Strasbourg Court to decide on exhumations of Smolensk crash victims

According to a statement by the European Court of Human Rights, on 20th September the Court will pass a judgment in the landmark case initiated by applications brought by families of victims of the Smolensk crash who opposed the exhumation of their loved ones’ remains. The ECtHR itself considers this matter to be one of the six most important cases originating from Poland.

Małgorzata Rybicka and Ewa Solska, the two applicants represented by the Helsinki Foundation for Human Rights in the ECtHR proceedings, allege that their right to privacy and family life, guaranteed under the European Convention on Human Rights, has been violated in the consequence of the exhumations ordered against their will and due to them having been deprived of an effective remedy against the relevant prosecutor’s decisions. The case is conducted as part of the HFHR’s Strategic Litigation Programme.

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 victims of the crash. 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 an explosive device. The prosecution planned to exhume the bodies of 83 victims; nine 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 (interlocutory appeal) against the prosecutor’s decision. The prosecution considered the interlocutory appeal inadmissible but the applicants applied for the judicial review of this decision to the Regional Court in Warsaw. The proceedings in this case are still pending because in April 2017 the Regional 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 an interlocutory appeal against an exhumation order”, conforms to the Constitution and the ECHR.

In their application to the ECtHR, lodged in April 2017, 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 establishes the right to an effective remedy. The applicants argue that an exhumation performed against the will of a loved one constitutes an extreme interference in a right protected under Article 8 ECHR. An exhumation should be admissible only if absolutely necessary and based on provisions that ensure appropriate protection against the arbitrary decisions of authorities. In the present case, however, the prosecution service failed to properly explain why the exhumation of the remains of applicants’ relatives was necessary and, moreover, the decision made in that case could not have been challenged in an appellate procedure.

The case was communicated to Poland in September 2017 . At that time, the ECtHR asked Polish Government whether there had been any interference with the right to protection of the applicants’ private and family life and, if so, whether such interference was necessary and whether the applicants had an effective remedy. The Government was also requested to provide information about the order in which exhumations were carried out.

In May 2018, one year after the application was filed with the ECHR, but before its consideration, the remains of Arkadiusz Rybicki and Leszek Solski were exhumed. This action was accompanied by many protests.