PARTLY DISSENTING OPINION OF JUDGE FURA ‑ SANDSTRÖM

1. The Court found that there had been no violation of Article 3 of the Convention in respect of Seyit Külekçi and Doğan Altun, but I voted in favour of finding a violation. My reasons for doing so are as follows.

2. In the light of the preparatory work on Article 3 (Council of Europe, DH (56) 5), it is to be noted that the purpose of this provision is to protect bodily integrity and human dignity. The Court has already held that the very essence of the Convention is respect for human dignity (see Pretty v. the United Kingdom, no. 2346/02, § 65, ECHR 2002-III).

3. It is true that the Court has never applied Article 3 of the Convention in the context of disrespect for a dead body (see paragraph 82 of the judgment), although it has excluded the notion of interference with respect for private life in relation to the exhumation of corpses for DNA testing (see Estate of Kresten Filtenborg Mortensen v. Denmark (dec.), no. 1338/03, 15 May 2006, and Jäggi v. Switzerland , no. 58757/00, § 42, ECHR 2006 ‑ ... ). However, for the reasons outlined below, I consider that the gratuitous desecration of a corpse, as distinct from scientific tests authorised by a court in the reasonable interests of a third party, is a clear affront to human dignity in breach of Article 3 of the Convention.

4. It is my conviction that the duty imposed on the State authorities to respect an individual ' s human dignity, and to protect bodily integrity, cannot be deemed to end with the death of the individual in question where a person is killed by the security forces and the corpse immediately subjected to deliberate and cruel acts, as in the present case.

5. Human dignity extends not only to the living but also to the dead. As was stated by the German Constitutional Court in the Mephisto case of 1971 (30 BVerfGE 173), the dead – particularly those in living memory – remain in communion with the living, and we, the living, owe them continuing honour and respect. [2]

6. The German Constitution (the Basic Law) puts human dignity at the centre of all rights. Article 1(1) of the Basic Law reads: “The dignity of man is inviolable. To respect and protect it is the duty of all State authority”. In the second paragraph, the inseparability of human dignity and basic rights is underlined: “The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and justice in the world”.

7. The German Constitutional Court further held in Mephisto that human beings must always be treated as ends, never as means. I find that to be a compelling ethical principle applicable to Article 3 and to the case at hand.

8. Article 3 provides that “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment”. In this Article there are no qualifications or exceptions, and no restrictions on the rights guaranteed. The prohibition is absolute and fundamental in character. In this respect the Convention bears a strong resemblance to the Basic Law, putting human dignity at the centre. This is why the German Basic Law and the case-law of the German Constitutional Court are in my view relevant to our case. For further examples on how the concept of human dignity prevails throughout the Convention and in other international treaties and texts, I refer to the joint dissenting opinion of Judges Spielmann and Jebens in Vereinigung Bildener Kunstler v. Austria, judgment of 25 January 2007 (§ 8 with footnotes).

9. I acknowledge that there is no common European standard in the philosophical/ethical/religious approach to death. We also have different ways of looking at human remains after death. This is reflected in our languages and in our cultures in general and our funeral traditions in particular. Maybe this is why the Court in its case-law has not extended the protection under Article 3 beyond those living now. In my opinion the case at hand provided the Court with an opportunity to take a step further in the protection of human dignity. I regret that I was unable to convince my esteemed colleagues to take this opportunity and state clearly that the obligation to respect an individual ' s human dignity and bodily integrity continues after death.

10. My conclusion is that the mutilation of the bodies of Seyit Külekçi and Doğan Altun constitutes a failure on the part of the State authorities to protect the right to respect for their human dignity and, therefore, amounts to degrading treatment in breach of Article 3. In all other respects I concur with the majority.

[1] Rectified on 1 March 2007: The applicant ’ s name read “ Rıza Altun ” in the former version of the judgment.

[2] Briefly, the facts of the cases were as follows: Klaus Mann published Mephisto in the 1930s. It is a satirical novel about his brother-in-law, Gustaf Grundgens, picturing Grundgens as someone who, abandoning his liberal views, prostitutes his talent for the sake of fame and popularity with the Nazi leaders. The German courts found that the novel dishonoured the good name and memory of the then deceased Grundgens. The Constitutional Court had to find a balance between freedom of speech and human dignity.