Missing babies from hospitals: Serbia must give credible answers about what has happened to each child and compensate the parent

Missing babies from hospitals: Serbia must give credible

answers about what has happened to each child and

compensate the parents

In today’s Chamber judgment in the case of Zorica Jovanovi? v. Serbia (application

no. 21794/08), which is not final1, the European Court of Human Rights held,

unanimously, that there had been:

a violation of Article 8 (right to respect for private and family life) of the

European Convention on Human Rights.

The case concerned the alleged death of Ms Jovanovi?’s healthy newborn son in 1983 in

a State-run hospital. She was never allowed to see his body and suspects that her son

may even still be alive, having unlawfully been given up for adoption.

The Court found that, although the procedure in hospitals when newborns die had been

improved and reports had been drawn up by Parliament to investigate the missing

babies cases, ultimately nothing had been done to remedy the ordeal suffered by the

parents, including the applicant, in the past. Therefore the Court concluded that

Ms Jovanovi? had suffered a continuing violation of the right to respect for her family life

due to Serbia’s continuing failure to provide her with credible information as to what has

happened to her son.

Given the significant number of other potential applicants, the Court also held under

Article 46 (binding force and implementation) that Serbia had to take measures to

give credible answers about what has happened to each missing child and to provide

parents with adequate compensation.

Principal facts

The applicant, Zorica Jovanovi?, is a Serbian national who was born in 1953 and lives in

Bato?ina (Serbia).

On 28 October 1983 Ms Jovanovi? gave birth to a healthy baby boy in the ?uprija

Medical Centre, a State-run hospital. Three days later, when she and the baby were

about to be released, she was informed that her son had died. She tried to access the

hospital nursery where her son had spent the night, but was restrained by two orderlies.

A nurse tried to inject her with a sedative, which she managed to avoid. In a state of

shock and with no other options left open to her, she checked out of the hospital.

The baby’s body has never been handed over to Ms Jovanovi? or her family. She has

never been provided with an autopsy report or informed as to when and where he was

allegedly buried. The hospital simply informed her that her son had died on 31 October

1983 and that there was no indication as to the cause of death.

1 Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month

period following its delivery, any party may request that the case be referred to the Grand Chamber of the

Court. If such a request is made, a panel of five judges considers whether the case deserves further

examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral

request is refused, the Chamber judgment will become final on that day.

Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for

supervision of its execution. Further information about the execution process can be found here:

www.coe.int/t/dghl/monitoring/execution

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In November 2002 the local municipality informed Ms Jovanovi? that her son’s birth but

not death had been registered in the municipal records. This was again confirmed in

September 2007.

A criminal complaint filed by Ms Jovanovi?’s husband against the hospital staff –

following reports in the media about other similar cases - was rejected in October 2003

as unsubstantiated. No further reasoning was given and it was not clear if a preliminary

investigation had been carried out or not.

Between 2003 and 2010 certain official steps were taken to improve procedures in

hospitals following the death of newborns and to investigate allegations in 2005 by

hundreds of parents whose newborn babies had gone missing following their supposed

deaths in hospital wards, mostly from the 1970s to the 1990s. Thus, since 2003 parents,

family or legal representatives of newborns who have died in hospital have been obliged

to sign a special form stating that they have been informed of the death and will

personally make funeral arrangements. Furthermore, three reports have been drawn up

by the Ombudsman, the Serbian Parliament’s investigating committee and a working

group set up by Parliament to assess the situation and propose legislative changes. The

Ombudsman’s and investigation committee’s reports found serious shortcomings in the

applicable legislation in the 1980s as well as in the procedures and statutory regulations

as to what should happen when a newborn died in hospital (the prevailing medical

opinion being that parents should be spared the pain of having to bury their newborns)

and that parents’ doubts as to what had really happened to their children were therefore

justified. The reports also found that the State’s response to the situation had in itself

been inadequate. In December 2010 the working group concluded that no changes to

the existing, by that time already amended legislation, were necessary, except as

regards the collection and usage of medical data. The group also noted that Article 34 of

the Constitution made it impossible to extend the applicable prescription period for

prosecution of crimes committed in the past, or to introduce new, more serious, criminal

offences and/or harsher penalties.

Ms Jovanovi? has repeatedly been treated for depression from 2009 to 2011.

Complaints, procedure and composition of the Court

Relying in particular on Article 8 (right to respect for private and family life) and

Article 13 (right to an effective remedy), Ms Jovanovi? complained of the Serbian

authorities’ continuing failure to provide her with any information about what has

happened to her son and the continuing failure to provide her with any redress.

The application was lodged with the European Court of Human Rights on 22 April 2008.

Judgment was given by a Chamber of seven judges, composed as follows:

Guido Raimondi (Italy), President,

Danut? Jo?ien? (Lithuania),

Peer Lorenzen (Denmark),

Dragoljub Popovi? (Serbia),

I??l Karaka? (Turkey),

Nebojša Vu?ini? (Montenegro),

Paulo Pinto de Albuquerque (Portugal),

and also Françoise Elens-Passos, Deputy Section Registrar.

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Decision of the Court

Article 8 (right to respect for private and family life)

The Court noted that Ms Jovanovi? remains to this day without any credible answer as to

what happened to her son in 1983. She has never seen the dead body of her son, the

cause of his death has never been determined and his death has never actually even

been officially recorded. Nor was any adequate consideration given to the criminal

complaint filed by her husband. Indeed, the Serbian authorities themselves have

affirmed in a number of reports that there were shortcomings and inadequacies in the

applicable legislation at the time, in the procedures and statutory regulations in the

event of newborns dying in hospital as well as in the State’s response to the allegations

of babies going missing from hospitals.

Despite several seemingly promising official initiatives between 2003 and 2010, the

working group report of December 2010 ultimately concluded that no changes were

necessary to the already amended legislation. However, that clearly only improved the

future situation and did not, in effect, do anything for the parents, including the

applicant, who had had to go through such an ordeal in the past.

Therefore, the Court concluded that Ms Jovanovi? had suffered a continuing violation of

the right to respect for her family life due to Serbia’s continuing failure to provide her

with credible information as to what has happened to her son. Accordingly, there had

been a violation of Article 8.

The Court held that there was no need to examine separately the complaint under

Article 13.

Article 46 (binding force and implementation)

Given the significant number of potential applicants, the Court further held that Serbia

had to take – within one year of the present judgment becoming final – appropriate

measures to provide individual redress to all parents in a situation similar to the

applicant’s. That process should be supervised by an independent body, with adequate

powers, so that credible answers are given regarding what has happened to each

missing child and adequate compensation provided.

In the meantime, the Court decided to adjourn all similar applications already pending

before it.

Just satisfaction (Article 41)

The court held that Serbia was to pay Ms Jovanovi? 10,000 euros (EUR) in respect of

non-pecuniary damage.

It also awarded EUR 1,800 for her lawyers’ costs and expenses.

The judgment is available only in English.

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Tracey Turner-Tretz (tel: + 33 3 88 41 35 30)

Nina Salomon (tel: + 33 3 90 21 49 79)

Denis Lambert (tel: + 33 3 90 21 41 09)

Jean Conte (tel: + 33 3 90 21 58 77)

The European Court of Human Rights was set up in Strasbourg by the Council of

Europe Member States in 1959 to deal with alleged violations of the 1950 European

Convention on Human Rights.

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