ECHR judgment of September 20, 2018 in the case of Sloska and Rybitskaya (Sloska and Rybicka) v. Poland (applications No. 30491/17 and 31083/17).
In 2017, the applicants were assisted in the preparation of applications. Subsequently, the applications were consolidated and communicated to Poland.
In the case, the applicants' applications about exhumations in a criminal case without their consent as members of the families of the deceased are appealed. The case has violated the requirements of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
On April 10, 2010, the plane of the Polish Air Force crashed, carrying the Polish state delegation, including the President of Poland and a number of high-ranking officials, on board, killing all 96 people on board. The applicants are the widows of the two people who died in this plane crash.
In 2016, the prosecutor of the General Prosecutor’s Office of Poland decided to appoint a group of international and forensic experts to conduct an autopsy on 83 victims of the crash (the bodies of nine more victims were already exhumed and the bodies of four were cremated). The prosecutor also ruled that the bodies would be exhumed on days determined by a separate order. The applicants objected to the exhumation of the bodies of their husbands and filed interim complaints against the decision of the prosecutor. The Warsaw District Court ruled that since article 210 of the Polish Code of Criminal Procedure did not contain a requirement for judicial review of the prosecutor’s decision to exhume the body in accordance with this article of the code, it contradicted the Constitution and convention requirements and referred the case to the Polish Constitutional Court. The proceedings in the main case were suspended until the decision of the Constitutional Court. The applicants' attempt to obtain an injunction through a civil court was unsuccessful.
Exhumation was carried out in 2018.
QUESTIONS OF RIGHT
Regarding compliance with paragraph 1 of Article 35 of the Convention (exhaustion of domestic remedies). The European Court dismissed the preliminary objection by the Polish authorities that the applicants did not exhaust the domestic remedies. The transfer of the legal issue to the Constitutional Court only suspended the resolution of the applicants 'interim complaint by the Warsaw Regional Court, and the exhumation was carried out independently of the complainants' proceedings.
Regarding compliance with Article 8 of the Convention. (a) Applicability of the right to respect for private and family life. The European Court has not yet considered separately complaints about the applicability of Article 8 of the Convention to cases of exhumations against the will of family members of the deceased in a criminal case. It was not disputed that Article 8 of the Convention was applicable to the case. The question was whether the right to respect for the memory of a deceased relative, which is recognized by Polish law, should be considered part of family life. Although the implementation of the rights to private and family life guaranteed by Article 8 of the Convention was mainly related to the relationship between living people, the European Court previously found that certain points related to the way the body of the deceased was treated, as well as the opportunity to attend the funeral and pay tribute to grave, belonged to the scope of the right to respect for private and family life. Taking into account its case law, the Court ruled that the circumstances of the case were within the scope of the right to respect for private and family life.
(b) The merits of the complaint. The exhumation of the applicants ’husbands’ bodies interfered with their right to respect for private and family life. The interference complained of was based on domestic legislation, namely on article 210 of the Polish Code of Criminal Procedure.
With regard to the quality of the law, the Polish authorities had to strike an appropriate balance between the requirements of an effective investigation, provided for in Article 2 of the Convention, and the protection of the right to respect for the private and family life of the parties to the case and other interested parties. However, there may be circumstances in which an exhumation may be justified, even though family members object to this. Although in the present case the investigation concerned an event of exceptional gravity, which affected the functioning of the entire state, the Court takes into account the importance of the applicants' interest in respecting the bodies of their husbands.
The prosecutor issued an order for the exhumation of the bodies of the applicants' husbands. In making this decision, the prosecutor should not, in accordance with the Criminal Procedure Code, assess whether it was possible to achieve the objectives set by the result of less restrictive measures, or to assess the possible consequences of the contested measure for the applicants' private and family life. In addition, the decision of the prosecutor was not subject to appeal in a criminal court or other verification by any other independent public authority.
The applicants attempted to obtain an injunction in a civil court to prevent exhumation. However, the civil court rejected their petitions, finding that the prosecutor carried out his duties in accordance with the requirements of the Criminal Procedure Code. The civil courts did not assess the necessity of the contested measure and did not compare the interference arising from the decision of the prosecutor with the interests of the applicants guaranteed by Article 8 of the Convention.
Taking into account the above, the European Court concluded that the Polish legislation did not contain sufficient safeguards against arbitrariness in relation to the prosecutor's decision to conduct an exhumation. Polish legislation did not provide for a mechanism to review the proportionality of the restrictions guaranteed by Article 8 of the Convention of the rights of relevant persons arising from decisions of the prosecutor. Thus, the applicants were deprived of the minimum protection to which they were entitled.
The case was a violation of Article 8 of the Convention (adopted unanimously).
In application of Article 41 of the Convention. The European Court awarded each of the applicants 16,000 euros in respect of non-pecuniary damage.