ECHR decision of 09 June 2020 in the case "Draskovic v. Montenegro" (aplication No. 40597/17).
In 2017, the applicant was assisted in the preparation of the aplication. The aplication was subsequently communicated to Montenegro.
The case successfully considered an aplication against the refusal of the courts to consider the merits of the request for the exhumation of the remains of the applicant's spouse for their transfer to a new burial site. The case involved a violation of article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
The applicant's husband died in 1995. Due to the ongoing armed conflict at that time, it was impossible to bury him in Bosnia and Herzegovina, where the couple lived and where other members of their family were buried. He was buried in Montenegro in a place belonging to his nephew, next to the remains of some other family members. The remains of all the people buried in this place were mixed up. in 2014, the applicant asked her nephew to consent to the exhumation and relocation of her late husband's remains, but to no avail. the courts of montenegro did not consider the applicant's complaint on the merits, as they considered that she had no "personal or property interest to make a claim".
Regarding compliance with article 8 of the Convention. In the Judgment in the case of Elli Poluhas Dedsbo v. Sweden (Elli Poluhas Dődsbo v. Sweden) (Application No. 61564/00, § 24, ECHR 2006-I) The Court has not made it clear whether the requirement of a close family member, such as the applicant in the present case, to exhume the remains of a deceased family member in order to move them to a new burial site falls within the scope of article 8 of the Convention. in the present case, the court decided that this requirement should be considered in terms of both aspects of article 8 of the convention ("right to private and family life"). However, the Court clarified that the nature and scope of this right, as well as the limits of the State's obligations under the Convention in such cases, depend on the specific circumstances of the case.
The applicant's interest in the exhumation and relocation of her deceased husband's remains had to be weighed not only against the role of the society in ensuring the sanctity of burial sites, but also against the rights of her husband's nephew. The limits of discretion for the State in this important and sensitive area should be broad.
in contrast to the above-mentioned judgment of the european court of justice in the case "elli poluhas dedsbo v. sweden"(elli poluhas dődsbo v. Sweden), the essence of the applicant's complaint was that the courts of Montenegro did not consider the merits of her claim against a third party in civil proceedings. Consequently, the present case concerned the positive obligations of the State in the sphere of relations between private individuals and required the Court to consider whether the authorities of the respondent State had established an appropriate regulatory framework for balancing opposing interests, and whether such interests had been properly defined and compared in the present case.
With regard to the existence of a regulatory framework, the legislation of Montenegro did not provide for a mechanism to review the proportionality of restrictions on the rights provided for in article 8 of the Convention. In particular, the relevant legislation did not establish any substantive standards for resolving disputes between family members regarding the exhumation or final burial place of the remains of a deceased relative. In addition, the body authorized to resolve these disputes has not been identified. In particular, the courts of the respondent State took the position that the applicant had to apply to the administrative authority, which, in turn, could not satisfy such a requirement in the absence of the consent of a third party (that is, the nephew of the deceased husband). Administrative bodies usually did not consider such issues. In the event of a dispute, they recommended that the parties first resolve the dispute, and only then apply for exhumation. In the opinion of the European Court of Justice, the opposing interests could not clearly be balanced in this proceeding. It is possible that these interests could have been properly compared in the course of the civil claim proceedings, which the applicant initiated initially.
However, the courts of Montenegro did not recognize the existence of any legitimate interest and thus the rights provided for in article 8 of the Convention. In addition to questions about whether exhumation and relocation were possible and/or not difficult from a practical point of view, as well as whether public health interests were affected, a number of other issues needed to be clarified. In particular, it has not been established whether the applicant's late husband lived in Bosnia and Herzegovina, whether the burial place belonged only to the applicant, or whether it was acquired jointly with the late husband in order for both of them to be buried there. Furthermore, it appears that there was disagreement between the parties as to whether the applicant's husband was buried in Montenegro of his own free will or not. It has also not been established whether there were obstacles to the applicant being subsequently buried next to her late husband if the exhumation had not been carried out. thus, the courts of montenegro did not properly compare the rights of the applicant and the opposite rights of her husband's nephew.
The case involved a violation of the requirements of article 8 of the Convention (adopted unanimously).
In the application of article 41 of the Convention. the court awarded the applicant eur 4,500 in respect of non-pecuniary damage.