Last Updated on May 22, 2019 by LawEuro
Information Note on the Court’s case-law 221
August-September 2018
Solska and Rybicka v. Poland – 30491/17 and 31083/17
Judgment 20.9.2018 [Section I]
Article 8
Article 8-1
Respect for family life
Respect for private life
Exhumation, in the context of criminal proceedings, of the remains of deceased persons against the wishes of their families: violation
Facts – On 10 April 2010 an aircraft of the Polish Air Force, carrying a Polish State delegation including the President of Poland and many high-ranking officials, crashed killing all ninety-six people on board. The applicants are the widows of two of the victims of the crash.
In 2016 a prosecutor of the State Prosecutor’s Office decided to appoint a team of international and 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 that the bodies be exhumed on dates to be determined in separate orders. The applicants objected to the exhumation of their husbands’ bodies and lodged interlocutory appeals against the prosecutor’s decision. The Warsaw Regional Court held that as Article 210 of the Code of Criminal Procedure (“the CCP”) did not provide for judicial review of a prosecutor’s decision to exhume a body under that Article, it was constitutionally and conventionally deficient and referred a legal question to the Constitutional Court. The proceedings before it were suspended until the Constitutional Court had issued a decision on the matter. The applicants’ attempt to obtain an injunction from the civil courts was unsuccessful.
The exhumations took place in 2018.
Law
Article 35 (exhaustion of domestic remedies): The Court rejected the Government’s preliminary objection of non-exhaustion of domestic remedies. The referral of the legal question to the Constitutional Court suspended only the examination of the applicants’ interlocutory appeal by the Warsaw Regional Court and the exhumations were carried out regardless of the pending proceedings.
Article 8
(a) Applicability of the right to respect for private and family life – The Court had not yet specifically addressed the issue of applicability of Article 8 to the exhumation of a deceased person against the will of the family members in the context of criminal proceedings. It was not disputed that Article 8 was applicable; the question was whether the right to respect for the memory of a late relative, which was recognised under the Polish law, should be considered part of family life. While the exercise of Article 8 rights concerning family and private life pertained, predominantly, to relationships between living human beings, the Court had previously found that certain issues related to the way in which the body of a deceased relative was treated, as well as issues regarding the ability to attend the burial and pay respects at the grave of a relative came within the scope of the right to respect for family or private life. Having regard to that case-law, the Court held that the facts in the case fell within the scope of the right to respect for private and family life.
(b) Merits – The exhumation of the applicants’ deceased husbands’ remains constituted an interference with their right to respect for private and family life. The interference complained of had a legal basis in Polish law, namely Article 210 of the CCP.
With regard to the quality of the law, the State authorities were required to find a due balance between the requirements of an effective investigation under Article 2 and the protection of the right to respect for private and family life of the parties to the investigation and other persons affected. There might be circumstances in which exhumation was justified, despite the opposition by the family. Even though the investigation in the present case concerned an incident of unprecedented gravity, which had affected the entire functioning of the State, the Court was mindful of the importance of the applicants’ interest in ensuring that the remains of their deceased husbands were respected.
The prosecutor had ordered the exhumation of the remains of the applicants’ husbands. When issuing his order, the prosecutor had not been required by the CCP to assess whether the aims of the investigation could have been attained through less restrictive means or to evaluate the possible implications of the impugned measures on the private and family life of the applicants. Furthermore, the prosecutor’s decision was not amenable to appeal before a criminal court or any other form of adequate scrutiny before an independent authority.
The applicants had attempted to obtain an injunction from a civil court preventing the prosecutor from carrying out the exhumations. However, the civil courts had dismissed their application, having found that the prosecutor had exercised his functions in compliance with the relevant provisions of the CCP. The civil courts had neither reviewed the necessity of the impugned measure nor weighed the interference resulting from the prosecutor’s decision against the applicants’ interests safeguarded by Article 8 of the Convention.
The Court, therefore, concluded that Polish law did not provide sufficient safeguards against arbitrariness with regard to a prosecutorial decision ordering exhumation. The domestic law did not provide a mechanism to review the proportionality of the restrictions on the relevant Article 8 rights of the persons concerned resulting from the prosecutor’s decision. The applicants had thus been deprived of the minimum degree of protection to which they were entitled.
Conclusion: violation (unanimously).
Article 41: EUR 16,000 to each applicant in respect of non-pecuniary damage.
Leave a Reply