CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 20 juillet 2021

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page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s78255940 { width:8.55pt; display:inline-block } .s65962656 { width:205.78pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } FOURTH SECTION CASE OF POLAT v. AUSTRIA (Application no. 12886/16)   JUDGMENT Art 8 and Art 9 • Private and family life • Manifest religion or belief • Positive obligations • Post-mortem and organ removal for preservation of prematurely born child with rare disease despite mother’s objection • No requirement on Contracting States to grant absolute right of objection to post-mortems • Domestic authorities’ failure to strike fair balance between competing interests at stake • Precedence to interests of science and health of others • Lack of consideration to applicant’s interests in burying her son in accordance with religious beliefs Art 8 • Positive obligations • Private and family life • Hospital’s failure to provide mother with sufficient information • Lack of diligence and prudence required in delicate circumstances • Justified post-mortem to clarify diagnosis, but no necessity to keep organs for scientific or other reasons for several weeks or months   STRASBOURG 20 July 2021 FINAL   20/10/2021   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Polat v. Austria, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Yonko Grozev, President ,   Tim Eicke,   Armen Harutyunyan,   Gabriele Kucsko-Stadlmayer,   Pere Pastor Vilanova,   Ana Maria Guerra Martins,   Iulia Antoanella Motoc, judges , and Ilse Freiwirth, Deputy Section Registrar , Having regard to: the application (no. 12886/16) against the Republic of Austria lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Austrian national, Ms Leyla Polat (“the applicant”), on 29 February 2016; the decision to give notice to the Austrian Government (“the Government”) of the complaints concerning Articles 8, 9 and 13 of the Convention, and to declare inadmissible the remainder of the application; the parties’ observations; Having deliberated in private on 20 April and on 15 June 2021, Delivers the following judgment, which was adopted on the last ‑ mentioned date: INTRODUCTION 1.     The application concerns the applicant’s objection on religious grounds to the post-mortem examination of her prematurely born and subsequently deceased son, which she alleged had violated her rights under Articles   8 and 9 of the Convention. Moreover, under Article 8 of the Convention, she complained that she had not been informed of the extent of the post-mortem or the removal of her son’s organs for preservation purposes. In addition, she complained under Article 13, read in conjunction with Articles 8 and 9, that she had not had any legal remedy available to challenge ex ante the carrying-out of the post-mortem. THE FACTS THE CIRCUMSTANCES OF THE CASE 2.     The applicant was born in 1974 and lives in Bregenz. She was represented by Mr K.P. Pichler, a lawyer practising in Dornbirn. 3.     The Austrian Government (“the Government”) were represented by their Agent, Mr H. Tichy, Ambassador, Head of the International Law Department at the Austrian Ministry for European and International Affairs. The birth and death of the applicant’s son 4.     The applicant became pregnant in 2006 and received medical treatment at the Feldkirch Regional Hospital ( Landeskrankenhaus – hereinafter “the hospital”), a public hospital. 5.     The prenatal examinations carried out in the hospital indicated that the foetus showed clear symptoms of “prune belly syndrome” and thus would likely be born with a disability. 6.     Prune belly syndrome is a birth defect which is classified as a rare disease, the cause of which is not yet known, although there are several theories. Essential characteristics are, inter alia , wrinkled skin over the abdomen, a lack of abdominal musculature, serious malformations of the urinary tract and undescended testicles. In addition, other malformations of the body may occur. It is possible to detect via ultrasound before birth whether a foetus shows these characteristics. 7 .     Apart from that preliminary diagnosis, the applicant did not have enough amniotic fluid in the womb. She was informed that her child would most likely not survive. The attending physician at the hospital, Dr Sch., spoke with the applicant concerning a possible need for a post-mortem examination of the body of her as yet unborn child, to clarify the exact cause of death but also to assess whether such a malformation could occur in another child (in particular the offspring of siblings already born). The applicant and her husband refused to agree to a post-mortem examination for religious reasons. They explained that, in accordance with their Muslim beliefs, they wished to ritually wash the corpse prior to the funeral. For that purpose, the corpse had to remain as unscathed as possible. 8.     The applicant gave birth to her son, Y.M., in the hospital on 3   April   2007. It was a premature birth, which took place in the twenty-fifth week of the pregnancy. The child weighed less than 900 grams at that time. Y.M. received intensive medical care but died two days later on 5   April 2007 from a cerebral haemorrhage. 