In Aygün v Belgium  ECHR 939 [in French], the applicants’ two sons had been murdered in September 2010 and in February 2014 a neighbour was convicted of their murder.
Throughout the investigation, from September 2010 to April 2013, the couple had been prohibited from transferring their sons’ bodies to Turkey, their home country, in order to bury them in the family grave in accordance with their beliefs, and their challenge to the refusal in the domestic courts had been unsuccessful. Before the ECtHR, they argued that the authorities’ refusal had violated their family and religious rights under Articles 8 and 9 ECHR. They also argued that they had not had an effective remedy in domestic law, contrary to Articles 6 and 13.
The Court decided that it was appropriate to examine the applicants’ allegations under Articles 8 and 9 alone. The refusal for the entire duration of the investigation to allow them to arrange their sons’ funerals in the manner that they wished had intruded upon their private and family life and had interfered with their freedom of religion. The case was about competing fundamental rights that merited equal respect: the right of the two accused to a fair trial, set against the applicants’ right to respect for their private and family life and to freedom of religion. Furthermore, Article 2 (right to life) obliged the domestic authorities to carry out an investigation into the death of their sons.
The Court also noted that the measures taken by the investigating judge had been based on the needs of the investigation and had not amounted to a blanket prohibition on the applicants; further, the criminal investigation had not been as straightforward as the applicants had maintained. The Court had no reason to doubt the necessity of the investigating judge’s initial decision from the perspective of Articles 8 and 9; however, it emphasised that in order to be compatible with Articles 8 and 9, any interference had to continue to be justified throughout the period of the investigation – and the Government had not established that there had been any means by which the applicants could get a reassessment of the necessity of the interference stemming from the investigating judge’s initial decision.
The initial stage of the investigation had lasted for approximately two and a half years and the domestic courts had been unable to examine the continuing necessity of the interference with the applicants’ Convention rights. There had therefore been a violation of Articles 8 and 9.
A press summary in English can be downloaded here.