International human rights conventions, which the Republic of Serbia is party to, practice the protection of all persons on the essential level, while the governance of legal relationships is left to the states. Consequently, we can find varying solutions in national legislations. Numerous requests from citizens around Europe encountered the clear stance of the European Court of Human Rights: Articles 8 and 14 of the European Convention on Human Rights guarantee the right to equality and the right to respect for private and family life, however they acquire their forms in national legislations. Hence, as an example, the dissimilar regulation of same-sex and different-sex unions, as is set out in the Serbian civil legislation, is not perceived as discrimination. However, there are institutes for civil law whose implementation could be accessible to a wider audience than is currently the case. This would significantly improve the status of same-sex partners. One of these is the right to compensation of immaterial damage in case of the death of a family member. Article 201 of the Law of Contracts and Torts prescribes that compensation can be claimed only by members of the immediate family: parents, spouses and common-law partners, children, and brothers and sister only if they had lived in the community of life with the deceased. Could same-sex partners then be equalized with common-law partners? The Family Law in Serbia in its Act 4 highlights that a common-law marriage is exclusively a marriage of different-sex partners, while in the eyes of the law a union of same-sex partners produces no legal effect. We find no interpretation of the author regarding the term “family”, nor the term “immediate family”, and therefore there are no grounds for collision between the Law of Contracts and Torts and the Family Law.
Even though it has been stated that the Law of Contracts and Torts establishes the circle of entities which benefit from compensation due to the death of a family member, the court practice has deviated from the law and awarded compensation to other entities on several occasions. The Supreme Court of Cassation has deviated from the strict regulation on two occasions. In the case of the death of a grandson, SCC acknowledged the right to compensation for immaterial damage to his grandfather who had lived with the child as part of a community of life and had supported him (Rev 2392/2002). The parents of the deceased child had been on employment abroad, so the judicial council had acknowledged the grandfather as the entity that had acted “as a father and a mother” to the child. The court’s motive, led by empathy towards the grandfather of the deceased child, to recognize his pain as damage within the meaning of the law in this instance, was clear. On another occasion, in the event of the death of a stepson, the SCC had acknowledged the right to compensation for immaterial damage to his stepfather who had lived with the child in a permanent union, even though he had not been his legal representative. The essence of their relationship was identical to the relationship between a child and a parent, and that was what the SCC decided to base their decision on.
Seeing as how the Law of Contracts and Torts names the “immediate family” as holders of the right to compensation in the event of the death of a family member, it might be useful to look at the possible interpretation of this phrase. The European Court of Human Rights gives its interpretation of immediate family based on petitions stating infringement of the right to respect for private and family life guaranteed by Article 8 of the European Convention on Human Rights. The practice being built by ECHR has interpreted respect for private and family life more extensively over time. The right to family life is guaranteed by ECHR to: 1. married and common-law couples 2. children and parents 3. grandchildren and grandparents 4. brothers and sisters. With respect to same-sex partners, deciding on the petition in the case of Schalk and Koph v Austria the court had for the first time acknowledged homosexual partners as legal owners of the right to family life. This practice has subsequently been reaffirmed and strengthened. However, the ECHR has no funding to impose the affirmation of same-sex partners on the member states, nor is it the duty of the ECHR. The Court has left this question to the national legislations. Deciding on the petition of the Kingdom of Spain’s citizen against the state, the Court’s opinion was that there had been no infringement of the right to equality by the current legislation which differentiates between same-sex and different-sex partners. Specifically, in the case of Aldeguer Tomas v. Spain the petitioner was a Spanish citizen, whose same-sex partner had passed away in year 2003. They had lived together for many years, before the unfortunate event, in the community of life which the Spanish legislation had not considered marriage. After the death of his partner, the petitioner contacted the public authorities with the request that he be granted a pension belonging to a widower. His request was denied, with the decision explaining that he was not entitled to that right since the union in question had not been a registered union, i.e., marriage. Seeing as how the family legislation in Spain changed in year 2005 and how same-sex marriage has since been made possible, the petitioner filed an extraordinary legal remedy against the decision about the rejection of granting a pension. With this, another issue had come to light, and that is the question of retroactive effect of the law. Mr Aldeguero filed a petition before the European Court of Human Rights, stating that he felt that his right to equality and right to respect of family life had been infringed by the public authority’s rejection of his request to be granted the pension of his diseased partner, thereby discriminating him based on his sexual orientation. The judicial council, served by Serbian professor Branko Lubarda among others, rejected the petition of Mister Aldeguera, concluding that there had been no infringements of Articles 8 and 14 of the Convention seeing as how at the time of death their union could not have been identified with marriage. It is apparent that the European Court of Human Rights still holds a neutral stance on the effect of same-sex unions on the civil law.
The Serbian judiciary provides protection from domestic violence to same-sex partners, thus taking a step towards a broader understanding of “family” in criminal disputes. The strongest argument for reconsideration of the current civil law legislation and judicial practice is offered by Obren Stanković in his doctoral dissertation explaining what moral damage is: “Emotional distress in the event of someone’s death is not felt by the injured party due to any non-property family right but rather because of the love felt, and affections are a natural phenomenon, that shall exist regardless of whether the legislator constitutes a subjective non-material right for them”.