9 .     After Y.M.’s death, the applicant and her husband were asked again whether they would agree to a post-mortem examination. The doctors explained to her that that was necessary in order to determine the exact cause of death. Moreover, as the disease could possibly be genetic, it was in the interests of the child’s current and future siblings to assess whether prune belly syndrome was likely to arise in any future pregnancies. The applicant and her husband refused to give their consent. The primary physician, Dr S., told them that it would be carried out nonetheless, in order to clarify the diagnosis. The post-mortem examination 10.     On 6 April 2007, the post-mortem examination was performed at the hospital. The relevant provisions – section 25 of the Hospital Act ( Kranken ‑ und Kuranstaltengesetz – hereinafter “the Hospital Act”) and section   12(3) of the Dead Body and Funeral Act of the Land of Vorarlberg ( Vorarlberger Gesetz über das Leichen- und Bestattungswesen – hereinafter “the Funeral Act”) – do not specify that the consent of relatives of a deceased person is required in order for a post-mortem to be carried out, provided that it is necessary for the safeguarding of scientific interests ( wissenschaftliches Interesse ), in particular to clarify a diagnosis (see paragraphs 38 and 42 below). 11 .     A detailed post-mortem report was drawn up. It was noted that the parents had objected to the intervention, but that it had been performed nonetheless because of the uncertain pathology of several organs, which the paediatricians had not been able (in the absence of a post-mortem) to classify with complete certainty. The report confirmed the diagnosis reached before birth – namely that Y.M. had suffered from prune belly syndrome. The report was initially not issued to the applicant. 12 .     During the post-mortem examination, practically all the internal organs were removed from the child’s body and preserved at the hospital for a comprehensive assessment. This was considered necessary because an accurate detection of the pathological changes in the organs is considered easier after formalin fixation. A large part of the urinary tract was removed, too, which meant that the sex of the child was no longer apparent. The body was filled with cotton wool in order to soak up blood and other bodily fluids. 13 .     The applicant was informed that a post-mortem examination had taken place. She was upset, and on 8 April 2007, at 5.10 a.m., she went to the police and reported that the hospital had examined her son’s body without her consent. 14.     The hospital handed over the child’s corpse to the applicant and her husband after 8 April 2007. They were not informed about the extent of the post-mortem. The applicant was under the impression that only a “small incision” ( kleiner Schnitt ) had been made. The corpse was completely dressed and was wearing a cap at the time. The face was haggard, but it was not discernible from the clothed corpse whether a post-mortem examination had taken place (and if so, how extensive it had been) or that organs had been removed. 15.     The applicant and her husband thus believed that the body was in an appropriate state to be taken to Turkey and to be buried in accordance with their Muslim beliefs. Their deceased child was taken to their home village for the funeral. The transfer was organised by a Turkish association, which obtained the necessary documents from the district authorities. There is no information in the file on how and on what date the transfer was carried out. The funeral in Turkey of the applicant’s son 16.     During the funeral ceremony, which took place at an unknown date in the applicant’s home village in Turkey, between 100 and 300 guests were present. The body of the child was undressed by the wife of the Hodja (Turkish for “learned man” – the religious person performing the ceremony) and the applicant herself. During that procedure, the two women noticed that the deceased child had undergone a full post-mortem – that is to say, the whole body and head had been cut open and sewn back together. It was noticeable that the internal organs of the child had been removed, as the body was stuffed with cotton wool. The genitals were not recognisable (see paragraph 12 above). Moreover, the corpse was in a poor condition as a result of decomposition that had taken place in the meantime. 17.     At the sight of the state of the child’s body, both women were left in a state of shock and the applicant fainted. She then started to scream and cry and was inconsolable. The guests rushed to see the body, resulting in turmoil. Since the genitals of the deceased child were no longer identifiable, the ritual washing could not take place (because there are different washing rituals for male and female deceased), and the funeral had to be cancelled. The applicant and her husband were reproached by the guests owing to the bad condition of the body. They had to leave their home village the next day. They stated that they had incurred significant costs because the funeral ceremony had been halted. 