mykhailo KOZACHUK, it was proved that in this case the moral damage is really subject to compensation by the Ministry of Defense of Ukraine.
Article 17 of the Law of Ukraine “On Social and Legal Protection of Servicemen and Members of Their Families” stipulates that compensation to servicemen for moral and material damage is carried out in accordance with the procedure established by law. According to Art. 1167 of the Central Committee of Ukraine the moral damage caused by illegal decisions, actions or inaction, is compensated by the person who caused it, in the presence of its fault.
In deciding case №760 / 4112/19, the Court of Appeal assumed that:
1. The fact of the moral damage is proved:
In this situation, the plaintiff suffered mental suffering, as she was forced to make additional efforts to restore her violated right, in particular, to go to court to prove the illegality of the commission's refusal to appoint and pay a lump sum.
2. The guilt of the defendant (MOU) in causing the following non-pecuniary damage:
In this case, the Ministry of Defense of Ukraine made an illegal decision to deny the plaintiff the appointment and payment of one-time financial assistance, which was established in the court decision.
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