Communicated on 22 September 2017

FIRST SECTION

Applications nos 30491/17 and 31083/17 Ewa Maria SOLSKA against Poland and Małgorzata Ewa RYBICKA against Poland both lodged on 19 April 2017

STATEMENT OF FACTS

1. The applicant in the first case, Ms Ewa Maria Solska (“the first applicant”), is a Polish national who was born in 1937 and lives in Sopot.

The applicant in the second case, Ms MaÅ‚gorzata Ewa Rybicka (“the second applicant”), is a Polish national who was born in 1955 and lives in GdaÅ„sk. Both applicants are represented before the Court by Mr P. KÅ‚adoczny, a lawyer with the Helsinki Foundation of Human Rights, a non ‑ governmental organisation based in Warsaw.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicants, may be summarised as follows.

1. Investigation into the crash

3. On 10 April 2010 an aircraft of the Polish Air Force was carrying the Polish State delegation from Warsaw to Smolensk, Russia to attend a ceremony marking the 70 th anniversary of the KatyÅ„ massacre. The delegation was led by the President of Poland and included many dignitaries and high-ranking officials. The aircraft crashed during the approach to Smolensk Airdrome, killing all ninety-six people on board (eighty ‑ eight passengers and eight crew members).

4. The applicants are the widows of two victims of the crash (an activist of the Katyń Families Association and an MP).

5. On 29 July 2011 the Polish Committee for the Investigation of State Aviation Accidents ( Komisja Badania Wypadków Lotniczych Lotnictwa PaÅ„stwowego ) published its report on the causes of the crash. It concluded that “the immediate cause of the accident was the descent below the minimum descent altitude at an excessive rate of descent in weather conditions which prevented visual contact with the ground, as well as a delayed execution of the go-around procedure. Those circumstances led to an impact on a terrain obstacle resulting in a separation of a part of the left wing with the aileron and consequently to the loss of aircraft control and eventual ground impact”. The Committee excluded the possibility that an explosion had taken place on board. An earlier report by the Russian Inter ‑ State Aviation Committee contained similar findings. The Parliamentary Group on the Examination of the Smolensk Crash reached different conclusions and suggested an explosion on board as one of the possible causes of the accident.

6. The Warsaw Regional Military Prosecutor’s Office opened an investigation into the crash on 10 April 2010.

7. On 4 April 2016 the investigation was assigned to Investigative Team no. 1 of the State Prosecutor’s Office ( Prokuratura Krajowa ).

8. On 7 October 2016 a prosecutor of the State Prosecutor’s Office, pursuant to Article 209 §§ 1 and 4 and Article 210 of the Code of Criminal Procedure (“the CCP”), decided to appoint a team of international forensic experts with a view to carrying out autopsies on the bodies of eighty-three victims of the crash (the bodies of nine victims had already been exhumed and four victims had been cremated). He further ordered that the bodies of eighty-three victims be exhumed (on future dates to be determined in separate decisions).

The prosecutor asked the experts to, inter alia , (i) determine the cause of death of the victims and the circumstances in which they had sustained their injuries; (ii) determine whether the victims’ injuries were related to the aircraft’s impact with the ground or to an explosion on board; and (iii) identify the victims.

9. In his decision, the prosecutor noted that directly after the crash, autopsies on the victims’ bodies and identifications had been carried out by the Russian authorities. The victims’ remains were subsequently repatriated to Poland and laid to rest. In the course of its investigation, the Warsaw Regional Military Prosecutor’s Office developed doubts about the diligence of the Russian experts in identifying the victims and the injuries sustained by them. From August 2011 the Military Prosecutor’s Office carried out exhumations and autopsies on nine victims of the crash. The results of those examinations confirmed that the Russian experts had not properly recorded the injuries sustained by the victims and, in some cases, had wrongly identified the victims. The prosecutor stated that, in the circumstances, doubts also remained in respect of the other victims of the crash. He further intended to resolve doubts concerning the alleged explosion on board.

10. On 12 October 2016 the second applicant wrote a letter to the Minister of Justice – Prosecutor General, objecting to the exhumation of her husband’s body. On 14 October 2016 the first applicant wrote a similar letter to the State Prosecutor’s Office. She was convinced that her late husband had been properly identified. She had been present at the Moscow Forensic Institute where the identification of the victims had been carried out and had seen the body of her husband herself. The State Prosecutor’s Office replied in the negative to both letters.

