CASE OF GÜLBAHAR ÖZER AND YUSUF ÖZER v. TURKEY

SECOND SECTION

CASE OF GÜLBAHAR ÖZER AND YUSUF ÖZER v. TURKEY

(Application no. 64406/09)

JUDGMENT

STRASBOURG

29 May 2018

FINAL

08/10/2018

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Gülbahar Özer and Yusuf Özer v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

Robert Spano, President,
Paul Lemmens,
Ledi Bianku,
Işıl Karakaş,
Nebojša Vučinić,
Jon Fridrik Kjølbro,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having deliberated in private on 7 May 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 64406/09) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Turkish nationals, Ms Gülbahar Özer and Mr Yusuf Özer (“the applicants”), on 17 September 2009.

2. The first applicant, Gülbahar Özer, was represented by Ms Aygül Demirtaş and Mr Selahattin Demirtaş, lawyers practising in Diyarbakır. The second applicant, Mr Yusuf Özer, was represented by Ms Reyhan Yalçındağ Baydemir, Ms Aygül Demirtaş and Mr Selahattin Demirtaş, lawyers practising in Diyarbakır. The Turkish Government (“the Government”) were represented by their Agent.

3. The applicants alleged, in particular, that the refusal of the national authorities to allow them to bury the bodies of their two children had been in breach of Article 8 of the Convention.

4. On 20 September 2010 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants were born in 1963 and 1965 respectively and live in İzmir. They are brother and sister. Their respective children, Sibel Sartık and Nergiz Özer, aged 24 and 15 respectively, were killed by soldiers on 19 January 2005 in south-east Turkey. During the same incident the soldiers also killed three other young people, aged 13, 16 and 22 (see Gülbahar Özer and Others v. Turkey, no. 44125/06, 2 July 2013). The bodies of those three individuals were subsequently handed over to their families, who buried them in Diyarbakır.

6. On 23 January 2005 the prosecutor ordered the release of the bodies of the applicants’ two children. The applicants took the bodies from the morgue in order to take them to the city of Siirt, where they wanted to bury them and where their graves had already been prepared with the help of the municipal officials.

7. On the same date the governor of Siirt issued a decision stating that crowds had gathered at the cemetery in Siirt and had attacked the municipal workers who were preparing the graves. Subsequently, the incidents at the cemetery had escalated and turned into “unlawful demonstrations”. Therefore, “in order to prevent any unwanted consequences”, the governor decided to order the burial of the applicants’ children in the two villages named in the respective birth register records of the two deceased.

8. While the applicants, together with the coffins of their two children, were on their way to Siirt, their vehicles were stopped by gendarme soldiers who told the applicants that they were not allowed to bury their children in Siirt. The soldiers told the applicants that, in accordance with the decision taken by the Siirt governor, the bodies would be buried in two other villages. The applicants told the soldiers that they had no connection with the two villages in question which, in any event, had been evacuated by soldiers in the 1990s. They stated that they wanted to bury their children side by side in their family cemetery in Siirt. Despite their objections, the bodies of the two children were confiscated and taken away by the soldiers.

9. The same day the second applicant made an official request to the office of the governor and asked for permission to bury the children in the city of Batman instead. This request was refused but the governor amended his decision so that the applicants’ children could be buried in the same cemetery in the town of Eruh, instead of being buried in two separate villages as he had previously ordered. In accordance with that decision, the applicants’ children were buried by the authorities in the municipal cemetery in Eruh at 1.45 a.m. on 24 January 2005 without any religious ceremony.

10. On 11 March 2005 the applicants brought a case before the Diyarbakır Administrative Court and asked for the Siirt governor’s decision to be annulled. They also requested that the Administrative Court issue an interim measure allowing them to exhume the bodies before they decomposed, and to bury them in a cemetery of their choice. The applicants agreed, in particular, that it was important and necessary to maintain public order. However, they argued that the governor’s decision had completely disregarded the moral values of their society and had aroused anger. The news that their children would not be buried in Siirt and that their bodies had been confiscated by the soldiers had caused an upsurge of emotion in the people waiting at the cemetery in Siirt and as a result they had attacked members of the security forces and local shops with sticks and stones. When the security forces responded to those attacks heavy handedly, scores of people had been injured and more than a hundred people had been arrested. All of that unrest had been caused by the governor’s unlawful decision. No such incidents had taken place during the burial of the three other individuals who had been killed at the same time as their children. In their complaint the applicants also referred to their rights under Articles 8 and 9 of the Convention.

