JOINT DISSENTING OPINION OF JUDGES TÃœRMEN, UGREKHELIDZE AND MULARONI

We regret we are unable to agree with the majority that there has been no violation of the applicant ’ s rights under Article 8 of the Convention.

According to domestic provisions, permission to move remains or ashes may be granted if special reasons exist and if the place to which they will be moved has clearly been stated. Nevertheless, the grave must not be opened in such a way that the remains or ashes are damaged.

According to the explanatory notes to the Funeral Act 1990, the removal of remains or ashes may be permitted if the remains of spouses are to be brought together. It may be permitted to move one of the deceased ’ s remains to bring them together in a common grave, especially if the one who died last cannot, for some reason, be buried in the same place as the first. Particular regard may be had to the wishes of the last survivor concerning the common burial place (see paragraph 16 of the judgment).

The Government did not dispute that the refusal to grant permission to remove the urn from one burial place to another involved an interference with the applicant ’ s private life. They maintained, however, that the interference was in accordance with the law, that it served legitimate aims and that it was justified under Article 8 § 2 of the Convention.

As to the legitimate aims relied on by the Government (see paragraph 20 of the judgment), we are firmly convinced that the principle of the sanctity of graves is a very important one and must be respected. However, we have difficult y in seeing how the removal of the urn of the applicant ’ s husband from a burial plot in Fagersta to the family burial plot in Stockholm could infringe that principle. The requ ested removal would have taken place from one sacred place to another , without any risk of disorder or outrage to morals. No conflict amongst the relatives arose, both the applicant and her five children and sole heirs having agreed to the removal. Although we agree that the removal of remains or ashes should be strictly regulated so as to ensure their respect, nothing in the circumstances of the case could make us believe that the applicant and her children regarded cemeteries and burial places as temporary repositor ies for the deceased ’ s ashes. Regard for the s anctity of graves and respect for the deceased can be shown in many ways , including by visiting graves or placing flowers on them. We consequently doubt that it could be said that the interference with the applicant ’ s rights under Article 8 pursued a legitimate aim.

However, even assuming that the interference with the applicant ’ s rights under Article 8 could be said to pursue one or more legitimate aims, we consider unconvincing the Government ’ s arguments (see paragraph 21 of the judgment) and those of the majority (see paragraphs 26 and 27) concerning the “necessity of the interference in a democratic society”.

As the majority highlights, the removal of the urn appears, in practical terms, to be quite easy and no public - health interests seem to be involved: such matters were never raised by the domestic authorities . T he applicant ’ s husband died thirt y -four years before the 5 September 1997 decision of the Coun ty Administrative Court in Västmanland , and his remains were in an urn.

It is true that there are no indications that the applicant ’ s husband was not buried in accordance with his wishes. However, it is also true that he did not express any wish as to his resting place , and the Funeral Act 1990 provides for particular regard to be had for the wishes of the last surviving spouse concerning the common burial place.

W hen her husband died in May 1963 , t he applicant and her children were living in Fagersta. It is for us perfectly understandable that the applicant should have decided at that time to have her husband buried in the town where she and her children lived , since it would make it easier for the whole family to visit the cemetery. In 1980, w hen t he children ha d grown up, the applicant moved to Västeras to be closer to them. In 1996, having decided to be buried after her death in the family burial plot in Stockholm, she asked the cemetery authorities and then the national courts to allow the transfer of her husband ’ s urn to her family burial plot in Stockholm, specifying that she had no connection to Fagersta anymore, that all her children agreed to the removal and that her husband would not have objected to the transfer.

In addition, the burial plot in Stockholm is a family plot and the contract on it is irrevocable, whereas that in Fagersta is only temporary.

In view of all these considerations, we are of the opinion that the applicant ’ s interest in moving the ashes of her spouse to the family grave in Stockholm weighs more heavily than the public interest relied on by the Government.

We therefore conclude that , even assuming that the interference with the applicant ’ s rights under Article 8 pursued legitimate aims, it was not necessary in a democratic society. We consequently consider that there has been a violation of Article 8 of the Convention.