EHRM, 20-09-2018, nr. 30491/17, nr. 31083/17

The Government raised a preliminary objection of non-exhaustion of domestic remedies. In their view, the lodging of the present applications had been premature, since the proceedings before the domestic court had been suspended pending a decision by the Constitutional Court on the legal question referred to it by the Warsaw Regional Court on 3 April 2017.

The Government submitted that the Warsaw Regional Court, adjudicating on the applicants' interlocutory appeals, had rightly decided to refer the legal question to the Constitutional Court, which was the only body competent to assess the constitutionality of the legal provisions applicable to a particular case. According to academic opinion and domestic case-law, the Constitution clearly gave the Constitutional Court exclusive competence to adjudicate on the constitutionality of statutes.

The domestic court — having identified some doubt as to the conformity of Article 210 of the CCP with the Constitution and the Convention — had had no alternative but to act in accordance with Article 193 of the Constitution and refer the legal question to the Constitutional Court. This appeared to be the only way in which to address the complaints raised by the applicants in their interlocutory appeals, including claims of a violation of the Constitution. Such a course of events could therefore have been reasonably expected by the applicants, or should have at least been entertained by them, as they themselves had prompted the review of the constitutionality of the impugned provision of the CCP. Had the applicants allowed the domestic system to proceed and waited to obtain the Constitutional Court's decision, it could not be precluded that their allegations would have been accepted and they would have obtained appropriate redress. Instead, immediately after the Warsaw Regional Court had referred the legal question, the applicants had lodged the present applications.

With regard to the applicants' argument that the Regional Court should have directly applied the relevant provisions of the Constitution, the Government submitted that such a possibility could only be entertained when the Constitutional Court had declared unconstitutional the statutory legal basis for a decision.

With regard to the applicants' claims that the Constitutional Court was ineffective, the Government viewed them as widely exceeding the limits of the present case and unwarranted. There was no basis to assert that the Constitutional Court in its present state was unable to duly perform its duties. The legislative action undertaken by the Sejm (the lower House of Parliament) in 2015 and 2016 had been aimed specifically at improving the Constitutional Court's functioning. The Constitutional Court's judges enjoyed full independence in adjudicating all matters brought before that court. The majority of the applicants' arguments were of a political nature and were aimed at discrediting the Constitutional Court as a judicial institution. The Government urged the Court to disregard those arguments.

The Government referred to the Court's case-law, which stated that an application for a review of the constitutionality of a legal provision and its compatibility with a provision of superior legal force — where this was the scope of the Constitutional Court's jurisdiction — was required of the applicants if they were challenging a provision of a statute as being in itself contrary to the Convention (Liepājnieks v. Latvia (dec.), no. 37586/06, 2 November 2010, and Grišankova et Grišankovs v. Latvia (dec.), no. 36117/02, 13 February 2003). Should the Constitutional Court declare the impugned provision of the CCP unconstitutional, the domestic court would have the possibility of examining the applicants' interlocutory appeal.

The applicants disagreed with the Government's objection. They argued that the suspended proceedings before the Warsaw Regional Court pending a decision by the Constitutional Court on the legal question should not negatively affect the admissibility of their case. That was because the Constitutional Court could no longer be regarded as an effective and impartial judicial body able to fulfil its constitutional duties.

Considering that the Constitutional Court was no longer an independent and effective body and being aware of the current situation of the Constitutional Court, the applicants had never asked the Warsaw Regional Court to refer a legal question to the Constitutional Court. Instead, their lawyer had asked the Regional Court at the hearing held on 9 March 2017 to quash the Prosecutor's decision directly on the basis of the Constitution.

