DISSENTING OPINION OF JUDGE HEDIGAN JOINED BY JUDGE GYULUMYAN

Whilst I agree with the decision of the majority in respect of the complaints made under Articles 13 and 14, I regret I am unable to agree in respect of Article 8.

I would agree with the majority that age does not reduce the need to know the details of one ’ s parentage. The desire and need to know such matters are too well known to be ignored and demand great respect and support. Nonetheless, there will clearly always be different levels of need depending on the individuals involved and it may fall to judges to determine those different levels.

Whilst I accept that the family of the deceased did not rely on any religious or philosophical objection to the proposed exhumation and the taking of a DNA sample, they did nonetheless oppose it. I note that persons of no particular religion or philosophy may very genuinely oppose such an action on the simple ground of violating the intimacy of the family , not to mention the integrity of their father ’ s mortal remains. It is true that it was the applicant who extended the lease on the tomb at his own expense until 2016. It is also true that at the end of that time, the body of the deceased will likely be exhumed. These are relevant matters that ought to be and were considered and given due weight.

I note the reference to Estate of Kresten Filtenborg Mortensen v. Denmark ( ( dec .) , n o. 1338/03, ECHR 2006 -V ), dealt with by the Fifth Section, in which the estate of Kresten Filtenborg Mortensen complained that the exhumation of his corpse for the purpose of taking DNA samples constituted a breach of Article 8 of the Convention as it was not “in accordance with the law” as required by Article 8 § 2. The Fifth Section found in its decision on admissibility :

“However, it would stretch the reasoning developed in this case-law too far to hold in a case like the present one that DNA testing on a corpse constituted interference with the Article 8 rights of the deceased ’ s estate . ”

It was further noted:

“ In the present case the individual in question, namely KFM, was deceased when the alleged violation took place and hence when his estate, on his behalf, lodged the complaint with the Court alleging an interference with his right, or rather his corpse ’ s right, to respect for private life. In such circumstances, the Court is not prepared to conclude that there was interference with KFM ’ s right to respect for private life within the meaning of Article 8 § 1 of the Convention. ”

I note that in the present case it was the rights of the family as well as that of the deceased that were considered by the Swiss Federal Court . In Estate of Kresten Filtenborg Mortensen , it was only the right of the deceased under Article 8 that was considered. The right s , if any, of the family had never been brought before the domestic courts and were therefore ruled out on non-exhaustion grounds and, if it had been necessa ry, on the ground of the six-month rule. I would therefore doubt the relevance of Estate of Kresten Filtenborg Mortensen to the present case. Moreover, I would also doubt the finding in that judgment that the dead have no Article 8 right to rest in peace. Whilst normally a complaint in respect of such an alleged violation would be brought at the suit of the deceased ’ s relatives, I wonder : does the right to rest in peace disappear where there are no relatives to vindicate it? Does this right only attach to the relatives? I would think that these are issues that have yet to be fully resolved by the Court. I would have thought that there is a European consensus on the right of the dead to rest in peace and thereby a right under Article 8.

In whomever this right inheres, I would take the view that there may well be circumstances where it can be obliged to suffer interference for good and weighty reasons. I could even concede that were I the judge in the domestic tribunal I might have come to a different conclusion to that of the domestic judges. However, and this is the crux of my disagreement with the majority, I do not feel that as judges of this Court we have good grounds to find that the Swiss Federal Court got the balance so clearly wrong when they weighed the conflicting interests as to justify a finding of a violation.

The deference we owe to the domestic courts on the basis of the doctrine of subsidiarity is crucial to the whole relationship between us. This relationship may be greatly strained when this Court, however tempted it may be in a distressing case, trespasses into areas which are properly the territory of the domestic courts. In cases of this nature which involve complex nuances of tradition, belief and family values, the decisions made frequently rely heavily on the ability to hear the witnesses or otherwise assess evidence.

This Section ( T hird), in its inadmissibility decision in Werner Petersen v. Germany (( dec .), nos. 38282/97 and 68891/01 , 12 January 2006) , s et out the well- established case-law of this Court in determining the m argin of appreciation in family- law cases , notably child custody. I consider that cases involving the exhumation of a body and the taking of a DNA sample are of a similar nature in their sensitivity , involving frequently delicate and complex interpersonal issues.

“The Court notes that in determining whether the refusal to grant access was ‘ necessary in a democratic society ’ it has to consider whether, in the light of the case as a whole, the reasons adduced to justify this measure were relevant and sufficient for the purposes of paragraph 2 of Article 8. Undoubtedly, consideration of what lies in the best interest of the child is of crucial importance in every case of this kind. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned. It follows that the Court ’ s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding custody and access issues, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their margin of appreciation (see, inter alia , Hokkanen v. Finland , 23 September 1994 , § 55 , Series A no. 299-A; Elsholz v. Germany [GC], no. 25735/94, § 48, ECHR 2000-VIII; and Sommerfeld v. Germany [GC], no. 31871/96, § 62, ECHR 2003-VIII).”

Although , as noted above, I might as a domestic judge have come to a different conclusion, I consider that the Swiss Federal Court made a careful and well- reasoned analysis of the conflicting interests at stake in this case, relied upon relevant and sufficient reasons and came to a reasonable conclusion. I can discern no flaw in their approach which should lead this Court to find a violation. I consider, for the reasons outlined above, that this is a classic case in which the Court should be slow to intervene and consequently must regretfully disagree with the decision of the majority.