PARTLY DISSENTING OPINION OF JUDGE PAVLI

1 . I voted in favour of the unanimous findings of violations of the applicant ’ s rights under Articles 8 and 13 of the Convention. I regret, however, that I cannot agree with the majority ’ s conclusion that no separate examination is required under Article 9 of the Convention.

2 . In her complaint under Article 9, the applicant alleged that “the Respondent Government ’ s refusal to swiftly release the corpse [of the applicant ’ s husband] and its choice to cremate instead of burying the corpse constitute[d] a serious interference with her freedom of religion” . While the authorities ’ refusal to return the body for burial was raised by the applicant under both Articles 8 and 9, the authorities ’ decision to cremate the body was only raised as part of her complaint under Article 9. To substantiate the latter complaint, the applicant provided a description of burial rituals prescribed by her Islamic religion. The claim based on the strict rejection of cremation in the Muslim tradition is also clear from the applicant ’ s statements made in the context of her complaint under Article 3: “According to the Caucasian traditions and Islam this [cremation] is categorically unacceptable” (§ 18 of the applicant ’ s observations of 22 April 2014). Thus, the applicant raised a genuine and sufficiently argued Article 9 claim with respect to the cremation of her husband ’ s remains.

3 . The majority ’ s decision not to carry out a separate examination of the Article 9 complaint follows the approach adopted in previous cases concerning substantially the same events, in which the Court examined the Russian authorities ’ refusal to return the bodies of the applicants ’ relatives under Article 8. The Article 9 complaints based on the same grounds were, in effect, subsumed under the Article 8 examination (see Sabanchiyeva and Others v. Russia , no. 38450/05 , § 158, ECHR 2013 (extracts); Arkhestov and Others v. Russia , no. 22089/07 , § 114, 16 January 2014; and Zalov and Khakulova v. Russia , no. 7988/09 , § 108, 16 January 2014).

4 . In my view, however, the current applicant ’ s Article 9 claim, insofar as it concerns the authorities ’ decision to cremate her husband ’ s body, raises a different issue. It is one thing not to return the body to the family; it is something else to dispose of the body in a manner which the applicant alleges is incompatible with the basic tenets of her religion.

5 . In the Islamic tradition (as well as in certain other religions), cremation is considered to violate the dignity of the human body and is therefore strictly forbidden. [1] The practice of forced cremation raises serious issues from the standpoint of religious freedom, as demonstrated by the recent controversies on the disposal of the bodies of COVID-19 victims. For example, the International Committee of the Red Cross expressed its concern “about the impact on bereaved families whose loved ones have been cremated against their religious beliefs due to fear of the spread of COVID-19”. [2] In the same vein, four United Nations special rapporteurs concluded in a joint statement that “[t]he imposition of cremation as the only option for handling the bodies confirmed or suspected of COVID-19 amounts to a human rights violation”, calling on States to respect and protect the dignity of the dead and their cultural and religious traditions or beliefs. [3] In particular, the objections of the Jewish and Muslim religious communities in March 2020 led the United Kingdom Government to amend a bill that would have allowed cremations against the express wishes of the deceased and their next of kin. [4]

6 . As regards Article 9 itself, it is settled case-law that an act of worship or devotion that forms part of the practice of a religion or belief in a generally recognised form constitutes a “manifestation” of religion or belief within the meaning of Article 9 (see S.A.S. v. France [GC], no. 43835/11 , § 55, ECHR 2014 (extracts), and Eweida and Others v. the United Kingdom , no. 48420/10 , § 82, 15 January 2013). As to the manner of burying the dead, the Court dealt specifically with that issue in Johannische Kirche and Peters v. Germany (( dec. ), no. 41754/98 , 10 July 2001). In that case, the applicants, who wished to build a cemetery with a specific layout in line with their religious beliefs, argued that the refusal to authorise the construction of the cemetery violated their rights under Article 9. The Court held that a refusal to authorise the construction of a cemetery can be construed as a restriction of the right to manifest one ’ s religion within the meaning of Article 9 § 2 of the Convention in so far as the manner of burying the dead and cemetery layout represented an essential aspect of the religious practice of the applicant religious community and its members. It seems obvious that the manner of disposal of mortal remains could give rise to an even more significant interference with religious beliefs.

7 . In view of the above, I am unable to agree with the majority ’ s decision to dismiss the genuine Article 9 claim raised by the applicant, and to do so without explanation. Such an approach sits ill with the Court ’ s mandate under Article 19 of the Convention to “ensure the observance of the engagements undertaken” by the States Parties and to uphold all the fundamental rights guaranteed by the Convention.

[1] See Ahmed Al-Dawoody and Oran Finegan, “COVID-19 and Islamic burial laws: Safeguarding dignity of the dead” ( Humanitarian Law & Policy , 30 April 2020) , at blogs.icrc.org/law-and-policy/2020/04/30/covid-19-islamic-burial-laws.

[2] See www.icrc.org/en/document/covid-19-authorities-must-urgently-plan-ahead-ensure-dead-bodies-are-properly-handled . .

[3] See www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=26686&Lang ID=E .

[4] Catherine Fairbairn , “ Coronavirus: Powers to direct between burials and cremation ” ( House of Commons Library , 27 March 2020), at commonslibrary.parliament.uk/ coronavirus-powers-to-direct-between-burials-and-cremation .