Burying children in a cemetery the parents didn’t chose but instead was the choice of the authorities violates private and family life
JUDGMENT
Gülbahar Özer and Yusuf Özer v. Turkey 29.05.2018 (no. 64406/09)
SUMMARY
Rejection of parents’ request to bury their children who were killed by soldiers in a cemetery of their choice. A decision by the authorities to confiscate the bodies, to be taken to a place they have chosen and not to become a religious ceremony to protect public security. Infringement of Article 8 (right to respect for private and family life) because the State had exceeded any acceptable margin of discretion.
PROVISION
Article 8
PRINCIPAL FACTS
The applicants, Gülbahar Özer and Yusuf Özer, are Turkish nationals who were born in 1963 and 1965 respectively and live in İzmir (Turkey). They are sister and brother.The applicants’ children, aged 24 and 15, were killed by soldiers in January 2005 in southeast Turkey.
The applicants tried four days later to take their bodies for burial in the city of Siirt, but they were stopped by soldiers and the bodies were confiscated as the local governor had ordered that the bodies be buried in another cemetery owing to disturbances in the Siirt cemetery.
Mr Özer made an official request to the office of the governor for permission to bury the children in the city of Batman, but the request was refused. The local authorities eventually buried the bodies in the town of Eruh in the early hours of the following morning, without a religious ceremony.
The applicants applied to the domestic courts for permission to move the bodies and bury them in a cemetery of their own choice, but the case was rejected. The final decision, by the Supreme Administrative Court, was communicated to them in March 2009, stating that the incidents at the Siirt Cemetery had begun when the people who had gathered there had insisted that the two children be buried next to the graves of members of the PKK.
THE DECISION OF THE COURT
Article 8
The Court considered that the confiscation of the children’s bodies by the soldiers, coupled with the authorities’ refusal to allow Ms Özer and Mr Özer to bury their children in a cemetery of their own choosing and the their inability to carry out the usual burial rites, constituted an interference with the applicants’ “private life” and “family life” within the meaning of Article 8 of the Convention.
Regarding the question of whether the interference was “necessary in a democratic society” for a legitimate aim within the meaning of Article 8 § 2 of the Convention, the Court accepted that the authorities had taken their decision in the interest of public safety, for the prevention of disorder and for the protection of the rights and freedoms of others. It concluded, however, that the measures taken by the authorities could not be seen as proportionate to those legitimate aims.
The national authorities should first have ruled out the possibility of using alternative measures that would have caused less damage to the right at issue whilst fulfilling the same aim. A viable alternative had been in fact suggested to the authorities by the Özers, namely that of burying their children in the city of Batman instead of Siirt. The Court held that the authorities could at least have ensured that the applicants were present during the burial of their children in Eruh cemetery or could have delayed the burial for a short period.
As the measure in question had not struck a fair balance between the applicants’ right to the protection of their private and family life and the legitimate aims of public safety, the prevention of disorder and the protection of the rights and freedoms of others, and as the respondent State had gone beyond any acceptable room for manoeuvre (“margin of appreciation”) in that regard, the Court found a violation of Article 8.
Other articles
Having regard to its finding of a violation of Article 8, the Court deemed it unnecessary to examine the applicants’ complaints under Article 3, Article 9, Article 13, Article 14 and Article 17(echrcaselaw.com editing).
