5.  The first applicant was born in 1937 and lives in Sopot. The second applicant was born in 1955 and lives in Gdańsk.
6.  On 10 April 2010 an aircraft of the Polish Air Force was carrying a Polish State delegation from Warsaw to Smolensk, Russia, to attend a ceremony marking the 70th anniversary of the Katyń massacre. The delegation was led by the President of Poland and included many high‑ranking officials. The aircraft crashed during the approach to Smolensk aerodrome, killing all ninety-six people on board (eighty‑eight passengers and eight crew members).
7.  The applicants are the widows of two victims of the crash, Mr Leszek Solski, an activist of the Katyń Families Association, and Mr Arkadiusz Rybicki, a member of parliament.
8.  On 29 July 2011 the Polish Committee for the Investigation of State Aviation Accidents (Komisja Badania Wypadków Lotniczych Lotnictwa Państwowego) published its report on the causes of the crash. It concluded:
“the immediate cause of the accident was the descent below the minimum descent altitude at an excessive rate of descent in weather conditions which prevented visual contact with the ground, as well as the delayed execution of the go-around procedure. Those circumstances led to impact with an obstacle on the ground, resulting in the separation of part of the left wing with the aileron, and consequently to the loss of aircraft control and eventual ground impact.”
The committee excluded the possibility that an explosion had taken place on board. An earlier report by the Russian Inter‑State Aviation Committee contained similar findings. The Parliamentary Group on the Examination of the Smolensk Crash reached different conclusions, however, and suggested that an explosion on board might have been one of the causes of the accident. According to the applicants, the Parliamentary Group was not an official investigative authority.
9.  The Warsaw Regional Military Prosecutor’s Office opened an investigation into the crash on 10 April 2010.
10.  Both applicants were granted victim status in the investigation.
11.  On 4 April 2016 the investigation was assigned to an investigative team of the State Prosecutor’s Office (Prokuratura Krajowa).
12.  On 21 June 2016 the State Prosecutor’s Office organised a meeting with the victims’ families. The purpose of the meeting was to explain the need to carry out exhumations and autopsies, as well as to hear opinions from all the families concerned.
13.  The first applicant attended that meeting. She submitted that the prosecutor had focused on criticising the report of the Polish Committee for the Investigation of State Aviation Accidents. Only those families who supported the prosecutor’s decision on the exhumations had been allowed to speak. The second applicant did not attend the meeting. She did not trust the State Prosecutor’s Office because she felt that it favoured those families who supported the exhumations and the conspiracy theories around the crash.
14.  On 7 October 2016, pursuant to Article 209 §§ 1 and 4 and Article 210 of the Code of Criminal Procedure (“the CCP”), a prosecutor of the State Prosecutor’s Office decided to appoint a team of international and national forensic experts with a view to carrying out autopsies on the bodies of eighty-three victims of the crash (the bodies of nine victims had already been exhumed and four victims had been cremated). The prosecutor asked the experts to:
“(1) carry out the medical imaging, examination and autopsy of the victims’ remains;
(2) determine the cause of death, and the manner and circumstances in which the victims sustained their injuries, including whether the injuries were sustained before or after their death, as well as to ascertain whether the injuries occurred at the place and time of the crash;
(3) ascertain whether the established injuries indicate that they came about as a result of the aircraft’s impact with the ground and the disintegration of the aircraft parts ...;
(4) ascertain whether the victims’ bodies have injuries typical of an explosion of explosive or flammable material, or of some other sudden release of energy;
(5) ascertain whether the method used by the Russian experts to examine the corpses and carry out the autopsies was consistent with the current standards, and whether the conclusions of their forensic report with regard to the injuries, the circumstances in which they had occurred and the cause of death correspond to the conclusions of the report established by the [current] team of experts;
(6) determine the identity of the victims by comparing the results of the genetic testing with their genetic profiles, established at an earlier stage of the proceedings ...;
(7) take samples from the victims’ remains for further toxicological, histopathological, physicochemical and genetic examination.”