11. On 30 March 2006 the Diyarbakır Administrative Court rejected the case. It noted that the governor’s decision had been based on section 11/C of the Law on the Administration of Provinces, which provided that the governor had a duty to maintain peace and public order in the province under his responsibility. The decision had been taken because the people who had gathered at the cemetery in Siirt and who were waiting for the bodies to arrive had thrown stones at municipal workers and members of the security forces. The decision to bury the bodies in the town of Eruh had therefore been taken with a view to maintaining public order. The Administrative Court considered that, although the applicants had the right to bury their children in a cemetery of their choice, the refusal to permit them to do so had been in compliance with the restrictions set out in the second paragraphs of Articles 8 and 9 of the Convention and in section 13 of the Turkish Constitution.

12. The applicants appealed against the decision and maintained that the incidents at the cemetery referred to by the Administrative Court had only occurred after the crowds had found out about the authorities’ refusal to allow them to bury their children in Siirt. They repeated their argument that the three others killed by the soldiers at the same time as their children had been buried by their families in Diyarbakır without incident. The applicants also reiterated their request for an interim measure.

13. The request for an interim measure was rejected by the Supreme Administrative Court on 13 December 2006. In a decision of 24 October 2008 the Supreme Administrative Court also rejected the appeal lodged by the applicants against the decision of the Diyarbakır Administrative Court. In reaching its conclusion the Supreme Administrative Court stated that the incidents at the Siirt Cemetery had begun when the people who had gathered there had insisted that the applicants’ two children be buried next to the graves of members of the PKK.

14. The decision of the Supreme Administrative Court was communicated to the applicants on 19 March 2009.

II. RELEVANT DOMESTIC LAW AND PRACTICE

15. Section 11 of the Law on Administration of Provinces (Law no. 5442, 10 June 1949), in so far as relevant, provides as follows:

“A) Governors are the superiors of all regular and private law enforcement forces located within their provinces. They shall take all necessary steps in order to prevent a crime from taking place and to maintain public order and safety. To that end, they may deploy regular and private armed forces of the State; managers and employees of such entities are obliged to swiftly comply with the governors’ orders.

...

C) Governors have the duty to maintain and to protect the peace and safety, personal integrity and well-being of the public, the enjoyment of possessions, and preventative law-enforcement within their provinces.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

16. The applicants complained that the way in which their two children had been killed by soldiers and the authorities’ subsequent refusal to allow them to bury their children in a cemetery of their choice ‒ exacerbated by the fact that they had been prevented from holding a religious ceremony ‒ had represented an unjustified interference with their right to respect for their private and family life within the meaning of Article 8 of the Convention which reads, in so far as relevant:

“1. Everyone has the right to respect for his private and family life...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

17. The Government contested that argument.

A. Admissibility

18. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The applicants’ submissions

19. The applicants complained that, at a time when they were grieving for the deaths of their children, who had been unlawfully killed by soldiers, they also had to endure injustice and frustration as a result of the confiscation of their children’s bodies. While confiscating the bodies the soldiers had kept them waiting by the side of the road for ten hours. The authorities had then buried their children without giving the families an opportunity to carry out any of the necessary religious rites such as washing and shrouding the bodies or conducting funeral prayers with the attendance of their families and friends. Their suffering was compounded by the burial of their children in the town of Eruh, with which they had no connection.

20. The applicants argued that it had in fact been the governor’s decision which had disturbed the public order and the authorities’ actions ‒ such as keeping them waiting for hours and confiscating the bodies of their children ‒ that had stirred the emotions of the people waiting at the cemetery in Siirt and ignited the subsequent disturbances. These, they argued, had not been taken into account by the domestic courts.

21. The alternative solution suggested by the second applicant to the authorities, namely to bury the children in the city of Batman, was not accepted either (see paragraph 9 above). Batman was a mere forty-five minute drive away from Siirt and the applicants could have visited the graves of their children there without difficulty. They also had family members living in Batman with whom they would have been able to stay when they wanted to visit the graves, instead of having to stay at hotels which they could not afford.

2. The Government’s submissions

22. According to the Government, a group of people had gathered at the cemetery in Siirt and was awaiting the arrival of the bodies. Members of this group had asked the municipal officials to prepare graves for the applicants’ children close to the graves of a number of PKK terrorists. When that request was rejected, the group had attacked the officials with sticks and stones. During that incident ten members of the security forces had been injured. As a result of that incident the governor of Siirt had ordered that the bodies should be buried in two other villages.

23. The Government argued that the decision to bury the applicants’ children in two separate villages had been taken by the governor in order to prevent further incidents in the cemetery and, therefore, to maintain public order and peace. Subsequently, taking into account the applicants’ objection, the governor had made an effort to reach a compromise and had amended his decision so that the two children could be buried in the same cemetery, namely Eruh Municipal Cemetery.

