CEDH · CASELAW;CLIN;ENG — 14 février 2008

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Switzerland - 55525/00 Judgment 14.2.2008 [Section V] Article 8 Article 8-1 Respect for family life Respect for private life Still-born child’s burial, without her mother’s consent or attendance, in a common grave to which she was taken in a delivery van: violation   Facts: The applicant, who is of Algerian origin, gave birth to a stillborn baby whose father was a Swiss national. In a state of shock, she was taken to hospital from the hostel for asylum-seekers in which she had been placed. She and her partner said that they did not wish to see the baby’s body. On the same day the social worker and the registrar were informed of the birth and, taking the view that a burial ceremony was not mandatory in the case of a stillborn child, they ordered the burial to take place without a ceremony, and without the applicant being present. After being placed in a wooden coffin by a firm of undertakers, the child’s body, on the orders of the social worker, was transported in a delivery van to the cemetery, where it was buried in a communal grave for stillborn babies. The applicant left hospital the same day. Two days later, she was taken to the cemetery by a psychiatric worker in order to lay flowers. The applicant contested the Government’s assertion that she had been informed in the meantime of the possibility of organising a burial ceremony for her child at a later date. Hence, she returned to the cemetery with a priest and laid some stones and flowers there. The applicant lodged a criminal complaint with the district office against person or persons unknown and applied to be joined to the proceedings as a civil party seeking damages. Criminal proceedings were instituted against the social worker and the registrar for misuse of official authority and disturbing the peace of the dead and, in the alternative, for unlawful removal of movable property. The applicant argued that the corpse of her child had been taken from her unlawfully and that it had been transported in an unsuitable vehicle and without the authorisation required for that kind of transport. She complained of a violation of her personal liberty as guaranteed by the Federal Constitution which, in her view, protected the feelings of the individual vis-à-vis a deceased member of his or her family. The public prosecutor’s office issued two orders discontinuing the proceedings against the two accused. The applicant lodged two appeals with the Higher Court, both of which were declared inadmissible. With regard to the complaint relating to disturbing the peace of the dead, the court found that the constituent elements of the offence had not been made out. It nevertheless took the view that in ordering the child’s burial without a ceremony, the two persons charged had acted in breach of the relevant legislation, which provided for burial to take place only when two days had elapsed since the stillbirth, and for a ceremony to be held. Accordingly, there had a priori been a breach of the applicant’s right to a ceremony. Moreover, the applicant’s psychological and physical state would not have prevented her from attending the burial, as she had left hospital on precisely that day. However, the Higher Court pointed out that a ceremony could be held after the burial, but that the applicant had made no such request. As to the complaint concerning the transport of the baby’s body, the Higher Court acknowledged that the registrar had been in breach of the road traffic regulations, as no authorisation had been obtained. Nevertheless, it considered that the fault committed by the official responsible, who had little experience in such matters, had to be placed in perspective, as did the actual effects of his conduct. Accordingly, the public prosecutor’s office, basing its decision on the desirability or otherwise of bringing proceedings, had been legally entitled to decide against prosecuting the persons concerned. The applicant lodged two public-law appeals and two appeals on grounds of nullity with the Federal Court. In two judgments, the latter dismissed the four appeals. It declared inadmissible the ground of appeal based on the right to a decent burial. Leaving open the question whether the objective elements of the offence of disturbing the peace of the dead had been made out, the Federal Court further held that in any event no intent had been established on the part of the persons charged. Lastly, with reference to the breach of personal liberty of which the applicant complained on account of the fact that she had been prevented from going through the mourning process, and the alleged breach of the right to a decent burial, the Federal Court considered that the allegations were, or at least could be, founded, but that they were not relevant in the context of the proceedings concerned, where the only issue to be decided was the guilt or otherwise of the persons who had committed the acts in question. In parallel with these proceedings the applicant filed a claim for compensation for the non-pecuniary damage she had sustained as a result of the infringement of her personality rights. The claim was rejected by the social services and subsequently by the administrative court and the Federal Court; the latter considered that the offence in question, namely misuse of official authority, did not by its nature come within the scope of the law in question. Law : In the light of its case-law the Court considered that Article 8 fell to be applied to the question whether the applicant had been entitled to attend her child’s burial, possibly with a ceremony, and to have the body transported in a suitable vehicle. The Court in no sense wished to cast doubt on the good faith of the official responsible for the particularly delicate task of arranging the transport and burial of the child’s body, bearing in mind, among other considerations, that the applicant had been in a state of shock and that it had been necessary to act quite quickly. That being said, the fact that a civil servant was acquitted of criminal charges did not necessarily release the State concerned from its obligations under the Convention. The State’s responsibility in this regard arose out of the provisions of the Convention, which had to be interpreted and applied in accordance with the aims of the latter and in the light of the relevant principles of international law. Hence, the absence of intent or bad faith on the part of the municipal officials responsible did not in any sense absolve Switzerland from its own international responsibilities under the Convention. It was up to Contracting States to organise their services and train employees in such a way as to ensure that the Convention requirements were satisfied. In a sphere as private and sensitive as the death of a close relative, a particularly high degree of diligence and care was called for. Accordingly, there had been interference with the applicant’s enjoyment of her rights under Article 8 of the Convention with regard to both the burial of her child’s body and the transport of the remains. The Court therefore had first to examine whether the actions of the municipal officials had had sufficient legal basis. With regard to the parents’ right to attend the burial and to have a ceremony, the Court saw a contradiction between the legislation, which was clear, and the practice followed in the applicant’s case. The registrar had conducted the burial without consulting the relatives, in breach of the regulations governing the cemetery and funerals. In addition, the burial had not been organised by the relatives. With regard to the complaint concerning the transport of the child’s remains, the Higher Court had acknowledged that the body had been transported in breach of the road traffic regulations, as no authorisation had been obtained. The Federal Court had not disputed that finding in any way. In view of the above considerations, there had been no legal basis for the interference with the applicant’s Article 8 rights. Conclusion : violation (unanimously). Article 41 – EUR 3,000 for non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes