WAR FUGITIVES LEFT WITHOUT INHERITANCE?

What is Prescibed by the Law on Inheritance of the Republic of Serbia

AIM, Belgrade, March 28, 1995 Initiated by the Republican Government, the Draft Law on Inheritance will soon be entered into Parliamentary procedure. It is a case of conforming another law with the Constitution of Serbia in order to round off the legislation of this new state.

But, if "the end crown the work", the creators of the local legal system could hardly boast about the offered norms. Inheritance law is part of the fundamental human rights, but despite this, Serbia and some other former republics have adopted limiting provisions and regulations by means of which the states directly meddle in private, family relations. Thus, apparently insignificant and "secondary" paragraphs may lead to quite serious consequences in specific everyday life situations.

First of all, it should be said that all ex-republics have practically copied the laws on inheritance they implemented previously, since this sphere was always part of the republican jurisdiction. Now, when they have found themselves in the new political and wartime circumstances, some of these norms have quite a different application. The obvious example for such an allegation is the section referring to "unworthy inheritors", which explicitly lists requirements for such "unworthiness". The fifth foundation for unworthiness (from the previously implemented laws) includes "a citizen of Yugoslavia who emigrated from the country either in order to avoid a sentence for a serious crime, or TO AVOID THE OBLIGATION OF SERVICE IN THE ARMY, or for being engaged in an enemy activity against the SFRY, and has not returned to the country until the death of the person whom he/she is inheriting."

According to allegations of an expert in the field, all the mentioned elements can easily be abused. For instance, a court may consider that failure to respond to mobilization in case of an immediate risk of war or war is a serious crime, and a large number of young men who are now abroad would be left without their inheritance. It is even easier to qualify an act as "serious" when speaking of desertion or failure to respond to call-up.

As an illustration, here are a few instances related to the provision about "unworthiness" of inheritance of those who have avoided to join an army, that can lead to arbitrary interpretation: a court in Belgrade decides about inheritance of a person who has Croat citizenship, and by applying the new Croat juris prudence, judges that, say a Serb from Krajina who has refused to join the Army of the Republic of Croatia is unworthy of the inheritance. How can the court disqualify as an inherotor a person who did not wish to go to war and fight on the side opposite to the one, for example, the judge's son fought on? Experts for hereditory law believe that there will come a time when domestic courts will begin implementing provisions of Croat juris prudence (just as, according to the reciprocity principle, the Croat courts will have to implement paragraphs from Serb laws) which proclaim those who have avoided military obligation as unworthy.

Goran Svilanovic, M.A., from the Law School in Belgrade, the author of the chapter on inheritance in a book about private legal consequences of dissolution of the SFR of Yugoslavia, while discussing this specific "clutch", speaks in favour of urgent adoption of an amnesty law. He also says that previously, the number of persons this paragraph on unworthiness refers to, should be reduced. Instead of doing that, however, the new Draft Law on Inheritance does exactly the opposite.

It is true that as "unworthy", perpetrators of criminal acts have been omitted from this paragraph, but the right to inherit is now lost by "a conscript who has left the country in order to avoid the obligation to defend it". The concept of a conscript is, naturally, broader for it includes not only those who avoid military service or just recruits, but all men between the age of 18 and 55. The legislator did not specify either whether the formulation refers to defence of the country "at any time" or just at the time of war and immediate danger of war. Finally, avoiding military service and desertion are already sanctioned by criminal law, so interference of the state in the relations between parents and their children, that is between the closest relatives is, mildly speaking, redundant.

Mr. Svilanovic also points out to other unpermissible moves of the two states - FRY and Croatia - concerning norms on inheritance. First he mentions, that change of state sovereignty, either succession or secession, must not affect preservation of a previously acquired right. Therefore, if a person died before "breaking up" of Yugoslavia, and a Croat appears in a probate court as the inheritor in Serbia, he cannot be treated as a foreigner. The principle of reciprocity must be accepted, even when there is no evidence about its being (un)accepted by the courts of the other party. The problem of mutuality would be quickly solved by the theory of the "first step".

But, (when speaking about inheritance according to a will) both Serbia and Croatia have established special obstacles by adopting provisions about banishment of real estate trade, if they are owned by persons who are not their citizens or have no permanent residence in them.

In a specific legal proceedings concerning inheritance, Mr. Svilanovic says, in a court of law of a state which has adopted such provisions, their implementation could be avoided by referring to unconformity with republican laws and constitutions, because this is an obvious fact. One could refer to their being opposite to the international agreements signed by the SFRY and lated accepted by all new states. Primarily, the International Treaty on Civil and Political Rights which bans discrimination. Whether judiciary would accept this argument is a different story.

(The first framed text)

LIMITING THE CIRCLE OF CLOSENESS

The Draft Law on Inheritance of the Republic of Serbia includes novelties concerning broadening of the circle of lawful inheritors, that is, it broadens hereditory orders which were until recently limited to the third generation. To be even more precise, from now on, the ancestors will continue to lay claim on inheritance, such as great grandmothers and great grandfathers, great great grandmothers and great great grandfathers, but only in the so-called "straight line", meaning that their children will not be the inheritors. These provisions do not imply the category of "laughing inheritors", that is, distant relatives who most frequently do not even know the deceased. On the contrary, the trend in Europe concerning this issue is to narrow the circle of inheritors, because it should follow the true feeling of closeness to the family. However, judging by the interpretation, the authors of the Law, are attentive to the citizens, but primarily to the state: "by broadening the circle of relatives transfer of property of our citizens abroad to the ownership of the foreign state can be prevented".

(The second framed text)

Immediately after graduation from secondary school, and just before the war broke out in the former SFRY space, B.J. who was eighteen at the time, went to London to study English language. When the conflicts broke out, his mother (his father died 15 years ago), wishing to protect him, sent word to him not to return for the time being, suspecting that he might end up in a uniform. In the meantime, she fell seriously ill and died, and only a grandfather of 85 remained in the family house.

Now, B.J. cannot return to Belgrade for several serious reasons: the possibility to be prosecuted for avoiding military service, the possibility of losing the temporary residence in Great Britain if he leaves this country where he had started studies at a university. If, however, he does not return before his grandfather dies, most probably he will have nowhere to return to. This is just one of the results of the provision on "unworthy inheritors". The house this young man lived and was brought up in, and which was built by his ancestors will become property of the state, because there are no other inheritors.

BOJANA OPRIJAN ILIC