By Ana Jankovic Jovanovic, Legal Adviser at Lawyers’ Committee for Human Rights
Decades ago, over two thousand couples in Serbia lost their babies. The national authorities provided no information about the disappearances, stating only that the babies died shortly after birth. Since 2002, several groups of parents with similar cases have banded together to compare documentation to uncover the truth. Unfortunately, the long painful struggle of these parents continues.
On their path to learning the truth about their babies, the parents requested funeral companies to provide registries which would help them know whether their children had been buried. In general, the companies provided written answers that the supposedly deceased children never reached the cemeteries from hospitals or maternity wards and had not been buried or cremated. This information led to the parents’ continued search, deepening their belief that the children are still alive.
The national health institutions in turn informed the parents that there were no medical records about their babies, stating that the records had been destroyed by floods or fires. The official state registers of birth and death, which are required by law to keep documentation indefinitely, refused to disclose any information about the babies. Thereafter, the parents informed the Department of Administrative Inspection in the Ministry of Public Administration and Local Self-Government, who investigated the case and declared that there had been omissions and deficiencies in the work of the state registers. Unfortunately, no further steps were taken by the Department. Eventually, the parents of the missing babies filed criminal charges, but they were dismissed due to lack of evidence or expiration of statutes of limitation.
The facts behind the disappearances
The ongoing suffering of more than 2,000 parents in Serbia is evident by the facts, including the following:
- the missing children were declared dead by the issuance of death certificates without any other proof of death;
- the parents were not allowed to take over the bodies of their children, instead being told that it was the responsibility of the hospital;
- there are no graves because there are no corpses of the babies;
- the parents were given the moulds of corpses after falsified autopsies, whereupon no analysis was provided confirming the children’s’ death;
- in most cases, it was the first-born child of a young married couple which disappeared;
- the disappearances took place mostly on weekends;
- the same doctors appear in many of these cases over the years; and
- when there were twins, the healthier twin allegedly died.
All of this led the parents to suspect the work of individuals or a well-organized criminal group and everyone believed that the national authorities would investigate the cases seriously and adequately. This was especially the case after the judgment by the European Court of Human Rights (ECtHR) in 2013 in the case of Zorica Jovanovic v Serbia. Since 2001, there have been numerous media articles in Serbia on missing babies. But until the Jovanovic judgment, those cases were never taken seriously by the relevant national authorities.
The case of Zorica Jovanovic v Serbia
Ms Zorica Jovanovic gave birth to a healthy baby in a state-run hospital in October 1983. After several days in the hospital for a regular birth recovery, she had frequent contact with her child. One day she was informed by the doctor that her baby had died without any further information on the cause of death.
In March 2013, the ECtHR adopted its judgment in the case of Zorica Jovanovic v Serbia, which became final on 9 September 2013. In the judgment, the ECtHR stated that:
“the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of “family life” within the meaning of Article 8 of the Convention” [as well as that] “the essential object of Article 8 is to protect the individual against arbitrary interference by public authorities. There may, however, be additional positive obligations inherent in this provision extending to, inter alia, the effectiveness of any investigating procedures relating to one’s family life.”
Furthermore, the ECtHR gave special attention to the following facts: the body of the child was never released to Ms Jovanovic; the cause of death was never determined; Ms Jovanovic was never provided with an autopsy report or informed in any way about when and where her baby had allegedly been buried; and the child’s death was never officially recorded.
In respect to these and other points noted in the judgment, the ECtHR concluded that “the applicant has suffered a continuing violation of the right to respect for her family life on account of the respondent State’s continuing failure to provide her with credible information as to the fate of her son.”
In addition, as there is a significant number of other potential applicants involving claims of missing babies, the ECtHR ordered the national authorities to provide individual redress to all parents in similar circumstances to Ms Jovanovic by establishing a mechanism which can provide credible answers regarding the fate of each child and award adequate compensation as appropriate.
Non-implementation of the Jovanovic case from 2013 to 2017
Since the Zorica Jovanovic v Serbia judgment in 2013, more than 2,000 parents are waiting for the implementation of the decision. They consider themselves to be covered by the same general measures prescribed in judgment.
To date, the national authorities have tried unsuccessfully to establish commissions that would deal with cases like that of Ms Jovanovic. The authorities also prepared a draft law to address the general measures in the Jovanovic case, but this was deemed inadequate and the Committee of Ministers, the Council of Europe’s decision-making body responsible for the implementation of ECtHR judgments, was made aware of these deficiencies by the Lawyers’ Committee for Human Rights (YUCOM), ASTRA as well as the Serbian Ombudsman.
