Original scientific paper
https://doi.org/10.3935/zpfz.71.5.02
Challenges in Defining Prayer for Relief in Case of Personality Rights’ Violation Caused by Bodily Injury
Zvonimir Matić
orcid.org/0000-0001-7221-9077
; Attorney-at-Law, Zagreb, Croatia
Marko Baretić
; Faculty of Law, University of Zagreb, Zagreb, Croatia
Abstract
Pursuant to Article 19 of the COA/05, any natural and legal person is entitled to protection of their personality rights under the conditions determined by the law, whereas the notion of personality rights includes right to life, bodily and mental health, reputation, honour, dignity, name, privacy of personal and family life, freedom, etc. The provision of Article 1046 of the COA/05 defines non-material damage as violation of personality rights, whereas the provision of Article 1100 of the COA/05 provides that in deciding on the amount of just pecuniary compensation, the court must take into account the degree and duration of physical and mental pain and fear caused by the violation, the objective of the compensation, and the fact that it should not promote aims that are not compatible with its nature and social purpose.
Even though the COA/05 introduces into our legal system the objective concept of non-material damage in the sense that only the so-called primary damage, i.e. damage that arises with the mere violation of the protected non-material goods is considered to be legally relevant non-material damage, case law demonstrates that in the process of assessing non-material damage, facts relevant in the context of the so-called subjective concept of non-material damage, i.e. the so-called secondary damage in the form of degree and duration of physical and mental pain and fear, are still relevant. The above is confirmed by the recently adopted legal position of the Civil Law Department of the Supreme Court of the Republic of Croatia of 5 March 2020 and 15 June 2020, whereby the Supreme Court of the Republic of Croatia held that the Orientation criteria and the amounts for determining the value of just pecuniary compensation for non-material damage of 29 November 2002 are still applicable, even though they were adopted in the context of the application of the subjective concept of non-material damage from Article 200 of the COA/91, thus obviously implying that Orientational criteria are suitable for application even in the context of the provisions of Articles 19, 1046 and 1100 of the COA/05.
Over time, the Orientation criteria were frequently criticised for not being harmonised with the new, objective concept of non-material damage introduced by the COA/05. The critics argued that the change in the concept of non-material damage introduced in 2005 should have been reflected in the factual and legal basis of a prayer for relief by which compensation for non-material damage is sought. The problem of incompatibility of the Orientation criteria with the objective concept of non-material damage is particularly apparent in cases where one wrongful act causes multiple violations of personality rights, or where a violation of personality rights cannot be subsumed under the provision of paragraph 2 of Article 1100 of the COA/05, because the violation of personality rights has not been manifested in physical or mental pain and fear so that Orientation criteria cannot be applied. This paper attempts to analyse how to define a prayer for relief in cases where one wrongful act causes multiple violations of personality rights, or where the violation of personality right cannot be assessed according to the provision of paragraph 2 of Article 1100 of the COA, that is when Orientation criteria cannot be applied.
Keywords
personality rights; non-material damage; factual and legal basis; pecuniary compensation for non-material damage
Hrčak ID:
272073
URI
Publication date:
31.1.2022.
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