24. The governor’s decision had been taken in accordance with section 11 of the Law on Administration of Provinces which conferred on governors the power to take law-enforcement measures in order to protect the security of the public. That Law was in compliance with section 13 of the Constitution and in making that Law, the parliament had confined itself to determining the general scope of the governor’s powers rather than setting out any specific details in the field of public security matters. As a result of that general authority, the governors exercised a certain degree of discretion in such matters. The scope of the discretion vested in the governors varied according to the circumstances of each case. Moreover, section 125 of the Constitution, which provided that all acts and decisions of the public authorities are amenable to judicial review, provided sufficient protection of the individual against arbitrariness by public authorities in the exercise of their discretionary powers.

25. According to the Government, although there had been an interference by the public authorities with the exercise of the applicants’ rights guaranteed in Article 8 § 1 of the Convention, that interference had had a legal basis and had been necessary in the interests of public safety in the area in question and for the protection of the rights and freedom of others, within the meaning of Article 8 § 2 of the Convention.

3. The Court’s assessment

26. The Court has already held that the concepts of “private life” and “family life” encompass the right to bury a close relative and to be present when that burial takes place (see, in particular, Sabanchiyeva and Others v. Russia, no. 38450/05, §§ 117-123, ECHR 2013 (extracts), and Maskhadova and Others v. Russia, no. 18071/05, §§ 208-212, 6 June 2013 and the cases cited therein; see also, mutatis mutandis, Marić v. Croatia, no. 50132/12, §§ 59-60, 12 June 2014 and the cases cited therein).

27. Taking account of its case-law, the Court considers that the confiscation of the applicants’ children’s bodies by the soldiers, coupled with the authorities’ refusal to allow the applicants to bury their children in a graveyard of their own choosing and the applicants’ inability to carry out the usual burial rites, constituted an interference with the applicants’ “private life” and “family life” within the meaning of Article 8 of the Convention. Indeed, the respondent Government agreed that the events in question had constituted an interference with the applicants’ rights guaranteed in Article 8 of the Convention (see paragraph 25 above). It therefore remains to be seen if this interference was justified under the second paragraph of that provision.

28. The Court observes that the governor’s decision was based on Section 11 of the Law on Administration of Provinces (see paragraph 15 above) and that the interference was thus “in accordance with the law” within the meaning of Article 8 § 2 of the Convention. As regards a legitimate aim, the Court is prepared to accept that the interference was in the interest of public safety, for the prevention of disorder and for the protection of the rights and freedoms of others.

29. Turning to the question of whether the interference was “necessary in a democratic society”, the Court reiterates that an interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are “relevant and sufficient”. The object and purpose of the Convention, being a human rights treaty protecting individuals on an objective basis, call for its provisions to be interpreted and applied in a manner that renders its guarantees practical and effective. Thus, in order to ensure “respect” for private and family life within the meaning of Article 8, the realities of each case must be taken into account in order to avoid the mechanical application of domestic law to a particular situation. The Court has previously found 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. The final evaluation as to whether the interference is necessary remains subject to review by the Court in order to ascertain conformity with the requirements of the Convention. A margin of appreciation is left to the competent national authorities in this connection. The breadth of this margin varies and depends on a number of factors, including the nature of the Convention right at issue, its importance for the individual, the nature of the interference and the objective pursued by the interference (see Sabanchiyeva and Others, cited above, §§ 131-134 and the cases cited therein).

30. Turning to the circumstances of the present case, in order to address the question of whether the measures taken concerning the bodies of the applicants’ children were proportionate to the legitimate aims that they were supposed to pursue, and whether the reasons given by the national authorities were “relevant and sufficient”, the Court must examine whether the national authorities took sufficient account of the particular nature of the case and whether the adopted measure, in the context of their margin of appreciation, was justified in view of the relevant circumstances of the case.

31. The Court notes that, according to the Government, the reason for the confiscation of the bodies of the applicants’ two children was that a crowd had gathered at the cemetery in Siirt and had asked for the bodies to be buried next to graves of members of the PKK. When that request was not accepted, the crowds had attacked members of the security forces and cemetery workers. The governor had taken the disputed decision to prevent the incident from escalating. According to the applicants, however, no disturbances had taken place at the cemetery until after the governor had taken his decision and the bodies had been confiscated. It had been the governor’s decision and the confiscation of the bodies of their children that had triggered the disturbances.

