Analysis: “On exhumation of human remains: Strasbourg’s standards” by Dolores Utrilla
Public authorities can exert their power over individuals even beyond their death. Certain actions by individuals may also have an impact on the physical remains of deceased persons. This explains why, over the past years, the European Court of Human Rights (ECtHR) has started to build a body of case law on the requirements arising from the European Convention on Human Rights (ECHR) for the disposal and handling of human remains, thereby setting certain minimum standards in this sensitive field.
A particularly relevant and unexplored issue is that of the rights and obligations arising from the ECHR as regards exhumations and transfers of human remains. This is a subject-matter that has attracted a great deal of attention in recent times, in the wake of the exhumation by the Spanish Government of the mortal remains of former Dictator Francisco Franco against the wishes of his grandchildren.
In a highly relevant judgment delivered this week (in Drašković v. Montenegro), the ECtHR has revisited and further developed its exhumations-related case law, which is still in a nascent stage and is widely unknown, not least because it has evolved through a rather limited number of cases. To better understand the relevance of this week’s judgment, which concerns legal dimensions of exhumation never tackled before by the ECtHR, it is necessary, however, to briefly put it into context.
The right to private and family life as a framework
The rights and obligations applicable to the handling of human remains in general, and to exhumations in particular, have been examined by the Strasbourg-based court from the perspective of the rights to private and family life in Article 8 ECHR (ECHR), sometimes in connection with other rights such as the prohibition of degrading treatment under Article 3 ECHR. According to the ECtHR, the exercise of the right to private and family life pertains, predominantly, to relationships between living human beings, yet it can not be excluded that it can be extended to certain situations after death (Jones v. United Kingdom, 2005).
However, the ECtHR has not gone so far as to declare that Article 8 ECHR grants a right to dispose of the mortal remains of family members. The ECtHR has been rather vague as to the scope of this provision, declaring merely that certain issues relating 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, come within the scope of the rights to respect for family and private life. The scope of such remains-related rights seems to be limited also because, with almost no exceptions, the ECtHR’s case law on the matter concerns cases of direct kinship (parental or spousal relationships), and not second-degree family relationships. Moreover, the case law from Strasbourg allows the States a broad margin of appreciation when it comes to the enactment of measures limiting these rights in pursuit of certain public goals, such as the protection of public health and hygiene or the fight against crime.
Specifically, the ECtHR has declared, firstly, that Article 8(1) ECHR protects (i) the right to know the location of a relative’s remains, and (ii) the right to accompany them at the time of burial. Thus, the burial of a still-born baby in a common grave without consulting or informing the mother, together with the transportation of the body in an ordinary van, amounts to an interference with the mother’s respect for private and family life (Hadri-Vionnet v. Switzerland, 2008). So does the refusal to allow a prisoner to attend the funeral of his close relatives (Płoski v. Poland, 2002); the refusal by the State to return the bodies of the applicant’s relatives after a criminal investigation and their burial in an unspecified location (Sabanchiyeva and Others v. Russia, 2013); the disposal of a stillborn child as clinical waste, preventing the parents from obtaining information about the place of burial (Maric v. Croatia, 2004); and the failure to inform the family about a relative’s death before burial (Lozovyye v. Russia, 2018).
Secondly, the Strasbourg-based court has also accepted that the right to private and family life may, in principle, be invoked by relatives in relation to disputes that arise regarding burials and other funeral arrangements of deceased family members. On this basis, the ECtHR held in Pannullo and Forte v. France (2001) and in Girard v. France (2011) that the delay in releasing the body of the applicant’s child for a funeral, or in returning bodily samples on completion of the relevant criminal proceedings, may constitute an interference with both the private life and the family life of the surviving family members. In Znamenskaya v. Russia (2005), the ECtHR considered the private life aspect of Article 8 to be applicable to the question of whether a mother had the right to change the family name on the tombstone of her stillborn child.
