On March 26, 2013, the European Court of Human Rights (ECHR) in Strasbourg declared that Serbia must provide a mechanism for individual redress to thousands of parents whose newborn babies went missing from maternity wards in the preceding decades. How was that to be done? Preferably through a lex specialis, per the Serbian Ombudsman’s recommendations from 2010, the Court stated: a new, special law that would target this specific group of harmed mothers and fathers and lead to not only financial compensation but also “credible answers” and the truth about what happened to each of the children.
What then appeared to be a victory was initiated by Zorica Jovanović whose healthy newborn was declared dead two days after the birth. Neither Zorica nor her husband were allowed to see the body or to bury it, and the death certificate was never issued. This left them wondering if their baby was abducted, sold, or given for adoption, and the agony resulting from this uncertainty only grew over the past thirty years. The couple was not alone in their decades-long struggle. At least several hundred babies are believed to have gone missing in this exact way from maternity wards all over the country between the late 1970s and early 2000s. In fact, over 2,000 complaints have been filed nationwide demanding that investigations about missing babies be opened. All of them were rejected on the basis of ratione temporis or lack of evidence. In 2013, it finally looked like positive changes were on the horizon.
Nevertheless, more than five years after the monumental ECHR decision, all these parents have received is a draft of a law they strongly disagree with. Coated in a fancy title, the Draft law on establishing facts regarding the status of newborn children based on the suspicion of abduction from the maternity wards in the Republic of Serbia could be about a myriad of issues, including Serbia’s need to make European institutions stop talking about this scandal, but it certainly is not about revealing the truth. The reasons are self-evident – “the status” of the newborn children whose parents believe they are missing, as it was defined in the law, could be declared as one of the three following – living, dead, or unable to be determined – after a court procedure (Article 21). Serbian law-makers therefore introduce a new state that human beings can find themselves in; somewhere between the living and the dead, there are those who are perpetually absent.
In the eyes of the law, it does not truly matter which of the three statuses the baby falls under – the outcome, as far as the remedy is concerned, is all the same. In each of the three scenarios, parents are eligible for monetary reparations amounting to up to 10,000 euros (Articles 22 and 23). In other words, parents who remain unaware of the fate and whereabouts of their child will still be awarded a handsome sum of money to compensate for the state’s impotence.
What makes it even worse is that it seems like the state is not ashamed of that being the case. On the contrary, it is a convenient and quick way to get it over with it and stop the Council of Europe’s Committee of Ministers from scolding Serbia yet one more time for failing to comply with the judgment. Pressures to act are coming from the grassroots, too, as hundreds of parents of missing babies have gathered in protest several times in the past three months. Clearly, they do not want money, but they persistently demanded the truth as they shook babies’ rattles in front of a governmental building. The burden of proof that the child is alive is on them. Article 15 suggests that the parent has an obligation to submit or suggest evidence to support the claim that the child is indeed alive, abducted, or in any case, missing. To that end, protesting parents respond: “We should not be made to prove that the child is alive, they [the government] should prove to us that the child is dead.”
What the draft law clearly shows is that Serbia failed to treat these violations as disappearance cases. As stated in Zorica Jovanović v. Serbia and in dozens of other disappearance cases considered by the ECHR (see, for example, Kurt v. Turkey, Imakayeva v. Russia), disappearances cause ongoing anguish and prolonged torment to families. Therefore, the human rights violation is ongoing and can only be stopped with the revelation of truth. In European human rights law, positive obligations to act, at least as far as the government is concerned, continue as long as the fate of the missing is unknown. That said, the inability to determine a baby’s fate does not represent a closure of the case – it keeps the person missing until there is nobody else living to miss her.
Essentially, as a reparation, the right to know the truth is a measure of satisfaction (as defined by the UN Basic Principles on the Right to a Remedy and Reparation, Article 22), an obligation that states as violators of international human rights law have towards the victims. At the same time, revealing the details about the perpetrators of these violations can also serve as a guarantee of non-repetition and reassurance that the state will neither commit nor continue to encourage such crimes through its inaction any longer. Last but not least, such a truth is a fundamental human right that each of these parents has and, as some of the protesting mothers and fathers stated, so do the missing children. That is why it is Serbia’s duty to provide it as an effective, individual redress and a priority over monetary reparations, currently the only reparation mechanism these harmed parents can hope for.