11. The prosecutor’s decision of 7 October 2016 was served on the applicants’ lawyer on 20 October 2016.

12. On 27 October 2016 the applicants personally and through their lawyers filed interlocutory appeals ( zażalenie ) against the prosecutor’s decision of 7 October 2016. They objected to the exhumation of their husbands’ remains and asked that that part of the decision be reversed.

13. The applicants argued that the prosecutor had applied Article 209 § 1 and Article 210 of the CCP without any consideration for the relevant provisions of the Constitution. Furthermore, the prosecutor’s decision had breached Article 2 § 1 (3) of the CCP, which provided that criminal proceedings had to respect a victim’s right to dignity.

The applicants further alleged that the reasons for the decision had been vague and sparse. The prosecutor had failed to properly establish that exhumations of their husbands’ remains were necessary, while the procedure itself had to be considered a last resort. The first applicant underlined the fact that she had had no doubts about the identification of her husband’s body since she had been present at all stages of that process.

14. In the applicants’ view, the decision on exhumation violated the respect due to the remains of their late husbands as well as their personal right to respect for the memory of a late relative ( kult osoby zmarłej ). Furthermore, in ordering generally exhumations of all the victims, without taking into account their individual circumstances, the prosecutor had demonstrated a lack of respect for the victims and had violated the families’ right to dignity.

15. The applicants invoked Articles 2, 30, 45 and 47 of the Constitution, alleging, inter alia , that the prosecutor had applied the provisions of the CCP in breach of a person’s inherent right to dignity. They further relied on Articles 3 and 8 of the Convention. The applicants also claimed that the prosecutor had failed to inform them of their right to lodge an appeal against his decision.

16. Lastly, they relied on a letter dated 25 October 2016 from the Ombudsman to the Prosecutor General presenting arguments in favour of a judicial review of the prosecutor’s decision on exhumation.

The Ombudsman held that exhumation of human remains carried out upon a prosecutor’s decision constituted an interference with the right to respect for the memory of a late relative, one of the personal rights protected by the Civil Code. Those personal rights constituted part of an individual’s private life. Under Article 47 of the Constitution, everyone has the right to legal protection of his or her private life. In the light of this provision, everyone who considered that his or her private life had been violated by an act of the authorities had to have the opportunity to seek legal protection. Relatives, therefore, had to be provided with legal remedies with a view to determining whether the prosecutor’s decision on exhumation was not disproportionate.

17. On 23 and 24 November and 6 December 2016 respectively the prosecutor refused to entertain the applicants’ interlocutory appeals, finding them inadmissible in law. He stated that the CCP did not list a prosecutor’s decision on admitting evidence from experts as a type of decision amenable to appeal. In addition, he stated that the applicants had wrongly interpreted his decision of 7 October 2016 in considering that it constituted a basis for exhumation of their husbands’ remains. He stated that the exhumation of their late husbands’ remains would be decided in a separate decision, specifying the time and place of exhumation. Nonetheless, he stated that a decision on exhumation under Article 210 of the CCP was not amenable to appeal. His decisions refusing to proceed with the interlocutory appeals did not contain any reference to constitutional arguments raised by the applicants.

18. On 6, 7 and 21 December 2016 respectively the applicants filed interlocutory appeals against the prosecutor’s decision with the Warsaw Regional Court. They alleged that the prosecutor’s decisions refusing to entertain their interlocutory appeals had violated the provisions of the Constitution (Articles 45, 47 and 77 § 2), the Convention (Articles 3, 8 and 13) and the CCP. In their view, a correct interpretation of the relevant provisions of the CCP, in the light of the Constitution and the protection of fundamental rights, should have resulted in the availability of an interlocutory appeal against the prosecutor’s decision of 7 October 2016 concerning exhumation. The applicants argued that they had been wrongly deprived of the opportunity to lodge such an appeal.

19. The applicants invoked their right to dignity, the obligation to respect human remains and their right to respect for the memory of a late relative. They considered that the decision of 7 October 2016 concerned not only the appointment of a team of forensic experts but also the exhumation of their husbands’ remains. In their view, that decision predetermined a decision to exhume the remains of their husbands; at a later date the prosecutor would only fix the exact date of the exhumation. The decision on exhumation constituted interference with the applicants’ legal interests and therefore it was constitutionally required that they be provided with a legal remedy aimed at verifying the prosecutor’s decision. The applicants also stated that the prosecutor had failed to respond to their arguments based on the Constitution and the Convention.

