CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 2 septembre 2004

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Ress , President ,   Mr   L. Caflisch ,   Mr   R. Türmen ,   Mr   B. Zupančič ,   Mrs   H.S. Greve ,   Mr   K. Traja ,   Mrs   E. Fura-Sandström, judges , and   Mr   M. Villiger , Deputy Section Registrar , Having regard to the above application lodged on 11 August 2000, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows:   THE FACTS The application was originally lodged by Elli Poluha, a Swedish national born in 1913. She died on 21 February 2003. Her five children and sole heirs decided to pursue the application. They were represented by Sigurd Stefan Poluha. The respondent Government were represented by their Agent, Mrs Eva Jagander of the Ministry for Foreign Affairs. A.     The circumstances of the case The applicant married in 1938 an Austrian national of Ukrainian origin, who had entered Sweden the same year. Five children were born out of the marriage. The family lived in Fagersta, where the applicant’s husband worked as a sales manager until his death on 11 May 1963. His ashes were buried in a family grave at a cemetery in Fagersta. The grave has room for at least eight other urns. In 1980 the applicant moved to Västerås to be closer to her children. The distance between Fagersta and Västerås is 70 kilometres. On 15 August 1996 the applicant requested the cemetery authorities ( Västanfors-Västervåla Kyrkogårdsförvaltning ) that her husband’s urn be moved to her family burial plot in Stockholm, which had been established in 1945. The applicant’s parents were buried there and the applicant intended to be buried there after her death. Stockholm is situated 180   kilometres from Fagersta. The applicant submitted in addition that she had no connections to Fagersta any more, that all her children agreed to the removal and that she was sure that her husband would not have objected to such a removal. By decision of 16   September 1996 her request was refused by the authorities having consideration to the respect for a peaceful resting guaranteed by the Funeral Act (1990:1144, Begravningslagen ). On appeal, the County Administrative Board in Västmanland ( Länsstyrelsen Västmanlands Län) upheld the decision on 24   March 1997. The applicant appealed to the County Administrative Court in Västmanland (Länsrätten i Västmanlands Län), before which she requested an oral hearing. By letter of 3   June   1997 the court replied that she should submit reasons for her request for an oral hearing within two weeks. According to a memorandum of 10 July 1997 the applicant then revoked her request that a hearing be held. By decision of 5   September   1997 the court found against the applicant stating as follows: “Pursuant to chapter 1, section 6, of the Funeral Act, remains or ashes which have been buried at a cemetery may not be removed from a burial plot in order to be buried at another burial plot. However, dispensation may be granted if there are special reasons therefor and the place whereto the remains or ashes shall be removed has been determined. According to the preparatory notes to the Act (Prop. 1990/91:10 p. 35-37) the decision as to a request for removal of remains or ashes shall be restrictive having regard to the respect for the deceased’s right to a peaceful rest. A determination [of such a request] should still be guided by the wish expressed by the deceased when alive. As a main rule it must be assumed that such a wish, if expressed, has been considered when the internment took place. First and foremost, a condition for allowing a removal is obviously that such does not contravene with the deceased’s expressed wish when alive. Moreover, usually it can be required that the deceased had some kind of connection to the place whereto the removal is intended. In the present case the [applicant’s husband] worked as a salesmanager at the Fagersta factory until 1958. He died on 11   May 1963, and the urn with his ashes was intered in grave no. 208/017, quarter no. 208 in Västerfors. [The applicant’s husband] came from Ukraine and had a Catholic Church tradition. It appears that he did not express any wishes as to his interment when he was alive. The County Administrative Court makes the following assessment: Making an overall assessment, the County Administrative Court finds that [the applicant’s husband] did not have a natural closer connection to Stockholm than he had to Fagersta. No other reasons have been submitted which can justify a disturbance of the peace of the grave after thirty-four years.”    The applicant’s request for leave to appeal was refused by the Administrative Court of Appeal in Stockholm (Kammarrätten i Stockholm) on 29   October 1997 and by the Supreme Administrative Court (Regeringsrätten) on 22   February 2000. The applicant died on 21 February 2003. In accordance with her wishes, she was buried at her family burial plot in Stockholm. B.     