Thirdly, the ECtHR has considered that Article 8 ECHR covers the medical manipulation of corpses of deceased relatives. Thus, in the cases of Petrova v. Latvia (2014) and Elberte v. Latvia (2015), the ECtHR found that the removal of a deceased relative’s organs or tissues come within the scope of the ‘private life’ of the surviving family members.
Although these judgments set up certain standards that may be relevant in cases dealing with exhumations, the Strasbourg-based court did not deal with this specific matter until relatively recent times. In this respect, two different situations must be distinguished, namely (i) disputes concerning exhumation rights against public authorities, and (ii) disputes regarding exhumation rights against third parties.
Exhumation rights vis-à-vis the State
Exhumation-related claims against national authorities can be classified into two groups, depending on whether they regard the right to exhume the human remains of deceased relatives (a) or the right to impede such exhumations (b).
a) Right to exhume
In its case law to date, the Court had not taken an explicit position on whether a request to exhume remains of a relative for transfer to a new resting place falls under Article 8 ECHR. It had nevertheless pointed in that direction in the case of Elli Poluhas Dödsbo v. Sweden (2006), where it proceeded on the ‘assumption’ that the refusal to allow the removal of a burial urn to a new resting place was an interference with the widow’s private life.
However, in this week’s judgment in Drašković v. Montenegro, the ECtHR has explicitly found, for the first time ever, that a request by a close family relative (such as a spouse) to exhume the remains of a deceased family member for transfer to a new resting place falls in principle to be examined under the right to private and family life.
This does not amount to a recognition of a general right to exhume one’s own relatives: the ECtHR has been quite cautious in making clear that ‘the nature and scope of this right, and the extent of the State’s obligations under the Convention in cases of this type, will depend on the particular circumstances and the facts adduced’. Among the circumstances that can justify the refusal by domestic authorities to allow exhumations and transfers of human remains are, for example, public-health interests or the general interest in ensuring the sanctity of graves (Elli Poluhas Dödsbo v. Sweden, 2006). In these circumstances, the key point for the ECtHR is whether domestic authorities duly took into account and balanced the opposing interest at stake, thereby focusing on the proportionality of the interference.
b) Right to oppose exhumation
A second, quite different type of case, includes those in which public authorities order the exhumation of a person’s human remains on public interest grounds without the consent of their living relatives, or even against their wishes.
It was not until 2018, in Solska and Rybicka v. Poland that the ECtHR ruled on a case of this kind. The dispute in Solska concerned the exhumation of the victims killed in the Polish Air Force plane crash in Smolensk in 2010. The Polish prosecuting authorities ordered the exhumations in 2016 as part of the ongoing investigation into the crash, which killed 96 people, including the President of Poland. The authorities wanted to conduct autopsies to establish the cause of the crash, including the possibility of an explosion on board. The applicants, wives of two of the victims, complained that their husbands’ bodies had been exhumed without their consent and that they had had no possibility of an independent review or appeal against the decision.
From this case it clearly follows that, if based on a legitimate goal of public interest, exhumations may be performed by the public authorities even against the will of the deceased’s relatives, on the condition that this interference with their rights under Article 8 ECHR is proportionate. Proportionality is lacking, in particular, if national law does not provide for a mechanism to properly balance the conflicting interests at stake, or to review such a balance. This is precisely what led the ECtHR to hold that a breach of Article 8 ECHR existed in Solska: when issuing the exhumation order, the Polish prosecutor was not required by national law to assess whether the aims of the investigation could have been attained through less restrictive means and to evaluate the possible implications of the impugned measures for the private and family life of the applicants. Furthermore, the prosecutor’s decision was not amenable to appeal before a criminal court or to any other form of adequate scrutiny before an independent authority.
