Award Winner's Serial
News / Serbia 2019
Winning a case in the Strasbourg Court is not an end in itself. The mission of any litigating NGO is to make human rights a reality for the persons affected by a ruling: on the ground, at national level. It is primarily there that the struggle for achieving justice – not only for the individual applicant, but also for wider segments of society – takes place. This means a judgment of the European Court of Human Rights (ECtHR, the Court) is not the end of a long road, but the starting point of a process which promises to make rights ‘practical and effective’.
A Strasbourg Court judgment itself signals to international and national actors that an applicant’s human rights have been violated. It establishes there is a problem, but it does not solve it. What needs to happen after the Court finds a violation is not always immediately clear. Implementation may require amending legislation, changing court practice, reopening unfair court proceedings, repealing a conviction, stopping a deportation, ensuring effective police protection for a person who has been a victim of repeated assaults, conducting an investigation, providing police protection for a pride march, refurbishing and constructing courthouses, demolishing an unlawfully constructed building, establishing contact between a parent and a child who had been unlawfully separated, or the highest officials of the state issuing a public apology.
None of these various measures, which are but examples of remedies, will implement themselves: an unlawfully constructed building will not immediately collapse after the ECtHR handed down its ruling. A judgment of the Strasbourg Court, in and of itself, cannot establish contact between a parent and their child who disappeared as a newborn. Unfortunately, the parents of the ‘missing babies’ from Serbia know this all too well.
The Court’s judgment in the Zorica Jovanović case
The judgment in the ‘missing babies’ case (Zorica Jovanović v. Serbia) is one of the most important judgments issued by the Strasbourg Court against Serbia. The application was brought by the mother of a child who, then a healthy newborn baby boy, had disappeared from the maternity ward, never to be seen again. Imagine the agony of a mother whose child ‘goes missing’ at the hospital where she gave birth to him just a few days earlier, and who is never given any credible information about what really happened to him. The boy’s parents were not even told if he was dead or alive.
In its judgment of March 2013, the Strasbourg Court found that Serbia had violated the applicant’s right to respect for her family life because the state authorities had effectively done nothing to find out about the fate of her son. As has been stressed on this blog before, this painful case is not unique. There are over two thousand couples in Serbia who lost their babies in maternity wards, mainly in the period from the 1970s to the 1990s, and who fought in vain for years, if not decades, to get an explanation form the authorities about the disappearance of their children.
For the parents of the disappeared children, a pronouncement by a court that they are victims of a human rights violation is important, but it offers little comfort. Monetary compensation is not enough, either. The violations occurred because the authorities had not tried diligently to find out about the fate of the disappeared newborn babies. Therefore, in order for Serbia to start righting the terrible wrongs that were done to the parents of the ‘missing babies’, they should take every possible action to establish what happened to every single one of these children. This is perhaps the most important outcome of the Zorica Jovanović case: Serbia’s obligation to implement the judgment gives the parents hope that contact with their children who disappeared from Serbian maternity wards and hospitals will be re-established. The aim is to find out about the fate of the disappeared children and, wherever this is still possible, re-establish contact between parents and children. Pushing for the implementation of the Court’s judgment in Zorica Jovanović is the means by which a multi-stakeholder alliance of actors in Serbia is seeking to achieve this goal.
The Serbian authorities’ push to close the case
Finding out about the fate of many hundreds of newborn babies who disappeared between the 70s and the 90s is, no doubt, no easy task. But the Serbian authorities have, we would argue, irresponsibly wasted too much time already.
The Court gave Serbia one year to ‘take all appropriate measures, preferably by means of a lex specialis … 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. This deadline expired more than five years ago. This is devastating for the parents. It also appears to be causing increasing frustration within the Committee of Ministers (CM), which is supervising execution of the Zorica Jovanović case under its enhanced supervision procedure. The CM has passed two interim resolutions already (here and here) and, at its ‘Human Rights’ (DH) meeting last week, instructed the Secretariat to prepare a third interim resolution for possible adoption in March.
Serbia wants to present itself as state dedicated to protecting human rights, determined to comply with its international obligations, and interested in providing help to the parents of the ‘missing babies’. The Serbian Government, therefore, is keen to see the CM’s supervision come to an end, even if the main measures for erasing the devastating consequences of the violations – taking all possible actions to establish the fate of the disappeared newborn children – are yet to be implemented.
