The case of Zorica Jovanović – the trigger of the legal regulation of the…

On February 29th, the Law on Establishing Facts on the status of Newborns Suspected to have Disappeared in maternity wards in the Republic of Serbia (hereinafter: The Law) was adopted, and then enforced on March 11th, 2020. Due to the existence of certain objections and fears from citizens, and in accordance with the negotiations between the Prime Minister of the Republic of Serbia and the representatives of the Association of Parents of Missing Babies (hereinafter: the Association), the mentioned Law also includes amendments motioned by the Association which will be discussed in more detail below.

The passing of this Law, its enforcement, and above all its implementation fulfills the goals due to which the need for legal regulation of the disputed situation arose.

The primary goal is prescribed by Article 2. of the Law: “The goal of this law is to establish facts suitable to determine the truth about the status of newborns suspected of missing from maternity wards in the Republic of Serbia, based on the evidence and information obtained in court proceedings from state and other authorities, parents and others”, while the secondary goal refers to the fulfillment of the obligation of our state imposed by the verdict in the case “Jovanović vs Serbia” which was passed in 2013 by the European Court of Human Rights in Strasbourg (hereinafter: the Verdict).

Facts relating to the case of Zorica Jovanović

At the Clinical Center in Ćuprija, on October 28th, 1983, Zorica Jovanović gave birth to a boy who was found to have no health problems and to be completely healthy. For the next two days, the mother and the newborn maintained normal contact, everything was fine and the whole postpartum process went according to plan. However, on October 31th, instead of leaving the hospital with the baby, early in the morning Zorica Jovanović was informed that her baby had passed away.

After the mentioned incidence, which brought Zorica into a state of shock, a number of further inconsistencies occurred in the handling and provision of information:

– Firstly, she was informed by the Clinical Center where she gave birth in, that the body of the newborn was not handed over to the family because the autopsy would be performed in Belgrade (instead of Ćuprija, as required by common practice). However, the autopsy report was never handed over to Zorica or her family, nor were they ever informed when and where the child was allegedly buried;

– In 2002, after requesting from the same Clinical Center to provide her with documentation related to death of her baby, she was informed that many documents were destroyed due to a flood in the archives, and that the only information they have is that her son’s death is marked as “Exitus non sigmata”, that is a death which cause is unknown, including its date and time;

– At her personal request, from the Municipality of Ćuprija, Zorica found out that only the birth of her son was entered in the registry books, but not his death;

– The criminal charge filed by Zorica Jovanović’s husband against the medical staff of the maternity ward for the crime of kidnapping a minor was rejected with the explanation that “there is evidence that their son died on October 31st, 1983”, without conducting any investigation.

Zorica Jovanović was not alone in her entire struggle for the truth, bearing in mind that an increasing number of parents whose babies disappeared in maternity wards in the same or similar way during the 1970s, 1980s and 1990s began to address the National Assembly.

Since for many years she was unable to find out what happened to her son or to get any answer that would help in her further search, and as there was a serious suspicion that her son did not die in the maternity ward, Zorica filed a complaint against the state to the European Court of Human Rights (complaint no. 21794/2009) for violation of Articles 4, 5 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Due to all the inconsistencies in this case, as well as the passive posture of the state towards them, and especially because for years the complainant did not have any credible information about what happened to her son, the European Court found that The Republic of Serbia violated the rights of Zorica Jovanović under Article 8. of the Convention – the right to privacy and family life, therefore on March 5th, it rendered, and on March 26th, 2013, it published the Verdict.

Zorica Jovanović was imposed a compensation for non-pecuniary damage due to suffering by the Verdict, while the state of Serbia was obliged to pass a special law that would enable all parents in the same or similar situations as Zorica Jovanović to find out what happened to their babies. Namely, the state is obligated to establish the facts in other cases of missing babies as well.

