Information Note on the Court’s case-law 250

April 2021

Mik and Jovanović v. Serbia (dec.) - 9291/14 and 63798/14

Decision 23.3.2021

Article 8

Positive obligations

New legal framework establishing mechanism to determine true status and provide redress for all parents of missing newborn children: struck out

Article 13

Effective remedy

New legal framework establishing mechanism for redress for all parents of missing newborn children: struck out

Facts – The applicants, who had given birth in the 1980s in State-run hospitals, were informed that their babies had died, but were not given the opportunity to see their bodies. In 2002, having heard through the media of many other similar cases, the applicants started to have doubts as to what had really happened to their babies. They lodged criminal complaints, maintaining that their children could still be alive and might have been taken from them unlawfully. Those complaints were rejected, as prosecution for the alleged crimes had since become time-barred.

The applicants complained before the Court that their children, respectively, had or could have been abducted and unlawfully adopted by another family. In any event, they claimed to be entitled to know the truth about their children’s fate and maintained that they had no effective domestic remedy at their disposal in that regard.

Law – The Court had delivered a leading judgment in 2013 concerning issues essentially identical or very similar to those raised by the applicants in the present case, finding, inter alia , a breach of Article 8 ( Zorica Jovanović v Serbia ). Furthermore, under Article 46, the Court had opined that the respondent State had to take all appropriate measures, preferably by means of a lex specialis , and within one year, to secure the establishment of a mechanism aimed at providing individual redress to all parents in a situation such as, or sufficiently similar to, the applicant’s.

The Serbian parliament had passed the Zorica Jovanović Implementation Act in February 2020. While that legislation had been enacted after a significant delay, the issues which had required regulation were themselves of great sensitivity and considerable complexity. Furthermore, the Act, as passed, provided for both judicial and extrajudicial procedures with respect to the situation faced by the applicants and others and was aimed at discovering the true status of newborn children suspected to have disappeared from maternity wards in Serbia. It was also specifically designed to give effect to the requirements of the Zorica Jovanović judgment:

(a) Judicial redress: The Act provided, inter alia , for a system in which the domestic courts had the power to investigate and obtain evidence not only at the request of the petitioner but also proprio motu in order to establish all the relevant facts of the case, as well as the power to award compensation where appropriate. In addition to being brought by parents who had already complained in the past about their “missing babies”, proceedings could also be brought by other interested parties, as well as the Ombudsman and any person who had doubts as to his or her purported origin. All petitioners were exempt from paying court fees and had the benefit of legal aid. The six-month deadline as of the date of the Act’s entry into force for the institution of proceedings, further extended by regulations adopted as a consequence of the COVID-19 pandemic, also seemed reasonable. The Act provided for measures which could be used to secure the cooperation of relevant persons and bodies, and set out the conditions in which DNA testing might be carried out. Review proceedings could be instituted before the relevant appellate courts and any and all authorities conducting other proceedings were formally bound by the final decision issued pursuant to the Act as regards establishing the facts about the death of the child in question.

If, during the proceedings, the court found reasonable grounds to suspect that a criminal offence subject to public prosecution had been committed, it was obliged, based on the Act itself, to lodge a criminal complaint with the public prosecution service. Shortly prior to the enactment of the Act, and according to a media report, the Novi Sad Appellate Public Prosecutor’s Office had also issued a binding instruction explaining that the criminal investigations involving the missing babies in question would not be deemed as statute-barred, in view of the relevant international standards.

(b) Extra-judicial redress: The Act provided for a Commission with extensive investigatory, data collection and reporting powers. Nine of the fifteen members of the Commission were to be appointed from among the representatives of registered parents’ associations dealing with the issue of missing babies. Moreover, the Commission had to decide by a majority vote of all of its members and was to be chaired by one of the parents’ representatives. All of that, despite the Government’s role in the appointment procedure and the official status of the remaining six members of the Commission, appeared to offer adequate guarantees that the body in question would be sufficiently independent.

(c) Implementation: Extensive training of judges had taken place in 2020 and more had been planned for the future, also for parents, police officers and Commission members. Given the situation relating to the COVID-19 pandemic and the state of emergency declared in response, that training had been, understandably, mainly provided through various online activities and projects. Otherwise, by July 2020 the members of the Commission had also all been appointed, and in their action plans, the Serbian authorities had informed the Committee of Ministers of the Council of Europe that, as of November 2020, nearly 700 requests had been lodged with the domestic courts.

In view of the foregoing, it was no longer justified to continue the examination of the applications, it being noted that the applicants themselves had also opted in favour of making use of the new legal framework put in place on the basis of the Zorica Jovanović Implementation Act. There were also no particular reasons regarding respect for human rights which required the Court to continue the its examination of the case. While the setting up and functioning of the DNA database remained to be fully implemented, any issues which could arise in that respect could not be considered in abstracto but rather in the particular circumstances of a possible future application.

Conclusion: Struck out of the list (unanimously).

(See also Zorica Jovanović v Serbia, 21794/08, 26 March 2013, Legal Summary )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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