Relevant domestic law and practice Domestic provisions of relevance in the present case are found in the 1990 Funeral Act ( begravningslagen , hereinafter referred to as “the Act“) which entered into force on 1 April 1991. Previous legislation was found in the 1957 Funeral Service Act (lagen om jordfästning m.m.). It is mainly the parishes of the Church of Sweden which are responsible for burial grounds (chapter 2, section 1 of the Act) and for decisions concerning inter alia graves and interment. It is also in the first instance for the church authorities to determine requests to move the remains or ashes of a deceased person (chapters 5, 6 and 7 of the Act). A decision may be appealed to the county administrative board (chapter 11, section 6 of the Act). Further appeals lie to the competent administrative court of appeal, and subject to the grant of leave to appeal, to the Supreme Administrative Court (chapter 11, section 7 of the Act). When a person dies, his or her wishes concerning cremation and interment should, as far as possible be followed (chapter 5, section 1 of the Act). This was also the rule under the Funeral Act of 1957, the legislation applicable at the time of the death of the applicant’s husband. In case of a dispute among survivors about where the interment should take place, it is for the county administrative board to decide (chapter 5, section 4 of the Act). Once remains or ashes have been buried, moving them from one place to another is in principle not allowed. However, permission to move remains or ashes may be granted if there are special reasons for such a removal and if the place to which they will be moved has clearly been stated (chapter 6, section 1 of the Act) However, the grave must not be opened in such a way that the remains or ashes are damaged (chapter 2, section 13 of the Act). The provisions in chapter 6, section 1 of the Act are founded on the respect for the sanctity of the grave. This is also the reason why the provisions regarding removal of remains and ashes are restrictive; a deceased person’s grave shall be left in peace and may only be disturbed under special circumstances. According to the preparatory notes to the Act (Government Bill 1990/91:10, p. 35) removal of remains or ashes may be permitted if a mistake took place at the time of the interment, if husband and wife or parents and a young child will be brought together or, in some cases, when a refugee or immigrant should be allowed to bring the remains or ashes of a deceased relative back to the country of origin. The deceased’s own wishes should serve as guidance for a decision on whether or not removal should be permitted. When such wishes are not known, regard should be paid to the deceased’s attachment to the place where he or she is buried. As a rule, removal should not be permitted if the deceased is buried at a place where he or she was active for a large part of his or her life. If, on the other hand, the burial place is situated in a place where the deceased lived only temporarily, removal may be permitted. In addition, the deceased should have had some kind of connection with the place to which the remains or ashes are to be removed. According to the preparatory notes (ibid, pp. 36-37), such connection may be, for example, that the deceased person had grown up in that place, that he or she had relatives or a family grave there or perhaps had a house there for vacation purposes. As regards husband and wife, it may be permitted to move one deceased’s remains or ashes in order to bring husband and wife together in one common grave especially if the one who died last cannot, for some reason, be buried at the same place as the first deceased. Particular regard may be had to the last deceased’s wishes concerning a common burial place.   In 1994 the Supreme Administrative Court ruled on several cases concerning the interpretation of chapter 6, section 1 of the Act (RÅ 1994 ref   93 I-IV). From these judgments it may be concluded that the interpretation is very strict. For instance, the fact that the surviving relatives have moved, that there is a long distance between the burial place and their new home or that public transport to a burial place may be lacking is not considered to be sufficient grounds for removal. In three of the cases the Supreme Administrative Court, referring to the preparatory notes of the Act and the reasons stated in the requests, found that those reasons were not sufficient to permit removal of the deceased’s remains or ashes. These cases concerned respectively a fiancée who wanted to move her fiancé’s grave, a husband who wanted to move his wife’s grave, and a daughter who wanted to move her father’s grave. In one case, which concerned a mother’s request to move her child’s grave to her husband’s burial place, the Supreme Administrative Court found that there were sufficient reasons to permit the removal of the child’s remains. In the case above, concerning a daughter’s request to move her father’s grave, the former intended to bury the latter in the same cemetery as her recently deceased mother had wished to be buried in. The Supreme Administrative Court held that the complainant’s father had lived and worked in Malmö and was buried there in his grandfather’s family grave. Considering the father’s connection to Malmö, the Supreme Administrative Court found no reason to presume that his interment there had been a mistake and it found that there were no other sufficient reasons to   permit   - after 30 years   - the removal of the remains.   COMPLAINTS 1. The applicant complained under Article 8 of the Convention, that the authorities and the County Administrative Court refused to let her remove her husband’s urn to the family burial plot in Stockholm. 2.     Moreover she complained that she was refused an oral hearing before the County Administrative Court and that the name and title of the judge did not appear from its decision. Also, she complained that the Administrative Court of Appeal and the Supreme Court did not give reasons for their refusal to grant her leave to appeal. Finally she invoked Articles 9, 10, 13 and 14 of the Convention without further specifying the reasons therefor.   THE LAW 1. The applicant complained that the refusal to let her remove her husband’s urn to the family plot in Stockholm was in breach of Article 8 of the Convention which read as follows:   “1.     