Awarding non-pecuniary damages in the "missing babies" cases: Law enforcement experiences

The Act on Establishing the Facts about the Status of Newborn Children who are Suspected of Having Disappeared from Maternity Hospitals in the Republic of Serbia was adopted in 2020; colloquially known as the Missing Babies Act, it regulates the right of parents and relatives to fair monetary compensation for nonpecuniary damages in cases of violations of their right to respect the family life. This paper is the first paper that analyses the results of the implementation of this Act in regards of awarding non-pecuniary damages. Empirical research was conducted at the Higher Court in Novi Sad, the Higher Court in Belgrade, the Higher Court in Kragujevac, and the Higher Court in Niš. Using the statistical and the random sample methods, the research analyses court cases involving request for compensation of non-pecuniary damages resulting from the infringement of one's right to respect for family life in the "missing babies" cases. The paper also examines the earlier judicial practice in cases with similar factual situations, with special reference to the judgment of the European Court of Human Rights in the case of Zorica Jovanović v. Serbia (App. no. 12794/08). Furthermore, using the normative and comparative law methods, the paper presents an analysis of non-pecuniary damages and its purpose. The paper aims to provide a theoretical and empirical analysis of court judgments awarding non-pecuniary damages in the "missing babies" cases for violation of the right to respect for family life. According to the research findings, the parents' decades-long struggle yielded a Pyrrhic victory in the form of monetary compensation for non-material damages but, in the vast majority of cases, no facts were established regarding the actual fate of the missing children.