Procedure for establishing the facts about the status of a newborns suspected to have disappeared from the maternity ward

The procedure is initiated by a proposal to establish the facts on the status of a newborn child suspected of missing from a maternity ward in the Republic of Serbia, submitted to the competent High Court (hereinafter: the Proposal) by an authorized proposer (usually parents, for whom the conditions is prescribed that by the day the Law enters into force they have addressed the state authorities or the maternity ward regarding the status of their newborn child, however in their absence it can be a brother, sister, grandfather or grandmother). The amendment motioned by the Association proposed that the Proposal can be submitted by a person who doubts his descent, regardless of whether he addressed the state authorities regarding his family status, as well as by the Protector of Citizens on behalf of authorized persons.

The next amendment inscribed into the Law by the Association refers to the Commission, which consists of fifteen members (six are appointed by the Government of the Republic of Serbia, and nine are representatives of the Association), and which is formed in order to accomplish the key task – to collect and process all facts and information in the possession of judicial authorities, police, all medical institutions that may have come into contact with pregnant women, newborns, stillborns or children who died after birth, registry offices where the facts of birth or death were entered, public utility companies to which the public authority to bury funeral remains has been or is still delegated, social work centers, as well as all other state, provincial or local self-government entities which are obliged to provide the Commission with access to all information at their disposal, as well as to interview employees regarding the Commission’s task.

After collecting and processing facts and information, holding hearings, presenting evidence, it is time to decide on the merits of the Proposal.

If it is possible to determine the status of the child, that is the facts about whether the child is alive or dead and where it is, as well as the facts that explain what happened to the child, the court makes a decision to adopt the proposal, or if such facts cannot be established, the court issues a decision stating that the status of a missing newborn child cannot be determined – in such a situation, it was implemented by another amendment of the Association that the adoption of the said decision does not prevent the proposer to reopen the proceedings on the same matter, if he found out new facts or acquired the ability to use new evidence on the basis of which a decision on adoption could have been made if those facts or evidence have been used in an earlier proceeding.

In any of the possible outcomes, the possibility of awarding fair monetary compensation for non-pecuniary damage, in the amount of not more than 10.000 euros, is provided.

Current situation in Serbia

The original deadline for submitting the Proposal was set until September 11th, 2020. However, at the request of the Protector of Citizens Zoran Pašalić, this deadline was extended by 47 days, that is by as many days as the state of emergency in our country lasted, introduced due to the Covid-19 epidemic, all in accordance with the Regulation on deadlines in court proceedings during a state of emergency. The additional deadline for submission of Proposals in cases of so-called “missing babies” expired on November 3rd, 2020.

By the deadline, before the four High Courts in our country (Belgrade, Kragujevac, Niš and Novi Sad), the proposers submitted over 860 Proposals for determining the status of newborns believed to have disappeared in maternity wards. Most of them were submitted to the High Court in Belgrade, as many as 333. They are currently in the phase of gathering evidence, after which the first hearings will be scheduled, which are expected at the beginning of 2021.

The Protector of Citizens Zoran Pašalić stated in September 2020: “The problem of “missing babies” which has not been solved for many years and which is a difficult mark for our society, must have its epilogue, according to the letter of the law. Therefore we will try to complete the cases of “missing babies” within the legally prescribed conditions, and for parents to finally get the truth they have been waiting for decades in court proceedings”, and he also stated that he had used his legal right to submit on behalf of parents and all other authorized proposers, Proposals for establishing the facts about the status of a newborn child suspected of having dissapeared from a maternity wards in Serbia, and that he had submitted several of such Proposals.

The fact is that the case of the disappearance of a person, as well as the lack of information about the circumstances of such an unfortunate occurrence is a huge burden for the family of the missing, especially considering that in this situation it is babies whose parents have no idea if they are alive, where they are and whether they have illegally been submitted for adoption. This way, the family is kept in ignorance for years and their feeling of suffering is prolonged. Bearing in mind that the primary interest of parents is to find out the truth about the real fate of their missing children, we can only believe that new information will be obtained through the courts, all in order to provide the family with essential satisfaction that is to finally bring to an end decades-long ignorance of the family, primarily the ignorance of parents of the missing babies.