Communicated on 9 April 2015
THIRD SECTION
Application no. 8184/07
S.R. against Serbia
and 4 other applications
(see list appended)
STATEMENT OF FACTS
1. The applicants, Ms S.R., Mr M.J., Ms Žaklina Ivković Pašćan, Ms Ljubinka Mik and Ms Svetlana Jovanović, are all Serbian nationals. Their other personal details, the dates of introduction of their complaints before the Court, respectively, as well as information regarding the fifth applicant’s representative, are all set out in the attached Appendix.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
1. As regards the first applicant (Ms S.R., application no. 8184/07)
3. On 3 May 1984, after seven months of pregnancy, the applicant gave birth to a baby boy in the X Hospital.
4. The baby was subsequently transferred to the Y Hospital, a facility with adequate infant incubators.
5. According to official medical reports, the baby continued making progress in the next couple of weeks.
6. On 26 May 1984, however, the applicant was informed that her baby had died.
7. Upon hearing this, the applicant’s husband went to the Y Hospital to claim his son’s body, but was convinced by medical staff that they would “deal with the burial” and that it would also be better for him not to see the body.
8. On 23 September 2006 the applicant was informed, anonymously, that her son had never died but had apparently been given to another family by Dr A of the Y Hospital. Specifically, the latter’s brother and his wife.
9. The applicant thereafter sought additional information concerning her son’s “disappearance”. Ultimately, inter alia, she obtained the death certificate (potvrda o smrti), seemingly issued by the Y Hospital, lacking an official stamp on page one, stating that her son had been born in R city even though the applicant had given birth to him in X city. The applicant further obtained the autopsy report containing a partial signature of Dr A, which report had been handwritten on a local bank’s stationery. Finally, the applicant was allegedly informed by a member of the Y Hospital medical staff that on 3 August 1984 her son had been released from the hospital alive.
10. In October 2006 the applicant lodged a criminal complaint, maintaining that her child had been taken from her unlawfully.
11. On 16 January 2007 the Y Municipal Public Prosecutor’s Office rejected the complaint since the prosecution for the alleged crimes in question had become time-barred.
12. On an unspecified date in August 2007 the applicant contacted Mr B, explaining that it was possible that he was her biological son. Mr B, at the time, considered that his biological parents were Mr C and his wife, the former being Dr A’s brother.
13. Mr B agreed to meet with the applicant on 17 August 2007.
14. In the meantime, on 16 August 2007, the applicant and her family allegedly received a death threat from Dr A who had been particularly agitated having learnt about the meeting. The applicant reported these threats to the police.
15. On 17 August 2007 the applicant met with Mr B, as agreed. The applicant maintains that Mr B had a striking physical resemblance to the applicant’s other two sons. The applicant and Mr B exchanged their mobile telephone numbers and agreed to stay in touch. Mr B also agreed to a DNA test.
16. Subsequently, however, the applicant was unable to reach Mr B on this number and was informed that he had left to continue his studies abroad.
17. Over the years the applicant has regularly received medical treatment for, inter alia, various depression-related symptoms.
2. As regards the second applicant (Mr M.J., application no. 3567/09)
18. On 3 September 1972 the applicant’s wife gave birth to their baby girl in the Z Hospital.
19. On 4 September 1972 Dr D informed the applicant’s wife that the baby had died.
20. The applicant immediately thereafter attempted to claim his daughter’s body, but was convinced by medical staff that it would be best if the hospital buried her without the involvement of the parents. The applicant and his wife thus never saw their child’s body.
21. In 2002, having heard through the mass media of many other similar cases, the applicant and his wife started having doubts as to what had really happened with their baby.
22. Ultimately, they obtained a copy of a medical document attesting that their child, who had allegedly died several days earlier, was subsequently vaccinated in the same hospital.
23. The applicant also obtained other official documents containing erroneous personal data regarding himself and his wife, as well as their newborn baby. One of them, a document whereby the hospital informed the municipal authorities about the birth of their child (prijava rođenja), allegedly even contained a forged signature of the applicant’s wife.
24. On an unspecified date the applicant and his wife lodged a criminal complaint, maintaining that their child had been taken from them unlawfully.
25. It would appear that an investigating judge of the Z Municipal Court subsequently accepted to undertake some steps in order to explore the applicant’s claims to the effect that a certain Ms E, who had also been born in 1972 and in the same hospital, could be the applicant’s child. Ms E, however, apparently refused to subject herself to a DNA test.
26. On 10 October 2006 the Z Municipal Public Prosecutor’s Office rejected the criminal complaint since the prosecution for the alleged crimes had become time-barred.
27. It subsequently transpired that Dr D was a neighbour of the family who had “abducted Ms E”.
28. The applicant and his wife also tried to get in touch with Ms E personally in order to meet her and convince her to agree to a DNA test. They met once but to no avail. Following this meeting, Ms E moved away to an unknown address and they have not seen each other since.
