Non-pecuniary damages in anti-discrimination disputes: A commentary on a judicial decision

Abstract

The litigation proceeding in anti-discrimination disputes is a relatively new kind of special civil proceedings whose rules are prescribed in three separate legislative acts. The scarce case law in this area shows that the discriminated persons and other entities authorized to initiate anti-discrimination lawsuits are insufficiently informed about the content of these proceedings and/or insufficiently motivated to initiate such proceedings; on the other hand, the small number of cases points that courts are still reluctant and insufficiently prepared to tackle diverse discrimination issues, which would certainly be a strong and much needed impetus for providing relevant judicial protection against discrimination in civil law. This problem is particularly prominent in anti-discrimination disputes which involve claims for damages. In this paper, the author analyzes the course of an anti-discrimination lawsuit (initiated on the grounds of disability) and the respective decisions rendered by the first instance court, the second instance court and the Supreme Court of Serbia. The analysis yields a conclusion that courts are rather reluctant, apprehensive and even defiant when it comes to awarding non-pecuniary damages. They seem to disregard the fact that the primary purpose of this type of legal protection against discrimination is to provide just satisfaction to the injured party. In that context, it appears to be necessary to institute relevant judicial training in the field of anti-discrimination law, which would include not only the judges in large regional judicial centers but also those in smaller towns and in local judicial units. It would certainly contribute to a better understanding of the substance of anti-discrimination law, which could be further promoted by a periodic publication of judgments in this area. Ultimately, it would contribute to the popularization of anti-discrimination law and the consolidation of judicial practice (case law).