The prosecutor further ordered (point IV of the decision) that for the purpose of carrying out the above-mentioned measures, the bodies of eighty-three victims be exhumed on dates to be determined in separate orders.
15.  In his decision, the prosecutor noted that directly after the crash, the Russian authorities had carried out autopsies and identification procedures on the victims’ bodies. The victims’ remains had subsequently been repatriated to Poland and buried. In the course of its investigation, the Warsaw Regional Military Prosecutor’s Office had started to have doubts about the diligence of the Russian experts in identifying the victims and the injuries sustained by them. From August 2011 the Military Prosecutor’s Office had carried out exhumations and autopsies on nine victims of the crash. The results of those examinations had confirmed that the Russian experts had not properly recorded the injuries sustained by the victims and, in the case of six out of the nine bodies exhumed, had wrongly identified the victims. The prosecutor stated that, in the circumstances, doubts also remained in respect of the other victims of the crash. He further intended to resolve doubts concerning the alleged explosion on board.
16.  On 12 October 2016 the second applicant wrote a letter to the Minister of Justice – Prosecutor General, objecting to the exhumation of her husband’s body. On 14 October 2016 the first applicant wrote a similar letter to the State Prosecutor’s Office, stating that she was convinced that her late husband had been properly identified. She had been present at the Moscow Forensic Institute where the identification of the victims had been carried out and had seen the body of her husband herself. The State Prosecutor’s Office replied in the negative to both letters. The second applicant was also informed that a meeting with the relatives of the victims and the prosecutors would be scheduled prior to each exhumation in order to explain the reasons behind the decision to carry out the exhumations.
17.  The prosecutor’s decision of 7 October 2016 was served on the applicants’ lawyer on 20 October 2016.
18.  On 27 October 2016 the applicants personally and through their lawyers lodged interlocutory appeals (zażalenie) against the prosecutor’s decision of 7 October 2016. They objected to the exhumation of their husbands’ remains and asked that that part of the decision be reversed.
19.  The applicants argued that the prosecutor had applied Article 209 § 1 and Article 210 of the CCP without any consideration for the relevant provisions of the Constitution. Furthermore, the prosecutor’s decision had breached Article 2 § 1 (3) of the CCP, which provided that criminal proceedings had to respect the legal interests of a victim. The applicants further alleged that the reasons for the decision had been vague and sparse. The prosecutor had failed to properly establish that the exhumation of their husbands’ remains was necessary, since such a measure should be one of last resort.
20.  In the applicants’ view, the decision on exhumation violated the respect due to the remains of their late husbands, as well as their personal right to respect for the memory of a late relative (kult osoby zmarłej). Furthermore, in issuing a general order to exhume all the victims, without taking into account their individual circumstances, the prosecutor had demonstrated a lack of respect for the victims and had violated the families’ right to dignity.
21.  The applicants invoked Articles 2, 30, 45 and 47 of the Constitution, alleging, inter alia, that the prosecutor had applied the provisions of the CCP in breach of a person’s inherent right to dignity. They further relied on Articles 3 and 8 of the Convention. The applicants also claimed that the prosecutor had failed to inform them of their right to lodge an interlocutory appeal against his decision.
22.  Lastly, the applicants relied on a letter dated 25 October 2016 from the Ombudsman to the Prosecutor General presenting arguments in favour of a judicial review of the prosecutor’s decision on exhumation. The Ombudsman considered that exhumation of human remains carried out following a prosecutor’s decision constituted an interference with the right to respect for the memory of a late relative, one of the personal rights protected by the Civil Code. Those personal rights constituted part of an individual’s private life. Under Article 47 of the Constitution, everyone had the right to legal protection of his or her private life. In the light of that provision, everyone who considered that his or her private life had been violated by an act of the authorities had to have the opportunity to seek legal protection. Relatives therefore had to be provided with legal remedies with a view to determining whether the prosecutor’s decision on exhumation was disproportionate.