20. The applicants also adopted as theirs the arguments raised by the Ombudsman in his letter of 25 October, and further letters of 2 and 18 November 2016 to the Deputy Prosecutor General.

21. On 3 April 2017 the Warsaw Regional Court decided to submit a legal question to the Constitutional Court on the constitutionality of Article 210 of the CCP in so far as it did not provide for the opportunity to lodge an interlocutory appeal against a prosecutor’s decision to exhume a body. The court alleged that the impugned provision was incompatible with Article 45 (the right to a court), Article 47 (the right to private and family life) and Article 78 (the right to appeal) of the Constitution and Articles 8 and 13 of the Convention. The court considered that the prosecutor’s decision of 7 October 2016 had predetermined the issue of exhumation.

22. It appears that the proceedings before the Constitutional Court are pending. They have no suspensive effect on the execution of the prosecutor’s decision concerning the exhumations. The applicants further maintain that the proceedings before the Constitutional Court cannot be considered an effective means of protecting fundamental rights. In this connection, they submit, inter alia , that since the autumn of 2015, the Constitutional Court has been facing a serious crisis triggered by the actions of the current Government.

23. On 24 May 2017 the applicants again requested the State Prosecutor’s Office to revoke its decision on exhumation with regard to their late husbands. The prosecutor replied in the negative on 7 June 2017.

2. Civil proceedings

24. The applicants further sought an injunction in the civil courts to prevent the prosecutor from carrying out the exhumations of their husbands’ remains. They argued that the exhumations would interfere with their personal right to respect for the memory of a late relative.

25. On 10 November 2016 the Warsaw Regional Court refused their application for an injunction. On 5 December 2016 the Warsaw Court of Appeal dismissed their related interlocutory appeal. The courts found that the applicants had not demonstrated that the intended interference with their personal rights would be unlawful. They held that the prosecutor was competent under Articles 209 § 1 and 210 of the CCP to order exhumations of bodies where the deaths were being treated as suspicious.

B. Relevant domestic law

1. Constitutional provisions

26. Article 45 § 1 of the Constitution reads:

“Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court.

27. Article 47 provides:

“Everyone shall have the right to legal protection of his private and family life, of his honour and good reputation and to make decisions about his personal life.”

28. Article 77 § 2 reads:

“Statutes shall not bar the recourse by any person to the courts in pursuit of claims alleging infringement of freedoms or rights.”

2. Provisions of the Code of Criminal Procedure

29. Article 209 § 1 of the Code of Criminal Procedure provides:

“1. If it is suspected that death has been caused by criminal means, an examination of the corpse and an autopsy shall be ordered.

30. Article 210 reads:

“In order to conduct an examination of the corpse or an autopsy, the prosecutor or the court may order exhumation of a corpse”.

COMPLAINTS

31. The applicants allege a violation of Article 8 of the Convention. In their view, their right to respect for the memory of a late relative ( kult osoby zmarłej ) falls within the notion of private and family life protected by Article 8. Furthermore, the prosecutor’s decision of 7 October 2016 predetermined the issue of exhumation. They submit that exhumation of their husbands’ remains without their consent would constitute an arbitrary interference with the rights under Article 8. The applicants further maintain that the prosecutor failed to establish that the exhumation of their late husbands’ remains was necessary. In this connection, they noted that in order to verify the prosecutor’s hypothesis about the cause of the crash it was not necessary to exhume the bodies of all the victims. The applicants lastly complain that the prosecutor’s decision referred generally to all victims of the crash and did not contain individualised arguments justifying the exhumations of individual victims. The authorities should have consulted the victims’ families and proceed first with the exhumations of the victims whose families did not object.

32. The applicants further allege a violation of Article 13 read in conjunction with Article 8 of the Convention, complaining that the domestic law did not provide them with an effective remedy to have the prosecutor’s decision on exhumation reviewed either in criminal or civil proceedings.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicants’ right to respect for their private and family life, within the meaning of Article 8 § 1 of the Convention on account of the prosecutor’s decision of 7 October 2016?

2. If so, was that interference necessary in terms of Article 8 § 2?

3. Did the applicants have at their disposal an effective domestic remedy for their complaint under Article 8, as required by Article 13 of the Convention?

4. The Government are requested to provide information about the order in which exhumations are carried out.