Legal gender recognition in Lithuania: steps towards ensuring respect for the private life of transgender persons

By Andrė Jurgaitė Project coordinator, Human Rights Monitoring Institute, Chairperson of Trans Autonomija

Andrė Jurgaitė

Introduction

On 31 December 2021, Lithuania’s Minister of Justice signed an order which introduced, for the first time, an administrative procedure for transgender persons to change their legal name at the civil registry office, upon presenting proof of a psychiatric ‘transsexualism’ diagnosis. Before this, due to a legal gap in Lithuanian legislation, transgender persons could only change their legal name, together with gender marker and personal identification number, through a court procedure.

This is one of the positive steps forward taken by Lithuanian authorities since the European Court’s of Human Rights (ECtHR) judgment in the case L v Lithuania (2007). However, despite ongoing efforts, to this day legislation regulating legal gender recognition has not been adopted, leaving many transgender persons in Lithuania in a gray area of legal uncertainty.

L. v. Lithuania judgment and implementation

Although the Lithuanian Civil Code recognizes the right of an unmarried adult person to change their gender, it does not lay out the conditions and procedure for legal gender recognition.

In 2007, the Human  Rights Monitoring Institute (HRMI) submitted an application on behalf of L. to the European Court of Human Rights, alleging a violation of a right to respect to private life. In its judgement in the case L. v. Lithuania, which became final in 2008, the ECtHR held that by failing to pass the necessary legislation regulating the conditions and procedure for gender reassignment surgery and legal gender recognition, the State of Lithuania did not fulfil its positive obligation to ensure respect for private life (violation of Article 8 of the European Convention on Human Rights).

Since the judgment became final, HRMI, together with the National LGBT Rights Organization LGL have been actively involved in monitoring and promoting the implementation of the L. v. Lithuania judgment.

Vilnius Pride 2020, Andrė Jurgaitė

For example, in 2013, HRMI, together with LGL, ILGA-Europe and Transgender Europe (TGEU) submitted a briefing under Rule 9.2 of the Committee of Ministers for supervising the execution of ECtHR  judgments, requesting that, if there is no rapid progress with implementation, consideration be given to monitoring the case under the enhanced supervision procedure. In 2014, the Committee of Ministers of the Council of Europe transferred the case to the enhanced supervision procedure.

In 2017, HRMI and LGL representatives also participated in the working group, established by the Ministry of Justice, responsible for the drafting of the Draft Law on Recognition of Gender Identity. That same year, LGL was also helping a number of transgender persons change their documents through domestic courts, which facilitated the evolution of domestic case law.

The involvement of the civil society in the monitoring and promotion of the implementation process has definitely aided in achieving some progress in ensuring the rights of transgender persons, even when political will in the State institutions was lacking.

While there had not been much direct involvement of the Lithuanian transgender community in the dialogue with State institutions until recently, the last few years have seen more active organizing among transgender persons in Lithuania. At the end of last year, the first trans-led trans rights and mutual support association “Trans Autonomija” was founded. In April 2022, “Trans Autonomija”, together with TGEU, HRMI and LGL, also drafted a joint submission based on Rule 9.2 of the Rules of the Committee of Ministers for the supervision of the execution of judgments and in response to the updated action plan on the execution of the judgment in the case L. v. Lithuania.

Domestic case law – filling the legal gap

Since 2017, Lithuania’s domestic courts have developed case law according to which one’s gender identity can be legally recognized through a court procedure, main requirements for it being a psychiatric diagnosis and the applicant’s self-identification with a particular gender. No surgery or medical sterilisation is required. However, this judicial procedure for legal gender recognition is not accessible to many transgender persons, due to both material and procedural factors – including the psychiatric diagnosis requirement, the costs of legal representation, lack of information on the court procedure and the legal implications after a positive court decision, etc.

A positive aspect of the domestic case law is that it is dynamic and changing – for example, despite the fact that the Civil Code only mentions the possibility of gender reassignment for adults, in April 2021 a request submitted on behalf of a minor was also granted.

Implementation efforts by the government

In 2017, a Draft Law on Recognition of Gender Identity was prepared by the Ministry of Justice; however, it received strong opposition from a group of Members of the Parliament (MPs), who in response registered a draft amendment to the Civil Code that would prohibit gender reassignment. Due to this backlash and a lack of political will, the draft law never reached the Parliament.

However, since then some positive steps forward have been taken by the Lithuanian authorities. In 2019-2020 the ‘transsexualism’ (F64.0, ICD-10) diagnosis was removed from the list of diseases precluding taking up certain legal positions. In 2020, amendments to the orders of the Minister of Education, Science and Sports were adopted, enabling transgender persons who had undergone the process of legal gender recognition to amend entries in their diplomas and education certificates.

On 9 March 2022 an updated action plan on the L v Lithuania case was submitted by the Lithuanian government. In it, it is stated that “among the legislative priorities in the programme of the new Government the preparation of the legal acts aiming to guarantee the execution of the judgments of the European Court of Human Rights is included”, and the legal acts necessary for the execution of the Court's judgment in L. v Lithuania case must be prepared by the end of 2023.

The updated action plan states that the necessary amendments of the Civil Code with a view of removing the existing legal gap regarding legal gender recognition are being prepared. The draft diagnostic and health care protocol for transgender persons has been submitted for consultations and is currently also being reviewed. It will not concern gender reassignment surgeries, which are to this date still not available in Lithuania, but it will regulate the necessary healthcare services “in the context of psychiatric, psychological assistance and hormone therapy”.

New administrative name change procedure for transgender persons

The already mentioned amendments to the legal name change procedure, introduced by the Ministry of Justice of Lithuania, came into force in February 2022. As Lithuanian names are strictly gendered and must correspond to an individual’s legal gender, the option to change one’s legal name into one associated with a different gender is an important part of social transition for trans persons in Lithuania. However, to change one’s gender marker and personal identification code, which also indicates the person’s legal gender, a court procedure is still necessary. As this change is very recent it is difficult to say what difficulties, if any, may arise for a person whose legal name does not correspond to their legal gender.

As for the requirements, only adult, unmarried persons who are able to present a certificate issued by a Lithuanian healthcare institution, or by a healthcare institution of a Member State of the European Union, on the diagnosis of “transsexualism”, to the civil registry office, are able to change their names through this procedure.

Since this new administrative procedure entered into force, at least five applications have been granted. “Trans Autonomija” has received testimonies from three transgender persons who applied for a name change through the new procedure – two persons who had a positive outcome, and one who received a notification from the civil registry office that their request was not granted.