29. On 6 February 2008 the applicant’s wife died.
3. As regards the third applicant (Ms Žaklina Ivković Pašćan, application no. 8653/10)
30. On 1 April 2001 the applicant gave birth to a baby boy in the Belgrade Clinical Centre (Ginekološko-akušerska klinika).
31. On 2 April 2001, the applicant was informed that her baby had died. A subsequent autopsy report indicated that the death had allegedly been caused due to cerebral complications preceded by a number of other problems.
32. The applicant was never shown her son’s body or allowed to bury it.
33. In 2002, having heard through the mass media of many other similar cases, the applicant started having doubts as to what had really happened with her baby.
34. Ultimately, she obtained copies of number of official documents which made her even more suspicious. Specifically, a death certificate (potvrda o smrti) stating that the baby had died in Zemun rather than Belgrade where the hospital had been located. Also, the Public Funeral Services Company (JKP Pogrebne usluge) confirmed that no child born on 1 April 2001, with the applicant as one of the parents, had ever been buried.
35. On an unspecified date the applicant lodged a criminal complaint, maintaining that her child may well still be alive and could have been given up for illegal adoption.
36. On 24 December 2004 the Belgrade Second Municipal Public Prosecutor’s Office rejected the criminal complaint since the prosecution for the alleged crimes had become time-barred.
4. As regards the fourth applicant (Ms Ljubinka Mik, application no. 9291/14)
37. On 26 January 1981 the applicant gave birth to a baby boy in the Dr Dragiša Mišović Hospital in Belgrade.
38. On 28 January 1981, however, the applicant was informed that her baby had died.
39. The applicant was never shown her son’s body or allowed to bury it. The reason given by the hospital was that an autopsy needed to be performed. The applicant, however, was never provided with an autopsy report or informed when and where her son had allegedly been buried.
40. In 2002, having heard through the mass media of many other similar cases, the applicant started having doubts as to what had really happened with her baby.
41. Ultimately, she obtained copies of number of related official documents, lacking stamps and/or containing erroneous personal or other data. The applicant also secured a certificate from the Public Funeral Services Company attesting that no child with the applicant’s surname had been buried in 1981.
42. On 9 February 2002 the applicant lodged a criminal complaint, maintaining that her child could still be alive and might have been taken from her unlawfully.
43. It would appear that an investigating judge of the Belgrade Second Municipal Court had subsequently accepted to undertake some steps in order to explore the applicant’s allegations.
44. By 21 March 2005, however, the Belgrade Second Municipal Public Prosecutor’s Office rejected the criminal complaint since the prosecution for the alleged crimes had become time-barred.
45. The applicant thereafter informally complained to various judicial and administrative instances but to no avail.
46. On 28 May 2013 the applicant lodged an appeal with the Constitutional Court. These proceedings are still pending.
5. As regards the fifth applicant (Ms Svetlana Jovanović, application no. 63798/14)
47. On 10 September 1987 the applicant gave birth to a baby boy in the Kragujevac Hospital.
48. On 11 September 1987, however, the applicant was informed that her baby had died.
49. On 18 September 1987 the applicant was discharged from the hospital without having been given a chance to claim her child’s body or even see it.
50. In 2002, having heard through the mass media of many other similar cases, the applicant started having doubts as to what had really happened with her baby.
51. Ultimately, she obtained copies of number of official documents, apparently lacking proper information as to what had happened with her child, including when and where it had been buried.
52. On 21 November 2002 the applicant lodged a criminal complaint, maintaining that her child could still be alive and might have been taken from her unlawfully.
53. On 30 May 2005, however, the Kragujevac Municipal Public Prosecutor’s Office rejected the criminal complaint since the prosecution for the alleged crimes had become time-barred.
6. Other relevant facts
(a) The adoption of new procedures
54. At a meeting organised by the Ministry of Health on 17 June 2003 on the burial of newborn babies who had died in hospital it was decided, inter alia, that the bodies could only be handed over to the parents if the latter signed a special form designed for this purpose.
55. In response to a specific request sent to them by the Public Funeral Service Company on 17 October 2003, all Belgrade-based public health-care institutions also agreed, inter alia, to implement a procedure whereby a special declaration would have to be signed (a) by the parents, or other family members, stating that they had been informed of the death by the hospital and that they would personally be making the funeral arrangements, or (b) by a legal entity, or its representative, to the effect that it would be making these arrangements because others had refused or were unable to do so. In the absence of such declarations, the Public Funeral Service Company would refuse to collect the bodies from the hospitals.
