The two applicants, represented in the European Court of Human Rights (ECtHR) proceedings by the Helsinki Foundation for Human Rights, allege that their right to privacy and family life, guaranteed under Article 8 of the European Convention on Human Rights (ECHR), has been violated by the exhumations ordered against their will, and due to them having been deprived of an effective remedy against the prosecutor’s decision in this case.

Crash and aftermath

On April 10, 2010, a Polish Air Force Tu-154 airplane crashed near the city of Smolensk, Russia, killing all 96 people on board. Among the victims were the Polish President Lech Kaczyński and his wife Maria, the former president of Poland in exile Ryszard Kaczorowski, the chief of the Polish General Staff and other senior Polish military officers, the president of the National Bank of Poland, Polish government officials, 18 members of the Polish Parliament, senior members of the Polish clergy and relatives of victims of the Katyn massacre. The group was arriving from Warsaw to attend an event marking the 70th anniversary of the massacre, which took place not far from Smolensk.

In October 2016, a prosecutor conducting the proceedings in the case of the Smolensk crash decided to appoint a team of experts who were to perform autopsies of the bodies of the crash victims. The purpose of the autopsies was to determine the cause of death, and in particular to establish whether the victims’ death had been caused by the plane’s impact with the ground or by an onboard detonation of high explosives. The prosecution planned to exhume the bodies of 83 victims; 9 bodies had been exhumed earlier, in four cases, the remains had been cremated.

Some families, including the applicants, opposed the decision, arguing that the exhumations would violate their right to respect for the memory of a late relative and the privacy. The applicants asked the Prosecutor General to cease the exhumations and later submitted a formal complaint against the prosecutor’s decision. The prosecution considered the complaint inadmissible but the applicants appealed to the Regional Court in Warsaw.

The proceedings in this case are still pending because in April 2017 the Court submitted a question of law to the Constitutional Tribunal, asking whether the Code of Criminal Procedure, “to the extent in which it fails to provide an opportunity to file a complaint against an exhumation order”, conforms to the Constitution and the ECHR.

In their application to the ECtHR, the applicants allege that Polish authorities had violated two provisions of the Convention: Article 8, which guarantees the right to privacy, and Article 13, which formulates the right to an effective remedy.

Applicants’ right to privacy

"Respect for the memory of a late relative is a part of a person’s family and private life. An exhumation performed against the will of a loved one constitutes an extreme interference in a right protected under Article 8 ECHR. This is because such an exhumation leads to the undermining of an individual’s decision on the burial of a family member and force this individual to re-live the trauma related to death and funeral", says Dr Piotr Kładoczny, HFHR secretary of the board, and the applicants’ counsel.

The applicants admit that, in certain situations, an exhumation may be performed even against the will of the family of a deceased person because of the necessity of ensuring the proper conduct of criminal proceedings. However, this should be admissible only if absolutely necessary and based on provisions that ensure appropriate protection against the arbitrary decisions of authorities. In this case, criminal justice bodies have failed to explain why an exhumation is necessary.

According to the applicants, the absence of absolute necessity of an exhumation is shown by the fact that it is impossible to examine the bodies of all 96 victims of the crash (four bodies have already been cremated). Furthermore, the applicants argue that in order to investigate the causes of the crash, it would be sufficient to examine the remains of these victims whose families do not oppose an exhumation. One of the applicants also argued that she had participated in the identification of her husband’s body and was certain that no mistake had been made in this respect.

No remedy

The applicants emphasised that since the Code of Criminal Procedure did not explicitly create an opportunity to submit an interlocutory appeal against such decisions, their appellate remedies had been considered inadmissible.

“They have no effective remedy in civil proceedings, either. Their motions for an interlocutory injunction that would prohibit a court from ordering exhumations have been denied based on their inability to show that an exhumation would be unlawful”, explains Dr Kładoczny.

The applicants have brought the case before the Constitutional Tribunal but these proceedings also did not provide them with an effective remedy: since autumn 2015, Constitutional Tribunal has been facing a serious crisis caused by the government’s actions, which prevents the Tribunal from discharging its functions in a fair and impartial way. Moreover, many types of a prosecutor’s decisions issued in preparatory proceedings are amenable to interlocutory appeal, for instance, search orders, confiscation orders or wiretapping orders. Given the above, there are no reasonable grounds for denying the right to appeal in such a delicate matter involving extensive interferences in the privacy.

Further proceedings

The Strasbourg court has communicated the case to the Polish government, setting a deadline for the government’s submission of explanations by November 22, 2017.

The communication may be accessed here.