The two persons who got a positive outcome said that they were currently waiting for new ID documents. One of them noted that even though they already had the psychiatric diagnosis, they had to request a different form to be filed by the healthcare institution in order to access the new name change procedure. They have also mentioned that other than receiving an automatic email telling them that their request has been granted, there was no follow-up or further instruction on what further steps needed to be taken afterwards to apply for new ID documents, if any. Eventually they went to the Migration office (which is responible to issue new documents after the name has been changed at the civil registry office) and were able to successfully apply for new documents to be issued.

The third person who applied for a name change at the civil registry did not have their request granted due to the requirements regarding the medical certificate concerning the ‘transsexualism’ diagnosis. As only a specific form (form 046/a) of a medical certificate is accepted as proof of the ‘transsexualism’ diagnosis (if issued by a Lithuanian healthcare institution – certificates from other EU members’ healthcare institutions are also accepted), a different form/type of certificate with the same diagnosis was not accepted, they said.

Diagnosis requirement

This last example illustrates one of the many issues with the diagnosis requirement – currently there is no uniform and transparent diagnostic procedure, which can be an additional obstacle to legal gender recognition and/or legal name change. As long as the diagnostic and health care protocol is not approved, the diagnostic process varies from specialist to specialist, with some issuing a diagnosis after one or two visits, and others requiring additional tests and visits, which can prolong the whole process to take a year or longer.

In December 2021, a roundtable discussion on legal gender recognition took place, organized by the Council of Europe SOGI department together with the Lithuanian Ministry of Justice. During it, members of the trans community expressed their worries that the new diagnostic and treatment protocol for ‘Gender Identity Disorder’ could possibly prolong and make more difficult the diagnostic procedure for accessing the psychiatric diagnosis, which is currently needed for both medical transition procedures and legal gender recognition. Both the members of the trans community and the representatives of the Ministry of Health agreed that it is important to ensure that the draft diagnostic and treatment protocol for ‘Gender Identity Disorder’ does not make it more difficult to access the diagnosis currently needed for legal gender recognition, as well as medical transition procedures.

Conclusion

According to Recommendation CM/Rec (2010)5 of Committee of Ministers on measures to combat discrimination on grounds of sexual orientation or gender identity by Council of Europe Member States, CoE member states “should take appropriate measures to guarantee the full legal recognition of a person’s gender reassignment in all areas of life, in particular by making possible the change of name and gender in official documents in a quick, transparent and accessible way”. Unfortunately, at the moment legal gender recognition for transgender persons in Lithuania is neither quick nor transparent or accessible.

While the newly introduced administrative legal name change procedure demonstrates the willingness of the Lithuanian government to guarantee the execution of the ECtHR judgment in the case L. v. Lithuania and ensure respect for the private life of transgender persons, it is far from sufficient.

The legislation that would regulate the administrative procedure for the legal gender recognition and ensure access to the necessary medical transition procedures has not been adopted yet. The draft diagnostic and health care protocol for transgender persons, which would regulate the diagnostic procedure and access to hormone replacement therapy, is supposed to be adopted soon. As for legal gender recognition, while the Ministry of Justice has been preparing relevant draft legislation, in the action plan in the case of L. v. Lithuania, it is mentioned that the implementation of this measure has been postponed due to the ongoing efforts to introduce into the legal system of Lithuania the institute of civil partnership. In the previous attempts to introduce such legislation, lack of support in the Parliament and lack of political will have proved to be the main obstacles.

Hopefully the current efforts to ensure respect for the private life of transgender persons in Lithuania will be successful, and Lithuanian authorities will continue to increase efforts to meaningfully involve the civil society representing transgender persons in the relevant processes.

Russian civil society for freedom of assembly and the ECtHR Judgment implementation

By Tatiana Chernikova, a lawyer at HRC “Memorial”

and Denis Shedov, a lawyer at OVD-Info

The non-implementation of the ECtHR’s judgments is a very serious problem for Russia. According to the EIN data 221 leading cases against Russia are pending implementation. This represents 88% from all Russian leading cases from the last 10 years. The average time leading Russian cases have been pending implementation is 7 years and 6 months. In all Council of Europe’s countries except Azerbaijan the situation with the implementation of the ECtHR judgments is better than in Russia.

The reasons for non implementation of the ECtHR’s judgments by Russia are complex and are due to several factors.

Firstly, the mechanism of the implementation of the ECtHR’s judgments itself is not very strong. The ECtHR as a general rule does not indicate particular measures of implementation in its judgments except the payment of the compensation. It is up to the States to define the measure of implementation needed in each case and to report about it to the Committee of Ministers. So this process highly depends on the motivation and professional skills of the national authorities. Then the Committee of Ministers often does not give detailed recommendations to the authorities.

Secondly, Russia does not have a specific national institution responsible for the implementation of the ECtHR’s judgments. The Ministry of Justice is informing the other agencies about the ECtHR’s judgments and is collecting the information from them about the implementation. However the Ministry of Justice does not influence the other national agencies to implement the judgments.

Thirdly, some of the ECtHR’s judgments are politically sensitive for Russia as they contradict the politics of the Russian authorities. This particularly concerns the cases on freedom of assembly. Russia’s politics of the last years consists in numerous restrictions of the freedom of assembly. The ECtHR’s judgments at the opposite gave a large number of rights to the participants to the peaceful assemblies.

Special context for freedom of assembly in Russia

The situation with freedom of assembly remains alarming in Russia. Thousands of people are detained during  peaceful assembly yearly. For instance, 3637 people were detained at public events in Moscow last year. At the same time, Russian courts considered 4974 cases of violation on the procedure for holding public events in 2019. Usually, protesters faced fines and arrests in domestic courts. The total amount of fines for participation in peaceful assemblies in 2015-2019 was more than €2 millions. In 2014, the Russian parliament passed a special criminal article, which provides for punishment of up to 5 years in prison for repeated participation in protest gatherings or even solo demonstrations.

Currently, the Russian parliament discusses new bills to restrict even more freedom of assembly. Particularly, it is proposed to make gatherings’ authorisation more complicated, to ban all gatherings near buildings occupied by emergency services, including police and the Russia’s FSB security agency, to prohibit foreign and anonymous funding for gatherings, to introduce new restrictions for solo demonstrators and journalists, as well as to increase punishments for participants of gatherings in general. Some of these bills have been already passed in their first reading.

