Refusal of the authorities to release victims bodies, for a period of 2.5 years during the criminal investigation, in order for them to be buried. Violation of religious freedom
JUDGMENT
Aygün v. Belgium 08.11.2022 (app. no. 28336/12)
SUMMARY
In this case the applicants complained of the investigating judge’s refusal to allow them to transfer
their sons’ bodies to Türkiye, their country of origin, while the investigation was ongoing.
The Court observed that the investigating judge’s decision amounted to interference with the
applicants’ rights under Articles 8 and 9 of the Convention. It accepted that the decision fell within
the investigating judge’s statutory remit to oversee the criminal investigation and that it had
pursued legitimate aims such as the prevention of disorder or crime and the protection of the rights
of others, and in particular the defence rights of the accused. Therefore, the Court did not doubt the
necessity of the initial decision by the investigating judge from the perspective of Articles 8 and 9 of
the Convention.
However, the Court noted that the applicants in the present case had not had any remedy by which
to request that the necessity of the initial refusal by the investigating judge be reassessed in the light
of the progress of the investigation. All their attempts throughout that period, which had lasted for
approximately two and a half years, had been unsuccessful, and during that time they had been
prevented from having the necessity of the interference re-examined by the domestic courts from
the standpoint of their rights under Articles 8 and 9 of the Convention.
PROVISIONS
Article 8
Article 9
PRNCIPAL FACTS
The applicants, Vahit and Naciye Aygün, are Belgian nationals who were born in 1948 and 1949
respectively. They live in Meulebeke in Belgium.
The applicants’ two sons died of multiple gunshot wounds on 8 September 2010. In February 2014,
on conclusion of the criminal proceedings, a neighbour was sentenced to 29 years’ imprisonment for
their murder. Another neighbour was acquitted.
Throughout the investigation, that is, between 24 September 2010 and 4 April 2013, the applicants
were prohibited from transferring their sons’ bodies to Türkiye, their country of origin, where they
wished to bury them in the family grave in accordance with their rites, beliefs and traditions. The
investigating judge refused the applicants’ request – which they submitted on 24 September 2010,
following the full autopsy carried out on the bodies on 19 September 2010 – on the grounds that
there was no basis for such a request in domestic law and that the needs of the investigation
precluded the transfer of the bodies outside the country. The investigating judge added that the
applicants could bury their sons in accordance with their religious beliefs in a Muslim cemetery in
Belgium.
The applicants challenged that decision in several Belgian courts. In particular, they relied on
Article 9 of the Convention and provided the courts with a letter dated 19 September 2011 from the
public prosecutor of Emirdağ in Türkiye, stating that the investigative measures requested by the
Belgian authorities would be carried out in full. However, the applicants’ requests for the
prohibition on transferring their sons’ bodies to be lifted were declared inadmissible or dismissed.
THE DECISION OF THE COURT…
Articles 8 and 9
The Court deemed it appropriate to examine the applicants’ allegations under Articles 8 and 9 of the
Convention alone. It went on to find that the refusal, for the entire duration of the investigation, to
allow the applicants to arrange their sons’ funeral in the manner they wished had intruded upon
their private and family sphere in a way and to an extent amounting to interference with their right
to respect for private and family life. That refusal also constituted interference with the applicants’
right to freedom of religion.
As to the legal basis for the interference, the Court accepted that the investigating judge’s decision
fell within his statutory remit to oversee the criminal investigation. Under Article 55 of the Code of
Criminal Procedure, this involved, among other tasks, identifying the offenders, gathering evidence
and taking measures to enable the courts to determine the case in full knowledge of the facts. To
that end, Article 56 § 1 of the Code of Criminal Procedure expressly empowered the investigating
judge to use coercion and to restrict individual rights and freedoms.
Regarding the legitimate aims of the interference, the Court noted that the measure in question had
been aimed at the prevention of disorder or crime and at protecting the rights of others, and in
particular the defence rights of the two accused, which were also protected by the Convention.
As to whether the interference had been necessary in a democratic society, the Court observed at
the outset that the case involved competing fundamental rights: on the one hand, the right to a fair trial and the defence rights of the two accused, and on the other hand, the applicants’ right to
respect for their private and family life and their right to freedom of religion. The two sets of rights
merited equal respect. Furthermore, Article 2 of the Convention (right to life) required the
authorities to carry out an investigation into the death of the applicants’ sons.
The Court also noted that the measure taken by the investigating judge had been based on the
needs of the investigation and had not amounted to imposing a blanket prohibition on the
applicants. The criminal investigation into the killing of the applicants’ sons had not been as
straightforward as the applicants maintained, as it was clear from the course of the proceedings that
the guilt of the two suspects – and in particular of one of the two accused – had been the subject of
intense debate before and even during the Assize Court stage. However, the applicants had been
prevented from arranging their sons’ funeral in accordance with their wishes and their religious
beliefs for the entire duration of the criminal investigation, which had lasted from 18 September
2010 to 4 April 2013, a period of approximately two and a half years. The refusal of their requests by
the investigating judge had therefore persisted throughout the investigation, the length of which
had been, at the very least, significant.
The Court made clear that it had no reason to doubt the necessity of the initial decision by the
investigating judge from the perspective of Articles 8 and 9 of the Convention. However, it
emphasised that in order to be compatible with those provisions any interference had to continue to
be justified throughout the period for which the applicants were affected by it (that is, in the present
case, throughout the investigation), as the necessity of an interference was liable to diminish or even
cease to exist with the passage of time. The applicants in the present case had had no remedy by
which to have the necessity of the initial refusal by the investigating judge reassessed in the light of
the progress of the investigation; all their attempts to obtain a review of the investigating judge’s
decision had been unsuccessful.
Furthermore, the Government had not established before the Court that domestic law afforded a
remedy enabling the applicants to obtain a reassessment of the necessity of the interference
stemming from the investigating judge’s initial decision. Owing to the lack of such a remedy, the
additional reassurances provided by the Emirdağ public prosecutor in September 2011 had not been
examined by the investigating judge or by any other judicial body. Likewise, the applicants had had
no opportunity to request that the autopsy report, which had not yet been available at the time of
the investigating judge’s initial decision, be taken into consideration.
In addition, there had been no requirement for the investigating judge to reassess the necessity of
his initial decision even where, as in the present case, the investigation extended over a lengthy
period. Moreover, when the applicants had made a fresh application to the investigating judge on
3 July 2012 to have their sons’ bodies released, they had received no response.
In sum, the Court considered that, owing to the applicants’ inability to obtain a review of the
necessity of the measure in question, taken at the initial stage of an investigation lasting for
approximately two and a half years, the domestic courts had been prevented from examining the
continuing necessity of the interference with the applicants’ rights from the perspective of Articles 8
and 9 of the Convention. There had therefore been a violation of those two Articles.
Just satisfaction (Article 41)
The Court held that Belgium was to pay the applicant 10,000 euros (EUR) in respect of non-pecuniary
damage and EUR 3,460.81 in respect of costs and expenses.