The shortcomings in the Government’s response to Zorica Jovanović
The debates in Serbia and in Strasbourg today revolves around the adoption of a draft law on the ‘missing babies’; a step that, according to the CM, is ‘long overdue’. There is broad agreement within the Serbian society as well that legislation needs to be to ensure that credible answers are given regarding the fate of newborn children disappeared from Serbian maternity wards and hospitals. This has been the aim of concerted advocacy efforts by parents, NGOs, media actors and parliamentarians. But the Serbian authorities want to swiftly pass a draft law that does not, in the view of numerous civil society actors, provide for a mechanism capable of guaranteeing that investigations into the fate of ‘missing babies’ are not terminated prematurely without result.
Civil society actors have voiced concern about several shortcomings in the draft law (here). The main point of criticism concerns the provision prescribed by the draft law that affords broad discretion to the authorities to declare that the fate of a disappeared child is unknown. Even in the absence of proper investigations, and without having to base their decisions on appropriate evidence showing that no further steps can be taken to determine the fate of a ‘missing baby’, the courts may close a case simply by awarding just satisfaction of up to 10,000 euros. This falls short of an investigatory mechanism capable of giving answers as to the fate of the disappeared children – the real question that has been haunting the parents for many, many years. The draft law thus does little to meet the hope of the parents to have contact with their disappeared children re-established. No money in the world (let alone 10,000 euros) can compensate for this failure.
Parents of the ‘missing babies’ consider that the payment of pecuniary compensation prescribed in a draft law prepared by authorities puts a price tag on selling the hope to re-establish contact with their missing children.
Stopping the passing of a flawed law: the immediate aim of civil society advocacy
The most urgent aim of the alliance of people in Serbia pushing for the full implementation of the Zorica Jovanović is therefore to prevent the adoption of a flawed law that could result in the premature closure of the case by the Committee of Ministers. At the same time, we work towards the adoption of a law with stronger safeguards against investigations being closed without results, without all options being exhausted to establish the fate of a ‘missing baby’.
This is a battle that cannot be done by one group of actors only. In particular, the parents of the disappeared newborn children alone could not force reluctant state authorities to take every possible action in order to find out about the fate of their children. In such a complex and sensitive matter, they need every help they can get. This is why the legal experts at the Association for the Protection of Constitutionality and Legality have joined forces with others in pursuit of the objectives above. Any individual or organisation with good intentions, resources and ideas is welcome to support our joint efforts to stop the enactment of any draft law on ‘missing babies’ that does not provide for a strong investigatory mechanism capable of giving credible answers about the fate of disappeared newborn children.
Collectively, we have used a range of tools to push for meaningful reforms. These include drafting and submitting a series of Rule 9 communications to the Committee of Ministers. Here, we want to focus on our activities at the domestic level to promote the swift and full implementation of Zorica Jovanović.
Legal experts – helping parents make proposals for a comprehensive law There is near universal agreement that adopting a specific law, lex specialis, is the only possible means to implement the Court’s judgment. It bears repeating that the parents of the ‘missing babies’ are not against enacting a law; what they object to is the inadequate draft law introduced to parliament by the Serbian Government. However, because most of them are not legal experts, the parents involved often struggle to articulate their objections to a legislative proposal lacking strong safeguards against the premature termination of investigations without result. Their voices risk being overheard in the drafting and negotiating process.
Lawyer Danilo Ćurčić
Co-author of the alternative 'Law on missing babies’ drafted in cooperation with parental organisations
As part of their advocacy, several NGOs organised a press conference in Belgrade on 13 November 2019, which was widely reported on in the media (see here, here, here and here). NGOs and parents of ‘missing babies’ informed the public about what they regard as the key deficiencies of the draft law prepared by the Serbian authorities. They noted that, unlike that draft law, which is still pending before Parliament today, the legislative proposal prepared by Vesna Rakić Vodinelić and Danilo Ćurčić would truly allow for establishing the fate of the ‘missing babies’. NGOs and parental organisations therefore prepared amendments to draft law. Those amendments are based on the law prepared by Vesna Rakić Vodinelić and Danilo Ćurčić. ‘Friendly’ members of the Serbian parliament are willing to officially submit those amendments to the National Assembly of the Republic of Serbia.
NGOs, parliamentarians and journalists – exerting pressure on the authorities The above-mentioned press conference in Belgrade was organised jointly by four NGOs: the Association for Protection the Constitutionality and Legality, YUCOM, the A11 Initiative and the Belgrade Group of Parents of Missing Babies. Representatives of these NGOs informed the public about the deficiencies of the draft law prepared by the authorities. They proposed that the authorities either withdraw the draft law from the legislative procedure or amend it in such a way as to ensure it provides for an effective mechanism which could establish the fate of the ‘missing babies’. They invited parliamentarians to raise their concerns in committee hearings and oppose the draft law in its current form.
