Compensation for Immaterial (Moral) Damage Due to Violation of Personality Rights in Kosovo

• Author: Arta Dauti
• Position: PhD Candidate, Department of Civil Law, Faculty of Law, University of Prishtina, Kosovo
• Pages: 104-120

ACTA UNIVERSITATIS DANUBIUS Vol. 13, no. 3/2017

104

Compensation for Immaterial (Moral)

Damage Due to Violation of Personality

Rights in Kosovo

Arta DAUTI

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Abstract: Compensation for immaterial damage is one of the most important instruments in the

positive right in Kosovo, both in terms of legal regulations as well as for the special relevance of the

case law. Violation of personality rights represents on e of the most important fundamental forms for

compensation of immaterial (moral) damages. In this paper, we are going to address key issues

related to personality rights, entailing those moral values of a person through which freedom,

physical, moral and spiritual integrity are expressed, which at the same time are a constitutional and

legal category, expressively provided for by Constitution, the Law on Obligational Relations.

Compensation for immaterial damage is of great importance for the primary function it has for the

victim, being the satisfaction to the injured party. According to Kosovo LOR, the injured party has

the right to repair of the immaterial damages caused by the infringement of moral integrity by the

other party, with th e rendering of a judgment or correcting the error. The paper is based on literature

in the theoretical and legislative aspect. The end of the paper provides important recommendations for

the future legal framework in regard to compensation for immaterial damage in Kosovo, more

precisely for the Civil Code of Kosovo.

Keywords: immaterial (moral) damage; the injured; satisfaction; legal rules; Kosovo

1. Introduction

The immaterial (moral) damage means the damage which does not relate to the

property or income of any person. It is for this reason that this category covers a

wide range of damage, including bodily injury and violation of spiritual health by

the feeling of anxiety and spiritual suffering. In most of the legal systems only

violation of personal freedom or authority is considered as immaterial damage

(Pschiedl, 2006, p. 9). Moral damage (pretium doloris or pecunia doloris) is the

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PhD Candidate, Department of Civil Law, Faculty of Law, University o f Prishtina, Kosovo,

Address: Str. Agim Ramadani, no nu mber 10 000 P rishtina, Republic of Kosovo, Tel.:

+38138229063, Fax: +38138229744, Corresponding author: arta.h.dauti@gmail.com.

AUDJ, vol. 13, no. 3/2017, pp. 104-120

JURIDICA

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internal appearance, temporary of unfair disturbance (non iure per turbatio) of the

human spiritual state, spiritual pain and suffering, or the state of anxiety and

spiritual torment deriving as a consequence of an unlawful fact. Anyone who

suffers violations in the field of health and his personality from illegal actions or

inactions and due to a fault of a third person, has the right to claim compensation

for the moral damage suffered (Musca, 2013, p. 111). The Law on Obligational

Relations of Kosovo (LOR, 2012) defines specifically the immaterial damage in

Article 137, providing as follows: “Immaterial damage comprises the infliction of

physical or mental distress or fear on another”.

Immaterial damage consists of personal right injury that cannot be expressed in

property aspect, e.g. if anybody due to physical injury suffers pain and grief has the

right to be satisfied by moral damage, while the lost profits is pecuniary (material)

damage, spiritual pain resulting from husband, child, killed father, spiritual pain

due to disfigurement. Moral damage cannot be compensated, but in relation to it a

satisfaction is paid (Gams, 1986, p. 322). Moral damage represents a violation of

the personal belongings of a person. In this way, the psychic part of a natural

person is violated. It can appear in different ways, such as violation of freedom,

dignity, authority, disgrace, disturbance of the personal and family peace, causing

physical or mental suffering to another person (Milošević, 1977, p. 150). It can be

caused regardless of and separately from the material damage (e.g. physical pain,

fear), but mostly it appears along with the material damage (corporal damage,

physical pain, fear).

2. Personality Rights as a Basic Form of Immaterial (Moral) Damage

The violation of personality rights represents one of the most important forms for

compensation of immaterial (moral) damage. The personality rights or personal

rights in a narrower sense are rights whose subject is the personal property. These

are the values of personality through which its freedom is expressed, as well as its

physical, moral, spiritual and conceptual integrity. These are moral and conceptual

values which constitute the entirety of human personality. (Gams, 170) They at the

same time are constitutional category, expressively foreseen in the Constitution of

the Republic of Kosovo 2008, because of their great importance. These are the

right to physical and spiritual integrity, the right to moral integrity, more

specifically the right of honor, social protection, free choice of profession, the

inviolability of the dwelling, freedom of opinion and expression, free preaching of