(b) The Parliamentary Report of 14 July 2006 (Izveštaj o radu anketnog odbora obrazovanog radi utvrđivanja istine o novorođenoj deci nestaloj iz porodilišta u više gradova Srbije)
56. In 2005 hundreds of parents in the same situation as that of the applicant, namely, those whose newborn babies had “gone missing” following their alleged deaths in hospital wards, especially in the 1970s, 1980s and 1990s, applied to the Serbian Parliament seeking redress.
57. On 14 July 2006 the Parliament formally adopted a report prepared by the Investigating Committee established for this purpose. The findings of this report concluded, inter alia, that (a) there had been serious shortcomings in the applicable legislation at the relevant time and in the procedures before various State bodies and health authorities; (b) the situation justified the parents’ doubts or concerns as to what had really happened to their children; (c) no criminal redress could now be effective in view of the applicable limitation periods; and (d) a concerted effort on the part of all Government bodies, as well as changes to the relevant legislation, were therefore necessary in order to provide the parents with adequate redress.
(c) Statements made by the President of the Parliament
58. On 16 April 2010 the local media reported that the President of the Serbian Parliament had stated that a parliamentary working group was about to be formed in order to prepare new legislation aimed at providing redress to the parents of the “missing babies”.
(d) The Ombudsman’s Report of 29 July 2010 (Izveštaj zaštitnika građana o slučajevima tzv. “nestalih beba” sa preporukama)
59. Following an extensive investigation into the issue, the Ombudsman found, inter alia, that (a) at the relevant time, there were no coherent procedures and/or statutory regulations as to what should happen in situations where a newborn child died in hospital; (b) the prevailing medical opinion was that parents should be spared the mental pain of having to bury their newborn babies, which was why it was quite possible that certain couples were deliberately deprived of the opportunity to do so; (c) any autopsy reports were usually incomplete, inconclusive, and of highly dubious veracity; (d) it could not therefore be ruled out that the babies in question were indeed removed from their families unlawfully; (e) turning to more recent times, the Government response between 2006 and 2010 had itself been inadequate; and (f) the parents therefore remained entitled to know the truth about the real fate of their children, which could only be arrived at through the enactment of a lex specialis.
(e) The Working Group’s report submitted to Parliament on 28 December 2010 (Izveštaj o radu radne grupe za izradu predloga zakona radi stvaranja formalno-pravnih uslova za postupanje nadležnih organa po prijavama o nestanku novorođene dece iz porodilišta)
60. In response to the findings and recommendations of the Parliamentary Report of 14 July 2006 (see paragraph 57 above), a working group was set up by Parliament on 5 May 2010. Its task was to assess the situation and propose any appropriate changes to the legislation.
61. On 28 December 2010 the Working Group submitted its report to Parliament. Following a detailed analysis of the current, already amended, legislation, it concluded that no changes were necessary except as regards the collection and use of medical data, but that a new piece of legislation concerning this issue was already being prepared (nacrt Zakona o evidencijama u oblasti zdravstva). The Working Group specifically noted, inter alia, that Article 34 of the Constitution made it impossible to extend the limitation period for criminal prosecution in respect of crimes committed in the past or, indeed, to introduce new, more serious, criminal offences and/or harsher penalties applicable to crimes committed in the past (see paragraph 32 below). The existing Criminal Code already envisaged several criminal offences of relevance to the issue, however, and the new Health Care Act set out a detailed procedure making it impossible for parents to have their newborn children unlawfully removed from hospital wards.
B. Relevant domestic law
1. The Constitution of the Republic of Serbia 2006 (Ustav Republike Srbije; published in the Official Gazette of the Republic of Serbia – OG RS – no. 98/06)
62. Article 34 reads as follows:
“No one shall be convicted on account of any act which did not constitute a criminal offence under the law or any other regulation based on the law at the time when it was committed. Nor shall a penalty be imposed which was not prescribed for the act at the time.
The penalties shall be determined pursuant to the legislation in force at the time when the act was committed, save where subsequent legislation is more lenient for the perpetrator. Criminal offences and penalties shall be laid down by the law.”
63. Article 170 provides that a “constitutional appeal may be lodged against individual decisions or actions of State bodies or organisations exercising delegated public powers which violate or deny human or minority rights and freedoms guaranteed by the Constitution, if other legal remedies for their protection have already been exhausted or have not been prescribed”.
2. The Constitutional Court’s opinion of 30 October 2008 and 2 April 2009
64. The Constitutional Court does not have the competence ratione materiae to rule on complaints involving “individual decisions or actions of State bodies or organisations exercising delegated public powers” which had been adopted or had occurred prior to the promulgation of the Constitution in 2006.
3. The Criminal Code of the Socialist Republic of Serbia 1977 (Krivični zakon Socijalističke Republike Srbije; published in the Official Gazette of the Socialist Republic of Serbia nos. 26/77, 28/77, 43/77 and 20/79)
65. Article 116 provided, inter alia, that anyone who had unlawfully detained or abducted a minor child from his or her parents was liable to a prison sentence of between one and ten years.
