Denial of parents’ right to bury their children: Özer

Background

In Gülbahar Özer and Yusuf Özer v Turkey [2018] ECHR (no. 64406/09), the applicants were sister and brother. Their respective children, Sibel Sartık and Nergiz Özer, aged 24 and 15, were killed by soldiers on 19 January 2005 in southeast Turkey. When they tried four days later to take their children’s bodies for burial in the city of Siirt, they were stopped by soldiers and the bodies confiscated because the local governor had ordered that they be buried elsewhere on account of disturbances in Siirt cemetery. The local authorities eventually buried them in Eruh in the early hours of the following morning, without a religious ceremony. The applicants sought permission from the domestic courts to move the bodies to a cemetery of their own choosing but their requests were refused. The final decision by the Supreme Administrative Court was communicated to them in March 2009.

Relying in particular on Article 8 (respect for private and family life), they complained about the refusal to let them bury their children where they wanted. They also raised complaints on the same facts under Article 3 (torture and inhuman or degrading treatment), Article 9 (thought, conscience and religion), Article 13 (effective remedy) and Article 17 (prohibition of abuse of rights).

The judgment

The Second Section noted that the Court had already held that “private life” and “family life” encompassed the right to bury a close relative and to be present when the burial took place: Sabanchiyeva and Others v Russia [2013] ECHR 512 and Maskhadova and Others v Russia [2013] ECHR 513 [26].

The confiscation of the applicants’ children’s bodies by the soldiers and the authorities’ refusal to allow them to bury their children in a graveyard of their own choosing and their inability to carry out the usual burial rites had interfered with their “private life” and “family life” within the meaning of Article 8 [27]. Indeed, the respondent Government agreed that the events in question had constituted an interference with the applicants’ rights guaranteed in Article 8 of the Convention (see paragraph 25 above). It therefore remains to be seen if this interference was justified under the second paragraph of that provision.

While the Court was prepared to accept that the governor’s interference had pursued the legitimate aim of public safety, the prevention of disorder and the protection of the rights and freedoms of others [28]. As to whether the interference had been “necessary in a democratic society”, however, the Court shared the parties’ view that it was the duty of the national authorities to take necessary steps to maintain public order and that

“the confiscation of the applicants’ children’s bodies and their burial in a cemetery by the municipal authorities, thereby preventing the applicants from holding a funeral for their children in a cemetery of their own choice, was a particularly severe interference with the applicants’ rights guaranteed in Article 8” [33].

Such a severe measure could be justified and comply with the proportionality requirements of Article 8 only if the national authorities had first ruled out the possibility of alternative measures that would have caused less damage to the fundamental right at issue while fulfilling the same aim [34]. And the applicants had, in fact, suggested a viable alternative: burying their children in Batman instead of in Siirt – but that had been rejected without explanation [35]. At the very least, the authorities could have ensured that the applicants were present during their children’s burial in Eruh cemetery – or could have delayed the burial for a short period until the necessary security precautions had been put in place [36].

In short, the Turkish authorities 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 Turkey had overstepped any acceptable margin of appreciation [37]. There had therefore been a violation of Article 8 [38]; and it was not necessary to examine the admissibility or merits of the complaints under the other Articles [40].

Lemmens J concurred, but observed that the majority’s suggestion that, even where the state had a margin of appreciation the domestic authorities were obliged to choose the least restrictive measure, “not only runs counter to the most recent case-law of the Court, but would also put the Court in the difficult position of having to determine what that least restrictive measure, or otherwise a less restrictive measure, should be” [1].

Cite this article as: Frank Cranmer, "Denial of parents’ right to bury their children: Özer" in Law & Religion UK, 29 May 2018, https://lawandreligionuk.com/2018/05/29/denial-of-parents-right-to-bury-their-children-ozer/

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