20 April 2011

SECOND SECTION

Application no. 21794/08 by Zorica JOVANOVI Ć against Serbia lodged on 22 April 2008

STATEMENT OF FACTS

THE FACTS

1 . The applicant, Ms Zorica Jovanovi ć , is a Serbian national who was born in 1953 and lives in Bato č ina , Serbia .

A. The circumstances of the case

2 . The facts of the case, as submitted by the applicant, may be summarised as follows.

1. The specific facts of the applicant ' s case

3 . On 28 October 1983, in the Ć uprija Medical Centre (“the ĆMC”), the applicant gave birth to a healthy boy.

4 . Between 28 and 30 October 1983, while still in the ĆMC, the applicant had regular contact with her son.

5 . On 30 October 1983 the applicant was informed by the doctors that both she and her son would be released the next day.

6 . On the evening of 30 October 1983 the applicant was with her son until approximately 11 p.m., when he was taken to a separate room for newborn babies. This was standard procedure and the applicant ' s son experienced no medical problems up to this point.

7 . On 31 October 1983, at around 6.30 a.m., the on-duty doctor informed the applicant that “her baby had died”. Upon hearing this information, the applicant immediately ran down the corridor, towards the room where her son had spent the night. She was, however, physically restrained by two orderlies. A nurse even tried to inject the applicant with a sedative, but the applicant successfully resisted this attempt. Ultimately, having no other option and in a state of haze, the applicant checked out of the ĆMC. Her family members were subsequently told that the autopsy of the infant would be performed in Belgrade , which is why his body could not yet be transferred to the parents. The applicant and her family remained confused as to why the autopsy would have to be performed in Belgrade , as this was clearly a departure from the ĆMC ' s normal practice.

8 . On 24 October 2002 the applicant sent a request to the ĆMC, seeking all relevant documentation relating to her son ' s death.

9 . On 12 November 2002 the applicant was informed by the ĆMC that her son had died on 31 October 1983, at 7.15 a.m., and that his death was diagn osed as “ exitus non sigmata ”, i.e. a death without indication as to the cause. T he ĆMC maintained that no other information was available since its archives had in the meantime been flooded and many documents had been destroyed.

10 . On 22 November 2002 and in response to the applicant ' s request, the Municipality of Ćupruja informed the applicant that her son ' s birth had been registered in the municipal records but that his death had not.

11 . On an unspecified date thereafter the applicant filed a criminal complaint with the Municipal Public Prosecutor ' s Office in Ćuprija . The complaint was filed against the medical staff of the ĆMC whom the applicant deemed responsible for “her son ' s abduction”.

12 . On 15 October 2003 the said office rejected the applicant ' s complaint as unsubstantiated, since “there was evidence that her son had died on 31 October 1983”. No further reasoning was offered and there was no indication as to whether any preliminary investigation had been carried out .

13 . In March 2004 the Municipality of Ćuprija reaffirmed the content of its letter of 22 November 2002.

14 . On 29 April 2004 the ĆMC provided the applicant with its internal records in support of its letter dated 12 November 2002.

15 . On 28 December 2007 the Municipality of Ćuprija provided the applicant, inter alia , with copies of her son ' s birth certificate, as well as the ĆMC ' s request for the registration thereof.

16 . The applicant ' s son ' s body was never transferred to the applicant or her family . They were also never provided with an autopsy report or informed as to when and where he was allegedly buried .

2. Other relevant facts

(a) The Parliamentary R eport of 14 July 2006 ( Izveštaj o radu anketnog odbora obrazovanog radi utvrđivanja istine o novorođenoj deci nestaloj iz porodilišta u više gradova Srbije )

17 . In 2005 hundred s of parents in a situation such as the applicant ' s, i.e. whose newborn babies had “gone missing” following their alleged deaths in hospital wards, mostly in the 1970s, 1980s and 1990s, addressed the Serbian Parliament seeking redress.

18 . On 14 July 2006 the Parliament formally adopted a report prepared by its Investigating Committee. The findings of this report included, inter alia , that: ( i ) there were serious shortcomings in the applicable legislation at the relevant time, as well as in the procedures before various State bodies and health authorities; (ii) this situation justified the parents ' doubts/concerns as to what had really happened with their children; (iii) no criminal redress could be effective in view of the applicable prescription period (see paragraph 22 below); and (iv) a concerted effort on the part of all Government bodies, as well as changes to the relevant legislation, was thus necessary in order to provide the parents with adequate redress.