At the same time, since the ECtHR extended its jurisdiction to the Russian Federation in 1998, by early 2020 it has declared violations of the freedom of assembly by Russian authorities in 45 cases. This is almost 16% of all cases where the ECtHR has ever declared a violation of the freedom of assembly in 47 Council of Europe’s countries. In 2020, the ECtHR passed at least 20 judgments holding that there has been a violation of Article 11 of the European Convention by the Russian authorities. 9 leading cases of the ECtHR declaring violation of the freedom of assembly by Russian authorities are still not executed.

One of such leading cases is the case of Lashmankin and Others v. Russia, concerning issues of restrictive authorization procedure for public events, legislative bans on holding public events at certain locations, mass detention and arrests of peaceful demonstrators, excessive security measures taken by the police during public events in Russia, etc.

Taking into account the urgency of these issues for Russian society, the Human Rights Centre “Memorial” and the Human Rights media project OVD-Info launched a campaign to implement this ECtHR Judgment.

Campaign: steps, challenges and results

On 20 April 2020 “Memorial” and OVD-Info assisted by EIN prepared a Rule 9.2 submission to the Committee of Ministers on the implementation of the general measures in Lashmankin’s case. In this submission the NGOs provided a huge evidence of the violations of the right to freedom of assembly occurred in Russia after the Lashmankin’s case. They also described the problems with Russian law and practice. This includes the large possibilities for Russian authorities to not authorise peaceful assemblies, the contradictions between federal and regional laws, the lack of statistics on the number of authorised and non-authorised assemblies by the authorities,  the possibility of administrative arrests for the participation to peaceful assemblies, very high administrative fines,  criminal liability for participating in several unauthorised public assemblies, ineffective control over the police’s actions during detentions, ineffective court’s control over the whole process of implementation of the right to freedom of assembly in Russia. The submission also provided a detailed list of recommendations.

On 3 September 2020 the Committee of Ministers adopted a decision with the assessment of the implementation of the Lashmankin’s case by Russian authorities. It states that although certain positive steps were taken by Russian authorities this is insufficient to achieve tangible progress. The Committee of Ministers also gave some recommendations to the Russian authorities asking them to narrow the local authorities’ discretion on planning assemblies, to show tolerance to peaceful assemblies, to exclude the criminal responsibility for the participants to peaceful assemblies, to make reasonable the fines, to not apply to solo demonstrations the restrictions applicable to mass demonstrations. The Committee of Ministers decided to return to the examination of this issue in June 2021.

Creation of the national coalition of NGOs

In September - November 2020 a coalition of NGOs was created in Russia in support of the national implementation of the Lashmankin’s case. It includes the following NGOs: Human Rights Center Memorial, OVD-Info, Moscow Helsinki Group, Apology for protest, Public Verdict, Team 29, the Institute for Law and Public Policy,  Mass Media Defence Centre, Open Russia, LGBT-group “Stimul”.

On 3 December 2020 the coalition submitted a united request to the Ministry of Justice asking to support the national implementation of the general measures based on Lashmankin’s case. The coalition referred to the recommendations from the submission of “Memorial” and OVD-Info to the Committee of Ministers of 20 April 2020 and from the decision of the Committee of Ministers of 3 September 2020. The NGOs asked the Ministry of Justice to share these recommendations with the other Russian national agencies and the authorities. The NGOs also asked to initiate an expert discussion on the implementation of the general measures on Lashmankin’s case with the participation of members of different Russian agencies and the members of NGOs working on this issue. The information about the submission of this request has been published in several Russian media (e.g. Interfax and Kommersant).

Campaigning on specific issues

As a part of the Lashmankin’s case implementation campaign, a smaller campaign on the Kablis v. Russia Judgment execution is runned. The Kablis’ case is the ECtHR’s Judgment from Lashmankin’s execution group concerning regional territorial bans for public events in Russia. It stands to mention that the execution of this case seems to be more successful. Following the ECtHR’s Judgment, the Russian Constitutional Court also issued two decisions on this issue, declaring inadmissible the restriction of gatherings near government agencies, educational, medical, military and religious sites.

In this campaign the NGOs coalition is supported by members of the Presidential Human Rights Council, they communicate the issue with the heads of Russian regions, and by the Russian Commissioner for Human Rights, she sent out relevant proposals for changing local laws to the regional parliaments.

As a result, the effects of this work are already visible: Russian regions are changing local laws in a positive way. The maps below show how local laws have been changed during one year in order to allow assemblies near buildings occupied by authorities.

Conclusion

Overview of the execution of the Constitutional Court Judgment in 60 regions where there were bans on actions around the types of objects explicitly indicated in the ruling of June 4 (data relevance - early October 2020).

●      Red - no more ban;

●      Orange - the ban is partially canceled;

●      Light orange - local law changes discussed;

●      Black - refused to lift the ban;

●      Gray - no information.

The implementation of the ECtHR’s judgments on the freedom of assembly cases in Russia is a complex and long-standing process. It requires a number of actions in different areas including monitoring and reporting process, legal actions in support of the individuals, advocacy actions for the establishment of the contacts with the national authorities, information campaigns with the participation of the media, preparation of reports to the international organisations.

We have started the work in all these directions. However this work needs to be followed up and become stronger. We plan to continue the work of the coalition of the national NGOs and to send new requests to different Russian agencies including the Commissioner on human rights and the Parliamentary parties. We are continuing to monitor the new violations of the right to freedom of assembly in Russia (including the new restrictive laws) and we expect to inform the Committee of Ministers about the new development of the situation in April 2021. We plan to build a stronger cooperation with the media in order to inform the new audience about this issue.

It is important to not stop the efforts in this direction and to do all we can in order that the  right to freedom of assembly is respected in Russia.

The map below shows regions where local laws have to be changed until 5 December 2020

The struggle to establish the fate of the ‘missing babies’ continues – in Serbia and Strasbourg

NGOs, parliamentarians, academics, independent media and parents in alliance for the execution of Zorica Jovanović v. Serbia

Source: Radio Free Europe.

Parents: Law on missing babies has holes like Swiss cheese

Source: BrainFact.ora Unconditional love

By Miloš Radovanović and Savo Manojlović, Association for the Protection of Constitutionality and Legality (UZUZ)

Introduction
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

There was thus a need for legal experts – scholars and practitioners – to ‘translate’ the parents’ demands into ‘legal language’. Luckily, one of the most prominent Serbian law professors, Vesna Rakić Vodinelić, an expert in civil procedure law, joined the alliance that pushes for the implementation of the Zorica Jovanović case. She, with the help of Danilo Ćurčić, an experienced lawyer in the field of human rights and Program Coordinator of the NGO A11 Initiative, has prepared an alternative draft law on ‘missing babies’. Their proposal foresees the introduction of a series of additional safeguards to strengthen the investigatory mechanism.