Bearing in mind the fact that all draft laws were withdrawn from Parliament after the presidential elections in April 2017, no further steps were taken by national authorities regarding the execution of the judgment nor the respective interim resolution that was adopted by the Committee of Ministers in September 2017. The national authorities subsequently announced their intention in early 2018 to proceed again with the same draft law that was assessed as inadequate by civil society organisations and the Serbian Ombudsman.
The main concern regarding the “Draft Law on determining the facts concerning the status of new-borns suspected to have disappeared from the maternity wards in the Republic of Serbia” is that it only formally aims to fulfil its obligations stemming from the ECtHR judgment. More specifically, the Draft Law prescribed that an investigation should be done using non-litigation court procedure. This would not allow for the conduct of adequate investigations, for example in obtaining biometric and biological samples.
The Draft Law also contains numerous unclear provisions and problematic proposals and solutions, including that:
- the very title of the Draft Law does not include other medical institutions other than maternity wards;
- the collecting of evidence is the obligation of the parent, instead of being the court’s obligation;
- the proposed creation of a new special police unit is contrary to provisions contained in Law on the Police;
- the initiator of a proceeding cannot be a child who believes to be a missing baby;
- a maximum amount of non-pecuniary damages in the amount of €10,000 is prescribed, which is contrary to the standards of fair trial and the principle of free judicial opinion; and
- the respective court may adopt a decision that it is not possible to establish the status of the missing child which is contrary to the aim of the Draft Law.
It is now almost five years since the adoption of the Zorica Jovanovic v Serbia judgment even though the ECtHR called for a one-year implementation period which expired on 9 September 2014.
In the context of almost four years of non-implementation of the ECtHR judgment, the Government of Serbia submitted a revised Action Plan on the eve of the 1310th Human Rights meeting of the Council of Ministers’ Deputies from 13 to 15 March 2018.
Based on an initial analysis by YUCOM, the revised Action Plan contains some potentially misleading information. Examples include the following:
1) The Government of Serbia stated that a meeting was held in January 2018 with representatives of the parents. Yet there was no public call to attend the meetings for all representatives of all parents. Instead only a selected number of representatives were invited, and many representatives remain fully unaware of the meeting and its results.
2) In fact, during the above-mentioned meeting, several changes in the Draft Law were agreed. An amended version of the law was then approved in early March 2018 by the Government and transferred to Parliament for adoption. As the amendments are not publicly available, it remains impossible to determine what those changes are or how they may affect the judgment execution process.
3) The Government also stated its intention to provide support to the parents of the missing babies while the Draft Law is pending. It noted the case of a non-final judgment of a national court where a parent was awarded €10.000. However, this award was delivered in a classical court litigation procedure for damage compensation without examination of the fate of baby. As such, this award cannot be seen in any way as being related to the execution of the Zorica Jovanovic v Serbia judgment. Instead, it represents compensation for the lack of a response from the national authorities. Furthermore, the judgment did not become final as the State filed a complaint against it and it is pending before the Court of Appeal. This suggests the State is trying to suppress the reasons stated in that judgment and at the same time trying to present this as a positive step. Additionally, it is important to stress that similar cases in Serbia usually last for many years, even decades, but this one was completed in a month and a half with only one hearing held.
After the 1310th Human Rights meeting in March, the Committee of Ministers adopted a decision on 15 March in which they “noted with interest that the Serbian authorities revised the draft law following consultations with parents of the [missing] babies …. as well as that … the government approved this draft law and transmitted it to Parliament for adoption.” The Committee also noted the above-mentioned non-final judgment award of €10.000 to one of the parents.
Unfortunately, it appears from the wording of the 15 March decision that the Committee of Ministers has positively assessed the recent steps undertaken or proposed by the national authorities and, despite concerns and deficiencies noted above, called on the national authorities to adopt as soon as possible the Draft Law as it has been presented to them by the Government.
As a result, YUCOM and other civil society organisations will continue to monitor the execution judgment process regarding the case of Zorica Jovanovic v Serbia. Civil society organisations and others intent on seeing justice in this case will not lose sight of the fact that this judgment was initially perceived as a true beacon of hope and redress for Ms Jovanovic and the more than 2,000 parents who still seek the truth about their missing children.
Among others, YUCOM and others will call for the establishment of a sui generis mechanism, a special court, one with a mandate to fully investigate the status of new-borns who are suspected to be missing from hospitals and maternity wards in Serbia.