18.     The deceased child then had to be buried in another community, without the ritual washing and the ceremony required by the applicant’s Muslim faith. The applicant and her husband had to bear the additional costs of this funeral. The return of Y.M.’s organs 19.     After the applicant returned to Austria, she asked the hospital that the organs of her deceased child be returned to her. It initially denied that any organs from the body had been removed. Upon the intervention of the Vorarlberg Patients’ Ombudsperson ( Patientenanwalt ), on 24 April 2007 the hospital agreed to return some (but not all) of the removed organs, so that they could be buried with the rest of the body. 20.     Only on 1 October 2007, upon further intervention by the Vorarlberg Patients’ Ombudsperson, did the applicant receive the remainder of the organs. She buried these, too, in her son’s grave in Turkey. The ensuing civil proceedings for damages 21 .     On 30 March 2010 the applicant lodged a civil claim for damages against the Vorarlberg Hospital Operating Company Ltd ( Krankenhaus Betriebsgesellschaft mbH ), the owner of the hospital – namely for the costs of the halted burial ceremony, the trips to Turkey in order to bury the child’s organs after they had been returned, and compensation for non-pecuniary damage for mental pain and suffering, as well as the future costs of psychological treatment. She alleged that: her child’s body had not been treated with the appropriate dignity; the post-mortem had been performed despite her objections on religious grounds; and it had been in any case unlawful to remove the organs, as she had not agreed to their removal. She further alleged a failure to comply with the doctors’ duty to properly inform her of the post-mortem on her child’s body and of its extent, which had caused her post-traumatic stress disorder. 22.     The defendant responded that the post-mortem examination had been justified since (i) only histological proof of severe lung hypoplasia could have shown that the death could not have been prevented, and (ii) without such an examination, final confirmation of the diagnosis of prune belly syndrome (as opposed to a similar kind of malformation) would not clinically have been possible. Moreover, an analysis of the reasons for the death of a newborn was a vital tool for lowering newborn mortality rates. In the defendant’s view, there had been no conduct on the part of the treating doctors that could have given rise to liability for damages. The first round of proceedings 23.     In the first round of proceedings, the Feldkirch Regional Court ( Landesgericht ) allowed the applicant’s claim by a judgment of 9 July 2012. The court noted that it was true that the post-mortem examination had been necessary for a safe diagnosis of prune belly syndrome because it could have been mistaken for another disease on the basis of the symptoms alone. A prerequisite for conducting a post-mortem on a child without the parents’ consent was, however, not only the existence of diagnostic uncertainty, but also a scientific interest in so doing. The court concluded that there had been no such scientific interest in respect of the present case. The post-mortem had only been carried out because the doctors had wanted to satisfy their curiosity ( Neugierde befriedigen ) about this very rare disease; however, that had not constituted proper justification for conducting a post-mortem examination without first securing the consent of the close relatives, pursuant to section 25 of the Hospital Act. 24 .     A psychiatric expert opinion ordered by the Feldkirch Regional Court concluded that the applicant was suffering from post-traumatic stress disorder, which was connected to the post-mortem of her deceased child and the manner in which she had found out about it. While the death of her newborn in itself had constituted a significant cause of stress, the applicant described the events at the child’s funeral as the trigger for a feeling of acute stress, which in turn had led to her post-traumatic stress disorder. The psychiatrist who examined her stated that the sight of the disfigured body must have significantly surpassed that which a non-medical professional would have expected. 25.     The defendant lodged an appeal against that judgment with the Innsbruck Court of Appeal ( Oberlandesgericht ); the appeal was allowed on 8   November 2012. The Court of Appeal found that there had been a procedural defect, given the fact that the first-instance court had failed to obtain two expert opinions that it had ordered relating to the fields of pathology and neonatology. It therefore remained to be determined whether the post-mortem examination – which had clearly been carried out against the applicant’s will – had been permissible, within the meaning of section   25 of the Hospital Act. The case was remitted to the first-instance court in respect of that question, for a new decision. The second round of proceedings 26.     In the second round of proceedings, the above-mentioned expert opinions were obtained by the Feldkirch Regional Court. 27 .     