FIRST SECTION
Application no. 57282/09
T.T.S.
against the former Yugoslav Republic of Macedonia
lodged on 19 October 2009
STATEMENT OF FACTS
The applicant, Ms T.T.S., is a Macedonian and Australian national, who was born in 1961 and lives in Sydney, Australia.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 31 October 1981 the applicant gave birth to twins, a boy and a girl, in P. Medical Centre (“the Hospital”). It appears that the next day they were released from the Hospital. Eight days after the release, the girl, called B., was admitted in the Hospital again. The applicant was not allowed to stay with her.
On 10 November 1981 at around 2.40 a.m. B. passed away. The applicant insisted to see her, but all her attempts were to no avail. As stated by the applicant, both her husband and she did everything to have the body of the child so that they would have burial for her in accordance with their religious beliefs. They notified the local police, but were informed that it had been the Hospital’s practice not to transfer the body of a dead child to his or her parents.
According to an extract from the medical records, the child died due to a sepsis caused by meningitis. The death of the child was registered in the official records and a death certificate was issued.
In 1988 the applicant, together with her family, left to Australia where they live at present.
In 2002 the applicant was informed (the applicant did not specify by whom and how) that B. has never died and has been living in P.
On the basis of that information, the applicant, represented by a lawyer, brought criminal charges against V.D., the chief nurse in the Hospital at the time, on account of unlawful removal of a minor child from his or her parents punishable under Article 198 of the Criminal Code (see “Relevant domestic law” below).
On 16 December 2002 P. public prosecutor’s office rejected the applicant’s complaint as unsubstantiated finding no elements that the person concerned had committed the crime imputed to her. The decision stated that the prosecution had become, under Article 107 § 1 (5) of the Criminal Code, time-barred. It further indicated that it was a regular practice of the Hospital to keep the corpse of a child for two hours before it would be transferred to pathology ward from where family members could take it.
By a letter of 23 June 2005 the Hospital refused the applicant’s request for inspection of the medical records since information regarding the death of her daughter was regarded classified. She was advised, though, to contact the public prosecutor, which had the authority to seek relevant information.
Between December 2005 and February 2006 the applicant requested assistance from the New South Wales Police, Missing Persons Unit and the Australian Federal Police. The Missing Persons Unit further sought that Interpol investigates the matter. In February 2007 Interpol forwarded to the applicant an information submitted by its office in Skopje. The applicant did not submit a copy of that document.
The applicant states that three local lawyers have been working on her case in the respondent State. Their own investigations led them to conclude that her daughter was secretly abducted, that she was alive and lived in P. under a new identity (the applicant indicated the name and address of a person for whom she supposed was her daughter). All attempts made between 2005 and 2008 that the applicant meets with that person were to no avail. She further alleges having received phone calls threatening her that she would be killed if she continued investigating the matter. Her representatives in the respondent State received similar threats as well. The police did not take any step to uncover the truth regarding those threats.
On 21 October 2008 the applicant submitted a fresh criminal complaint against an unknown perpetrator on account of unlawful removal of a minor child (Article 198 of the Criminal Code).
On 2 December 2008 P. public prosecutor rejected the complaint finding that the alleged crime was not a subject to State prosecution. It did so after apparently it had heard the applicant, other persons and obtained other documentary evidence (not specified). It appears that on the same date the applicant was served with this decision. The applicant did not take over the prosecution as a subsidiary complainant, notwithstanding the clear instruction by the public prosecutor.
Lastly, the applicant alleges that the last representative working on her case unsuccessfully requested a court order for a DNA testing (presumably regarding the person whom she alleged to be her daughter). According to her “every attempt was blocked in the court in P. without any further explanation ... all parties involved, both Government and institutions, seem to fear of the DNA testing knowing that the truth be revealed”.
B. Relevant domestic law
1. Criminal Code
Pursuant to Article 107 § 1 (5) of the Criminal Code, prosecution of offences subject to a prison sentence of more than a year becomes statute-barred three years after the offence was committed.
Article 198 of the Criminal Code provides that, inter alia, whoever unlawfully removes a minor child from his or her parents shall be subject to a fine or up to one year’s prison sentence. An aggravated form of this crime is subject to a prison sentence of between three months and three years.
2. Obligations Act
Section 189 provides, inter alia, that anyone who has suffered mental anguish as a consequence of a breach of his or her freedoms and rights shall be entitled to claim non-pecuniary damages (“just satisfaction” according to 2008 statutory amendments) in the civil courts.
Under section 365, a compensation claim becomes time-barred three years after the victim becomes aware of the damage and the person responsible. The absolute time-bar for compensation is five years after the occurrence of the damage. If the damage occurred as a result of a criminal offence, a claim for compensation becomes time-barred after expiration of the time-bar for criminal prosecution, if the latter lasted longer (section 366).
COMPLAINT
The applicant alleges that her daughter was abducted and unlawfully adopted by another family. She claims to be entitled to know the truth about her daughter.
QUESTIONS TO THE PARTIES
1. Are the applicant’s complaints compatible with the provisions of the Convention, ratione temporis, in so far as they relate to facts which occurred prior to 10 April 1997, that being the date when the Convention had entered into force in respect of the respondent State?
2. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, can a civil claim based on the Obligations Act be regarded as an effective remedy within the meaning of this provision and in the particular circumstances of the present case? In view of the rules on time-bar (see “Relevant domestic law”), was such an action available to the applicant?
3. Has the applicant complied with the six-month time-limit laid down in Article 35 § 1 of the Convention? In this connection which date is relevant for the calculation of the six-month time-limit? The parties are invited to provide information whether, and if so, which actions have been taken after the applicant had learnt about the rejection of her second criminal complaint on 2 December 2008. In particular the parties are invited to provide a copy of all relevant documents regarding the applicant’s request for a DNA test.
4. Has there been a violation of the applicant’s right to respect for her family life, contrary to Article 8 of the Convention (see, mutatis mutandis, Kroon and Others v. the Netherlands, 27 October 1994, §§ 31 and 32, Series A no. 297‑C)? In particular, did the State discharge its positive obligations under this Article regarding the applicant’s allegations that her daughter was abducted and given up for an unlawful adoption (see, mutatis mutandis, Zorica Jovanović v. Serbia, no. 21794/08, 26 March 2013)?
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