However, even leaving aside the question of the independence, impartiality and effectiveness of the Constitutional Court, the applicants stressed that neither the judgment of the Constitutional Court nor that of the Warsaw Reginal Court had been able to suspend the execution of the Prosecutor's decision. In fact, the exhumations had been carried out on 14 and 16 May 2018 respectively, without waiting for the conclusion of the proceedings before the Constitutional Court. In the applicants' view, without any prospect of suspending the Prosecutor's decision, the only redress they could theoretically have obtained after many years of proceedings before the Constitutional Court and the Regional Court, would be moral satisfaction from confirmation that the exhumation had been unlawful. To obtain just satisfaction for the non-pecuniary damage suffered by them, they would have to initiate civil proceedings, which could last several more years. Therefore, the applicants believed that the only remedy which could be considered effective in their case would be a suspensive interlocutory appeal against a Prosecutor's decision to exhume a body.

Lastly, the applicants had unsuccessfully applied to the civil courts for an injunction preventing the prosecutor from carrying out the exhumations. In this regard, they referred to the Court's case-law according to which ‘when a remedy has been pursued, use of another remedy which has essentially the same objective is not required’ (Jeličić v. Bosnia and Herzegovina (dec.), no. 41183/02, ECHR 2005-XII (extracts)). Therefore, given that they had made use of the possibility of seeking an injunction, they could not justifiably be required to pursue other remedies.

The applicants maintained that the domestic law did not provide them with any effective remedy which they could have used before applying to the Court.

The Court reiterates that under Article 35 § 1 it may only deal with a matter after all domestic remedies have been exhausted. Applicants must have provided the domestic courts with the opportunity, in principle intended to be afforded to Contracting States, of preventing or putting right the violations alleged against them. That rule is based on the assumption that there is an effective remedy available in the domestic system in respect of the alleged breach. The only remedies which Article 35 § 1 requires to be exhausted are those that relate to the breach alleged and are available and sufficient. The existence of such remedies must be sufficiently certain, not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness: it falls to the respondent State to establish that these conditions are satisfied (see, among many other authorities, Vučković and Others v. Serbia [GC], no. 17153/11, §§ 69–77, 25 March 2014, and Parrillo v. Italy [GC], no. 46470/11, § 87, ECHR 2015, with further references).

In the instant case, relying on the proceedings pending before the Constitutional Court following the referral of a legal question, the Government pleaded that the applications were premature. The Warsaw Regional Court, while examining the applicants' interlocutory appeals against the Prosecutor's decision of 7 October 2016, had decided to refer to the Constitutional Court a legal question on the conformity of Article 210 of the CCP with the Constitution and the Convention.

The Court notes that the referral of the said question had no practical effect on the execution of the Prosecutor's decision ordering the exhumation of the remains of the applicants' deceased husbands. In particular, it did not lead to a suspension of the Prosecutor's decision with regard to the applicants. The referral of the legal question suspended only the examination of the applicants' interlocutory appeal by the Warsaw Regional Court. The exhumations were carried out regardless of the proceedings pending before the Constitutional Court.

Therefore, the Court finds that the applicants have established that the remedy advanced by the Government was in fact inadequate and ineffective, having regard to the particular circumstances of the case, and that they were accordingly absolved from the requirement to await the outcome of the constitutional referral proceedings (see Vučković and Others, cited above, § 77).

Having regard to this conclusion, the Court does not consider it necessary to examine in the instant case the applicants' arguments relating to the alleged lack of effectiveness and independence of the Constitutional Court.

It follows that the objection raised by the Government must be dismissed.

The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

The applicants noted that there was no dispute between the parties that the right to respect for the memory of a deceased family member fell within the scope of Article 8 § 1 of the Convention. That conclusion was supported by the well-established case-law of the Court in cases such as, for example, Pannullo and Forte v. France (no. 37794/97, ECHR 2001-X), Estate of Kresten Filtenborg Mortensen v. Denmark ((dec.), no. 1338/03, ECHR 2006-V), Hadri-Vionnet v. Switzerland (no. 55525/00, 14 February 2008), Girard v. France (no. 22590/04, 30 June 2011) and Elberte v. Latvia (no. 61243/08, ECHR 2015). However, contrary to the Government's position, the applicants believed that the right at issue should be considered part of family life rather than private life, as it was closely connected to the relationship between family members and their strong emotional bonds. They referred to previous cases in which the Court had ruled that various measures undertaken by the authorities with regard to the remains of persons close to the applicants had interfered with the latter's right to private and family life. To date, the Court had never ruled on a case involving the question of exhumation against the will of the deceased's family. However, the applicants saw no reason to distinguish their case from the above-mentioned judgments regarding the relationship between individuals and the remains of their close relatives.

