PROCEDURE

The case originated in an application (no. 55525/00) against the Swiss Confederation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the “Convention”) by an Algerian national, Ms Dalila Hadri-Vionnet (“the applicant”), on 7 December 1999.

The applicant was represented by Ms I. Poncet Carnice, a lawyer practising in Geneva. The Swiss Government (“the Government”) were represented by their Agent, initially Mr Ph. Boillat, former Deputy Director of the Federal Office of Justice, then Mr F. Schürmann, Head of the Human Rights and Council of Europe Section at the Federal Office of Justice.

Relying on Article 8 of the Convention, the applicant complained of a violation of her right to respect for her private and family life owing to the fact that she had been unable to attend the funeral of her stillborn child and that her baby’s body had been transported in an ordinary delivery van.

By a decision of 2 May 2006, the Fifth Section declared the application admissible.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1970 and lives in Lignon (in the Canton of Geneva).

A. The events giving rise to the case

The facts of the case, as presented by the parties, may be summarised as follows.

The applicant arrived in Switzerland on 10 June 1996 as an asylum seeker.

On 17 June 1996 she was placed in an accommodation centre for asylum seekers in the Canton of Aargau.

On 12 March 1997 she was moved to the “Thorfeld 2” accommodation centre in Buchs (Aargau).

On 4 April 1997 the applicant gave birth to a stillborn baby, the father of whom was a Swiss national. The autopsy established that the fœtus had died two days before delivery, at twenty-six weeks and two days. At the request of the midwife, the applicant, who was in a state of shock, was taken from the “Thorfeld 2” accommodation centre to the hospital in the Canton of Aargau. When asked by the midwife, both the applicant and the baby’s father said that they did not want to see the baby’s body.

On the same day the social worker (Sozialarbeiter) and the registrar of births, marriages and deaths (Zivilstandsbeamter) of the municipality of Buchs were informed of the child’s birth. Believing that it was not compulsory in the case of a child stillborn at the start of the twenty-seventh week of pregnancy to be buried with an attendant ceremony, they ordered a burial without a ceremony, in the absence of the applicant. They based their decision in particular on the fact that the parents had not expressed a wish to see the body before the autopsy and took the view that, given her mental state, the applicant was not fit to attend the burial.

On 8 April 1997, after having been placed in a wooden coffin by a firm of undertakers, the child’s body, on instructions from the municipality social worker, was carried in a delivery van to the cemetery of the municipality of Buchs for burial in a communal grave for stillborn babies (Grabstelle für Totgeburten).

It appears that the applicant left the hospital that same day (see the decisions of the Canton of Aargau Higher Court of 14 May 1999, paragraph 23 below).

On 10 April 1997 a member of the psychiatric services department took the applicant to the cemetery to lay flowers.

According to the Government, the applicant was informed on 15 April 1997 that it would be possible to organise a funeral for her child at a later date. In her statements of 1 July 1997 (see paragraph 19 below) the applicant disputed that assertion.

On 22 April 1997 she went to the cemetery and, accompanied by the priest, placed various stones and laid flowers at the site at which her child had been buried.

B. The proceedings brought by the applicant

On 13 May 1997 the applicant lodged a criminal complaint against persons unknown at the district office (Bezirksamt) of Aarau and joined the proceedings as a civil party. Criminal proceedings were brought against the social worker and the registrar of births, marriages and deaths of the municipality of Buchs for misuse of official authority, disturbing the repose of the dead and, in the alternative, removal of property within the meaning of Article 141 of the Swiss Criminal Code. The applicant submitted that her child’s body had been unlawfully removed from her and that it had been carried in an inappropriate vehicle without the authorisation required for this kind of transport. In this context, she complained of a violation of her personal freedom guaranteed by the Federal Constitution and, in her submission, protecting the feelings of an individual vis-à-vis a deceased family member (see paragraph 33 below).

On 15 May 1997 the applicant moved to Geneva where her partner was living.