32. On the basis of the documents in the application file, the Court cannot ascertain with certainty when and why exactly the disturbances in the Siirt Cemetery began. In that connection the Court notes, on the one hand, that the applicants, beyond challenging the governor’s and subsequently the respondent Government’s version of the events, did not seek to allege that the governor’s decision had had an ulterior motive. On the other hand, the Court also notes the applicants’ submission − which was not contested by the Government − that no disturbances had taken place during the funeral in Diyarbakır of the three other individuals who had been killed by the soldiers at the same time as the applicants’ children.

33. In any event, the Court shares the parties’ view that it is the duty of the national authorities to take necessary steps to maintain public order. Indeed, the Court has already accepted that the governor took his decision in the interest of public safety, for the prevention of disorder and for the protection of the rights and freedoms of others (see paragraph 28 above). Nevertheless, the Court also considers that the confiscation of the applicants’ children’s bodies and their burial in a cemetery by the municipal authorities, thereby preventing the applicants from holding a funeral for their children in a cemetery of their own choice, was a particularly severe interference with the applicants’ rights guaranteed in Article 8 of the Convention (see Sabanchiyeva and Others, cited above, § 138).

34. The Court considers, therefore, that such 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, inter alia, Nada v. Switzerland [GC], no. 10593/08, § 183, ECHR 2012).

35. In this connection the Court observes that a viable alternative was in fact suggested to the authorities by the applicants before the burial took place, namely that of burying their children in the city of Batman instead of Siirt. However, that request was not accepted and the applicants were not provided with any reasons for the refusal to entertain it. Moreover, the national courts failed to examine why that alternative solution was not considered by the authorities.

36. Secondly, the Court considers that the authorities could have, at the very least, ensured that the applicants were present during the burial of their children in Eruh cemetery. Furthermore, the authorities could have delayed the burial for a short period until the necessary security precautions had been taken and then, if necessary, limit the presence at the burial to only the applicants and other close family members. However, no thought appears to have been given to this possibility by either the national authorities or the courts.

37. In the light of the foregoing failure to give due consideration to any alternatives, the Court finds that the measure in question did not strike a fair balance between the applicants’ right to the protection of their private and family life, on the one hand, and the legitimate aims of public safety, the prevention of disorder and the protection of the rights and freedoms of others on the other, and that the respondent State overstepped any acceptable margin of appreciation in this regard.

38. Accordingly, there has been a violation of Article 8 of the Convention.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

39. Lastly, the applicants complained that the way in which their children had been killed, coupled with the authorities’ refusal to allow them to bury them in a cemetery of their choice, had amounted to ill-treatment within the meaning of Article 3 of the Convention. They also alleged that their inability to give their children a burial in a cemetery of their choice, which had been exacerbated by the fact that they had been prevented from holding a religious ceremony, had been in breach of their rights under Article 9 of the Convention. Under Article 13 of the Convention the applicants complained of a lack of an effective remedy capable of enabling them to have their children buried in a cemetery of their choice. Relying on Article 14 of the Convention the applicants alleged that their children had been portrayed as members of an illegal organisation and their bodies had thus not been shown the appropriate respect. Finally, under Article 17 of the Convention, the applicants complained that the justification relied on by the authorities for their refusal of the request had not been compatible with the rights guaranteed in the Convention.

40. Having regard to the violation found above, the Court deems it unnecessary to examine the admissibility or merits of these complaints separately.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

41. The applicants claimed 20,000 euros (EUR) each in respect of non‑pecuniary damage.

42. The Government argued that the sums claimed by the applicants were excessive and unacceptable.

43. The Court awards each of the applicants EUR 10,000 in respect of non-pecuniary damage.

44. The applicants also claimed EUR 5,435 for the costs and expenses incurred before the Court. EUR 5,352 of that sum was claimed in respect of the applicants’ lawyers’ fees, in support of which the applicants submitted to the Court a time-sheet showing the time the lawyers had spent on the case. The remaining EUR 83 was claimed in respect of expenses such as postage, photocopying, fax and stationery. In support of this latter claim the applicants submitted various receipts to the Court.

45. The Government considered this claim to be excessive and unsupported by documentary evidence.

46. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3,000 to the applicants covering costs under all heads.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint under Article 8 of the Convention admissible;

2. Holds that there has been a violation of Article 8 of the Convention;

3. Holds that there is no need to examine the admissibility of merits of the complaints under Articles 3, 9, 13, 14 and 17 of the Convention;

4. Holds

(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, to each applicant in respect of non-pecuniary damage;

(ii) EUR 3,000 (three thousand euros), plus any tax that may be chargeable to the applicants, to the applicants jointly in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 29 May 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan BakırcıRobert Spano
Deputy RegistrarPresident

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Lemmens is annexed to this judgment.

R.S.
H.B.

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]. This 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”.

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