There was no doubt that the exhumation carried out pursuant to the Prosecutor's decision of 7 October 2016 constituted an interference with their right to respect for the memory of a deceased family member, and thus with their rights under Article 8 of the Convention. Referring to the Government's argument that the prosecutor would issue a separate order specifying the exact date of each exhumation, the applicants maintained that this had been merely a formality, since the issue of exhumation had been predetermined by the Prosecutor's decision of 7 October 2016. The Prosecutor's orders of 13 April 2018 setting the date of the exhumations for 14 and 16 May 2018 respectively stated that they were being issued in execution of the previous decision of 7 October 2016. This confirmed the conclusive nature of the decision of 7 October 2016.

The applicants argued that the interference at issue had not been carried out ‘in accordance with the law’. The Prosecutor's decision of 7 October 2016 had a legal basis in domestic law, namely the CCP. However, the mere existence of a legal basis for interference was not sufficient to satisfy the requirement of lawfulness, and the law had to meet certain qualitative requirements.

The provisions of the CCP applicable in the present case did not provide any safeguards against arbitrariness. In particular, they did not allow the family of the deceased to appeal against an exhumation order to an independent court. Moreover, domestic law did not require the prosecutor to take into account the feelings and preferences of the family of a deceased person. As a consequence, the prosecutor was empowered to undertake a measure that constituted a serious interference with the individuals' private and family life in a completely arbitrary manner. The applicants pointed out that the CCP allowed appeals to the court against certain decisions issued by a prosecutor in the course of an investigation. These concerned, inter alia, decisions regarding searches and seizures, control and recording of telephone conversations and preventive measures (see § 44 above). It would be difficult to justify why those types of decisions by a prosecutor could be amenable to judicial review (even though, as a rule, an interlocutory appeal did not automatically suspend the execution of a decision, but the court could order suspension in particular cases — Article 462 § 1 of the CCP), whereas the power to order exhumation ‘had to be completely arbitrary’.

The applicants agreed that the interference at issue, serving to elucidate the causes of the crash, had pursued the legitimate aim of protecting the rights and freedoms of others, national security and public safety.

The applicants conceded that the investigation into the circumstances of the crash was of utmost importance for the whole country. Nonetheless, they doubted that the exhumation of their husbands' bodies had been necessary within the meaning of Article 8 § 2.

Firstly, it had been unnecessary to order the exhumation of the remains of all victims in one decision in order to verify the hypothesis that the crash had been caused by an explosion. The prosecutor could have ordered first the exhumation of the bodies of those victims whose families did not oppose it. If those actions had turned out to be inconclusive, the exhumation of other bodies would have been justified. Secondly, the exhumation of the remains of all the victims had been impossible, since four of the bodies had already been cremated. Thirdly, with regard to the need to properly identify the victims, neither the prosecutor nor the Government had provided any evidence suggesting that the applicants' husbands could have been wrongly identified. Fourthly, the Prosecutor's decision had been issued more than six years after the crash. The Polish authorities had already had an opportunity to examine the bodies of the victims immediately after they had been repatriated to Poland and before the burials, but they had not done so. Forcing the applicants to relive the trauma of 10 April 2010 after so many years just in order to fix the consequences of the authorities’ inaction required particularly convincing arguments. The applicants disagreed with the Government that the judgment in Tagayeva and Others v. Russia (nos. 26562/07 and 6 others, ECHR 2017 (extracts)) was relevant for their case, since in that case, the families of the victims had demanded that the authorities carry out the exhumations, whereas in the present case the applicants had consistently opposed the exhumations.