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.

Speakers at our press conference held on 13 November 2019: Mirjana Novokmet, President of the Belgrade Group of Parents of Missing Babies; Danilo Ćurčić, Program Coordinator of the A11 Initiative; Katarina Golubović President of YUCOM; Savo Manojlović, President of the Association for the Protection of Constitutionality and Legality; and Radojka Pantelić, member of the Belgrade Group of Parents of Missing Babies. Photo taken by Aleksandar Stojanović.

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).

Tatjana Macura gives a statement to the media on 28 November 2019 in the hall of the National Assembly of the Republic of Serbia, in front of members of the Belgrade Group of Parents of Missing Babies.
Source: Belgrade Group of Parents of Missing Babies

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.

Conclusion

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.

Deinstitutionalisation of psychiatric patients in Romania

by Constantin Cojocariu, Legal Adviser, Association for the support of children with special needs ‘Dr Katz’

On 29 January 2001, Alexandru Nabosnyi was arrested and committed to a psychiatric hospital, based on a short news story in a local newspaper, accusing him of various sexual crimes. A psychiatric report subsequently stated he lacked discernment due to being diagnosed with schizophrenia and a court formally validated the psychiatric detention order. The criminal investigation, which was protracted and superficial, resulted in most charges against him being dropped. Regardless, Mr. Nabosnyi went on to spend his next seventeen years involuntarily detained in high security psychiatric hospitals.

Constantin Cojocariu and the applicant in front of a Court in Romania (2018). Photo: C. Cojocariu

Mr. Nabosnyi went before courts regularly, asking to be released. However, the default position was that he was too ill and too dangerous to be released - despite the charges against him having been dropped. The European Court of Human Rights took a different view. By a judgment delivered on 28 February 2018, the Court decided that Mr. Nabosnyi had been unlawfully detained since at least 2007 (N. v Romania). The national authorities had failed to adduce any evidence to prove that he was dangerous. His release was delayed by the absence of suitable facilities helping patients re-settle after long periods of detention. The proceedings reviewing the validity of Mr. Nabosnyi’s detention were flawed due to poor ex officio legal assistance and widespread procedural irregularities. In line with Mr. Nabosnyi’s request, the Court made use of its powers under Article 46 and instructed the Romanian Government to immediately release him in conditions meeting his needs and to take general measures ensuring that psychiatric detention was lawful, justified and not arbitrary.

From the outset, two obstacles hampered the implementation process. First, after having spent seventeen years in psychiatric detention, Mr. Nabosnyi lacked a network of support in the community, besides not owning any property. Far from being a mere formality, his release and transition to living in the community required substantial preparation and assistance. Second, at the beginning of 2018, after separate proceedings occasioned by his initial complaint to Strasbourg, a local court placed him under plenary guardianship and named a local village mayor to act as guardian. This decision had complex ramifications to do with being able to take decisions related to living in the community or enjoying the just satisfaction awarded by the Court.

On 2 May 2018, I filed a Rule 9§1 submission on Mr. Nabosnyi’s behalf, informing the Committee of Ministers about the bureaucratic inertia hindering his release to a suitable community-based arrangement and about his placement under guardianship. Following the submission, on 29 May 2018, Mr. Nabosnyi was finally released from the psychiatric hospital and transferred to a social care home in Bucharest, his hometown. Although that is also a closed institution, it is a superior arrangement that provides a sense of progress after seventeen years of psychiatric detention. On 20 August 2018, I made the second Rule 9§1 submission, attempting to dispel the Government’s argument to the effect that the social care home constituted a satisfactory solution, rather than, as I argued, a mere stepping-stone to a community-based arrangement, corresponding with the Court’s Article 46 request.

Beyond individual implications, Mr. Nabosnyi’s case shines a light on Romania’s forensic detention system, which warehouses psychiatric patients in very poor conditions, often indefinitely, without meaningful judicial scrutiny. A European Implementation Network seminar in June 2018 helped me prepare the forthcoming exchanges with the Romanian Government before the Committee of Ministers regarding general measures. On 29 October 2018, the Government submitted a poor action plan, devoid of meaningful substance. On 21 November 2018, I submitted a detailed Rule 9§2 briefing on behalf of three disability rights non-governmental organizations, providing the Committee of Ministers with information regarding the general state of the forensic detention system in Romania and outlining the general measures required with a view to achieving reform and ensuring access to justice for patients.

In December 2018, the Committee of Ministers issued a very positive decision, in line with our expectations. On general measures, the CM asked the Government to submit a revised action plan. On individual measures, the CM accepted that the social care home was but a temporary arrangement and called on the Government to ensure Mr. Nabosnyi’s move to community living as soon as practicable. In addition, the CM strongly criticized the guardianship system in place in Romania, which deprived Mr. Nabosnyi of “the exercise of his civil and political rights,” called for immediate reform and asked the Government to ensure his interests were safeguarded in the interim period.

The Committee of Ministers process constituted a catalyst for increased advocacy at the domestic level to reform the forensic detention system. New alliances were formed, that engaged in dialogue with the Government. Other procedures were leveraged for pressure, including by securing positive references in the Commissioner for Human Rights’ report on her visit to Romania in November 2018. On individual measures, the authorities are working towards securing Mr. Nabosnyi’s transfer to the first state-run sheltered housing facilities in Bucharest, that are due to be opened this year.

Denying the right to hope – whole life sentence in Hungary

By Nóra Novoszádek, Senior Legal Officer, Hungarian Helsinki Committee

“I do not really trust other people. I do not want them to lie to my face and say how sorry they are for me that I am serving a whole life sentence, and then talk behind my back about why I do not rather hang myself” – says “Samu”, a detainee serving life imprisonment without the possibility of parole in Hungary, about his fellow inmates when explaining why he does not want to be transferred to an “ordinary” unit from the one designed specifically for whole lifers. There are currently 55 inmates in Hungary in a situation similar to him, without any real prospect of ever being released.

Whole life sentence in Hungary

Photo: Hungarian Helsinki Committee

The story of whole life sentence, dubbed as “lying eight” in prison slang after the symbol of infinity, started in 1993 in Hungary, when the Parliament introduced into the Criminal Code the option of excluding the possibility of parole when imposing a life sentence. In 1998 the scope of this possibility was extended considerably. According to the rules currently in force, when imposing a life sentence, the judge may decide to exclude the possibility of parole in the case of certain criminal offences. Moreover, under certain circumstances, e.g., when the defendant is categorised as a so-called “violent multiple recidivist” (which can happen quite easily), the law obliges the judge to do so.

