Strasbourg Observers

The right to bury one’s relatives

October 06, 2011

In a recent judgement in the case of Girard v. France  (in French) the Court recognized a new right under Article 8 – the right to bury one’s relatives. This case involved three aspects of dealing with an individual’s remains under the Convention: returning the body to relatives, organizing and attending a funeral, and treatment of samples taken from the body for investigation purposes. The Court had dealt with these issues separately before. The outcome was different when the issues got mixed. 

In the case of Panullo and Forte v. France the Court had to rule on a situation involving return to the applicants of their daughter’s body.

Following the death of their four-year-old daughter in hospital, the applicants complained about the delay by the authorities in returning her body to them. The autopsy was carried out in July 1996 and a judge ordered that the daughter’s body be returned to her parents in February 1997. The reports of medical professionals and public prosecutor showed that after the autopsy there was no need to keep the body for investigation purposes. The Court framed the issue as involving a positive obligation of the State under Article 8.

In the case of Hadri-Vionnet v. Switzerland (in French) the Court was faced with a situation where the applicant was unable to attend the funeral of her stillborn baby.

The applicant gave birth to a stillborn baby while in a center for asylum seekers. When she and the child’s father were asked by the midwife, they said that they did not wish to see the baby’s body. After an autopsy had been performed, the body was taken to the cemetery for burial in a communal grave for stillborn babies. The burial took place without a ceremony and without the parents being present.  The applicant complained that the body of her stillborn baby was taken away from her and buried without her knowledge in a communal grave. She relied on Article 8. The Court found that Article 8 was applicable to the question of whether the applicant had been entitled to attend her child’s burial.

Regarding obtaining of samples from the deceased’s body the Court has held that it would stretch the reasoning developed in the case-law too far to hold that DNA testing on a corpse constituted interference with the Article 8 rights of the deceased’s estate (see the decision in the case of The estate of Kresten Filtenborg Mortensen against Denmark). In this case an exhumation of the body was needed to take the samples. Whether this interfered with the Article 8 rights of the deceased’s son could not be established as the son hadn’t complied with the admissibility criteria when filing the complaint.

In the case of Girard v. France all three aspects discussed above were present – the parents argued that a delay in returning of samples taken of their deceased daughter’s body during exhumation interfered with their Article 8 rights. The Court started, according to how I understood the case, with developing the reasoning adopted in the case of The estate of Kresten Filtenborg Mortensen against Denmark – taking of samples from the applicants’ daughter did not constitute an interference with their Article 8 rights. But – here comes the twist – the Court did see, as it did in the case of Pannullo and Forte, that there was a delay of over four months that elapsed between the decision of the authority to return the samples to the applicants and the actual return. Plus, the parents held a final burial ceremony two days after they received the samples (the body itself had been buried already before). This combination of facts led the Court to establish that an interference with the applicant’s private and family life had taken place as the right to bury one’s relatives (a daughter in this case) was protected by Article 8 (le droit de donner à leur fille une sépulture qui est protégé par l’article 8 de la Convention; see paragraph 101).

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