On the issue of identification of the bodies, the first applicant emphasised that she had taken part in the identification of her husband's body in Moscow. She had been present when her husband's body had been put into a coffin and placed in the car which had transported it to the airport. Being a physician by training, she had no doubts with regard to the identification of her husband. The second applicant had not taken part in the identification of her husband's body. His body had been identified in Moscow by the then Minister of Health, who had been a friend of Mr Rybicki for many years.

The applicants stressed that they had not been involved in the decision-making process regarding the exhumation of their husbands' bodies. A meeting with the families should have been organised before the decision of 7 October 2016 had been issued. Such a meeting would have permitted the families to be consulted on the Prosecutor's plans and to choose options which adequately respected their feelings. A meeting subsequent to the said decision could not be considered as a consultation, because it had not allowed the applicants to influence the decision-making process. The authorities had not even consulted the applicants on the planned date of the exhumation. In fact, the applicants had been unaware of the timetable of the exhumations until they had been served with the Government's observations in the present case.

In the applicants' view, in such sensitive matters as the exhumation of the body of a close relative, only a judicial review could have ensured the proper weighing of the various conflicting interests at stake. In accordance with the Court's case-law, judicial review was one of the most important safeguards against arbitrary interferences with rights protected by Article 8. The applicants referred to the cases of Varga v. Romania (no. 73957/01, §§ 70–74, 1 April 2008), Kennedy v. the United Kingdom (no. 26839/05, § 124, 18 May 2010), and X v. Finland (no. 34806/04, § 220, ECHR 2012 (extracts)).

The lack of any real consultations or judicial review was even more striking given the lapse of time between the crash and the Prosecutor's decision. It was not an urgent situation, where even a slight delay could cause irreversible damage to the investigation. Consequently, the flawed decision-making process was not justified.

In the Polish context, the necessity of a judicial review was even more important, taking into account that the prosecution service was not an independent authority, but a body subordinated to the Prosecutor General, who was at the same time the Minister of Justice.

The applicants emphasised that the Prosecutor's decision had caused them significant psychological harm by forcing them to relive the mourning and the trauma. Both applicants had already endured prolonged mental suffering following the loss of their husbands. The Government had not presented any convincing arguments which could justify exposing them again to such psychological trauma.

In conclusion, the authorities had shown a blatant disregard for the applicants' feelings, and the interference at issue had not been necessary in terms of Article 8 § 2.

On the issue of interference, the Government noted that matters concerning the burial of family members fell within the scope of Article 8. Referring to the Estate of Kresten Filtenborg Mortensen v. Denmark ((dec.), no. 1338/03, ECHR 2006-V), the Government did not contest that the applicants' right to respect for the memory of a deceased family member fell within the scope of Article 8 § 1. They asserted that this right should be considered to fall within the notion of the right to private life.

The purpose of the Prosecutor's decision of 7 October 2016, however, had been to appoint a team of international forensic experts with a view to carrying out autopsies on the bodies of eighty-three victims of the crash. That decision, per se, did not constitute an interference in terms of Article 8 § 1 of the Convention. However, in order to enable the forensic experts to examine the victims' bodies, it had been necessary to have access to them. It could then be said that in some way, as noted by the Warsaw Regional Court, the Prosecutor's decision of 7 October 2016 had predetermined the issue of exhumation. To be precise, the prosecutor had stated that separate orders were to be issued regarding the exhumation of each of the victims.

With regard to the requirement of lawfulness, the Government stressed that the decision of 7 October 2016 had been not only based on clear and accessible law, namely the CCP, but had also been expressly required by it. The law obliged the prosecutor to open an investigation where there was good reason to suspect that an offence had been committed. Moreover, under Article 209 § 1 of the CCP, it was obligatory to order an autopsy if it was suspected that death had been caused by criminal means. Where the victims were numerous, it could be seen as discriminatory to decide to exhume only certain bodies and omit others, especially if the cause of death could be different, as in the case of an aircraft crash. If a prosecutor decided to order exhumations only in respect of some victims of a crash, that would be contrary to the standards of effective investigation.

