CONCURRING OPINION OF JUDGE LEMMENS

1 . I agree with the finding of a violation of Article 8 of the Convention.

However, I find it difficult to agree with all the steps in the reasoning adopted by the majority. In my opinion, the majority suggest that, even where the State has a margin of appreciation (as in the present case), the domestic authorities are under an obligation to choose the least restrictive measure. Such a suggestion not only runs counter to the most recent case-law of the Court, but would also put the Court in the difficult position of having to determine what that least restrictive measure, or otherwise a less restrictive measure, should be.

2 . The majority state that, “for a measure to be regarded as both proportionate and necessary in a democratic society, there must be no possibility of recourse to an alternative measure that would cause less damage to the fundamental right at issue whilst fulfilling the same aim” (see paragraph 29 of the judgment, referring to Sabanchiyeva and Others v. Russia , no. 38450/05 , §§ 131-134, ECHR 2013 (extracts); emphasis added). The same idea is expressed further in the judgment: “(S) uch a severe measure can only be justified, and be in compliance with the proportionality requirements of Article 8 of the Convention, if the national authorities had first ruled out the possibility of having recourse to alternative measures that would have caused less damage to the fundamental right at issue whilst fulfilling the same aim” (see paragraph 34 of the judgment, referring to Nada v. Switzerland [GC], no. 10593/08, § 183, ECHR 2012; emphasis added).

If this statement is to be taken literally, it would mean that where various alternatives are open to the competent authorities, they can adopt only one of them, namely the least restrictive one.

3 . It is true that there is case-law of the Court which lends support to such a view (see, among other authorities, Glor v. Switzerland , no. 13444/04, § 94, ECHR 2009, and Mouvement raëlien suisse v. Switzerland [GC], no. 16354/06, § 75, ECHR 2012 (extracts)). It is on this case-law that Nada and Sabanchiyeva , both cited by the majority, are built.

However, this case-law is difficult to reconcile with the long-standing principle that the adjective “necessary”, within the meaning of Article 8 § 2 (and similar Articles), is not synonymous with “indispensable” (compare with the expressions “absolutely necessary” (Article 2 § 2), “strictly necessary” (Article 6 § 1), and “to the extent strictly required by the exigencies of the situation” (Article 15 § 1)) ( Handyside v. the United Kingdom , 7 December 1976, § 48, Series A no. 24). It is sufficient for there to be a “pressing social need”, the existence of which is to be assessed in the first place by the domestic authorities (ibid.). This leaves the competent authorities a possibility of choosing between various options, or in other words a margin of appreciation (ibid.).

Whilst the competent authorities, when considering the adoption of a measure that may interfere with fundamental rights, are required to give due consideration to these rights, they must thus in principle be left a choice between different ways and means of meeting that obligation. The Court ’ s supervisory function being of a subsidiary nature, it is limited to reviewing whether or not the particular solution adopted can be regarded as striking a fair balance (see Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 123, ECHR 2003 ‑ VIII) [1] .

It follows from the foregoing that the central question as regards the necessity of an interference is not whether a less restrictive measure should have been adopted or, indeed, whether the respondent State can prove that, without the measure actually adopted, the legitimate aim would not be achieved. Rather the core issue is whether, in adopting the measure under review, the competent authority acted within the margin of appreciation afforded to it (see, albeit with respect to interferences that were the direct result of a legislative act or a general regulation, Animal Defenders International v. the United Kingdom [GC], no. 48876/08 , § 110, ECHR 2013 (extracts), and Garib v. the Netherlands [GC], no. 43494/09, § 157, ECHR 2017).

To suggest that in a given situation only one option, namely the least restrictive one, is valid, without accepting that other, more restrictive options might be equally compatible with the Convention, amounts to disregarding the national authorities ’ margin of appreciation.

4 . This is not to say that the availability of less restrictive measures is irrelevant for the assessment of whether the measure actually taken can be considered proportionate, and therefore “necessary”. On the contrary, in some cases it may be highly relevant to take into account the existence of such alternatives. As the Court held in Roman Zakharov : “[The Court] must ascertain whether the interference] meets the requirement of ‘ necessity in a democratic society ’ , as provided by Article 8 § 2 of the Convention, including whether it is proportionate to the legitimate aims pursued, by verifying, for example whether it is possible to achieve the aims by less restrictive means” ( Roman Zakharov v. Russia [GC], no. 47143/06, § 260, ECHR 2015; emphasis added). The choice of the least restrictive measure is thus not a conditio sine qua non for the compatibility with the Convention of the measure adopted, but the failure to adopt a less restrictive measure is an element, among others, that may lead to the conclusion that the measure actually adopted was not “necessary”.

Equally relevant may be the fact that the competent authorities did not (even) examine whether the legitimate aims pursued could have been attained by other, less restrictive means (see, for instance, Lashmankin and Others v. Russia , nos. 57818/09 and 14 others, § 373, 7 February 2017).

5 . In the present case, the majority attempt themselves to define what would have been “viable alternatives” (see the wording used in paragraph 35 of the judgment). They refer in the first place to the possibility for the families to have their children buried in Batman instead of Siirt (ibid.). This was a suggestion made at some point by one of the applicants (see paragraph 9 of the judgment), but not taken up in the proceedings before the domestic courts. The majority further refer to the possibility for the families to be present during the burial of their children in the cemetery of Eruh (see paragraph 36 of the judgment). They finally refer to the possibility of delaying the burial (in Siirt ) for a short period (ibid.).

I am not sure that the first two alternatives would have been compatible with the Convention. The main complaint of the applicants was that the children had been buried “without giving the families an opportunity to carry out any of the necessary religious rites”. They further argued that their suffering had been compounded by the burial of their children in a place with which they had no connection (see paragraph 19 of the judgment). The first two alternatives are not a response to these complaints. In any event, given the fact that the Court can only “review” measures taken by the domestic authorities, I believe that it is not its role to suggest what other precise action could (and even should) have been taken by them.

6 . The facts of the case show that soldiers took the bodies of the children from their families, while they were on their way to the cemetery of Siirt , and then buried the children in another cemetery, in the middle of the night, without allowing for any religious ceremony (see paragraphs 8 and 9 of the judgment).

I agree with the majority that these are measures so egregious that they could not be taken without due consideration of the possibility of alternative measures. The fact that the authorities did not consider any alternative to the measures adopted is sufficient for me to conclude that in the given circumstances the State overstepped its margin of appreciation and that, accordingly, there has been a violation of Article 8.

As explained above, I see no need to indicate what might have been viable alternatives, and I do not think that it is correct to suggest that only the least restrictive measure could be compatible with the Convention.

[1] . Th is idea has recently been expressed as follows in the Copenhagen Declaration of 13 April 2018 (§ 28, c and d): “The Court’s jurisprudence on the margin of appreciation recognises that in applying certain Convention provisions, such as Articles 8-11, there may be a range of different but legitimate solutions which could each be compatible with the Convention depending on the context. This may be relevant when assessing the proportionality of measures restricting the exercise of rights or freedoms under the Convention. The margin of appreciation goes hand in hand with supervision under the Convention system, and the decision as to whether there has been a violation of the Convention ultimately rests with the Court”.