Dr V., an expert paediatrician, noted that there had been two reasons for conducting a post-mortem: firstly, to determine whether Y.M. had really been suffering from prune belly syndrome, an illness not yet sufficiently explored, and second, as a measure of quality control in view of the intensive medical interventions that had been performed before and after his birth. Dr V. noted that neither the post-mortem report nor the personal file of Y.M. contained an indication regarding which scientific questions had been expected to be answered by the post-mortem or what methods had been used. It was not known whether the information obtained had been used for the furtherance of science – for example, whether it had been published. The expert concluded that the necessity for a post-mortem had possibly been indicated by the need to evaluate the intensive-care measures that the patient had received, but that there was no documentation confirming that in Y.M.’s file. The diagnosis of prune belly syndrome could be confirmed through the post-mortem. However, it was not apparent whether the post-mortem had touched upon specific scientific questions or that it had served the purpose of research into new forms of disease, their causal course or combating infant mortality. 28 .     Dr L., an expert pathologist, stated that prune belly syndrome was a very rare, complex, insufficiently explored disease. According to Y.M.’s patient file, the reason for the post-mortem examination had been to clarify alterations in the stomach, lungs and brain that had not been clearly identifiable. Under Austrian law, the post-mortem had therefore been required in order to clarify the quality of the diagnostic and therapeutic measures taken before his death. Dr L. found, moreover, that the post ‑ mortem had been carried out in an appropriate and professional manner and that a comprehensive report had been prepared. Filling the body with cotton wool or a similar material was necessary after a post-mortem in order to soak up blood and other bodily fluids. Removing the organs had been necessary in the interests of science, as malformations were more easily detected when the organs in question were preserved outside the body, which took between one and two days. In the case of post-mortem examinations of foetuses or deceased newborns, the removal and preservation of the organs was indispensable and therefore standard practice. Dr L. further explained that in the case of prune belly syndrome, the exact role ( Beteiligung ) of the organs was not sufficiently explored and therefore still needed to be documented. The body was usually released for burial immediately after the post-mortem examination, although the organs might still have to be examined. Waiting for the organs to be released would unnecessarily delay any subsequent funeral. He concluded that the provisional removal of Y.M.’s organs had been part of standard post-mortem procedure and thus lege artis . As to the state of the body at the funeral, Dr L. explained that the pictures on file were of bad quality and did not allow any exact evaluation. However, the fact that Y.M.’s corpse had been transported to Turkey without being preserved, and given that several days had passed between his death and the ceremony, the corpse must have shown signs of decay at that point. 29 .     On 13 August 2014 the Feldkirch Regional Court again allowed the claim and held that the hospital was to pay the applicant the full sum claimed in damages – namely 58,500 euros (EUR), the costs of the proceedings (EUR 29,105.52), and compensation for any future damage (such as the cost of future psychiatric care of the applicant) arising from the post-mortem examination of Y.M. It reiterated that there had been an indication that a post-mortem examination was needed because of the above-mentioned diagnostic uncertainty. Such an indication, however, did not mean that it was permitted to carry out a post-mortem examination without the consent of the deceased’s relatives. For such an examination to take place without the relatives’ consent, there had additionally to be a scientific interest in so doing under section 25 of the Hospital Act. Since it had not been asserted that there was any scientific interest in the post-mortem being conducted, it should not have been carried out against the will of the applicant and her husband. The court found that in the event that the post-mortem examination had been lawful, it would have been irrelevant that Muslim practice had demanded that the corpse remain intact. It furthermore held that even assuming that such a scientific interest had existed, the hospital staff would still have been obliged to inform the applicant in detail of how the post-mortem had been carried out (in particular of its scope) and to warn her of the external appearance of the body. The psychiatrist had stated in his expert opinion (see paragraph 24 above) that the applicant would most likely not have suffered post-traumatic stress disorder if she had at least been informed that a post-mortem examination had been carried out and that the organs had been removed. The court accordingly held that the unlawful behaviour of the doctors had caused the shocked reaction of the applicant, which is why the hospital was liable to pay damages. 