(b) Statements made the President of the Serbian Parliament

19 . On 16 April 2010 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”.

( c ) The Serbian Ombudsman ' s R eport of 29 July 2010 ( Izveštaj zaštitnika građana o slučajevima tzv . “ nestalih beba ” sa preporukama )

20 . Following an extensive investigation into the issue, the Ombudsman found, inter alia , that: ( i ) a t the relevant time, there were no coherent procedures and/or statutory regulations as to what should happen in situations when a newborn child died in hospital; (ii) the prevailing medical opinion was that parents should be spared the mental pain of having to bury their newborn babies, which is why it was quite possible that certain couples were deliberately deprived of the opportunity to do so; (iii) any autopsy reports were usually incomplete, inconclusive, and of highly dubious veracity; (iv) it could not therefore be ruled out that the babies in question were indeed removed from their families unlawfully; (v) turning to more recent times, the Government response between 2006 and 2010 had itself been in adequate ; and (vi) the parents therefore remain entitled to know the truth as to what was the real fate of their children, which could only be arrived at through the adoption of a lex specialis .

B. Relevant domestic law and practice

1. The Criminal Code of the Socialist Republic of Serbia ( 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)

21 . Article 116 provides that, inter alia , whoever unlawfully removes a minor child from his or her parents shall be punished by a prison term of between one and ten years.

2. The Criminal Code of the Socialist Federal Republic of Yugoslavia ( Krivični zakon Socijalističke Federativne Republike Jugoslavije ; published in the Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 44/76 and 36/77)

22 . Articles 95 and 96 state, inter alia , that as regards the crime provided under Article 116 of the Criminal Code of the Socialist Republic of Serbia criminal proceedings cannot be issued or, indeed, continued if more than twenty years have elapsed as of the moment of the commission of the crime.

3. The Obligations Act ( Zakon o obligacionim odnosima ; published in the Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 29/78, 39/85, 45/89 and 57/89)

23 . Article 154 and 155 define different grounds for claiming civil compensation, including non-pecuniary damage.

24 . Articles 199 and 200 provide , inter alia , that anyone who ha s suffered fear, physical pain or, indeed, mental anguish as a consequence of a breach of his or her “personal rights” ( prava ličnosti ) shall be entitled, depending on their duration and intensity, to sue for financial compensation in the civil courts and, in addition, to request other forms of redress “which might be capable” of affording adequate non-pecuniary satisfaction.

25 . Article 376 § 2 provides that a claim based on the above articles may be brought within a maximum of five years as of the event in question.

26 . Article 377 § 1 further provides that if the damage at issue has been caused as a result of the commission of a criminal offence the civil prescription period may be extended so as to correspond to the applicable criminal statute of limitations.

4. Relevant domestic case-law

27 . On 4 June 1998 the Supreme Court ( Rev. 251/98 ) held that civil prescription periods concerning various forms of non-pecuniary harm (see paragraph 24 above) shall only start running when the situation complained of has come to an end ( kada su pojedini vidovi neimovinske š tete dobili oblik konačnog stanja ).

28 . On 21 April 2004 the Supreme Court ( Rev. 229/04 ) further held that “personal rights” within the meaning of the Obligations Act include, inter alia , the right to respect for one ' s family life.

COMPLAINTS

The applicant refers to Articles 4, 5, 8 and 13 of the Convention. In substance, however, she complains about the respondent State ' s continuing failure to provide her with any information as to the real fate of her son, or indeed any other redress in th is respect. The applicant would further appear to suspect that her son may have unlawfully been given up for adoption.

QUESTION S 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 3 March 2004 , that being the date when the Convention had entered into force in respect of Serbia?

2. Has the applicant exhausted all effective domestic remedies, as req uired by Article 35 § 1 of the Convention? In particular, can a civil claim based on Articles 199 and 200 of the Obligations Act be regarded as an effective remedy within the meaning of this provision and in the particular circumstances of the present case?

The Government are invited to provide any relevant domestic case-law in this respect.

3. 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 ) ?

4 . Did the applicant have at her disposal an effective domestic remedy for her complaint under Article 8, as required by Article 13 of the Convention?