Exclusion of a right to the surviving partner’s compensation for non-pecuniary damages when the other member of a de facto union was killed as the result of a culpable crime
Constitutional protection of the family
Liability to compensate for culpable crimes
RULING Nº 275/2002
19 of June of 2002
The use of the arrangements for "compensating" for the pain and suffering caused by the death of a victim to a person who lived with that victim in the same way as husband and wife, as a means of pursuing possible political objectives of encouraging families based on marriage is not appropriate or acceptable from the point of view of either the constitutional recognition of the protection of the family or human dignity; the Court therefore found the rule to be unconstitutional as it violated Article 36.1 of the Constitution, combined with the principle of proportionality.
If one followed the line of reasoning that, in order to be eligible for compensation for the non-pecuniary damage caused by death, there can be no reasonable foundation for making a distinction between married and cohabiting couples, the rule should immediately have been declared contrary to the Constitution for violating the principle of equality. The view must be taken that there is no reasonable ground to justify not only the difference in treatment (which should be regarded as genuinely arbitrary), but also the difference based on a criterion which cannot be relevant in view of the intended legal effect. Accordingly, the existence of a matrimonial link as opposed to stable and continuous cohabitation is not in itself a reasonable ground for ruling out compensation for the partner of the victim of a murder for the suffering and pain caused by the death.
The appeal concerned the constitutionality of the rule contained in Article 496.2 of the Civil Code, which states that a person cohabiting with another who dies as a result of a crime, is not on this count eligible for compensation for non-pecuniary damage. This applies therefore exclusively to the direct non-pecuniary damage resulting, for the person cohabiting with the victim, from the latter's death. In the event of death, the Civil Code explicitly provides for the right to "compensation for the non-pecuniary damage" sustained not only by the victim but also by the non-judicially separated spouse of the victim, and the latter's children or other descendents (and only, if there are none, by the parents or other ascendants, or by the brothers and sisters or nephews and nieces representing them).
The fact is that the way this provision has been interpreted has meant that a person who has been living in a stable and lasting relationship with the victim in the same way as husband and wife has been excluded from the possibility of obtaining compensation for the non-pecuniary damage suffered on account of the death of the victim. Under this line of reasoning, the list of possible beneficiaries of compensation is limited and excludes others such as the person who had been living with the victim of a murder from obtaining compensation for the non-pecuniary damage caused by the death, even though, under the general rules, such persons would be entitled to compensation. The decision to exclude a woman who had been living with the victim from obtaining "compensation for non-pecuniary damage" has been based on that reasoning.
The aim of the appeal was therefore to review the constitutionality of Article 496.2 of the Civil Code, under which in the event of the death of the victim of a crime, a person who had been co-habiting with the victim in a stable and lasting relationship, in the same way as husband and wife, was not entitled to "compensation for non-pecuniary damage" sustained personally.
Article 36 of the Constitution protects the family as a basic component of society, treating it separately from the question of marriage. Accordingly, it protects a social reality not necessarily based on marriage - a family not founded on marriage. This constitutional distinction between family and marriage which seems to reflect an acknowledgement of the concept of the family as being much broader than one based on marriage - which may be termed marital family - has already been referred to in the Court's case-law (Judgment 690/98). The European Union's Charter of Fundamental Rights also establishes, separately, the "right to marry and the right to found a family" (Article 9).
The Constitution, having acknowledged the right to found a family not necessarily based on marriage, recognises that "the family, as a basic component of society, has the right to protection by the community and the state and to the creation of all the conditions that permit the personal fulfilment of its members" (Article 67.1). Even if the view were taken that this distinction and rule do not oblige the legislature to recognise and protect, in general, cohabitation in a stable and lasting relationship, in the same way as husband and wife, and the family founded on such an arrangement, under the same conditions as a family founded on marriage. The conclusion must nevertheless be drawn that there is a duty not to leave unprotected, without reasonable grounds, a family not based on marriage - i.e. at least with regard to the aspects of the legal order directly linked to the protection of its members, and that any policies to encourage families based on marriage as a means to this end are unacceptable.
The constitutional framework of the question to be analysed in this appeal to the Constitutional Court must be distinguished from that of the decisions of the Court on rules providing for difference of treatment between married couples and cohabiting couples which, in application of the constitutional prohibition on discrimination against children born out of wedlock (Article 36.4 of the Constitution), concluded that the said rules were unconstitutional.
One such example was Judgment no. 359/91 on the constitutionality of a rule which made it impossible to apply by analogy the rule on the judicial granting of the right to be provided with a main residence for cohabiting families with children not yet of age. Bearing in mind the fact that the rule in question explicitly referred to the "children's interests" as one of the criteria to be considered by the courts in cases concerning the allocation of housing in the event of divorce, the Court decided that the rule in question was unconstitutional as it violated the principle of non-discrimination against children born out of wedlock. A further example was Judgment no. 286/99, in which rules which did not attach any priority in the placement of teachers to those who had children not yet of age and who were not married but cohabited with partners as husband and wife, together with the said children were declared to be unconstitutional. The Court ruled that attaching priority to people in this category also concerned the interest of the children and, accordingly, excluding unmarried parents from this right would be discrimination between children born in and out of wedlock.