Zorica Jovanovic v. Serbia

Application No. 21794/08; [2013] EHCR 21794/08.
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This case is about the Serbian government’s response to the “missing babies” of the 1970s, 1980s, and 1990s. In 1983, Zorica Jovanovic gave birth to a healthy baby boy in a state-run hospital. Three days later, while still in the hospital, she was informed that he had died. She never saw him again. When she tried to see him, hospital staff physically restrained her. She was informed that an autopsy was to be done in Belgrade, but she never received a copy of the report. Nineteen years later (in 2002), the media began reporting on numerous similar cases from the time, so she submitted a request to the hospital seeking all relevant documentation regarding her son’s death.  She was informed that he had died of an unknown cause and that no other information was available due to flooding of the archives. Two months later, her husband filed a criminal complaint against the hospital staff, which was rejected as unsubstantiated. There was no indication as to whether a preliminary investigation had been made into the claim. A year later, the hospital reaffirmed its position. Three years later (in 2007), Jovanovic found out that her son’s death had never been officially registered. Neither her son’s body nor an autopsy report were ever released. She was never told where her son was buried.

In 2003, Serbia adopted new procedures that newborn babies who had died could only be released to parents when they signed a special form. In 2005, hundreds of parents in the same situation called on the Serbian Parliament seeking redress. A year later, the Parliament adopted a report that stated that, while there had been serious deficiencies in hospital procedures in the 1980s and the parents were justified in their concerns, no criminal redress was available due to the expiration of statutes of limitation, and therefore the situation had to be addressed through legislation.  A working group was formed, and in 2010 it released a report that found that there had been no coherent procedures or statutory provisions during the time period in question regarding what a hospital was required to do when a baby died, but that the prevailing medical opinion was to spare the parents the mental anguish of burying their children. Since there were no reliable autopsy reports, it could not be ruled out that the babies were removed from their parents unlawfully. The report stated that the government response had been inadequate, and that therefore the parents were still entitled to learn the truth about their children’s fate. After submission of the working group report, the Parliament concluded that no legislative changes were necessary. Jovanovic filed an application with the European Court of Human Rights, claiming that her rights under Articles 4 (prohibiting servitude), 5 (right to liberty), and 8 (right to privacy and family life) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“Convention”) had been violated.

The Court held that Jovanovic's Article 8 right to private and family life had been violated. The Court noted that it had previously held that a violation of Article 8 of the Convention could be found where state authorities had failed to respond to family members’ requests for information regarding their missing relatives. Therefore, because Jovanovic's son's death was never recorded, she was never provided with an autopsy report or a burial location, her husband's criminal complaint was rejected without consideration, and the state itself had acknowledged the procedural shortcoming of hospitals in the 1980s and that the parents had a right to learn the truth while the state provided no effective remedy for the affected parents, the Court concluded that there was a violation of Article 8. Jovanovic had suffered a continuing violation of the right to respect for her family life on account of Serbia’s continuing failure to provide her with credible information as to the fate of her son.

The Court also held that it did not need to examine Jovanovic's Article 13 (right to effective remedy) claim separately due to its similarities to the Article 8 claim.

The Court awarded damages and held that Serbia must, within one year following the judgment, take all appropriate measures to establish a mechanism to provide Jovanovic and the other parents in similar situations individual redress. The "mechanism should be supervised by an independent body" and have adequate powers to provide "credible answers regarding the fate of each child and award adequate compensation as appropriate." The Court decided to adjourn all of the similar pending cases before it for the one-year period.

Regarding procedural issues, the Court noted that it only had jurisdiction following Serbia's ratifying of the Convention on March 3, 2004, but the Court noted that disappearances are characterized by an ongoing situation of uncertainty over time and are not a single event. Therefore, the complaint regarded a continuing situation that occurred after Serbia's ratification, which gave the Court jurisdiction to hear the claim regarding Serbia's failure to provide information after the ratification. Jovanovic's claim was also not barred under the six month rule which stated that an applicant must lodge her complaint with the Court within six months of Serbia's ratification because Jovanovic was reasonable in awaiting developments which could resolve crucial legal or factual issues, including the Parliament's reports and working group. Furthermore, Serbia's contention that Jovanovic had not exhausted all domestic remedies as required failed because the only remaining remedy of civil court could not resolve the true issue regarding the fate of Jovanovic's son.

"It is further observed that disappearances are a very specific phenomenon, characterised by an ongoing situation of uncertainty and unaccountability in which there is a lack of information or even a deliberate concealment and obfuscation of what has occurred. This situation is very often drawn out over time, prolonging the torment of the victim’s parents or relatives. It cannot therefore be said that a disappearance is, simply, an ’instantaneous’ act or event; the additional distinctive element of subsequent failure to account for the whereabouts and fate of the missing person gives rise to a continuing situation. Thus, the positive obligation will, potentially, persist as long as the fate of the person is unaccounted for." Para. 47.