CONCURRING OPINION OF JUDGE EICKE

Introduction

1. The plane crash at Smolensk Severny Airdrome on 10 April 2010, in which all 96 persons on board, including the President of Poland and other senior representatives of the Polish State, who were on their way to attend the ceremony marking the 70 th anniversary of the Katyń Massacre, were killed, was, as the judgment records, clearly “an incident of unprecedented gravity, which affected the entire functioning of the State” (see paragraph 122 of the judgment). It provides the background to the complaints in this case.

2. Applying the principle of subsidiarity and out of respect for the highly sensitive and emotionally charged context, the Court in its judgment rightly, in my view, limited itself to addressing the complaints made by the applicants only to the extent absolutely necessary. As a consequence, it (a) found that the order for the exhumation of some of the victims of that plane crash, under Articles 209 and 210 of the Code of Criminal Procedure, was not “in accordance with the law”, as required by Article 8 § 2 of the Convention (see paragraph 127 of the judgment) and (b) considered that it was not necessary to consider and/or reach a conclusive view on whether that exhumation was “necessary in a democratic society” and/or proportionate (see paragraph 129).

3. I fully agree both with that approach as well as with the conclusion that the interference with the applicants’ rights for respect of their private and family life under Article 8 § 1 of the Convention was not “in accordance with the law” because “Polish law did not provide sufficient safeguards against arbitrariness with regard to a prosecutorial decision ordering exhumation” (see paragraph 126).

4. For the reasons set out in a little more detail below, the only disagreement I have with the judgment relates to the necessity and appropriateness of the Court’s response to the Government’s arguments based on Article 2 of the Convention in paragraphs 121 and 122 of the judgment.

Article 2 and balancing

5. In response to the applicants’ complaint of a breach of Article 8 of the Convention arising out of the exhumations ordered by the Polish prosecutor, the Government, perfectly understandably, raised the argument that the rights of the applicants had to be balanced against any obligations the State may have under Article 2 of the Convention to conduct an investigation into the causes of the loss of life resulting from the Smolensk plane crash.

6. While both parties in their pleadings addressed in detail the position under Article 8 and set out their respective positions, no Article 2 complaint was before the Court and no detailed submissions on the existence, nature and/or extent of the duty imposed by Article 2 on the Polish State were either sought by the Court or otherwise made by the parties.

7. In light of the principle of subsidiarity and out of respect for the highly sensitive and emotionally charged context of these particular applications, it seems to me that the passages in paragraphs 121 and 122 of the judgment were both unnecessary and, in so far as they may be misunderstood as an endorsement or acknowledgement of the compliance of the Polish investigations with Article 2, inappropriate.

8. Why unnecessary? Even though the Polish Government first relied on the obligations under Article 2 of the Convention under the heading “The requirement of lawfulness”, their argument was squarely put on the basis that “[t]he state authorities must have balanced the national interests behind a full investigation into the circumstances of the catastrophe – as required by Article 2” with the “interest of the protection of family and private life of the victims as protected by Article 8 § 1 of the Convention” and the submissions that “the state authorities correctly carried out this balancing out [sic] and appropriately weighed the conflicting interests at hand” (§ 75 of the Government’s Observations of 22 November 2017). The Court, in paragraph 121 of the judgment, consequently also refers to the obligations under Article 2 of the Convention as support for an argument that “the State authorities are required to find a due balance” between the requirements of an investigation under Article 2 and the protection of the right to respect for private and family life of the affected individuals under Article 8. While both do so under the heading related to the lawfulness of the interference, it seems to me clear that, in fact, the need for a balance only arises at the later stage (if one gets there) when the Court is considering whether a particular interference with the rights under Article 8 § 1 are “necessary in a democratic society” and/or proportionate. Neither the need for a balance generally nor any obligations on the Polish State arising under Article 2 are either required or, in this case, relevant to answering the question whether the relevant Polish law complied with the requirements of the rule of law and whether it provided sufficient safeguards against arbitrariness so as to be “in accordance with the law”.

9. Why inappropriate? As I indicated above, as an obiter dictum not strictly relevant or necessary for the conclusion the Court reached and expressed without having had detailed submissions on the Article 2 aspect, the passages in paragraphs 121 and 122, in my view, create an unnecessary risk of being misunderstood or misinterpreted and are, on their face, too narrowly drawn by their almost exclusive reference to the need for any investigation under Article 2 to be “effective”.