On 1 July 1997 the applicant and her partner were questioned by the Geneva cantonal police concerning the birth of their child and the circumstances that had surrounded it. Extracts of the interview with the applicant are reproduced below: “Question (hereafter: “Q”) 17: Were you informed of the various types of funeral (burial, cremation or other) for stillborn babies? Reply (hereafter: “R”) 17: The midwife, and then Dr R, asked me what I wanted to do with the body of my child. Q 18: What type of funeral did you choose? R 18: I chose a normal burial with a ceremony. Q 19: Did anyone mention to you that you could see your child’s body? R 19: The midwife offered to let me see the child. Q 20: Did you see your child’s body? R 20: I was in shock and I declined because I didn’t feel up to seeing my dead child. ... Q 32: Did the hospital staff give you any guidance on the subject of funerals? R 32: Yes. The formalities were carried out by C. [the firm of undertakers]. I just wasn’t told the date. Q 33: Were you informed of the funeral by the Buchs Registry of births, marriages and deaths? R 33: No. Q 34: Were you informed of the place, date and time of the burial? R 34: No. Q 35: If so, by whom? R 35: --- Q 36: If not, did you ask the child’s father or any other person, in particular H. (the director of the Buchs accommodation centre) for this information? R 36: I had a visit from Dr H on the following Tuesday, unless I am mistaken, at approximately 2 p.m. She told me that my baby had been buried that very day at 1 p.m. I was very angry that I had not been present. She told me she wasn’t familiar with the system. Q 37: Did you feel up to attending your child’s funeral? R 37: I was preparing myself because to convince myself that he had died, I had to see him placed in the ground. Q 38: Why didn’t you attend the burial? R 38: I didn’t get the chance. ... Q 40: Did the hospital staff suggest that you attend the funeral accompanied by a nurse? R 40: No. No such suggestion was made to me. Q 41: Have you visited your child’s grave and with whom? R 41: On Thursday, 10 April 1997, I met Mr B., a social worker. He told me that I was not entitled to know where by baby was. I told him that even though I was an asylum seeker, I was first and foremost a mother and that I had the right to see my son’s grave. As he refused to tell me anything, I went to the police where I spoke to Ms B. She told me that she was not able to deal with this kind of problem. I insisted and after she had obtained some information, she told me that the “municipality” had made the decision. I then contacted the priest of the Catholic Church in Aarau and a pastoral assistant. They were astonished that I had not obtained satisfaction. They tried to obtain information but were unsuccessful. Q 42: Do you feel that you have suffered a loss as a result of the lack of information provided to you concerning your child’s burial? R 42: A huge loss. I experienced the shock of losing my child and on top of that, I don’t know where he is buried. Q 43: What type of loss have you suffered? R 43: I feel as though I have not been respected as a mother. I was kept out at every step. Q 44: Would you have attended the burial if you had known the time and place? R 44: Yes. Q 45: Were you informed that it was still possible to have a private funeral? R 45: No. ...”

The following are extracts of the interview with the applicant’s partner: “Q 11: Were you informed of the various types of funeral (burial, cremation or other)? R 11: The midwife asked me what kind of funeral I wanted for the child. I told her that as a Catholic, I wanted a burial (burial and ceremony). She asked me to contact a company called C. ... Q 13: Were you told that you could see your dead child? R 13: Yes, the midwife suggested it to me. Q 14: Did you see your dead child? R 14: No, I wasn’t up to seeing him. I did however see some photographs of the baby at the cantonal hospital. ... Q 27: Did you feel up to attending a burial? R 27: Yes ... Q 30: Did you visit your child’s grave at the cemetery and who went with you? R 30: I went with my girlfriend to the Buchs “unknown persons” cemetery on around 20 May 1997. As far as I’m concerned, it’s not a cemetery but a public park. There is no cross to indicate that it is a cemetery. There are two statues and a few stones with names on them. According to the information provided by the Buchs social services department, my child is buried at the edge of the trees. There is no proof. Q 31: Do you feel that you have suffered a loss as a result of the lack of information provided to you concerning your child’s burial? R 31: Yes I have suffered a loss. After all, the dead baby was my son. Q 32: What kind of loss? R 32: An emotional and human loss. Q 33: Would you have attended the funeral if you had been aware of the date and place? R 33: Yes, absolutely. Q 34: Were you told that it was possible to hold a funeral ceremony at a later date? R 34: I was given no such information. ...”

On 4 August 1998, on the basis of the final reports from the Aarau district office (Bezirksamt) dated 1 July 1998, the Canton of Aargau public prosecutor’s office issued two orders discontinuing the proceedings against the two defendants. With regard to the offence of disturbing the repose of the dead, the public prosecutor’s office considered that one of the constituent elements of the offence – the mens rea of the defendants – had not been established. With regard to the inappropriate transport of the child’s body, the public prosecutor’s office acknowledged that the municipality’s registrar of births, marriages and deaths had made a mistake of law. The accused were however ordered to pay some of the costs of the proceedings.

The applicant lodged two appeals against the orders of 4 August 1998 before the Higher Court (Obergericht) of the Canton of Aargau. She argued that the two accused had disturbed the repose of the dead through “recklessness” (Eventualvorsatz) and that they should therefore be held criminally liable. In the context of the appeal concerning the registrar of births, marriages and deaths, the applicant complained more specifically of a violation of her personal freedom and the right to a decent burial, as individual rights protected by the Federal Constitution, due in particular to the fact that she had not been invited to attend the burial of her child. Lastly, as regards the transport of the child, the applicant challenged the contentions of the public prosecutor’s office, which had acknowledged a mistake of law.