As regards the existence of safeguards against arbitrary interferences with Article 8 of the Convention, the Government argued that the case-law referred to by the applicants was irrelevant to the present case because there were obvious factual differences. In addition, in the present case the interference was not of an arbitrary nature and had served important interests of justice.

The Government maintained that the interference at issue had served a legitimate purpose. It was clear that the interests of national security, public safety, prevention of crime and disorder, and the economic well-being of the country were at stake as far as the proper investigation of the crash was concerned.

The interference with the applicants' rights had been necessary in a democratic society. The Government referred to the procedural obligation under Article 2 of the Convention, which required the State to carry out an effective investigation into the death of a person. The authorities conducting an inquiry must take all reasonable steps and measures in order to properly investigate the suspected crime. Referring to the case of Tagayeva and Others v. Russia (cited above), the Government stressed that failure to carry out autopsies on all the victims could lead to a finding of a violation of Article 2.

The Government reiterated that the investigation in the present case concerned an event of unprecedented gravity, in which many of the highest State officials had died, including the President of the Republic of Poland. As a consequence of that incident, the entire functioning of the State had been affected. That fact warranted undertaking all reasonable steps in order to investigate the incident, including exhumation of the bodies of the victims. The information obtained through the autopsies was of vital importance in explaining the causes of the crash, its course and also the causes of the victims' death. The crash continued to be a subject of public interest.

The State authorities had had to balance the interest of the investigation into the circumstances of the crash, as required by the procedural limb of Article 2, against the interest of the family and private life of the victims' relatives, protected by Article 8 § 1. The latter interest could be justifiably interfered with where exhumations were deemed necessary as part of an ongoing investigation. The authorities had carried out a balancing exercise and appropriately weighed the conflicting interests at hand.

With regard to the rationale behind the provisions of the CCP in so far as they did not offer a possibility of lodging an interlocutory appeal against the Prosecutor's decision ordering exhumation, the Government submitted that prosecutors, being the authority responsible for conducting investigations into suspected crimes, took independent decisions based on already established facts and their professional experience. Prosecutors were afforded a range of discretionary powers for the purpose of achieving the aim of an investigation.

The legislature, being aware that certain private interests would clash with the public interest pursued by a prosecutor, had excluded the possibility of lodging an interlocutory appeal against such decisions by prosecutors. Otherwise, a Prosecutor's action would often be paralysed by numerous appeals lodged by unsatisfied parties to the case, who would feel that their rights were being interfered with. Only if prosecutors were allowed to undertake procedural decisions unhindered in the course of an ongoing investigation could the public interest of prevention of crime and punishment of perpetrators be met. Nonetheless, the balancing of the two conflicting interests was carried out by prosecutors within the remit of their competences.

The aim of the Prosecutor's actions in the present case had been at least twofold. His decision of 7 October 2016 purported to help explain both the cause of the crash and the cause of death, as well as to verify the identity of the victims. The prosecutor had explained that the autopsies carried out by the Russian authorities had proven to be erroneous or incomplete. Taking into account the high stakes of the investigation, the prosecutor had had no alternative but to appoint new experts and demand that a new and comprehensive forensic expert opinion be issued.

Only a proper identification of all the remains of the victims would enable their relatives to fully enjoy their right to respect for the memory of the deceased, and honour and respect for the burial. It was in the applicants' interest to ensure that they could respect the memory of their late husbands whilst visiting the graves where their remains had been laid. The only way to ensure the respect for that interest was to make sure that the remains buried in each grave belonged to the person believed to have been buried there. This necessitated carrying out DNA tests on the victims' remains.

The Government disagreed that there had been no justification for carrying out the exhumations against the will of the families owing both to the lapse of time since the crash and the lack of autopsies carried out by the Polish authorities prior to the burial of the victims.

Contrary to the applicants' statements, the prosecutor had shown willingness to consult with the victims' relatives prior to issuing an exhumation order in respect of each particular victim. This demonstrated that the prosecutor had not only been aware of the applicants' interests, but had also taken active steps to ensure that the applicants' doubts were cleared and the reasons for his decision properly explained.