10. Of course I agree that, in so far as it is necessary for a court to consider the necessity and/or proportionality of an order for the exhumation of the victim of an incident under Article 8 § 2, any obligation on the State ordering the exhumation arising under Article 2 is plainly a highly relevant and important consideration. In fact, frequently, the exhumation of a body will be a necessary part of an effective investigation within the meaning of the State’s procedural obligation under Article 2 of the Convention and, as a matter of principle, Article 8 does not provide family members with an unconditional right to prevent the authorities from carrying out such an exhumation in the appropriate circumstances.

11. That, however, was not the question the Court decided this case on, nor was it a question the Court ultimately felt it necessary to consider and determine. This may be even more important in light of the fact that, as I understand it, this may well be a question the domestic courts may have to answer at some stage (whether in these or other cases) depending on the outcome of the reference by the Warsaw Regional Court to the Constitutional Court, made on 3 April 2017 (see paragraph 27 of the judgment) on the constitutionality of Article 210 of the Code of Criminal Procedure. The Court should not be taken to have predetermined this question (either specifically or generally) if it were to arise before the domestic courts.

12. Furthermore, it is important to stress that “effectiveness” of an investigation is not the only relevant aspect of the positive obligation under Article 2. As this Court has repeatedly made clear, in addition to being effective and independent, any investigation under Article 2 also has to (a) be prompt (see, for example, Armani Da Silva v. the United Kingdom [GC], no. 5878/08, § 237, 30 March 2016) and (b) proceed with reasonable expedition (see, for example, Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 305, ECHR 2011 (extracts)). In the latter case, the Court confirmed that the requirements of promptness and expedition are “essential in maintaining public confidence in their adherence to the rule of law” (ibid . ).

13. In considering expedition, I am, of course, aware that there are aspects of the Polish criminal investigation which, despite the passage of more than eight years since the plane crash, have not been able to be concluded, inter alia due to a refusal by the Russian authorities to hand over the wreckage of the plane as required by Appendix 13 of the Chicago Convention (see inter alia the draft resolution unanimously adopted by the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe on 25 June 2018 and the Draft Explanatory Report thereto).

14. However, in relation to the exhumations (in particular in light of the impact they are said to have had on the victims’ widows in this case), questions concerning the expeditious nature of the investigations may nevertheless arise out of the fact that, as I understand it:

(a) the Polish authorities started their criminal investigation(s) on 10 April 2010 and, so the applicants say, could therefore have examined the victims’ bodies then, i.e. as soon as they were returned to Poland (and before they were buried and some of them were cremated);

(b) the Polish authorities carried out a few exhumations after August 2011 as a result of which some of the misidentifications (now given as one of the reasons for the 2017/18 exhumations) were discovered; and

(c) no explanation has been provided by the respondent Government (who carry the primary burden to establish justification) for what appears to be (even taking the August 2011 date as the starting point) a more than five ‑ year delay in seeking to exhume these victims’ bodies now.

15. Absent detailed submissions, it is, of course not for the Court (nor for me in this separate opinion) to prejudge this question but, consequently, it seems to me that the incomplete and obiter reference to the Article 2 obligations was inappropriate in the circumstance of this case and should not have been made.

16. Finally, I should make clear that reference to the Article 2 obligations of the Polish State made in the judgment and above assume that Article 2 does, in fact, impose a positive obligation on the Polish State to conduct an effective and expeditious investigation into a plane crash that occurred within the jurisdiction of another Council of Europe State, namely Russia. This is, however, merely an assumption and does not reflect any (detailed) consideration and even less a decision that such an obligation, in fact, arises in relation to Poland under Article 2 of the Convention. The relevant international law and its interplay with the European Convention on Human Rights are clearly complex and would require careful consideration if the issue ever came up for decision before the Court.

17. That said, there can be no doubt about the legitimacy of the desire by the Polish State to conduct its own criminal investigations into what caused the plane crash and whether any person was criminally liable in relation thereto, even more so in the context of this most tragic event and its continuing significance for the Polish Government and for many Polish citizens. The only question is whether, as a matter of Convention law, such an investigation is required by Article 2 of the Convention.