The issue is not free of politics of course: for example, before the adoption of the new constitution of Hungary (the Fundamental Law) in 2011, one of the 12 questions contained in the so-called “National Consultation” questionnaire sent by the Government to the public was whether whole life sentence should be included in the Criminal Code. The Hungarian Helsinki Committee (HHC) and its partners considered this and some other questions in the consultation to constitute a populist wish-list. Subsequently, the possibility of imposing a whole life sentence finally made its way into the Fundamental Law.

In turn, Hungary’s Constitutional Court has never been eager to decide on the issue. HHC submitted an actio popularis request to the Constitutional Court in 2009, requesting the constitutional review of the legal provisions allowing for imposing whole life sentence, and requested the Constitutional Court to abolish these provisions because they violate human dignity. In addition, there has been at least one other such review request pending before the Constitutional Court since 2004. However, these requests were not decided upon for years. The issue was finally put on the agenda of the Constitutional Court and was debated 11 times in 2010/11, but no decision was reached in the case. Eventually, the review requests were terminated altogether for procedural reasons when the possibility of submitting actio popularis requests in Hungary was abolished as of 1 January 2012.

ECtHR decisions establishing the violation of Article 3 of the Convention

In May 2014, the European Court of Human Rights (ECtHR) assessed for the first time the compatibility of the respective Hungarian rules with Article 3 of the European Convention on Human Rights (prohibiting inhuman or degrading treatment or punishment) in the László Magyar v. Hungary case. The Hungarian Government in this case argued that because the President (with a counter-signature by a Minister) may – in theory – exercise pardon (clemency) also in the case of whole life prisoners, the whole life sentence of the applicant in the case was reducible both de jure and de facto – such reducibility and a real prospect of release being the cornerstone of the ECtHR’s case-law when assessing the compatibility of a life sentence with the Convention.

However, the ECtHR – in line with HHC’s standpoint submitted as a third-party intervener – concluded that László Magyar’s life sentence indeed violated the Convention, since it was “not persuaded that the institution of presidential clemency, taken alone (without being complemented by the eligibility for release on parole) and as its regulation presently stands, would allow any prisoner to know what he or she must do to be considered for release and under what conditions”. The ECtHR also concluded that the case “discloses a systemic problem” and that Hungary “would be required to put in place a reform […] of the system of review of whole life sentences”.

After the judgment in the László Magyar case, Hungary introduced a “mandatory pardon procedure” for detainees serving a whole life sentence, which is to be conducted ex officio after 40 years of detention. In the course of the procedure, a judicial board adopts a recommendation on the granting of clemency (pardon), but the procedure concludes with the fully discretional clemency decision of the President of the Republic.

The Hungarian Constitutional Court subsequently used this development to back down from deciding on the issue once again: the majority of the judges ruled in January 2015 that due to the above changes in the law, the case became “obsolete” and so did not decide on it on the merits. This resolution was harshly criticized by many. Later that year, in July 2015, a representative of the Ministry of Justice stated at a press conference that the Government had trust in the President and the judiciary and, although they would have the possibility to do so, trusts “they will never release murderers who killed children, old and helpless persons, innocent victims”.

The ECtHR examined the conformity of the new rules with the Convention in the T.P. and A.T. v. Hungary case in October 2016. It concluded again that it was not persuaded that “the applicants’ life sentences can be regarded as reducible” and established the violation of Article 3 – again in accordance with HHC’s third-party intervention and its Rule 9(2) communication submitted to the Council of Europe’s Committee of Ministers with regard to the László Magyar case earlier that year. Concerns of the Court included that the 40-year waiting period “unduly delays the domestic authorities’ review” and that the new legislation “does not oblige the President … to assess whether continued imprisonment is justified on legitimate penological grounds” and fails to “oblige him or the Minister of Justice […] to give reasons for the decision, even if it deviates from the recommendation of the [judicial] Clemency Board.”

Lack of execution

The T.P. and A.T. judgment became final in March 2017. However, the Government has not taken any general measures to date to address the respective rights violations and has not amended the law. In addition, as it was also pointed out by HHC at the NGO briefing organised by the European Implementation Network (EIN) in May 2018 for representatives of Council of Europe member states, adequate individual measures are also missing. T.P. and A.T. remain in life imprisonment without parole, in direct contrast with the ECtHR’s decision, while László Magyar will be first eligible for parole only after 40 years of imprisonment served, which is a much longer period than what is deemed acceptable by the ECtHR (i.e., 25 years). HHC also pointed out at the EIN briefing that the Government, as it states in its Action Plan, is wrong to state that the outcome of pending constitutional complaints “needs to be awaited before adequate legislative measures can be taken” or that judgments in currently pending cases before the ECtHR would have any effect on the execution of judgments in the László Magyar group of cases.

The execution of the above judgments was first examined by the Committee of Ministers in June 2018. The Committee called on the Hungarian authorities to align their legislation with the Court’s case-law and address the concerns raised by the ECtHR “without further delay”.

HHC and others now eagerly await the Hungarian Government’s next steps regarding the issue.

The fate of missing babies in Serbia

By Ana Jankovic Jovanovic, Legal Adviser at Lawyers’ Committee for Human Rights

Background

Decades ago, over two thousand couples in Serbia lost their babies. The national authorities provided no information about the disappearances, stating only that the babies died shortly after birth. Since 2002, several groups of parents with similar cases have banded together to compare documentation to uncover the truth. Unfortunately, the long painful struggle of these parents continues.

On their path to learning the truth about their babies, the parents requested funeral companies to provide registries which would help them know whether their children had been buried. In general, the companies provided written answers that the supposedly deceased children never reached the cemeteries from hospitals or maternity wards and had not been buried or cremated. This information led to the parents’ continued search, deepening their belief that the children are still alive.

The national health institutions in turn informed the parents that there were no medical records about their babies, stating that the records had been destroyed by floods or fires. The official state registers of birth and death, which are required by law to keep documentation indefinitely, refused to disclose any information about the babies. Thereafter, the parents informed the Department of Administrative Inspection in the Ministry of Public Administration and Local Self-Government, who investigated the case and declared that there had been omissions and deficiencies in the work of the state registers. Unfortunately, no further steps were taken by the Department. Eventually, the parents of the missing babies filed criminal charges, but they were dismissed due to lack of evidence or expiration of statutes of limitation.

