Information Note on the Court’s case-law 241

June 2020

Drašković v. Montenegro - 40597/17

Judgment 9.6.2020 [Section II]

Article 8

Positive obligations

Article 8-1

Respect for family life

Respect for private life

Courts’ refusal to examine the merits of request to exhume remains of spouse for transfer to new resting place: violation

Facts – The applicant’s husband died in 1995. Owing to the ongoing armed conflict at the time, it was not possible for him to be buried in Bosnia and Herzegovina, where they had lived and had a family burial plot. He was buried in Montenegro in a plot owned by his nephew, together with the remains of some other family members. The rema ins of all the occupants of the plot became mixed up. In 2014 the applicant sought the nephew’s consent for the exhumation and transfer of her husband’s remains, to no avail. The domestic courts did not examine the applicant’s complaint on the merits, hold ing that she did not have any “property-related, status-related and any other interests in her claim”.

Law – Article 8: In the case of Elli Poluhas Dödsbo v. Sweden the Court had not taken an explicit position on whether a request by a close family relati ve, like the applicant in the present case, to exhume the remains of a deceased family member for transfer to a new resting place fell under Article 8. In the instant case, the Court found that such a request fell, in principle, to be examined under both a spects of this provision (“private and family life”). However, the Court made clear that the nature and scope of this right, and the extent of the State’s obligations under the Convention in cases of that type, would depend on the particular circumstances and the facts adduced.

The applicant’s interest in the exhumation and transfer of her husband’s remains had to be weighed not only against society’s role in ensuring the sanctity of graves, but also against the rights of her husband’s nephew. The States ha d to be afforded a wide margin of appreciation in such an important and sensitive issue.

Unlike in the case of Elli Poluhas Dödsbo , the substance of the applicant ’s complaint was directed at the lack of a substantive examination by the national courts of her claim in civil proceedings against a third party. Therefore, the present case concerned an issue of the State’s positive obligations in the sphere of relations between individuals and required primarily an examination by the Court of whether the respondent State had put in place an appropriate legal framework to balance any competing interests, and whether it had identified and properly balanced such interests i n the present case.

As regards the appropriate legal framework, the domestic legislation did not provide a mechanism by which to review the proportionality of the restrictions on the relevant Article 8 rights. Notably, the relevant legislation did not set forth any substantive standards for resolving disputes among family members regarding exhumation, or the final resting place, of the remains of a late relative. In addition, the body in charge of resolving such disputes was not defined. In particular, the domestic courts had taken the standpoint that the applicant needed to lodge a request with the administrative body, which in turn could not follow any such request in the absence of the third party’s (i.e. the late husband’s nephew’s) consent. The administ rative bodies did not in general deal with such issues. In the event of a dispute, they instructed the parties first to resolve the matter and only then to lodge a request for exhumation. Such proceedings, in the Court’s view, clearly lacked the ability to balance the competing interests. Possibly, such interests could be properly balanced in civil contentious proceedings that the applicant had actually initiated.

The domestic courts, however, had failed to recognize any legal interest on behalf of the appl icant and thus the existence of her rights under Article 8. Apart from considering whether the exhumation and removal, in practical terms, were possible and/or easy and whether there were any public-health interests involved, a number of other issues had r equired clarification. In particular, it had not been clarified whether the applicant’s husband had lived in Bosnia and Herzegovina and whether the burial plot there was the applicant’s alone or if they had acquired it jointly with the aim of them both bei ng buried there one day. It also appeared that there had been a dispute as to whether the applicant’s husband had been buried in Montenegro pursuant to his own wish or not. It had not been clarified either whether there had been anything preventing the app licant from having her final resting place in the same burial spot as her husband in the event that the exhumation was not undertaken. The domestic courts had therefore failed to properly balance the applicant’s rights against the competing interests of he r husband’s nephew.

Conclusion : violation (unanimously).

Article 41: EUR 4,500 in respect of non-pecuniary damage

(See Pannullo and Forte v. France , about the delay in releasing the body of the applicant's child for a funeral; Znamenskaya v. Russia , about a mother wishing to change the family name on the tombstone of her stillborn child; Elli Poluhas Dödsbo v. Sweden , concerning the refusal to allow the removal of a burial urn to a new resting place; and Hadri-Vionnet v. Switzerla nd about the burial of a still-born baby in a common grave without consulting or informing the mother)

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