30 .     On 4 December 2014 the Innsbruck Court of Appeal allowed an appeal lodged by the hospital and dismissed the applicant’s claim. It held that the applicant was to refund the hospital the costs and expenses for its legal representation in the amount of EUR 29,963.96 for the proceedings in the first instance, and EUR 2,832.96 for the appeal proceedings (thus EUR   32,796.92 in total). It found that the lower-instance court had not properly taken into account the two expert opinions on the post-mortem examination, which had concluded that it had in fact been performed in accordance with the law. The Court of Appeal noted that an indispensable prerequisite for the defendant to be held liable for damages was that doctors in its employ be shown to have acted unlawfully. The post-mortem examination had, however, been carried out lawfully because there had been a scientific interest in ascertaining that the diagnosis had been correct (for example, in view of the fact that prune belly syndrome shared certain symptoms with other similar complaints). Moreover, there had not been an obligation to inform the applicant of the state of her son’s body after the examination. The reason for the post-mortem had been, in particular, the unclear clinical diagnosis and the need to assess the quality of the pre- and postnatal treatment administered. It was irrelevant whether the results of the post-mortem had been used for the furtherance of scientific research or whether they had been publicised (which in the instant case they had not). The term “scientific interest” also included an interest in completing the personal file of the applicant’s son, Y.M., by confirming the initial diagnosis. The court furthermore held that the applicant had been informed by the hospital that the post-mortem would also be carried out without her consent (see paragraph 9 above). Concerning the removal of the organs, the court held that it was common knowledge that a post-mortem could also include the removal of organs, if necessary. In any event the applicant had not proved that the doctors had promised her, as she alleged, that the post ‑ mortem would only consist of a small 4 cm incision. The fact that the organs had only been returned to her later was irrelevant in that regard, as the applicant alleged that it was the events at her son’s funeral ceremony that had caused her post-traumatic stress disorder, not the late return of his organs. 31 .     The applicant lodged an appeal on points of law with the Supreme Court, repeating the arguments submitted in her previous appeals, and adding that her rights under Article 9 of the Convention had been violated. She requested the Supreme Court to institute proceedings before the Constitutional Court to review the constitutionality of section 25(1) of the Hospital Act, and to request a preliminary ruling from the European Court of Justice in that respect. The Supreme Court’s final decision 32 .     The Supreme Court ( Oberster Gerichtshof ) rejected the applicant’s extraordinary appeal on points of law on 25 September 2015. It noted that according to the clear wording of section 25(1) of the Hospital Act and section 12(3) of the Funeral Act, the case’s lack of diagnostic clarity constituted an example of the kind of public and scientific interest that justified a post-mortem examination – even without the consent of the deceased’s relatives. Since the diagnosis in the case at issue could only have finally been confirmed by means of a post-mortem, the Innsbruck Court of Appeal had rightly taken the view that there had been a lack of diagnostic clarity, within the meaning of section 25 of the Hospital Act. The Supreme Court deemed that the relevant legal provisions were clear in that respect and that they therefore did not require further judicial interpretation. Moreover, the preparatory work on section 25 of the Hospital Act (see paragraph 39 below) showed that the aim of the legislature had been to enable the furtherance of scientific knowledge, without imposing a requirement that any knowledge thus acquired should then be, in a narrower sense, “scientifically processed” ( wissenschaftlich verwerten ). 33 .     As regards the alleged infringement of Article 9 of the Convention, the Supreme Court found that carrying out the post-mortem against the applicant’s will had constituted an interference with her rights under that provision. However, in the light of its importance for the development of medicine and in order to assess the quality of the medical treatment provided in the instant case, it had been in the interests of public health to eliminate any diagnostic ambiguities by carrying out a post-mortem. The post-mortem had thus pursued a legitimate aim justifying a possible restriction of the exercise of religion within the meaning of Article 9 § 2 of the Convention. The Supreme Court saw no reason to institute proceedings before the Constitutional Court to review the provisions in question, or to request a preliminary ruling from the European Court of Justice. 34 .     