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Ecclesiastical Case Reports
Dödsbo-v-Sweden
(European Court of Human Rights, January 2006)
Exhumation - human rights
The applicant complained that the refusal to remove her husband's urn to the family plot in Stockholm from a plot in Fagersta was in breach of Article 8 of the European Convention on Human Rights. By a bare majority (4:3) the Court rejected her application. The Court reviewed the domestic legislation in the light of Article 8, reiterating that the concepts of 'private and family life' were broad terms and proceeded on the assumption that the domestic law involved an interference with the applicant's Article 8 rights. The majority determined that the refusal to move the urn was necessary in a democratic society for the prevention of disorder, for the protection of morals and/or the protection of the rights of others. The assessment balanced the individual's interest in having a burial transfer against society's interest in ensuring the sanctity of graves. Such a sensitive issue should be afforded a wide margin of appreciation. The removal of the urn appeared to be quite easy and no public health interests seemed to be involved. There were however no indications that the applicant's husband was not buried in accordance with his wishes, and it was assumed the burial so accorded. The applicant's husband had been buried in the town where he had lived for 25 years and had raised his family. There was nothing preventing the applicant being buried with her husband. The dissenting judgement did not accept how the removal of the urn from the current burial plot to the family plot could jeopardise the concept of the sanctity of the grave as it would be the removal from one sacred place to another. There was no conflict amongst the family. The dissenting judges could find no reason to believe that the applicant and her family regarded cemeteries and burial places as temporary repositories for the deceased's ashes. They noted that the deceased had not expressed any wish as to his final resting place and that the
Funeral Act provided for particular regard to be had to the wishes of the last remaining spouse. It had to be noted that, since the interment the family had no connection with Fagersta. The Stockholm plot was a family plot with an irrevocable contract whereas the Fagersta contract was only temporary. They concluded that the interference with the applicant's rights were not necessary in a democratic society.
[JG]
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