Wednesday, 10 July 2013

Dignity in Death

A very recent judgment of the European Court of Human Rights finds that there was a violation of the European Convention on Human Rights when the authorities did not return to the family the body of a terrorist who had been killed by security forces. Sabanchiyeva and Others v. Russia concerned the death of one of the insurgents killed in a battle in the Republic of Kabardino-Balkariya in 2005. The government justified its decision not to return the bodies with reference to applicable legislation:

Pursuant to section 14(1) of the Federal Interment and Burial Act (Law no. 8-FZ): “the interment of persons against whom a criminal investigation in connection with their terrorist activities has been closed because of their death following interception of the said terrorist act shall take place in accordance with the procedure established by the Government of the Russian Federation. Their bodies shall not be handed over for burial and the place of their burial shall not be revealed.”
Pursuant to part 3 of Decree no. 164, “On interment of persons whose death was caused by the interception of terrorist acts carried out by them”, approved by the Government of the Russian Federation on 20 March 2003, “the interment of [these] persons shall take place in the locality where death occurred and shall be carried out by agencies specialising in funeral arrangements, set up by organs of the executive branch of the subjects of the Russian Federation or by organs of local government ...”

The terrorists were cremated although the families did not learn this until the proceedings at the European Court of Human Rights.
Recourse to the Constitutional Court of Russia was unsuccessful, although a dissenting judge, A.L. Kononov, wrote:

“... The impugned norms, banning the return of the deceased’s bodies to their relatives and providing for their anonymous burial, are, in our view, absolutely immoral and reflect the most uncivilised, barbaric and base views of previous generations ...
The right of every person to be buried in a dignified manner in accordance with the traditions and customs of his family hardly requires special justification or even to be secured in written form in law. This right is clearly self-evident and stems from human nature as, perhaps, no other natural right. Equally natural and uncontested is the right of every person to conduct the burial of a person who is related and dear to them, to have an opportunity to perform one’s moral duty and display one’s human qualities, to bid farewell, to grieve, mourn and commemorate the deceased, however he may be regarded by society and the state, to have the right to a grave, which in all civilisations represents a sacred value and the symbol of memory. ...”
Before the European Court of Human Rights, the applicants noted that although no such practice existed elsewhere in the Council of Europe states, there was something similar in Israel where the practice was condemned by the Israeli High Court of Justice in a 2002 decision. The applicants said that in 2004 the Israeli authorities announced that they were putting an end to the practice of refusing to return the bodies of Palestinians ‘except in exceptional circumstances’. Decisions of other international human rights institutions were also referred to.
The European Court concluded that there was a violation of the right to private and family life, enshrined in article 8 of the Convention. Unfortunately, nothing in the judgment of the Court compares with the eloquence of Judge Kononov in the Russian Constitutional Court.

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