Turning to doctors’ duty to inform relatives of a post-mortem, the Supreme Court noted that the existence and scope of that duty depended on the circumstances of the individual case. It did not consider that its case-law (regarding the comprehensive medical duty to disclose information) had been applicable to the present case, as it had not affected the right to self ‑ determination of the patient himself. Moreover, the duty to disclose information was aimed at preventing any potential future damage. The Supreme Court conceded that the way in which post-mortem examinations were carried out, and the fact that organs were removed from the corpse in the case of a post-mortem carried out on a newborn, was not common knowledge, but it held that it did not appear unpredictable or highly surprising either. It found that doctors therefore rightly refrained from giving detailed explanations. In addition, the omission of such detailed explanations – which could also be burdensome for a relative – were not very likely to cause any psychological impairment to a relative of the subject of a post-mortem. Regard had to be had to the state of the body of the applicant’s son when it had been handed over to her, which appeared to have been much less shocking than its state at the funeral. The specific religious background of the case could not change that assessment. 35.     The Supreme Court’s decision was served on the applicant on 20   October 2015. RELEVANT DOMESTIC LAW AND PRACTICE 36 .     Article 17 of the Basic Law ( Staatsgrundgesetz ) of 1867 reads:   “Science and its teaching are free. ...” 37.     Section 5a of the Hospital Act, as in force at the relevant time, concerned patients’ rights. It provided, among other things, that hospitals had to ensure that patients could exercise their right to clarification and information regarding their treatment options (including the risks in respect of those options). Upon a patient’s request, medical information should be provided by a doctor in (as far as possible) a comprehensible and sensitive manner. 38 .     Section 25(1) of the Hospital Act provides that corpses of patients who have died in public hospitals are to be examined if a post-mortem has been ordered by the health authority ( Sanitätspolizei ) or during criminal proceedings, or if it is necessary for the safeguarding of other public or scientific interests – in particular because the case is not diagnostically clear or there has been a surgical intervention. In all other cases, a post-mortem may only be carried out with the consent of the deceased’s closest relatives, unless the deceased agreed to it while still alive, in accordance with section   25(2) of the Hospital Act. In respect of each post-mortem, a written statement must be prepared and filed in the medical history of the deceased (section 25(3) of the Hospital Act). 39 .     The preparatory work on section 25 of the Hospital Act (AB   164   BlgNR   VIII. GP. 10; 1956) notes in this connection that the development of modern medicine was only possible through the opening of corpses of the deceased in hospitals in order to clarify beyond doubt the morphological causes of many diseases. The practical value of post-mortem examinations stemmed from the fact that the doctor treating the patient could not only review his or her own diagnosis and the therapy applied, but also determine the reasons for any failure thereof. Thanks to the fact that post-mortem examinations are a regular occurrence, the health authorities also obtain reliable information about the existence and frequency of individual diseases and causes of death and may thus take general measures designed to prevent or combat such diseases. In addition, the result of a post-mortem may turn out to be highly valuable for the relatives of the deceased, since the clarification of often minor additional findings may give rise to important conclusions pointing to peculiarities in the constitution of family members that encourage the development of certain diseases. If such peculiarities become known to the medical community, then it is possible to prevent unfavourable health developments at an early stage. 40 .     Even before the adoption of the Hospital Act, the law on post-mortems had a long tradition in Austria. Since 1867, it has been recognised as an integral part of the constitutionally guaranteed freedom of science (see paragraph 36 above). The motto “ mors auxilium vitae ” not only adorns many buildings housing university departments for anatomy and pathology, but also expresses the long-standing concept of the overriding importance of public interests in science and healthcare by excluding the rights of individuals to object to a post-mortem, at least when performed in a public hospital (see Kopetzki, C., Obduktionen im wissenschaftlichen Interesse: Rechtlicher Rahmen und verfassungsrechtliche Grenzen , in Kopetzki/Körner (ed.), Leichenöffnung für wissenschaftliche Zwecke (2021), p. 88). The scope of “scientific interests” in section 25 of the Hospital Act (see paragraph 38 above) is the subject of heated academic discussion (ibid., pp. 106 et seq.). 41 .     