Judgment (Merits and Just Satisfaction) of Court (Fifth Section), February 14, 2008 (case CASE OF HADRI-VIONNET v. SWITZERLAND)

Judge:PONCET CARNICE I.
Defense:SWITZERLAND
Resolution Date:February 14, 2008
Issuing Organization:Court (Fifth Section)
SUMMARY

Violation of Art. 8 Pecuniary damage - claim dismissed Non-pecuniary damage - award

 
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FIFTH SECTION

CASE OF HADRI-VIONNET v. SWITZERLAND

(Application no. 55525/00)

JUDGMENT

STRASBOURG

14 February 2008

FINAL

14/05/2008

This judgment shall become final in the circumstances set out in Article 44 (2) of the Convention. It may be subject to editorial revision.

In the case of Hadri-Vionnet v. Switzerland,

The European Court of Human Rights (Fifth Section), sitting as a chamber composed of:

             Peer Lorenzen, President,              Karel Jungwiert,              Volodymyr Butkevych,              Margarita Tsatsa-Nikolovska,              Javier Borrego Borrego,              Mark Villiger,              Giorgio Malinverni, judges,and of Claudia Westerdiek, Section Registrar,

Having deliberated in private on 22 January 2008,

Delivers the following judgment which was adopted on the last-mentioned date:

PROCEDURE

  1. The case originated in an application (no. 55525/00) against the Swiss Confederation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the “Convention”) by an Algerian national, Ms Dalila Hadri-Vionnet (“the applicant”), on 7 December 1999.

  2. The applicant was represented by Ms I. Poncet Carnice, a lawyer practising in Geneva. The Swiss Government (“the Government”) were represented by their Agent, initially Mr Ph. Boillat, former Deputy Director of the Federal Office of Justice, then Mr F. Schürmann, Head of the Human Rights and Council of Europe Section at the Federal Office of Justice.

  3. Relying on Article 8 of the Convention, the applicant complained of a violation of her right to respect for her private and family life owing to the fact that she had been unable to attend the funeral of her stillborn child and that her baby’s body had been transported in an ordinary delivery van.

  4. By a decision of 2 May 2006, the Fifth Section declared the application admissible.

    THE FACTS

    1. THE CIRCUMSTANCES OF THE CASE

  5. The applicant was born in 1970 and lives in Lignon (in the Canton of Geneva).

    1. The events giving rise to the case

  6. The facts of the case, as presented by the parties, may be summarised as follows.

  7. The applicant arrived in Switzerland on 10 June 1996 as an asylum seeker.

  8. On 17 June 1996 she was placed in an accommodation centre for asylum seekers in the Canton of Aargau.

  9. On 12 March 1997 she was moved to the “Thorfeld 2” accommodation centre in Buchs (Aargau).

  10. On 4 April 1997 the applicant gave birth to a stillborn baby, the father of whom was a Swiss national. The autopsy established that the fœtus had died two days before delivery, at twenty-six weeks and two days. At the request of the midwife, the applicant, who was in a state of shock, was taken from the “Thorfeld 2” accommodation centre to the hospital in the Canton of Aargau. When asked by the midwife, both the applicant and the baby’s father said that they did not want to see the baby’s body.

  11. On the same day the social worker (Sozialarbeiter) and the registrar of births, marriages and deaths (Zivilstandsbeamter) of the municipality of Buchs were informed of the child’s birth. Believing that it was not compulsory in the case of a child stillborn at the start of the twenty-seventh week of pregnancy to be buried with an attendant ceremony, they ordered a burial without a ceremony, in the absence of the applicant. They based their decision in particular on the fact that the parents had not expressed a wish to see the body before the autopsy and took the view that, given her mental state, the applicant was not fit to attend the burial.

  12. On 8 April 1997, after having been placed in a wooden coffin by a firm of undertakers, the child’s body, on instructions from the municipality social worker, was carried in a delivery van to the cemetery of the municipality of Buchs for burial in a communal grave for stillborn babies (Grabstelle für Totgeburten).

  13. It appears that the applicant left the hospital that same day (see the decisions of the Canton of Aargau Higher Court of 14 May 1999, paragraph 23 below).

  14. On 10 April 1997 a member of the psychiatric services department took the applicant to the cemetery to lay flowers.

  15. According to the Government, the applicant was informed on 15 April 1997 that it would be possible to organise a funeral for her child at a later date. In her statements of 1 July 1997 (see paragraph 19 below) the applicant disputed that assertion.

