LOST IN TIME – THE ZORICA JOVANOVIĆ V. SERBIA CASE AND THE IMPACT OF THE ECHR ON DEMOCRATIC CHANGES IN POSTCOMMUNIST COUNTRIES IN EUROPE

Abstract

If it was not for one of the missing babies’ mothers, Zorica Jovanović, and the judgment of the
European Court of Human Rights (ECHR), it is certain that the Republic of Serbia would never
decide to open the question of missing babies. According to the Association of Parents of Missing
Babies, in the past 40 years between 6,000 and 10,000 newborns have falsely been declared dead
in Serbia in the past 40 years. Parents claim to possess evidence that their children had been
declared dead while still in maternity hospital, and then sold in the black market. In 2013, when
the judgment was passed in the Zorica Jovanović v. Serbia case, Serbia had no other choice than
to pay damages to Zorica Jovanović, and to take measures within one year of the final judgment
to establish mechanisms that would enable all parents in similar situations (around 2,000 of them)
to receive appropriate answers and compensation. However, the Republic of Serbia failed to do
this. By analyzing the Zorica Jovanović v. Serbia judgment, the author shall look into two
important questions that are equally present in terms of the ECHR judgment in post-communist
countries: the problem of executing the ECHR judgments, and the problem of so-called syndrome
of perception of powerlessness and usurpation of institutions among citizens, which is embodied
in delegitimation of institutional order in citizens’ eyes. The author concludes that this is precisely
where the European system of human rights protection is powerless, because in cases when it is
established that the rights guaranteed by the Convention for the Protection of Human Rights and
Fundamental Freedoms have been breached, and when the ECHR passes a final judgment, it is up
to countries to execute the obligations from the judgment, which they – especially post-communist
countries - sometimes will not, and sometimes cannot do. The consequence of this is citizens’
increased perception that institutions have been completely “taken away” from the citizens, that
they are powerless and unprepared to operate in the public interest, as for example in Zorica
Jovanović’s case, where despite the final judgment and warning of the Council of Europe
Committee of Ministers for not executing the judgment, the countries are not capable of
investigating and finding out what happened to such a big number of missing children.