The facts behind the disappearances

The ongoing suffering of more than 2,000 parents in Serbia is evident by the facts, including the following:

• the missing children were declared dead by the issuance of death certificates without any other proof of death;
• the parents were not allowed to take over the bodies of their children, instead being told that it was the responsibility of the hospital;
• there are no graves because there are no corpses of the babies;
• the parents were given the moulds of corpses after falsified autopsies, whereupon no analysis was provided confirming the children’s’ death;
• in most cases, it was the first-born child of a young married couple which disappeared;
• the disappearances took place mostly on weekends;
• the same doctors appear in many of these cases over the years; and
• when there were twins, the healthier twin allegedly died.

All of this led the parents to suspect the work of individuals or a well-organized criminal group and everyone believed that the national authorities would investigate the cases seriously and adequately. This was especially the case after the judgment by the European Court of Human Rights (ECtHR) in 2013 in the case of Zorica Jovanovic v Serbia. Since 2001, there have been numerous media articles in Serbia on missing babies. But until the Jovanovic judgment, those cases were never taken seriously by the relevant national authorities.

The case of Zorica Jovanovic v Serbia

Ana Jankovic Jovanovic at the EIN briefing
Photo: EIN

Ms Zorica Jovanovic gave birth to a healthy baby in a state-run hospital in October 1983. After several days in the hospital for a regular birth recovery, she had frequent contact with her child. One day she was informed by the doctor that her baby had died without any further information on the cause of death.

In March 2013, the ECtHR adopted its judgment in the case of Zorica Jovanovic v Serbia, which became final on 9 September 2013. In the judgment, the ECtHR stated that:

“the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of “family life” within the meaning of Article 8 of the Convention” [as well as that] “the essential object of Article 8 is to protect the individual against arbitrary interference by public authorities. There may, however, be additional positive obligations inherent in this provision extending to, inter alia, the effectiveness of any investigating procedures relating to one’s family life.”

Furthermore, the ECtHR gave special attention to the following facts: the body of the child was never released to Ms Jovanovic; the cause of death was never determined; Ms Jovanovic was never provided with an autopsy report or informed in any way about when and where her baby had allegedly been buried; and the child’s death was never officially recorded.

In respect to these and other points noted in the judgment, the ECtHR concluded that “the applicant has suffered a continuing violation of the right to respect for her family life on account of the respondent State’s continuing failure to provide her with credible information as to the fate of her son.”

In addition, as there is a significant number of other potential applicants involving claims of missing babies, the ECtHR ordered the national authorities to provide individual redress to all parents in similar circumstances to Ms Jovanovic by establishing a mechanism which can provide credible answers regarding the fate of each child and award adequate compensation as appropriate.

Non-implementation of the Jovanovic case from 2013 to 2017

Since the Zorica Jovanovic v Serbia judgment in 2013, more than 2,000 parents are waiting for the implementation of the decision. They consider themselves to be covered by the same general measures prescribed in judgment.

To date, the national authorities have tried unsuccessfully to establish commissions that would deal with cases like that of Ms Jovanovic. The authorities also prepared a draft law to address the general measures in the Jovanovic case, but this was deemed inadequate and the Committee of Ministers, the Council of Europe’s decision-making body responsible for the implementation of ECtHR judgments, was made aware of these deficiencies by the Lawyers’ Committee for Human Rights (YUCOM), ASTRA as well as the Serbian Ombudsman.

Bearing in mind the fact that all draft laws were withdrawn from Parliament after the presidential elections in April 2017, no further steps were taken by national authorities regarding the execution of the judgment nor the respective interim resolution that was adopted by the Committee of Ministers in September 2017. The national authorities subsequently announced their intention in early 2018 to proceed again with the same draft law that was assessed as inadequate by civil society organisations and the Serbian Ombudsman.

The main concern regarding the “Draft Law on determining the facts concerning the status of new-borns suspected to have disappeared from the maternity wards in the Republic of Serbia” is that it only formally aims to fulfil its obligations stemming from the ECtHR judgment. More specifically, the Draft Law prescribed that an investigation should be done using non-litigation court procedure. This would not allow for the conduct of adequate investigations, for example in obtaining biometric and biological samples.

The Draft Law also contains numerous unclear provisions and problematic proposals and solutions, including that:

• the very title of the Draft Law does not include other medical institutions other than maternity wards;
• the collecting of evidence is the obligation of the parent, instead of being the court’s obligation;
• the proposed creation of a new special police unit is contrary to provisions contained in Law on the Police;
• the initiator of a proceeding cannot be a child who believes to be a missing baby;
• a maximum amount of non-pecuniary damages in the amount of €10,000 is prescribed, which is contrary to the standards of fair trial and the principle of free judicial opinion; and
• the respective court may adopt a decision that it is not possible to establish the status of the missing child which is contrary to the aim of the Draft Law.

Latest developments

It is now almost five years since the adoption of the Zorica Jovanovic v Serbia judgment even though the ECtHR called for a one-year implementation period which expired on 9 September 2014.

In the context of almost four years of non-implementation of the ECtHR judgment, the Government of Serbia submitted a revised Action Plan on the eve of the 1310th Human Rights meeting of the Council of Ministers’ Deputies from 13 to 15 March 2018.

Based on an initial analysis by YUCOM, the revised Action Plan contains some potentially misleading information. Examples include the following:

1)     The Government of Serbia stated that a meeting was held in January 2018 with representatives of the parents. Yet there was no public call to attend the meetings for all representatives of all parents. Instead only a selected number of representatives were invited, and many representatives remain fully unaware of the meeting and its results.

2)     In fact, during the above-mentioned meeting, several changes in the Draft Law were agreed. An amended version of the law was then approved in early March 2018 by the Government and transferred to Parliament for adoption. As the amendments are not publicly available, it remains impossible to determine what those changes are or how they may affect the judgment execution process.

3)     The Government also stated its intention to provide support to the parents of the missing babies while the Draft Law is pending. It noted the case of a non-final judgment of a national court where a parent was awarded €10.000. However, this award was delivered in a classical court litigation procedure for damage compensation without examination of the fate of baby. As such, this award cannot be seen in any way as being related to the execution of the Zorica Jovanovic v Serbia judgment. Instead, it represents compensation for the lack of a response from the national authorities. Furthermore, the judgment did not become final as the State filed a complaint against it and it is pending before the Court of Appeal. This suggests the State is trying to suppress the reasons stated in that judgment and at the same time trying to present this as a positive step. Additionally, it is important to stress that similar cases in Serbia usually last for many years, even decades, but this one was completed in a month and a half with only one hearing held.