The impact we had through this outreach activity has been considerable. Several independent media outlets (aljazeera balkans, espreso, insajder) reported about the event, which helped convey the concerns voiced and proposals made at the event to a wider audience. Serbian parliamentarian and Head of the Party of Modern Serbia Parliamentary Group, Tatjana Macura, attended the press conference. Immediately after the event, she promised to actively support us. Indeed, Ms Macura invited parents from the Belgrade Group of Parents of Missing Babies to the National Assembly, where she gave a statement to a journalist.
Besides Tatjana Macura, a second member of parliament, Aleksandra Jerkov from the Democratic Party, vowed to lend his active support to the parental organisations and NGOs. Following the press conference, both MPs were interviewed by journalists. In their statements given to the media, they criticised the draft law (see Tatjana Macura in Novi Magazin and Aleksandra Jerkov in Blic).
Winning support from Tatjana Macura, who is a member of the Parliamentary Committee on the Judiciary, also meant we had an ally in parliament who insisted that representatives of the Belgrade Group of Parents of Missing Babies as well as NGOs be able to speak at a public hearing on the draft law, which was held on 28 November 2019 (see here and here). Having MPs echo the demands of victims and civil society activists, and ensuring broad media coverage, also helped raise public awareness about the deficiencies of the draft law. The President of the Belgrade Group of Parents of Missing Babies was a guest on a news programme (the TV show ‘Novi Dan’) broadcast by Serbian TV Station N1, and an expert from YUCOM gave an interview to TV Station N1 on the same topic.
By working together, across NGOs and professions, and with those directly concerned, we have been able to increase the pressure from the public on the Serbian authorities to withdraw or amend the draft law. Under this increased pressure, the Serbian Parliament, a key actor in the implementation process, has started to make limited concessions. The first concession was to invite members of the Belgrade Group of Parents of Missing Babies to address MPs at the parliamentary hearing of 28 November. This presented yet another vital opportunity to present arguments to the member of the Serbian Parliament to not adopt the drat law prepared by the Serbian governments.
Vladimir Čičarević, President of the Association of Parents of the missing babies Serbia, teared up the draft at a public hearing law
At the public hearing on the draft law, held on 28 November, representatives of all organisations of ‘missing babies’ had an opportunity to voice their concerns about the shortcomings in the draft law. They all spoke against the draft law prepared by the authorities (you find a video of the public hearing here). Parents’ organisations showed unity in opposing the draft law in its current form and clearly stated that the draft law was unacceptable. The crucial deficiency was that it does not provide for a mechanism capable of giving credible answers about the fate of disappeared newborn children. Any law on ‘missing babies’ with such deficiency does not fulfil its intended purpose, and it insufficient to implement the ECtHR’s judgment in the Zorica Jovanović case.
Winning a case in Strasbourg is winning an important battle in the non-violent war for human rights. But it is at the implementation stage that the fight is ultimately won or lost. For victims of human rights violations, a judgment constitutes a promise that changes can be achieved. For NGOs and others who hold a stake in the implementation process, a judgment is a call for action in the interest of strengthening human rights protection at the national level.
The draft law as prepared by the Serbian Government has not been adopted. This means that, for now, we have succeeded in preventing the passage of an inadequate law which would disappoint the hope of many parents that contact with their children, who disappeared when they were newborns, could be re-established. This is a small, but important victory achieved by a broad coalition of actors pushing for the full implementation of the Court’s judgment in Zorica Jovanović.
Last week, the Committee of Ministers ‘noted’ the proposals to improve the draft law that were made at the hearing of 28 November. It called for the adoption of the law ‘as a matter of priority with all amendments that can still be included during the present parliamentary session’. Our efforts to ensure the introduction of stronger safeguards in the proposed legislation will thus continue, and so will the larger struggle to put an end to the continuing violations of the human rights of parents of disappeared newborn children.
The judgment in the Zorica Jovanović case was a glimmer of hope for the parents of children who disappeared in Serbian maternity wards and hospitals – hope that the state authorities would finally be forced to do everything in their power to re-establish contact between them and their children. We all – NGOs, parliamentarians, the media, and academics – have a responsibility to ensure their hopes are not disappointed.