23.  On 23 and 24 November and 6 December 2016 the prosecutor refused to entertain the applicants’ interlocutory appeals, finding them inadmissible in law. He stated that the applicants had wrongly interpreted his decision of 7 October 2016 in considering that it constituted a basis for the exhumation of their husbands’ remains. A decision on that matter would be issued in a separate order, specifying the time and place of exhumation. Nonetheless, he stated that a decision on exhumation under Article 210 of the CCP was not amenable to appeal. His decisions refusing to proceed with the interlocutory appeals did not contain any reference to the constitutional and Convention arguments raised by the applicants.
24.  On 6, 7 and 21 December 2016 the applicants lodged interlocutory appeals against the prosecutor’s decision with the Warsaw Regional Court. They alleged that the prosecutor’s decisions refusing to entertain their interlocutory appeals had violated the provisions of the Constitution (Articles 45, 47 and 77 § 2), the Convention (Articles 3, 8 and 13) and the CCP. In their view, a correct interpretation of the relevant provisions of the CCP, in the light of the Constitution and the protection of fundamental rights, should have resulted in the availability of an interlocutory appeal against the prosecutor’s decision of 7 October 2016.
25.  The applicants invoked their right to dignity, the obligation to respect human remains and their right to respect for the memory of a late relative. They submitted that the decision of 7 October 2016 concerned not only the appointment of a team of forensic experts but also the exhumation of their husbands’ remains. In their view, that decision predetermined a decision to exhume the remains of their husbands; at a later date the prosecutor would only set the exact date of the exhumation. The decision on exhumation constituted interference with the applicants’ legal interests and therefore it was constitutionally required that they be provided with a legal remedy aimed at reviewing the prosecutor’s decision. The applicants also stated that the prosecutor had failed to respond to their arguments based on the Constitution and the Convention.
26.  The applicants also reiterated the arguments raised by the Ombudsman in his letter of 25 October, and in his subsequent letters of 2 and 18 November 2016 to the Deputy Prosecutor General.
27.  On 3 April 2017 the Warsaw Regional Court (case no. VIII Kp 17/17) decided to refer a legal question to the Constitutional Court on the constitutionality of Article 210 of the CCP in so far as that provision did not provide for the opportunity to lodge an interlocutory appeal against a prosecutor’s decision to exhume a body. The court alleged that the impugned provision was incompatible with Article 45 (the right to a court), Article 47 (the right to private and family life) and Article 78 (the right to appeal) of the Constitution and Articles 8 and 13 of the Convention. The court considered that the prosecutor’s decision of 7 October 2016 had predetermined the issue of exhumation.
Having analysed the provisions of the CCP, the Regional Court found that prosecutors’ decisions ordering an autopsy (Article 209 of the CCP) or exhumation (Article 210 of the CCP) were not susceptible to judicial review. It noted, inter alia, that the right to grieve and the respect for that right owed to close relatives of a deceased person fell within the constitutional notion of “private and family life”. In the event of the authorities interfering with that right, the individual concerned should be provided with a remedy. Article 210 of the CCP was deficient in that respect from a constitutional and Convention perspective, since it did not provide for judicial review of a prosecutor’s decision ordering exhumation.
28.  As a result of the decision to refer a legal question, the proceedings before the Warsaw Regional Court have been suspended until the Constitutional Court issues a decision on the matter. The proceedings before the Constitutional Court are currently pending (case no. P 18/17).
29.  On 24 May 2017 the applicants again urged the State Prosecutor’s Office to revoke its decision on exhumation. The prosecutor replied in the negative on 7 June 2017.
