Communicated on 7 March 2019<\/p>\n
FIRST SECTION<\/p>\n
Application no. 17570\/18
\nPawe\u0142 DERESZ and others against Poland
\nand 2 other applications
\n(see list appended)<\/p>\n
STATEMENT OF FACTS<\/strong><\/p>\n A list of the applicants is set out in the appendix.<\/p>\n A.\u00a0\u00a0The circumstances of the case<\/strong><\/p>\n The facts of the case, as submitted by the applicants, may be summarised as follows.<\/p>\n 1.\u00a0\u00a0Crash<\/em><\/p>\n 1.\u00a0\u00a0On 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 Katy\u0144 massacre. The delegation was led by the President of Poland and included many high\u2011ranking officials. The aircraft crashed during the approach to Smolensk aerodrome, killing all ninety-six people on board (eighty\u2011eight passengers and eight crew members).<\/p>\n 2.\u00a0\u00a0On 29 July 2011 the Polish Committee for the Investigation of State Aviation Accidents (KomisjaBadaniaWypadk\u00f3wLotniczychLotnictwaPa\u0144stwowego) published its report on the causes of the crash.<\/p>\n 2.\u00a0\u00a0Investigation into the crash<\/em><\/p>\n 3.\u00a0\u00a0The Warsaw Regional Military Prosecutor\u2019s Office opened an investigation into the crash on 10 April 2010.<\/p>\n 4.\u00a0\u00a0The applicants were granted victim status in the investigation.<\/p>\n 5.\u00a0\u00a0On 4 April 2016 the investigation was assigned to an investigative team of the State Prosecutor\u2019s Office (ProkuraturaKrajowa).<\/p>\n 6.\u00a0\u00a0On 21 June 2016 the State Prosecutor\u2019s Office organised a meeting with the victims\u2019 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.<\/p>\n 7.\u00a0\u00a0On 7 October 2016, pursuant to Article 209 \u00a7\u00a7 1 and 4 and Article\u00a0210 of the Code of Criminal Procedure (\u201cthe CCP\u201d), a prosecutor of the State Prosecutor\u2019s 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.<\/p>\n 3.\u00a0\u00a0Application no. 17570\/18<\/em><\/p>\n 8.\u00a0\u00a0The applicants are respectively the husband, father and daughter of Ms\u00a0JolantaSzymanek-Deresz, a member of parliament who died in the crash.<\/p>\n 9.\u00a0\u00a0On 10 and 21 November 2016 the applicants filed interlocutory appeals against the prosecutor\u2019s decision of 7 October 2016. They objected to the exhumation of their late relative\u2019s 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\u2019 interlocutory appeals, finding them inadmissible in law.<\/p>\n 10.\u00a0\u00a0On 5 and 29 December 2016 the applicants filed interlocutory appeals against the prosecutor\u2019s decision with the Warsaw Regional Court.<\/p>\n 11.\u00a0\u00a0On 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\u2019s decision to exhume a body. The proceedings before the Constitutional Court are pending (case no. P 18\/17).<\/p>\n 12.\u00a0\u00a0On 26 March 2018 the prosecutor issued an order setting the date of the exhumation of the remains of the applicants\u2019 relative for 17 April 2018.<\/p>\n 13.\u00a0\u00a0The applicants lodged interlocutory appeals against the order of 26\u00a0March 2018. On 16 April 2018 the prosecutor refused to examine the applicants\u2019 interlocutory appeals on the grounds that they were inadmissible in law.<\/p>\n 14.\u00a0\u00a0The exhumation of the remains of the applicants\u2019 relative took place on 17 April 2018.<\/p>\n 4.