Last Updated on May 22, 2019 by LawEuro
Communicated on 7 March 2019
FIRST SECTION
Application no. 17570/18
Paweł DERESZ and others against Poland
and 2 other applications
(see list appended)
STATEMENT OF FACTS
A list of the applicants is set out in the appendix.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Crash
1. On 10 April 2010 an aircraft of the Polish Air Force was carrying a Polish State delegation from Warsaw to Smolensk, Russia, to attend a ceremony marking the 70th anniversary of the Katyń massacre. The delegation was led by the President of Poland and included many high‑ranking officials. The aircraft crashed during the approach to Smolensk aerodrome, killing all ninety-six people on board (eighty‑eight passengers and eight crew members).
2. On 29 July 2011 the Polish Committee for the Investigation of State Aviation Accidents (KomisjaBadaniaWypadkówLotniczychLotnictwaPaństwowego) published its report on the causes of the crash.
2. Investigation into the crash
3. The Warsaw Regional Military Prosecutor’s Office opened an investigation into the crash on 10 April 2010.
4. The applicants were granted victim status in the investigation.
5. On 4 April 2016 the investigation was assigned to an investigative team of the State Prosecutor’s Office (ProkuraturaKrajowa).
6. On 21 June 2016 the State Prosecutor’s Office organised a meeting with the victims’ families. The purpose of the meeting was to explain the need to carry out exhumations and autopsies, as well as to hear opinions from all the families concerned.
7. On 7 October 2016, pursuant to Article 209 §§ 1 and 4 and Article 210 of the Code of Criminal Procedure (“the CCP”), a prosecutor of the State Prosecutor’s Office decided to appoint a team of international and national forensic experts with a view to carrying out autopsies on the bodies of eighty-three victims of the crash (the bodies of nine victims had already been exhumed and four victims had been cremated). The prosecutor further ordered (point IV of the decision) that for the purpose of carrying out the above-mentioned measures, the bodies of eighty-three victims be exhumed on dates to be determined in separate orders.
3. Application no. 17570/18
8. The applicants are respectively the husband, father and daughter of Ms JolantaSzymanek-Deresz, a member of parliament who died in the crash.
9. On 10 and 21 November 2016 the applicants filed interlocutory appeals against the prosecutor’s decision of 7 October 2016. They objected to the exhumation of their late relative’s remains and asked that that part of the decision be reversed. On 23 November and 21 December 2016 the prosecutor refused to entertain the applicants’ interlocutory appeals, finding them inadmissible in law.
10. On 5 and 29 December 2016 the applicants filed interlocutory appeals against the prosecutor’s decision with the Warsaw Regional Court.
11. On 3 April 2017 the Warsaw Regional Court decided to refer a legal question to the Constitutional Court on the constitutionality of Article 210 of the CCP in so far as it did not provide for the opportunity to lodge an interlocutory appeal against a prosecutor’s decision to exhume a body. The proceedings before the Constitutional Court are pending (case no. P 18/17).
12. On 26 March 2018 the prosecutor issued an order setting the date of the exhumation of the remains of the applicants’ relative for 17 April 2018.
13. The applicants lodged interlocutory appeals against the order of 26 March 2018. On 16 April 2018 the prosecutor refused to examine the applicants’ interlocutory appeals on the grounds that they were inadmissible in law.
14. The exhumation of the remains of the applicants’ relative took place on 17 April 2018.
4. Application no. 43081/18
15. The applicant is the daughter of Mr LeszekSolski, an activist of the Katyń Families Association, who was a victim of the crash.
16. On 12 April 2018 the applicant objected to the exhumation of her father’s remains.
17. On 13 April 2018 the prosecutor issued an order setting the date of the exhumation of the remains of the applicant’s father for 16 May 2018.
18. The applicant lodged an interlocutory appeal against the order of 13 April 2018. On 27 April 2018 the prosecutor refused to examine her interlocutory appeal. The applicant lodged an interlocutory appeal against that decision.
19. The exhumation of the remains of the applicant’s father took place on 16 May 2018.
5. Application no. 45777/18
20. The applicants are respectively the husband and daughter of Ms Joanna Agacka-Indecka, the President of the Polish Bar, who died in the crash.
21. Being aware of the unsuccessful efforts of other persons in similar situation, the applicant did not lodge any complaint in connection with the planned exhumation of their relative’s remains.
22. On 22 March 2018 the prosecutor issued an order setting the date of the exhumation of the remains of the applicants’ relative for 24 April 2018. The exhumation took place on that date.
B. Relevant domestic law and practice
23. The relevant domestic law and practice is set out in the judgment Solska and Rybicka v. Poland, nos. 30491/17 and 31083/17, §§ 43-52, 20 September 2018.
COMPLAINTS
24. The applicants allege a violation of Article 8 of the Convention. They complain about the exhumations of their late relatives’ remains which were carried out against their will. They also complain that the arbitrary decisions of the prosecutor ordering exhumations were not susceptible to any form of review.
25. The applicants further allege a violation of Article 13 read in conjunction with Article 8 of the Convention.
QUESTIONS TO THE PARTIES
1. Has there been a violation of the applicants’ right to respect for their private and family life, contrary to Article 8 of the Convention (cf. Solska and Rybicka v. Poland, nos. 30491/17 and 31083/17, 20 September 2018)?
2. Did the applicants have at their disposal an effective domestic remedy for their complaint under Article 8, as required by Article 13 of the Convention?
APPENDIX
| No. | Application no. | Lodged on | Applicant Date of birth Place of residence |
Represented by |
| 1. | 17570/18 | 13/04/2018 | Paweł DERESZ 27/03/1937 LipkówTadeusz SZYMANEK 25/10/1925 Warsaw Katarzyna DERESZ-LEWANDOWSKA |
B. Czechowicz A. Pietryka P. Kładoczny |
| 2. | 43081/18 | 28/08/2018 | Joanna Ewa PRZYDATEK 17/08/1963 Sopot/Victoria (Canada) |
P. Kładoczny |
| 3. | 45777/18 | 21/09/2018 | Krzysztof INDECKI 14/05/1952 Łódź Katarzyna INDECKA 05/03/1997 Łódź |
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