Under section 3(2) of the Funeral Act, it is for relatives – unless the deceased issued instructions before his or her death – to determine in particular the nature and place of the funeral and to give their consent to an opening of the deceased’s corpse that has not been ordered by the Public Prosecutor’s Office or the local mayor or is not provided for in section 12(3) of the of the Funeral Act (see below). Unless the deceased issued an order to the contrary while still alive, his or her relatives may, instead of a funeral, leave the corpse to an institution devoted to scientific or medical research and education, for the purposes of determining the causes of diseases or of research into methods of curative treatment. 42 .     Under section 12(3) of the Funeral Act, a post-mortem of the corpse of a patient who has died in a public hospital must be carried out, inter alia , if the opening of the corpse in question is necessary in order to safeguard public or scientific interests – in particular if the case is diagnostically unclear or if there has been a surgical intervention. 43.     Under section 13(4) of the Funeral Act a written report must be prepared regarding the opening of a corpse, which apart from the deceased’s personal details, must contain the pathological findings in respect of the corpse and the cause of death. The written report must be signed by the doctor who carried out the post-mortem. If a patient died in a hospital and his or her corpse was opened, a copy of the relevant written report must be annexed to his or her medical history. Under section 13(5) the opening must be carried out in such a manner as not to constitute a risk to health, nor to violate the sense of respect for the deceased’s remains. Under section 65, anyone who violates the above-mentioned provisions of the Funeral Act is punishable by a fine of up to EUR   2,000. 44.     An ordinance issued by the Health Authority of the Vorarlberg Regional Government on 14 January 2003 aimed at combating infant mortality expressly states the following: “... in most cases of infant death, a post-mortem conducted by the health authority is necessary from a professional point of view, except where the cause is clearly discernible (for example, in the case of accidents [or] for forensic reasons ...). In all other cases, the cause of death in particular (especially in the case of babies [who die] away from hospital – for example, [of] sudden infant death syndrome) can be determined only by opening the corpse ... A circle of experts will then consider the adduced documents, information and data ..., [and] – on the basis of an analysis and discussion of each individual instance of an infant’s death – will draft proposals for the further reduction of infant mortality.” 45 .     Section 30(2) of the Hospital Act of the Land of Vorarlberg ( Vorarlberger Gesetz über Krankenanstalten ) provides that hospitals must ensure that patients are able to exercise their right to receive an understandable and sufficient explanation and information regarding the diagnosis and possibilities for treatment (and attendant risks) in order that they may be able to actively participate in decisions affecting their state of health. Information about their state of health and the progress of treatment must be provided to them (or, at their request, to a person that has their confidence) by a physician in – as far as possible – an easily understandable and gentle manner, having regard to the personality of the patient. Moreover, patients are entitled to inspect their own medical records and to receive a copy thereof, to careful and respectful treatment and (should they so request) to pastoral care and psychological support. 46 .     In order to safeguard patients’ rights and interests, there is an Information and Complaints Office in each hospital in Vorarlberg, in accordance with section 3 of the Protection of Patients and Clients Act of the Land of Vorarlberg ( Vorarlberger Patienten- und Klientenschutzgesetz ); such offices have to consider complaints about accommodation, care and health treatment, examine suggestions for improvement, and provide information about patients’ stays in the hospital in question. In addition, an independent Patients’ Ombudsperson (who is not subject to any kind of control) and an arbitration commission tasked with hearing disputes involving damage caused to patients and clients (hereinafter “the Arbitration Commission”) have been established. Under section 5 of the Act, the Patients’ Ombudsperson has the task of providing advice and information to patients and clients (and persons enjoying their confidence) free of charge, to consider complaints about accommodation, care and health treatment, to assist patients and clients before the Arbitration Commission (sections 7 et seq.) and to grant patients compensation for injuries or damage caused by the hospital (section 6). THE LAW ALLEGED VIOLATION OF ARTICLES 8 AND 9 OF THE CONVENTION RELATING TO THE POST-MORTEM EXAMINATION 47.     The applicant complained under Articles 8 and 9 of the Convention that the carrying-out of the post-mortem on her son’s body against her will had violated both her right to respect for her private and family life and her right to freedom of religion, and that the domestic courts had not conducted a balancing exercise regarding the conflicting interests in that respect. Article 8 reads as follows: “1.     