Press Release

IACHR Calls on States to Respect Families’ Right to Mourn their Dead During COVID-19 Pandemic

May 1, 2020

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Washington, D.C. -  The Inter-American Commission on Human Rights (IACHR) calls on Member States of the Organization of American States (OAS) to respect and protect the rights of the families of individuals who die in the context of the COVID-19 pandemic, enable funeral rites that are appropriate in the circumstances, and contribute to preserving the memory of those individuals and paying tribute to them. The IACHR further urges States to take measures that enable body identification and traceability and to ensure that potentially wrongful deaths are investigated, to protect the rights to truth, justice, and reparation of the families of dead individuals.

According to the World Health Organization (WHO), more than 47,812 people had died in the Americas by April 23 as a result of the COVID-19 pandemic. Several of those individuals died while isolated in hospital or in their homes. Sometimes, relatives were not aware of their fate or did not have access to them, which made it more difficult to hand the bodies over to those families. In extreme cases where no one claimed them, some bodies were cremated or buried without informing the dead person’s family. There have also been reports of long delays to hand over or bury human remains, due among others to the large number of dead, to administrative bottlenecks in issuing death certificates, to frail funeral services that prevent transportation of these remains, and to difficulties in finding burial spaces in cemeteries that are operating beyond their capacity. These delays and, in some cases, outright funeral service collapse have led some families to take deceased loved ones out of their homes and onto the streets, faced with decomposing remains and fear of infection with the virus.

The IACHR has also been informed of various restrictions concerning funerals. According to civil society organizations, the approval of regulations to ease requirements for individual records and graves and a lack of resources to ensure adequate operations and protect forensic service staff are preventing due diligence to investigate potentially wrongful deaths. The Commission has specifically been told that some States are failing to comply with their international obligations concerning records, family notification, and investigation of deaths inside detention facilities. These cases include healthcare staff and law enforcement officers who became infected with the virus while at work.

The Commission notes with concern that these sorts of situations affect the conditions necessary to preserve the memory of deceased individuals and to pay tribute to them. Dignified treatment of the dead is inherent to their status as human beings, and it is essential to ensure respect for the ties that bind them to their loved ones. The situation can be particularly serious when a family is unaware of the whereabouts of a deceased member whose remains are cremated or buried without being adequately identified. In several cases, the IACHR has noted that the difficulties encountered by families to bury their dead affect their right to personal integrity and cause them anxiety and increased suffering. The Commission has said that the chance of burying dead family members in keeping with their beliefs provides some closure to the mourning process and helps to mitigate the consequences of trauma, grief, and pain.

The IACHR further stresses that hurdles preventing families from paying their last respects to their loved ones according to their own beliefs, rites, and customs causes profound suffering and makes mourning difficult. The Commission notes that death is in some cases linked to deep symbolic and religious processes and that death rites are therefore essential for individuals to be able to mourn the dead more easily and to reshape their relationship with dead individuals. The Inter-American Court has said that a person’s remains deserve to be treated with respect and that the value that the memory of a dead individual has for their loved ones needs to be acknowledged. The Court has also said that knowing where a loved one’s remains are and being handed those remains allows families to complete their mourning process and bury their own in accordance with their beliefs.

The Inter-American System has acknowledged that freedom of conscience and religion allows individuals to maintain, change, profess, and disseminate their religion or beliefs. “This right is one of the foundations of democratic society. In its religious dimension, it constitutes a far-reaching element in the protection of the convictions of those who profess a religion and in their way of life,” the Inter-American Court has said. In particular, in cases linked to indigenous and Afro-descendant communities, both the Commission and the Inter-American Court have said that not being able to conduct funeral rites or to access sacred sites are serious obstacles for the worldviews and religious beliefs of those communities and seriously impact their cultural identity and integrity.

Further, the IACHR notes that the right to a private and family life precludes arbitrary interference with both domains. Private and family are essential to an individual’s personality and are linked to their specific circumstances, as well as to the way they relate to other individuals by developing ties at the levels of both the family and society. As acknowledged by the European Court of Human Rights, the way a relative’s body is treated and any issues linked to the ability to attend the dead person’s burial and to pay tribute to them at their gravesite may amount to interference with private and family life. The European Court has addressed on several occasions States’ responsibility in cases where a body had been buried before the person’s relatives were informed of their loved one’s death or the time and site for burial, or when there had been unreasonable or unjustified delays in the process of handing over a person’s remains.

While the Americas and the world more generally are facing an emergency situation, the Commission stresses that—as it said in Resolution 1/2020, Pandemic and Human Rights in the Americas—States have an obligation to respect and protect human rights without discrimination. While some rights could justifiably be restricted with the legitimate goal of preserving health, States must ensure that any such measures respect the legality principle and are both necessary and proportionate, and they must also supervise the effective enforcement of their own obligations.

The Commission is pleased to have learned that some States have improved coordination with hospitals to prevent human rights violations in this context. The goal is to keep patient records in databases that make it possible to identify and locate them and that, in case of death, make it easier to contact the patient’s family. Banning cremation without appropriate identification—even in cases where the dead person’s loved ones do not claim their remains—is particularly important in this context. The IACHR has learned that some States have banned burials of individuals who have died of COVID-19 in non-specific mass graves. Instead, those States are using dedicated mass graves for suspected or confirmed cases of COVID-19, which is intended to facilitate efforts to identify and locate them at a later date. These countries are also keeping detailed, specific records of individuals who have died in the context of the pandemic. The Commission has further been told of measures taken by funeral services to enable families to continue to hold wakes under specific circumstances—including shorter sessions and fewer attendees—to ensure appropriate social distancing, in keeping with the requirements set by health authorities based on the available scientific evidence. The IACHR stresses that it is important to respect the will of families concerning their loved ones’ final resting place.

The Commission calls on States to ensure that both healthcare and funeral services comply with their obligations under international law—concerning both adequate identification of human remains and the location and traceability of those remains—and to guarantee that these proceedings are free and face no unnecessary administrative hurdles. The IACHR believes that States will also contribute to preserving memories, dignified treatment, and tributes for individuals who have died in this pandemic.

A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for and to defend human rights in the region and acts as a consultative body to the OAS in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.

No. 097/20