After the 1310th Human Rights meeting in March, the Committee of Ministers adopted a decision on 15 March in which they “noted with interest that the Serbian authorities revised the draft law following consultations with parents of the [missing] babies …. as well as that … the government approved this draft law and transmitted it to Parliament for adoption.” The Committee also noted the above-mentioned non-final judgment award of €10.000 to one of the parents.

Conclusion

Unfortunately, it appears from the wording of the 15 March decision that the Committee of Ministers has positively assessed the recent steps undertaken or proposed by the national authorities and, despite concerns and deficiencies noted above, called on the national authorities to adopt as soon as possible the Draft Law as it has been presented to them by the Government.

As a result, YUCOM and other civil society organisations will continue to monitor the execution judgment process regarding the case of Zorica Jovanovic v Serbia. Civil society organisations and others intent on seeing justice in this case will not lose sight of the fact that this judgment was initially perceived as a true beacon of hope and redress for Ms Jovanovic and the more than 2,000 parents who still seek the truth about their missing children.

Among others, YUCOM and others will call for the establishment of a sui generis mechanism, a special court, one with a mandate to fully investigate the status of new-borns who are suspected to be missing from hospitals and maternity wards in Serbia.

Access to legal abortion in Poland – reforms and action needed

Introduction

The 2012 judgment in the case of P. and S. v. Poland (application no. 57375/08) is one of three important decisions of the European Court of Human Rights (ECtHR) concerning access to legal abortion in Poland. [1] In all three cases, the ECtHR ruled that the rights of the applicants were violated because of the practical difficulties they experienced in exercising their right to legal abortion. To fully implement these judgments, the Court stated that the national authorities must take steps to guarantee not only theoretical but also practical access to abortion. However, after more than five years since the P. and S. v. Poland decision, full implementation of the judgement is still lacking. As a result, the case is still being supervised by the Committee of Ministers under its enhanced monitoring procedure. This indicates that access to legal abortion in Poland is still more a “law on the books” rather than a “law in action.”

Photo by Aiden Frazier on Unsplash

The legal framework

Access to legal abortion in Poland is framed narrowly. According to Article 4(a) of the Law on Family Planning (Protection of the Human Foetus and Conditions Permitting Pregnancy Termination), abortion is legal only when:

1)     pregnancy endangers the mother’s life or health;

2)     prenatal tests or other medical findings indicate a high risk that the foetus will be severely and irreversibly damaged or suffer from an incurable life-threatening ailment (as such, an abortion can be performed until the foetus is capable of surviving outside the mother’s body);

3)     there are strong grounds for believing that the pregnancy is the result of a criminal act (in such an event, an abortion may be performed only until the end of the 12th week of pregnancy).

It is worth noting that Parliament adopted an amendment in 1996 which liberalized access to abortion. According to the provision, abortion was deemed legal if a pregnant woman was in a difficult personal situation or was living in difficult conditions. However, the Constitutional Tribunal ruled in 1997 that the new provision violated the constitutional right to life.[2]

Women who try to exercise their right to legal abortion in Poland also face many practical obstacles. For instance, the case of Tysiąc v. Poland (application no. 5410/03) concerned a woman who tried to have an abortion because the pregnancy threatened her health. However, the respective doctors refused to issue the necessary certificate and the law at that time did not provide any legal remedies against their decision. After the ECtHR issued its judgment finding a violation of Article 8 of the European Convention of Human Rights, Parliament enacted a law which gave patients the possibility to submit an objection against a doctor’s refusal to perform an abortion. As described below, however, the practical functioning of this procedure is far from perfect.

Another practical obstacle in accessing legal abortion is the so-called “conscience clause.” Polish law entitles doctors to refuse to perform abortions if it contradicts their moral or religious values. Until 2015 a physician who invoked this clause had to indicate an alternative way of obtaining an abortion from another doctor or different medical facility. However, the Constitutional Tribunal ruled in 2015 that such a requirement disproportionately restricted the doctor’s freedom of conscience and so the law was repealed.[3] As a consequence, many women face serious difficulties in accessing information to obtain an abortion.

Summary of the case

The P. and S. v. Poland case concerned a 14-year old girl who was denied an abortion by consecutive doctors even though her pregnancy was the result of a rape. The girl and her mother were provided with incorrect information from three hospitals about the conditions for lawful termination of the pregnancy. Moreover, the respective doctors invoked the “conscience clause” and, contrary to the law then in force, did not indicate an alternative way to obtain the abortion.

In its judgment the ECtHR found violations of Articles 3, 5 and 8 of the Convention. It underlined that “States are obliged to organise their health service system in such a way as to ensure that the effective exercise of freedom of conscience by health professionals in a professional context does not prevent patients from obtaining access to services to which they are entitled under the applicable legislation.”[4] According to the ECtHR, “effective access to reliable information on the conditions for the availability of lawful abortion, and the relevant procedures to be followed, is directly relevant for the exercise of personal autonomy. It reiterates that the notion of private life within the meaning of Article 8 applies both to decisions to become and not to become a parent (...). The nature of the issues involved in a woman’s decision to terminate a pregnancy or not is such that the time factor is of critical importance. The procedures in place should therefore ensure that such decisions are taken in good time”.[5]

The Government’s response

The Government submitted its Action Report to the Committee of Ministers in November 2013.[6] It argued that the existing law sufficiently ensured the practical access to legal abortion and as a result there was no need to adopt any new general measures. In particular, the Government reiterated that physicians “were legally obligated to inform the patient about his/her real options of obtaining abortion from another doctor or [other] medical facility and to record and provide grounds for this fact in medical documentation.”[7] Doctors who failed to fulfil this obligation could face disciplinary sanctions.

The Committee of Ministers’ decision

The Committee of Ministers adopted a decision in September 2017 regarding the execution of the judgment in the case of P. and S. v. Poland.[8] It underlined that the general measures adopted by the Government “do not appear to address adequately the sources of violations” and did not seem to protect women effectively from “the improper behaviour of the medical staff.”

The Committee recommended that the national authorities focus more on ensuring that women seeking lawful abortion would receive sufficient information as to how to obtain an abortion and what steps to take if they face any obstacles. Moreover, the Committee “invited the authorities to provide information on how, when a doctor invokes the conscience clause, they will ensure that women seeking lawful abortion receive full and credible information about accessing the health care services to which they are entitled.” In this regard, the Government was asked to provide more detailed information as to the practice of imposing contractual penalties on the hospitals which fail to comply. More broadly, the Government should also provide general information on lawful abortion in the Polish healthcare system.

Implementation of the judgment

As stated above, the Government’s position in the case of P. and S. v. Poland is that current laws are sufficient to allow for access to legal abortion and thus there is no need to adopt any new general measures. However, quite contrary, current Polish law does not guarantee that similar violations of the Convention will not happen in future. Moreover, recent developments in law and practice may result in impeding the access to legal abortion even further.