Everyone has the right to respect for his private and family life, his home and his correspondence. 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.” Article 9 reads as follows: “1.     Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2.     Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” Admissibility Applicability of Article 8 of the Convention 48.     The Court observes that the exercise of Article 8 rights concerning family and private life pertains, predominantly, to relationships between living human beings. However, the possibility cannot be excluded that respect for family and private life extends to certain situations after death (see Sargsyan v. Azerbaijan [GC], no. 40167/06, § 255, ECHR 2015, and Jones v.   the United Kingdom (dec.), no. 42639/04, 13 September 2005). In Petrova v. Latvia (no. 4605/05, § 77, 24 June 2014) and Elberte v. Latvia (no. 61243/08, § 89, ECHR 2015), the Court recognised that the removal of a deceased relative’s organs or tissues without consent fell within the scope of the “private life” of the surviving family members. 49.     The Court notes that the Government did not contest the applicability of Article 8. Having regard to its case-law, the Court sees no reason to come to a different conclusion. It considers that the complaint relating to the performance, against the applicant’s will, of the post-mortem examination conducted on her son comes within the scope of Article 8 in so far as her right to respect for her private and family life is concerned. This Article is therefore applicable in the present case. Applicability of Article 9 of the Convention 50.     The Court reiterates that freedom of thought, conscience and religion is one of the foundations of a democratic society within the meaning of the Convention. While religious freedom is primarily a matter of individual conscience, it also implies, inter alia , freedom to manifest one’s religion alone and in private, or in community with others, in public and within the circle of those whose faith one shares. Article 9 of the Convention lists a number of forms that manifestation of one’s religion or belief may take – namely worship, teaching, practice and observance. Nevertheless, Article   9 does not protect every act motivated or inspired by a religion or belief (see Johannische Kirche and Peters v. Germany (dec.), no. 41754/98, ECHR 2001 ‑ VIII). 51.     The Court has previously held that the manner of burying the dead represents an essential aspect of religious practice and falls under the right to manifest one’s religion within the meaning of Article 9 § 2 of the Convention (ibid.). Article 9 is therefore applicable to the applicant’s complaint that the post-mortem had been carried out against her declared religious convictions, as she submitted that it had prevented her from burying her son in accordance with her beliefs. Conclusion 52.     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. Merits Has there been an interference with the applicant’s rights? 53.     The Court considers that the post-mortem of the corpse of the applicant’s deceased son, carried out despite her and her husband’s objections, could be regarded as impinging on her relational sphere in such a manner and to such a degree as to disclose an interference with her right to respect for her private and family life under Article 8 of the Convention (compare Solska and Rybicka v. Poland , nos. 30491/17 and 31083/17, §   110, 20 September 2018). 54 .     As regards Article 9 of the Convention, the Court has held that in their activities, religious communities abide by rules that are often seen by followers as being of divine origin. Religious ceremonies have their meaning and sacred value for believers if they have been conducted by ministers empowered for that purpose, in compliance with those rules. Participation in the life of the community thus constitutes a particular manifestation of their religion, which is in itself protected by Article 9 (see İzzettin Doğan and Others v. Turkey [GC], no. 62649/10, § 111, 26   April 2016). The Court considers that the applicant burying her son in accordance with her Muslim beliefs, which required the body to remain unscathed, constituted a manifestation of her religion. 55.     Regard being had to its case-law and the above-mentioned circumstances of the case, the Court finds that the post-mortem conducted on the body of the applicant’s son against her will and against her declared religious convictions constituted an interference with her “private” and “family life” within the meaning of Article 8 of the Convention, as well as her right to manifest her religion under Article 9 of the Convention. Was the interference justified? 56.     In order to be justified under Article 8 § 2 and Article   9 § 2 of the Convention, any interference must be in accordance with the law, pursue one of the listed legitimate aims and be necessary in a democratic society (ibid., § 98). (a)    Accordance wit