30.  The Government informed the Court that the exhumation of the applicants’ husbands had initially been planned for 24 and 26 April 2018. The exhumations had been planned in line with the wishes of the families and the bodies of those victims whose families had not complained had been exhumed first. The bodies of those victims whose families had complained against the prosecutor’s decision would be exhumed at a later stage.
31.  On 13 April 2018 the prosecutor issued two orders setting the dates of the exhumation of the bodies of the applicants’ husbands for 14 and 16 May 2018. The prosecutor stated that those orders were being issued in execution of the decision of 7 October 2016. The reasoning was limited to a brief reference to the ongoing investigation and the decision of 7 October 2016.
32.  The applicants lodged interlocutory appeals against the orders of 13 April 2018. On 27 April and 7 May 2018 the prosecutor refused to examine the applicants’ interlocutory appeals on the grounds that they were inadmissible in law.
33.  On 7, 8 and 9 May 2018 the applicants lodged interlocutory appeals with the Warsaw Regional Court against the prosecutor’s decision refusing to examine their appeals. They argued that the prosecutor’s decision violated various provisions of the CCP and the Constitution, as well as Articles 3, 8 and 13 of the Convention.
34.  The Government submitted that in accordance with the code of conduct adopted by the investigative team of the State Prosecutor’s Office, the prosecutors in charge of the investigation had taken steps to arrange a meeting with the applicants and their lawyers in order to explain the reasons for the intended investigative actions, to clarify the aim of the autopsies and to elucidate other important issues, such as the families’ participation in the investigative actions and the issue of reburial.
35.  On 19 April 2018 the second applicant’s lawyer informed the State Prosecutor’s Office that his client would not take part in the proposed meeting with the prosecutors because she opposed the exhumation. The lawyer communicated with the prosecutors on all aspects of the planned exhumation.
36.  On 24 April 2018 the first applicant and her lawyer participated in a meeting with the prosecutors responsible for the investigation. The participants discussed the organisational aspects of the exhumation.
37.  The exhumation of the remains of Mr Arkadiusz Rybicki, the husband of the second applicant, was carried out on 14 May 2018. According to reports in the media, a few hundred people protested peacefully against the exhumation at the cemetery in Gdańsk. The exhumation exercise was secured by a large group of police officers.
38.  The exhumation of the remains of Mr Leszek Solski, the husband of the first applicant, took place on 16 May 2018.
39.  The investigation is pending.
40.  On 3 November 2016 the applicants sought an injunction in the civil courts to prevent the prosecutor from carrying out the exhumation of their husbands’ remains. They argued that it would interfere with their personal right to respect for the memory of their late relatives.
41.  On 10 November 2016 the Warsaw Regional Court refused to grant an injunction. It held that the applicants had demonstrated that the planned exhumations would interfere with their personal rights, namely their right to respect for the memory of their deceased close relatives. The exhumation, the examination of the corpses and a second burial would interfere with that right. However, the Regional Court found that the applicants had failed to demonstrate that the intended interference with their personal rights would be unlawful and therefore dismissed their application. Pursuant to Article 209 § 1 and Article 210 of the CCP, a prosecutor was competent to order the exhumation of bodies in the context of an investigation in which the deaths were being treated as suspicious. The legislature had decided that irrespective of the will and consent of the family, the prosecutor had a duty to order that an autopsy be carried out in every case of suspicious death and, if the corpse had been buried, also to order its exhumation. The legislature had given priority in this context to the investigation of serious crimes and punishment of the perpetrators over the protection of the right to respect for the memory of deceased family members.
42.  On 5 December 2016 the Warsaw Court of Appeal dismissed an interlocutory appeal lodged by the applicants and upheld the Regional Court’s findings. The Court of Appeal noted that its decision could not have been altered by the applicants’ argument about the unconstitutionality of Article 209 § 1 and Article 210 of the CCP because the prosecutor’s decision ordering exhumation was not amenable to appeal. It found that even if those provisions were eventually found to be unconstitutional, that would not render the prosecutor’s decision unlawful.