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Published online by Cambridge University Press: 31 July 2008
The legal revolution brought about by the Human Rights Act 1998 has affected arcane legal areas such as the law of exhumation, by questioning whether refusal to grant an application to exhume and move a dead body would breach the applicant's human rights under the European Convention on Human Rights (ECHR). While the Consistory Courts have been quick to develop arguments based on human rights, the majority of the European Court of Human Rights in its recent judgment in Dödsbo v Sweden showed a greater reluctance to do so, emphasising the fact that although the refusal to exhume may interfere with the applicant's human rights, such an interference could be valid under the terms of the ECHR.
2 Petchey, P, ‘Exhumation Reconsidered’ (2001) 6 Ecc LJ 122 at p 132.Google Scholar
3 Application no 61564/00, 17/01/06 (Unreported).Google Scholar
4 Re Christ Church, Alsager [1999] Fam 142, [1999] 1 All ER 117, 17 CCCC No 19, (1998) 5 Ecc LJ 214, Ch Ct of York.Google Scholar
5 Re Durrington Cemetery [2001] Fam 33, 19 CCCC No 17, (2000) 6 Ecc LJ 80, Chichester Cons Ct.Google Scholar
6 Which under the Alsager test is a persuasive justification for refusal of a faculty.Google Scholar
7 The judgment was delivered on 5 June 2000; the Act came into force on 1 October 2000.Google Scholar
8 Re Durrington Cemetery [2001] Fam 33 at p 37.Google Scholar
9 Re Crawley Green Road Cemetery, Luton [2001] Fam 308, 19 CCCC No 48. (2000) 6 Ecc LJ 168, St Albans Cons Ct.Google Scholar
10 [2001] Fam 308 at 310.Google Scholar
11 Cf Chancellor Hill's obiter comments in Re Durrington Cemetery, the matter having already been determined under the substantive domestic law.Google Scholar
12 [2001] Fam 308 at 311.Google Scholar
13 That is not to say that a detailed discussion of Article 9 rights is itself essential since the qualified nature of the Convention right may be evaluated in the proper application of the substantive law.Google Scholar
14 That is, it must have some basis in domestic law and that law should be accessible and its effects foreseeable: Sahin v Turkey (2005) 41 EHRR 8.Google Scholar
15 The legitimate aims are those outlined in ECHR, Article 9(2): ‘public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others’.Google Scholar
16 That is, ‘any such restriction must correspond to a “pressing social need” and must be “proportionate” to the legitimate aim pursued’: Serif v Greece (2001) 31 EHRR 20.Google Scholar
17 See generally Hill, M, The Permissible Scope of Legal Limitations on the Freedom of Religion or Belief in the United Kingdom (2005) 19 Emory International Law Review 1129–1186.Google Scholar
18 Note that in Sweden there is no equivalent of the Human Rights Act 1998, s 13(1), which provides: ‘If a court's determination of any question arising under this Act might affect the exercise by a religious organisation (itself or its members collectively) of the Convention right to freedom of thought, conscience or religion, it must have particular regard to the importance of that right’. An English court (civil or ecclesiastical) may find itself having to give greater weight to the freedom of religion and less to its limitation.Google Scholar
19 Cf ECHR, Article 9 (2), which concerns only the right to manifest.Google Scholar
20 Cf ‘prescribed by law’under Article 9.Google Scholar
21 The legitimate aims differ and are outlined in Article 8(2).Google Scholar
22 They did not consider it necessary ‘to determine whether such a refusal involves the notions of “family life” or “private life” cited in Article 8’ but proceeded ‘on the assumption that there has been an interference’.Google Scholar
23 Dödsbo v Sweden, para 25.Google Scholar
24 Dödsbo v Sweden, paras 26–27.Google Scholar
25 Cf Re Blagdon Cemetery [2002] Fam 299, [2002] 4 All ER 482, (2002) 6 Ecc LJ 420, where the Court of Arches held that both Re Durrington Cemetery and Re Crawley Green Road Cemetery, Luton, could have been decided ‘without the need for recourse to the Human Rights Act 1998’.Google Scholar
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