In two judgments of 14 May 1999 the Higher Court declared the appeals inadmissible. With regard to the offence of disturbing the repose of the dead, it considered that the constituent elements of the offence had not been made out in that case, but considered, nevertheless, that by ordering the child to be buried without a ceremony, the two accused had been in breach of the relevant legislation. Indeed, both Article 11, paragraph 1, of the order concerning funeral services in the Canton of Aargau and Article 8, paragraph 1, of the regulations governing cemeteries and funerals in the municipality of Buchs permitted burial two days after the date of the birth of the stillborn child. Furthermore, paragraph 4 of Article 8 of the regulations governing cemeteries and funerals in the municipality of Buchs made provision for a ceremony to be organised (see paragraph 40 below). The Higher Court therefore considered that there had been a prima facie violation of the applicant’s right to hold a ceremony. Furthermore, the applicant’s mental and physical state would not have prevented her from attending her child’s burial, since it was on precisely that date that she had left hospital. The Higher Court stated, however, that it would have been possible to conduct a ceremony after the burial (Article 12, paragraph 1, of the regulations governing cemeteries and funerals in the municipality of Buchs; see paragraph 41 below) but that the applicant had made no such application.

As regards the complaint relating to the transport of the child, the Higher Court acknowledged that the registrar of births, marriages and deaths had acted in breach of Article 75 of the road traffic regulations since no authorisation, as provided for in paragraph 2 thereof, had been granted. It considered however that the mistake committed by the official, who had little experience in such matters, had to be put in perspective, as did the actual effects (Tatfolge) of his conduct. Therefore, in accordance with the principle of discretionary prosecution, the public prosecutor’s office had legally entitled to discontinue prosecution of the accused.

On 25 June 1999 the applicant lodged two public-law appeals and two applications for judicial review with the Federal Court (Bundesgericht). As regards the offence of disturbing the repose of the dead, the applicant claimed that all the elements thereof, both objective and subjective, had been made out in the case at hand. She then submitted that her arguments concerning the right to a decent burial and the violation of personal freedom had not been properly considered by the lower courts. On that point, she asked the Federal Court to transfer the part of her appeal concerning the right to a decent funeral to the Federal Council, the only authority having jurisdiction in the matter. As regards the violation of her personal freedom, the applicant submitted that for the family of a deceased person, the mourning process was an essential manifestation of personality development, according to the relevant case-law of the Federal Court. Lastly, she challenged the reasoning of the cantonal authorities concerning the inadequate transport of the child.

In two judgments of 12 August 1999 the Federal Court dismissed all four of the applicant’s appeals. It declared the ground based on the right to a decent funeral inadmissible and determined that her application to transfer part of her appeals to the Federal Council was vexatious (geradezu mutwillig), pointing out that a specific type of appeal to that court existed for complaints of that nature.

Subsequently, leaving aside the matter of whether the objective elements of the offence of disturbing the repose of the dead had been met, the Federal Court held that whatever the circumstances, mens rea on the part of the accused had not been established. Lastly, as regards the violation of personal freedom complained of by the applicant for having been prevented from completing her mourning process, and the violation of the right to a decent funeral, the Federal Court held that these claims were well-founded, or at least could have been, but that they were not relevant in the context of the proceedings at issue, in which the only matter to be decided was whether or not the perpetrators were guilty of the acts complained of.

Under the federal law on assistance to victims of crime, the applicant lodged a parallel application for payment of compensation for the non-pecuniary damage suffered as a result of the infringement of her personality rights.

That application was rejected first by the social services of the Canton of Aargau, then by the Administrative Court of that canton and, lastly, by the Federal Court on 24 November 2000. While acknowledging that an offence committed by negligence could, as the case may be, fulfil the requirements of section 2(1) of the federal law on assistance to victims of crime even if it were not, as such, punishable as a crime because it lacked the requisite mens rea, the High Court held that the offence in question in the present case, namely, misuse of authority, inherently fell outside the scope of that law.

C. The exhumation and transfer to Geneva of the child’s remains

By a decision of 23 March 1998 the Buchs municipal council authorised the child’s body to be exhumed at the expense of the municipality. The exhumation took place on 20 May 1998 and the body was transferred to the applicant’s new home in Geneva where it was buried following a Catholic ceremony.

On an unspecified date, the applicant married her partner.