Later on, in October 2019, in an unpublished decision the ECtHR rejected an application for a stay of the Spanish Government’s order of exhumation and transfer of the remains of former Spanish Dictator Francisco Franco. The decision to exhume was adopted by the Government against the will of the deceased’s grandchildren on the basis of Royal Decree-Law 10/2018, which recognised the right of the surviving relatives to take part in the administrative procedure to be conducted for the assessment of the interests at stake, as well as the possibility of indicating a new burial place. The measure purported to turn the giant mausoleum where the Dictator was buried in 1975 into ‘a place of commemoration, remembrance and homage to the victims of the Spanish Civil War’, many thousands of whom are also buried in the cemetery adjunct to the mausoleum. The decision to exhume was also taken in accordance with the reiterated calls of United Nations rapporteurs, who had described the fact that the mortal remains of a Dictator were buried in a public space (which had, by that very fact, become a place for the exhortation of undemocratic values) as an international anomaly .
Both the Spanish Supreme Court and the Spanish Constitutional court upheld the Government’s actions and, in October 2019, the exhumation was performed. Although the grandchildren had asked to have the mortal remains of the Dictator transferred to a family grave in the Cathedral of Madrid, right in the centre of the city, the Government considered that there were public order concerns opposing their wish and decided to bury the mortal remains of Francisco Franco next to his wife’s grave in a discrete cemetery on the outskirts of Madrid. Now, an application by Franco’s grandchildren has been filed with the ECtHR (in March 2020) and is currently pending.
Exhumation rights vis-à-vis third parties
The question of how Article 8 ECHR applies to disputes between individuals regarding the exhumation of a deceased relative’s remains has been tackled for the first time ever by the ECtHR in the case referred to above, Drašković v. Montenegro, decided last Tuesday 9 June. This case concerned the applicant’s wish to have her husband’s remains removed from Montenegro to Bosnia and Herzegovina, which another member of the family (a nephew of the deceased) refused to allow. The substance of the applicant’s complaint was directed at the lack of a substantive examination by the national courts of her claim in civil proceedings against a third party.
According to the ECtHR, in these kinds of scenarios, Article 8 ECHR imposes on national authorities the positive obligation to strike a fair balance between the competing interests of the individuals concerned (and, if relevant, between the individual interests and those of the community as a whole), for which States enjoy some margin of appreciation. This positive obligation translates into two specific duties, namely (i) the duty to have in place an appropriate legal framework to balance any competing interests, and (ii) the duty to identify and properly balance such interests in each specific case.
In the case at hand, the ECtHR found a breach of Article 8 ECHR on account of the authorities’ failure to balance the applicant’s wish for the exhumation and transfer against the State’s interest in preserving the sanctity of graves and the other family member’s rights. In particular, the ECtHR considered that Article 8 was violated because the national legal order lacked any legal mechanism to resolve disputes among relatives concerning the exhumation of deceased persons, and because domestic courts refused to recognise that the applicant had any legal interest in the disposal of his husband’s remains. This included the Constitutional Court of Montenegro, which in February 2017 dismissed a constitutional complaint lodged by the applicant, who had claimed that civil courts had left her subject to the will of her husband’s nephew.
As these cases clearly show, the ECtHR’s approach to exhumation rights is characterised by its flexibility. This is apparent, firstly, when considering that the ECtHR has avoided clarifying the abstract scope of protection provided for by the ECHR in exhumation cases; no right to dispose of the human remains of deceased relatives has been recognised, as such, by the Strasbourg-based court. Secondly, flexibility results from the wide margin of appreciation granted to national authorities. Moreover, it is of paramount importance that the exhumation case law of the ECtHR has moved predominantly along the lines of procedural justice, largely refraining from taking decisions on the substance (which is a general trend in the ECtHR’s case law, as explained here by Thomas Kleinlein). These features (flexibility and proceduralisation) will soon have a new opportunity to be revisited on the occasion of the pending case against Spain.
Dolores Utrilla is Assistant Editor at EU Law Live and Associate Professor at the University of Castilla-La Mancha. She is a co-author of the books ‘Social rights in Europe in an Age of Austerity’ (Civitarese & Halliday eds., Routledge 2017) and ‘Good Administration and the Council of Europe: Law, Principles and Effectiveness’ (Stelkens ed., OUP, on press).