Everyone has the right to respect for his private and family life, his home and his correspondence. 2.     There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” The Government did not dispute that the refusal to grant permission to remove the urn from one burial place to another involved an interference with the applicant’s private life. They maintained, however, that the interference was taken in accordance with the law, that it served legitimate aims and that it was justified under Article 8 § 2 of the Convention. As to legitimate aims, the Government observed that the principle of sanctity of the grave has a longstanding tradition and is founded on reverence for the deceased, common to all mankind and existing in most cultures. Thus, the strict approach taken by the law and by the public authorities in their application of the law served to prevent disorder and to protect morals in the society at large. In addition, the Government submitted, the restrictive attitude towards a removal is also important in order to prevent a situation where remains and ashes become an instrument in conflicts among relatives. Moreover, cemeteries and burial places should not be regarded as temporary repositories for the deceased’s remains or ashes. In other words, it may be said that what is at stake is the right of the still living to be assured that, after death, their remains will be treated with respect. Thus, in the present case the interference also served to protect the right of others. With regard to their view that the interference was necessary in a democratic society the Government submitted that the States should be afforded a wide margin of appreciation in a situation like the present, where the authorities and the courts had to balance the individual’s interest in having a burial place moved against society’s role to ensure that the grave is not disturbed. In addition, in the present case there were no indications that the applicant’s husband had not been buried in accordance with his wishes; he had in fact been buried in the region where he had lived and worked for twenty-five years; he had settled in Fagersta with his wife at the start of their marriage; he raised five children there, and his grave was a family grave, which by its size seems to have been meant for him and his entire family i.e. his wife and their five children. It should also be noted that after her husband’s death in 1963, the applicant continued to live in Fagersta until 1980. Moreover, in the present case there was no obstacle for the applicant to have her final resting place in the same burial ground as that of her husband. The applicant disagreed with the Government and maintained furthermore that it has not been taken into consideration that allegedly the contract on the graveyard in Fagersta is only temporary whereas the contract on the family burial plot in Stockholm is irrevocable. In addition, the applicant’s children have a connection with Stockholm but not with Fagersta any longer. The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. 2. With regard to the applicant’s complaints that she was refused an oral hearing before the County Administrative Court and that the name and title of the judge did not appear from its decision, the Court recalls that under the notion of Article 35   § 1 of the Convention, it may only deal with a matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law. This condition is not met by the mere fact that an applicant has submitted his or her case to the various competent courts. It is also necessary for the complaint brought before the Court to have been raised by the applicant, at least in substance, during the proceedings in question. On this point the Court refers to its established case-law. In the present case, on 10 July 1997 the applicant withdrew her request for an oral hearing. Thus, she failed to raise either in form or in substance the above complaints that are made to the Court. It follows that this part of the application is inadmissible for non ‑ exhaustion of domestic remedies within the meaning of Article   35   §   1   of the Convention and must be rejected pursuant to Article   35   §   4. As to the complaint that the Administrative Court of Appeal and the Supreme Administrative Court did not give reasons for their refusal to grant the applicant leave to appeal, and leaving aside whether the applicant has exhausted domestic remedies, the Court has found no substantiation of the applicant’s allegation, or that the proceedings were unfair, or that the courts reached their decisions unfairly. It follows that these complaints are manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4. 3. As to Articles 9, 10, 13 and 14 of the Convention the Court has examined this part of the application as submitted by the applicant. Leaving aside whether the applicant has exhausted domestic remedies, in the light of all the material in its possession, the Court finds that this does not disclose any appearance of a violation of the rights and freedoms set out in the invoked Articles of the Convention. It follows that these complaints are manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4. For these reasons, the Court unanimously Declares admissible, without prejudging the merits, the applicant’s complaint under Article 8 of the Convention that she was refused to remove her husband’s urn from the cemetery in Fagersta to the burial plot in Stockholm; Declares the remainder of the application inadmissible.   Mark V illiger   Georg Ress Deputy Section Registrar   President