CONCURRING OPINION OF JUDGE PAVLI,

JOINED BY JUDGE ROOSMA

1. In today’s judgment, the Court finds for the first time, in unequivocal terms, that the request of a close family member for the disinterment of a relative’s remains and their transfer to another resting place falls within the scope of Article 8 of the Convention. The judgment cautions, however, that “the nature and scope of this right ... will depend on the particular circumstances and the facts adduced” (paragraph 48). I am writing separately as I consider that some additional considerations would have been appropriate in making this novel determination.

2. The judgment’s rationale rests on an extension of existing jurisprudence regarding the firmly established rights of family members to determine the burial and other funeral arrangements upon the death of a relative (see paragraph 47 of the judgment). Such arrangements tend to be shaped by one’s culture, tradition and religious or philosophical beliefs as well as the final wishes of the deceased. As such, it seems uncontroversial that they deserve protection under both the private and family life aspects of Article 8.

3. Disinterment of remains at some time after burial is, however, a more complex matter and typically subject to tighter regulation in the European legal area. The national authorities are often required to weigh up competing considerations that do not normally arise in the immediate aftermath of a relative’s death. Prime among these is the need to respect “the peace of the dead” and to prevent exhumations in the absence of some important reason for doing so; some national or local authorities apply minimum rest periods, during which there is a strong presumption against disinterment (e.g. ten years in Austria, Germany and parts of Italy) [1] . This restrictive principle has been expressly recognised by the Court in the Elli Poluhas Dödsbo v. Sweden (no. 61564/00, ECHR 2006 ‑ I) case (see paragraph 52 of the judgment). Considerations based on the sanctity of graves are further supported by obvious public health concerns. In addition, property interests of third parties in the burial plot, or competing family claims over the wishes of the deceased, may need to be considered. It therefore seems difficult to speak of a fully-fledged “right to exhumation”, rather than legitimate private or family life interests that may be invoked in certain exceptional situations. In general terms, I consider that States are entitled to a wider margin of appreciation in regulating disinterment, compared to the original funeral arrangements.

4. The reasons that are generally considered legitimate for requesting exhumation include, among others, the ability of relatives to better care and pay their respects in a new location; a claim that the final wishes of the dead relative have not been respected; reuniting the remains of various family members in the same place; or the temporary nature of the original burial. An administrative or judicial authority must invariably authorise exhumation. However, even requests grounded on such motives are not necessarily granted automatically, and may be rejected when weighed in the balance against other considerations such as the “immutability of burials” or the wishes of other family members [2] .

5. Turning to the merits of the present case, the applicant’s request for leave to exhume and transfer her husband’s remains to a burial plot in her own country falls within the scope of the Article 8 right on disposition of remains as delineated in the judgment. Her request was motivated by what she claimed to be her late husband’s wishes – a fact disputed by the husband’s nephew – and their supposed plan to be buried together in a family plot in Bosnia and Herzegovina. As the surviving spouse, her preferences should take priority over those of other (more remote) family members, unless shown to be contrary to the final wish of the deceased. The fact that the husband’s original burial took place during the armed conflict in Bosnia and Herzegovina would also appear to be an important consideration. All these factors had to be weighed up carefully by the national authorities.

6. I have little to add to the judgment’s analysis of the shortcomings of the respondent State’s regulatory framework and the lack of adequate balancing by the national courts. It cannot be ruled out that, despite the legislative lacunae, the domestic courts could have relied on general principles of civil and family law to recognise the applicant’s legitimate private and family life interests; and could have proceeded to weigh them against the claims of other family members or any competing public interests recognised in the second paragraph of Article 8. Instead, they simply concluded that the applicant had no “property-related, status-related or any other interests” in requesting the transfer of her husband’s remains. That is a sufficient basis for finding a violation of Article 8 in the present case.

1. In some countries or localities disinterment practices appear to be somewhat more flexible, but this is primarily due to the paucity of burial plots in large urban centres.

2. See, for example, Cass. Civ. 1re, 7 February 2018, no. 17-18298 (French Court of Cassation); and Ansbach Administrative Court (Germany), 3 August 2016, no. 4 K 882/16.