In its communication submitted to the Committee of Ministers on 1 September 2017, the Helsinki Foundation for Human Rights indicated that the law in force does not provide women with effective legal remedies which could be used to enforce the right to legal abortion. [9] While women may file an objection to the Medical Board against a physician’s opinion or certificate stating that the conditions for legal abortion have not been met, the procedure is too vague and imprecise. For instance, it is not clear whether an objection can be filed if the physician in question refuses to issue a written opinion or issues it only orally. Moreover, as the current procedure stands, there are no guarantees that the Medical Board will issue its decision before the expiration of the deadline for legal abortion.

The law also does not protect patients from any abuse of the “conscience clause.” As already mentioned, after the 2015 judgment of the Constitutional Tribunal, physicians who refuse to perform an abortion are no longer required to indicate another doctor or medical entity where such service may be obtained. At the same time, the law does clearly define as to who should provide such information to a patient. Lack of effective safeguards in this regard is even more worrisome taking into account the huge number of doctors who make use of the “conscience clause.” For example, media reported in 2016 that there were no hospitals which would perform legal abortion services in the province of Podkarpackie in south-eastern Poland.[10] As a result, the Patients’ Rights Ombudsman recommended that hospitals in which all doctors invoked the “conscience clause” should subcontract a medical entity to perform the service.[11] Unfortunately, such legislative changes have not to date been adopted or even drafted.

In theory, the unclear and insufficient legal framework could be supplemented by reasonable internal procedures adopted by hospitals. Such regulations could, for example, specify bodies obliged to inform patients about the conditions for access to legal abortion or define what steps should be taken in cases of refusal by physicians on the grounds of the “conscience clause.” Unfortunately, the majority of hospitals have to date not adopted such procedures. According to a report by the Federation for Women and Family Planning,[12] 66 per cent of the hospitals examined did not have any procedures regulating the access to abortion.[13] Moreover, many of those which had adopted such regulations also introduced therein limitations to the right to abortion not provided for in the law (for example, they added a requirement to obtain the opinion of two doctors or to obtain the opinion of a medical council).[14]

The above-mentioned legal flaws can be addressed only to a limited extent by the Patients’ Rights Ombudsman. This organ may inform patients about their rights and contribute to the identification and elimination of illegal practices by medical entities. However, it cannot replace the effective and speedy procedure of objection against a doctor’s refusal. The Ombudsman also cannot quash the negative decision nor force the hospital to perform an abortion.

Conclusion

There are currently no indications that the Government will undertake requisite reforms and action soon to fully implement the judgment in the case of P. and S. v. Poland. On the contrary, Parliament is now working on a draft civil law which aims to eliminate the possibility of obtaining an abortion on the grounds of serious damage to the foetus.[15] Moreover, in June 2017, a group of Members of Parliament submitted a motion to the Constitutional Tribunal with the aim of securing a ruling that this condition of legal abortion violates the Constitution.[16] It is therefore possible that the conditions for legal abortion could be narrowed down even further in the future. While the P. and S. v. Poland case does not concern the right to abortion per se, these actions could have a negative impact on access to legal abortion as well. The same could also be said as a result of public statements by the former as well as current Minister of Health, both of which have expressed their views against abortion.[17]

[1] See also Tysiąc v. Poland, 20 March 2007, app. no. 5410/03; and R.R. v. Poland, 26 May 2011, app. no. 27617/04.

[2] Judgment of the Constitutional Tribunal of 28 May 1997, ref. no. K 26/96.

[3] Judgment of the Constitutional Tribunal of 7 October 2015, ref. no. K 12/14.

[4] P. and S. v. Poland, § 106.

[5] Ibid., § 111.

[6] Action Report. Information about the measures to comply with the judgment in the case of P. and S. v. Poland, 29 November 2013, https://rm.coe.int/16804a9186.

[7] Ibid., p. 10.

[8] http://hudoc.exec.coe.int/eng?i=004-20614

[9] Communication from the Helsinki Foundation for Human Rights concerning execution of ECtHR judgment in cases: P. and S. v. Poland (application no. 57375/08), R. R. against Poland (application no. 2761/04), Tysiąc against Poland (application no. 5410/03), 1 September 2017, https://rm.coe.int/16807438d7.

[10] See e.g. A. Gorczyca, Legalna aborcja? Nie na Podkarpaciu, 11 May 2016, http://rzeszow.wyborcza.pl/rzeszow/1,34962,20050830,legalna-aborcja-nie-na-podkarpaciu.html

[11] Letter of the Patients’ Rights Ombudsman to the Human Rights Commissioner, 11 August 2016, https://www.rpo.gov.pl/sites/default/files/RPP%20o%20prawie%20do%20legalnej%20aborcji%20na%20Podkarpaciu%2C%20sierpie%C5%84%202016.pdf

[12] A. Chełstowska, M. Dziewanowska, K. Więckiewicz, „Dzień dobry, chcę przerwać ciążę…” O procedurach dostępu do legalnej aborcji w polskich szpitalach. Raport z Monitoringu, Federacja na rzecz Kobiet i Planowania Rodziny, Warszawa 2016, http://federa.org.pl/wp-content/uploads/2017/06/RAPORT-SZPITALE-FEDERACJA.pdf

[13] Ibid., p. 13.

[14] Ibid., pp. 18-20.

[15] Draft law available at: http://orka.sejm.gov.pl/Druki8ka.nsf/0/F18A213C98C5BDC0C125820B005793D9/%24File/2146.pdf

[16] Motion available at: http://ipo.trybunal.gov.pl/ipo/dok?dok=F1326803962%2FK_13_17_wns_2017_06_22_ADO.pdf

[17] See e.g. A.J. Dudek, Nowy minister zdrowia antykoncepcję i in vitro uważa za "pogwałcenie Dekalogu" i "odrzucenie samego Stwórcy”, 10 January 2018, http://www.wysokieobcasy.pl/wysokie-obcasy/7,115167,22878188,nowy-minister-zdrowia-antykoncepcje-i-in-vitro-uwaza-za-pogwalcenie.html?disableRedirects=true; A. Siek, Min. Radziwiłł o aborcji: Katastrofa cywilizacyjna. Obowiązujące przepisy budzą niepokój, 21 March 2016, http://www.tokfm.pl/Tokfm/1,103454,19798246,min-radziwill-o-aborcji-katastrofa-cywilizacyjna-obowiazujace.html