\u00a0\u00a0Application no. 43081\/18<\/em><\/p>\n 15.\u00a0\u00a0The applicant is the daughter of Mr LeszekSolski, an activist of the Katy\u0144 Families Association, who was a victim of the crash.<\/p>\n 16.\u00a0\u00a0On 12 April 2018 the applicant objected to the exhumation of her father\u2019s remains.<\/p>\n 17.\u00a0\u00a0On 13 April 2018 the prosecutor issued an order setting the date of the exhumation of the remains of the applicant\u2019s father for 16\u00a0May 2018.<\/p>\n 18.\u00a0\u00a0The applicant lodged an interlocutory appeal against the order of 13\u00a0April 2018. On 27 April 2018 the prosecutor refused to examine her interlocutory appeal. The applicant lodged an interlocutory appeal against that decision.<\/p>\n 19.\u00a0\u00a0The exhumation of the remains of the applicant\u2019s father took place on 16 May 2018.<\/p>\n 5.\u00a0\u00a0Application no. 45777\/18<\/em><\/p>\n 20.\u00a0\u00a0The applicants are respectively the husband and daughter of Ms\u00a0Joanna Agacka-Indecka, the President of the Polish Bar, who died in the crash.<\/p>\n 21.\u00a0\u00a0Being 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\u2019s remains.<\/p>\n 22.\u00a0\u00a0On 22 March 2018 the prosecutor issued an order setting the date of the exhumation of the remains of the applicants\u2019 relative for 24 April 2018. The exhumation took place on that date.<\/p>\n B.\u00a0\u00a0Relevant domestic law and practice<\/strong><\/p>\n 23.\u00a0\u00a0The relevant domestic law and practice is set out in the judgment Solska and Rybicka v. Poland, nos. 30491\/17 and 31083\/17<\/a>, \u00a7\u00a7 43-52, 20\u00a0September 2018.<\/p>\n COMPLAINTS<\/strong><\/p>\n 24.\u00a0\u00a0The applicants allege a violation of Article 8 of the Convention. They complain about the exhumations of their late relatives\u2019 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.<\/p>\n 25.\u00a0\u00a0The applicants further allege a violation of Article 13 read in conjunction with Article 8 of the Convention.<\/p>\n QUESTIONS TO THE PARTIES<\/strong><\/p>\n 1.\u00a0\u00a0Has there been a violation of the applicants\u2019 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<\/a>, 20 September 2018)?<\/p>\n 2.\u00a0\u00a0Did the applicants have at their disposal an effective domestic remedy for their complaint under Article 8, as required by Article 13 of the Convention?<\/p>\n <\/p>\n APPENDIX<\/p>\n Katarzyna DERESZ-LEWANDOWSKA<\/strong>\n\n
\n No.<\/strong><\/td>\n Application no.<\/strong><\/td>\n Lodged on<\/strong><\/td>\n Applicant<\/strong>
\nDate of birth<\/strong>
\nPlace of residence<\/strong><\/td>\nRepresented by<\/strong><\/td>\n<\/tr>\n<\/thead>\n\n \n 1.<\/td>\n 17570\/18<\/td>\n 13\/04\/2018<\/td>\n Pawe\u0142 DERESZ<\/strong>
\n27\/03\/1937
\nLipk\u00f3wTadeusz SZYMANEK<\/strong>
\n25\/10\/1925
\nWarsaw<\/p>\n
\n06\/07\/1978
\nWarsaw<\/td>\nB. Czechowicz A. Pietryka
\nP. K\u0142adoczny<\/td>\n<\/tr>\n\n 2.<\/td>\n 43081\/18<\/td>\n 28\/08\/2018<\/td>\n Joanna Ewa PRZYDATEK<\/strong>
\n17\/08\/1963
\nSopot\/Victoria (Canada)<\/td>\nP. K\u0142adoczny<\/td>\n<\/tr>\n \n 3.<\/td>\n 45777\/18<\/td>\n 21\/09\/2018<\/td>\n Krzysztof INDECKI<\/strong>
\n14\/05\/1952
\n\u0141\u00f3d\u017a
\nKatarzyna INDECKA<\/strong>
\n05\/03\/1997
\n\u0141\u00f3d\u017a<\/td>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n