Guide on Article 8 of the Convention – Right to respect for private and family life
outside world (Glaisen v. Switzerland (dec.), §§ 43-46, with further references therein; see also Zehnalova and Zehnal v. the Czech Republic (dec.); Botta v. Italy and Mółka v. Poland (dec.). 148. The Court found that the decision to remove children from two blind parents due to a finding of inadequate care was not justified by the circumstances and violated the parents’ Article 8 right to family life (Saviny v. Ukraine). On the other hand, the Court found no violation of Article 8 with regard to a statutory scheme developed in France to compensate parents for the costs of disabled children, even when the parents would have chosen not to have the child in the absence of a mistake by the State hospital regarding the diagnosis of a genetic defect (Maurice v. France [GC]; Draon v. France [GC]). The Court also provides a wide margin for States to determine the amount of aid given to parents of disabled children (La Parola and Others v. Italy (dec.)), and has held that when a State provides adequate domestic remedies for disabilities caused by inadequate care at the birth of a child, then there is no Article 8 violation (Spyra and Kranczkowski v. Poland, §§ 99-100). 149. The case of Kholodov v. Ukraine (dec.) concerned the suspension of a driving licence for a traffic offence concerning an applicant with a physical disability (multiple ailments of his joints) who alleged an excessive penalty given his medical condition. The Court admitted that the nine-month driving ban had repercussions on the applicant’s everyday life. In that sense it could be admitted that such a penalty constituted an ‘interference’ with the applicant’s right under Article 8.
8. Issues concerning burial and deceased persons 150. The exercise of Article 8 rights concerning family and private life pertains, predominantly, to relationships between living human beings. However, the Court has found that the way in which the body of a deceased relative is treated, as well as issues regarding the ability to attend the burial and pay respects at the grave of a relative, come within the scope of the right to respect for family or private life (Solska and Rybicka v. Poland, §§ 104-108 and the references cited therein). Other circumstances concerning surviving family members are covered by Article 8 (see the recent summary in Polat v. Austria, §§ 93-94) including an applicant’s complaint about the hospital’s failure to disclose information relating to her son’s post-mortem examination (§ 95). 151. The case of Lozovyye v. Russia, for instance, concerned a murder victim who had been buried before his parents had been informed of his death. In that case, the Court reiterated that everyone had a right to access to information relating to their private and/or family life (§ 32), and that a person’s right to attend the funeral of a member of his family fell under Article 8. Where the authorities, but not other family members, are aware of a death, there is an obligation for the relevant authorities to at least undertake reasonable steps to ensure that members of the family are informed (§ 38). The Court considered that the relevant domestic law and practice lacked clarity, but that that was not sufficient in itself to find a violation of Article 8 (§ 42). On the other hand, it concluded that the authorities had not acted with reasonable diligence to comply with the aforementioned positive obligation, given the information that was available to the domestic authorities in order to identify, locate and inform the deceased’s parents (§ 46). 152. In Hadri-Vionnet v. Switzerland, the Court found that the municipality’s failure to inform the mother about the location and time of the burial of her stillborn son was not authorised by law and violated her right to private and family life under Article 8 (Pannullo and Forte v. France). Similarly, in Zorica Jovanović v. Serbia, the Court held that the hospital’s failure to give information to the applicant regarding the death of her infant son and the subsequent disappearance of his body violated Article 8, even though the child had died in 1983, because of the State’s ongoing failure to provide information about what had happened. The Court also held that Russia’s refusal to allow a stillborn baby to take the name of its biological father, because of the legal presumption that the mother’s husband was the father, violated the mother’s Article 8 rights to bury her child with the name of his true father (Znamenskaya v. Russia).
European Court of Human Rights
40/161
Last update: 31.08.2021