4. The Criminal Code of the Socialist Federal Republic of Yugoslavia 1976 (Krivični zakon Socijalističke Federativne Republike Jugoslavije; published in the Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 44/76, 36/77, 34/84, 37/84, 74/87, 57/89, 3/90, 38/90, 45/90 and 54/90, in the Official Gazette of the Federal Republic of Yugoslavia nos. 35/92, 16/93, 31/93, 37/93, 24/94 and 61/01, and in OG RS no. 39/03)
66. Articles 95 and 96 provided, inter alia, that prosecution of the crime defined in Article 116 of the Criminal Code of the Socialist Republic of Serbia became time-barred where more than twenty years had elapsed since the commission of the crime.
C. The Court’s position on the “missing babies issue” as elucidated in the Zorica Jovanović judgment
67. On 26 March 2013 the Court, inter alia, unanimously: (a) declared the application admissible; (b) found a violation of Article 8 of the Convention on account of the respondent State’s ongoing “failure to provide ... [the applicant] ... with credible information as to the fate of her son”; (c) held that Article 13 of the Convention need not be examined separately; (d) ordered the respondent State to pay specified sums in respect of the non-pecuniary damage suffered by the applicant, as well as the costs and expenses incurred; (e) under Article 46 of the Convention, ordered that the Government must, within one year from the date on which the judgment becomes final, take all appropriate measures, preferably by means of a lex specialis, to secure the establishment of a mechanism aimed at providing individual redress to all parents in a situation such as the applicant’s (this mechanism was also to be supervised by an independent body capable of providing credible answers regarding the fate of each child and awarding adequate compensation as appropriate); and (f) suspended all similar applications already pending before the Court for a period of one year.
68. On 9 September 2013 this judgment became final. The one year referred to under Article 46, hence, expired on 9 September 2014.
D. Developments following the Zorica Jovanović judgment
69. Having abandoned an earlier idea to set up a Commission to deal with the “missing babies issue”, without any details having been offered, on 25 December 2014 the Minister of Justice and the Minister of Health informed the Serbian public that by the end of May 2015 a special new law should be adopted in order to provide for adequate redress to all persons in a situation such as the applicants’.
70. It would appear, according to various media reports, that some parents welcomed this proposal while others opposed it on the basis that they “wanted to have their children found” rather than “merely be awarded compensation for their loss”. Finally, some parents expressed their doubts in terms of whether the Government have a genuine commitment to tackle the problem comprehensively, having already failed to comply with the Court’s deadline.
COMPLAINTS
71. The applicants, referring to Articles 6, 8, 13 and 17 of the Convention, complain that their children were, or may well have been, abducted and unlawfully adopted by another family. In any event, they claim to be entitled to know the truth about their children’s fate and maintain that they have had no effective domestic remedy at their disposal in this regard.
QUESTIONS TO THE PARTIES
1. Have the second, third, fourth and fifth applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, could an appeal provided for under Article 170 of the Serbian Constitution (ustavna žalba), in a case such as the said applicants’, be considered effective within the meaning of Article 35 § 1 of the Convention (see, mutatis mutandis, Vinčić and Others v. Serbia, no. 44698/06 and others, § 51, 1 December 2009; and Zorica Jovanović v. Serbia, no. 21794/08, § 63, ECHR 2013)? The Government are invited to submit any and all Constitutional Court case-law in this respect.
2. Have the fourth and fifth applicants complied with the six-month time-limit laid down in Article 35 § 1 of the Convention? In particular, has this requirement been satisfied since the fourth and fifth applicants introduced their complaints more than three years and three years and eight months, respectively, after 28 December 2010, but still before (the fourth applicant) or just one day after (the fifth applicant) the expiration of the Article 46 deadline on 9 September 2014, as imposed by the Court in its Zorica Jovanović judgment (cited above, §§ 52-57 and 92)?
3. Has there been a violation of the applicants’ right to respect for their family life, contrary to Article 8 of the Convention (see, mutatis mutandis, Zorica Jovanović, cited above, §§ 68-75)?
4. Did the applicants have at their disposal an effective domestic remedy for their complaint under Article 8, as required by Article 13 of the Convention?
Appendix
No.
App. nos.
Lodged on
Applicant’s name/initials
Date of birth
Place of residence
Represented by
8184/07
12/02/2007
S.R.
1962
Kraljevo
_
3567/09
29/11/2008
M.J.
1943
Kruševac
_
8653/10
27/01/2010
Žaklina IVKOVIĆ PAŠĆAN
28/09/1980
Novi Banovci
_
9291/14
10/01/2014
Ljubinka MIK
11/05/1956
Belgrade
_
63798/14
10/09/2014
Svetlana JOVANOVIĆ
16/10/1957
Kragujevac
Živan Agatonović
Full & Egal Universal Law Academy