  16. On 22 April 1997 she went to the cemetery and, accompanied by the priest, placed various stones and laid flowers at the site at which her child had been buried.

    1. The proceedings brought by the applicant

  17. On 13 May 1997 the applicant lodged a criminal complaint against persons unknown at the district office (Bezirksamt) of Aarau and joined the proceedings as a civil party. Criminal proceedings were brought against the social worker and the registrar of births, marriages and deaths of the municipality of Buchs for misuse of official authority, disturbing the repose of the dead and, in the alternative, removal of property within the meaning of Article 141 of the Swiss Criminal Code. The applicant submitted that her child’s body had been unlawfully removed from her and that it had been carried in an inappropriate vehicle without the authorisation required for this kind of transport. In this context, she complained of a violation of her personal freedom guaranteed by the Federal Constitution and, in her submission, protecting the feelings of an individual vis-à-vis a deceased family member (see paragraph 33 below).

  18. On 15 May 1997 the applicant moved to Geneva where her partner was living.

  19. On 1 July 1997 the applicant and her partner were questioned by the Geneva cantonal police concerning the birth of their child and the circumstances that had surrounded it. Extracts of the interview with the applicant are reproduced below:

    “Question (hereafter: “Q”) 17: Were you informed of the various types of funeral (burial, cremation or other) for stillborn babies

    Reply (hereafter: “R”) 17: The midwife, and then Dr R, asked me what I wanted to do with the body of my child.

    Q 18: What type of funeral did you choose

    R 18: I chose a normal burial with a ceremony.

    Q 19: Did anyone mention to you that you could see your child’s body

    R 19: The midwife offered to let me see the child.

    Q 20: Did you see your child’s body

    R 20: I was in shock and I declined because I didn’t feel up to seeing my dead child.

    ...

    Q 32: Did the hospital staff give you any guidance on the subject of funerals

    R 32: Yes. The formalities were carried out by C. [the firm of undertakers]. I just wasn’t told the date.

    Q 33: Were you informed of the funeral by the Buchs Registry of births, marriages and deaths

    R 33: No.

    Q 34: Were you informed of the place, date and time of the burial

    R 34: No.

    Q 35: If so, by whom

    R 35: ---

    Q 36: If not, did you ask the child’s father or any other person, in particular H. (the director of the Buchs accommodation centre) for this information

    R 36: I had a visit from Dr H on the following Tuesday, unless I am mistaken, at approximately 2 p.m. She told me that my baby had been buried that very day at 1 p.m. I was very angry that I had not been present. She told me she wasn’t familiar with the system.

    Q 37: Did you feel up to attending your child’s funeral

    R 37: I was preparing myself because to convince myself that he had died, I had to see him placed in the ground.

    Q 38: Why didn’t you attend the burial

    R 38: I didn’t get the chance.

    ...

    Q 40: Did the hospital staff suggest that you attend the funeral accompanied by a nurse

    R 40: No. No such suggestion was made to me.

    Q 41: Have you visited your child’s grave and with whom

    R 41: On Thursday, 10 April 1997, I met Mr B., a social worker. He told me that I was not entitled to know where by baby was. I told him that even though I was an asylum seeker, I was first and foremost a mother and that I had the right to see my son’s grave.

    As he refused to tell me anything, I went to the police where I spoke to Ms B. She told me that she was not able to deal with this kind of problem. I insisted and after she had obtained some information, she told me that the “municipality” had made the decision.

    I then contacted the priest of the Catholic Church in Aarau and a pastoral assistant. They were astonished that I had not obtained satisfaction. They tried to obtain information but were unsuccessful.

    Q 42: Do you feel that you have suffered a loss as a result of the lack of information provided to you concerning your child’s burial

    R 42: A huge loss. I experienced the shock of losing my child and on top of that, I don’t know where he is buried.

    Q 43: What type of loss have you suffered

    R 43: I feel as though I have not been respected as a mother. I was kept out at every step.

    Q 44: Would you have attended the burial if you had known the time and place

    R 44: Yes.

    Q 45: Were you informed that it was still possible to have a private funeral

    R 45: No.

    ...”

  20. The following are extracts of the interview with the applicant’s partner:

    “Q 11: Were you informed of the various types of funeral (burial, cremation or other)

    R 11: The midwife asked me what kind of funeral I wanted for the child. I told her that as a Catholic, I wanted a burial (burial and ceremony). She asked me to contact a company...

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