CASE OF ELLI POLUHAS DÖDSBO v. SWEDEN
No violation of Art. 8
András Baka;Antonella Mularoni;Elisabet Fura;Jean-Paul Costa;Karel Jungwiert;Mindia Ugrekhelidze
8. In 1938 the applicant married an Austrian national of Ukrainian origin who had entered Sweden that same year. Five children were born of the marriage. The family lived in Fagersta, where the applicant’s husband worked as a sales manager until his death on 11 May 1963. His ashes were buried in a family grave at a cemetery in Fagersta. The grave has room for at least eight other urns. The contract on the burial plot is to expire on 31 December 2019, but will automatically be renewed for twenty-five years when a new burial takes place there. Moreover, the person in possession of the right to the burial plot when the contract is about to expire is entitled to renew it. 9. In 1980 the applicant moved to Västerås to be closer to her children. The distance between Fagersta and Västerås is 70 kilometres. 10. On 15 August 1996 the applicant requested the cemetery authorities (Västanfors-Västervåla Kyrkogårdsförvaltning) to allow the transfer of her husband’s urn to her family burial plot in Stockholm, which had been established in 1945 and had room for thirty-two urns. The applicant’s parents were buried there and the applicant intended to be buried there after her death. Stockholm is situated 180 kilometres from Fagersta. The applicant submitted in addition that she had no connection to Fagersta any more, that all her children agreed to the removal and that she was sure her husband would not have objected to the transfer. 11. By a decision of 16 September 1996, her request was refused by the authorities in deference to the notion of “a peaceful rest” under the Funeral Act (Begravningslagen, 1990:1144). 12. On appeal, the County Administrative Board in Västmanland (Länsstyrelsen i Västmanlands Län) upheld the refusal. 13. The applicant appealed to the County Administrative Court in Västmanland (Länsrätten i Västmanlands Län) which, by a decision of 5 September 1997, found against her. It stated as follows: “Pursuant to Chapter 1, section 6, of the Funeral Act, remains or ashes which have been buried in a cemetery may not be removed from a burial plot in order to be buried in another burial plot. However, permission may be granted if there are special reasons therefor and the place to which the remains or ashes are to be removed has been determined. According to the explanatory notes to the Act (Prop. 1990/91:10, pp. 35-37), the decision on a request for the removal of remains or ashes shall be restrictive, having regard to the deceased’s right to a peaceful rest. Determination [of such a request] should be guided by the wishes expressed by the deceased whilst alive. As a general rule, it must be assumed that such a wish, if expressed, was taken into account when the burial took place. The paramount condition for allowing a transfer is obviously that it would not contravene the wishes expressed by the deceased when alive. Moreover, some connection between the deceased and the intended destination would usually be required. In the present case [the applicant’s husband] worked as a sales manager at the Fagersta factory until 1958. He died on 11 May 1963, and the urn containing his ashes was placed in grave no. 208/017, quarter no. 208, in Västerfors. [The applicant’s husband] came from Ukraine and had a Catholic Church tradition. It appears that he did not express any wishes about his burial when he was alive. The County Administrative Court makes the following assessment: Making an overall assessment, the County Administrative Court finds that [the applicant’s husband] did not have a closer natural connection to Stockholm than he had to Fagersta. No other reasons have been submitted which could justify the disturbance of the peace of the grave after thirty-four years.” 14. The applicant’s request for leave to appeal was refused by the Administrative Court of Appeal in Stockholm (Kammarrätten i Stockholm) on 29 October 1997, and by the Supreme Administrative Court (Regeringsrätten) on 22 February 2000. 15. The applicant died on 21 February 2003. In accordance with her wishes, she was buried in her family burial plot in Stockholm. 16. Domestic provisions of relevance to the present case are to be found in the Funeral Act 1990 (Begravningslagen – “the Act”), which came into force on 1 April 1991. Previously, they were contained in the Funeral Service Act 1957 (Lagen om jordfästning m.m.). It is mainly the parishes of the Church of Sweden which are responsible for burial grounds (Chapter 2, section 1, of the Act) and for decisions concerning, inter alia, graves and burials. It is also in the first instance for the church authorities to determine requests to move the remains or ashes of a deceased person (Chapters 5, 6 and 7 of the Act). A decision may be appealed to the county administrative board (Chapter 11, section 6, of the Act). Further appeals lie with the competent administrative court of appeal and, subject to the granting of leave to appeal, with the Supreme Administrative Court (Chapter 11, section 7, of the Act). When a person dies, his or her wishes concerning cremation and burial should, as far as possible, be followed (Chapter 5, section 1 of the Act). This was also the rule under the Funeral Service Act 1957, the legislation applicable at the time of the applicant’s husband’s death. If there is a dispute between the survivors about where the burial should take place, it is for the county administrative board to decide (Chapter 5, section 4, of the Act). Once remains or ashes have been buried, moving them from one place to another is in principle not allowed. However, permission to move remains or ashes may be granted if special reasons exist and if the place to which they will be moved has been clearly stated (Chapter 6, section 1, of the Act). However, the grave must not be opened in such a way that the remains or ashes are damaged (Chapter 2, section 13, of the Act). The provisions of Chapter 6, section 1, of the Act are based on respect for the sanctity of the grave. This is also why the provisions regarding the removal of remains and ashes are restrictive; a deceased’s grave must be left in peace and may only be disturbed under special circumstances. According to the explanatory notes to the Act (Government Bill 1990/91:10, p. 35), the removal of remains or ashes may be permitted if a mistake occurred at the time of burial, if the remains of a husband, wife, parent or young child are to be brought together or, in some cases, if a refugee or immigrant wishes to take the remains of a deceased relative back to his or her country of origin. The deceased’s own wishes should serve as guidance for the transfer decision. When such wishes are not known, regard should be had to the deceased’s attachment to the place where he or she is buried. As a rule, removal should not be permitted if the deceased is buried in a place where he or she was active for a large part of his or her life. If, however, the cemetery is situated in a place where the deceased lived only temporarily, removal may be permitted. In addition, the deceased should have had some connection with the place to which the remains are to be removed. According to the explanatory notes (ibid., pp. 36-37), examples of such a connection could be that the deceased grew up in that place, had relatives or a family grave there, or perhaps had a holiday home there. As regards husbands and wives, it may be permitted to move one of the deceased’s remains to bring them together in a common grave, especially if the one who died last cannot, for some reason, be buried in the same place as the first. Particular regard may be had to the wishes of the last survivor concerning the common burial place. 17. In 1994 the Supreme Administrative Court ruled on several cases concerning the interpretation of Chapter 6, section 1, of the Act (Regeringsrättens Årsbok 1994 ref. 93 I-IV). These judgments reveal a restrictive interpretation. For instance, the fact that the surviving relatives have moved, that there is a long distance between the burial place and their new home, or that public transport to a burial place may be lacking, are not considered to be sufficient grounds for a transfer. In three cases the Supreme Administrative Court, referring to the explanatory notes to the Act and the reasons stated in the requests, found that those reasons were not sufficient to permit removal of the deceased’s remains or ashes. These cases concerned, respectively, a fiancée who wanted to move her fiancé’s remains, a husband who wanted to move his wife’s remains, and a daughter who wanted to move her father’s remains. In another case, however, which concerned a mother’s request to move her child’s remains to her husband’s burial place, the Supreme Administrative Court found that there were sufficient reasons to allow the transfer. In the case concerning a daughter’s request to move her father’s remains, the former wanted to bury the latter in the same cemetery as the one in which her recently deceased mother had chosen to be buried. The Supreme Administrative Court noted that the complainant’s father had lived and worked in Malmö, and was buried there in his grandfather’s family grave. Having regard to the father’s connection to Malmö, the Supreme Administrative Court found no reason to presume that his burial there had been a mistake, and it held that there were no other sufficient reasons, after thirty years, to permit the removal of the remains.