CEDH · CASELAW;COMMUNICATEDCASES;ENG — 23 mai 2017

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }   Communicated on 23 May 2017   FIFTH SECTION Application no. 12886/16 Leyla POLAT against Austria lodged on 29 February 2016 STATEMENT OF FACTS The applicant, Ms Leyla Polat, is an Austrian national, who was born in 1974 and lives in Bregenz. She is represented before the Court by Mr   K.P.   Pichler, a lawyer practising in Dornbirn. The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     The birth and death of the applicant’s son The applicant was pregnant in 2007 and received medical treatment in the Feldkirch Regional Hospital ( Landeskrankenhaus; hereinafter, “the hospital”), a public hospital. The examinations carried out in this hospital already indicated that the applicant’s child showed clear symptoms of the “prune belly syndrome” and, thus, would be born with a disability. The applicant was informed that this was a tentative diagnosis which had not been yet verified. Subsequently, the applicant underwent a medical examination in a hospital in Innsbruck which confirmed the aforementioned diagnosis. The “prune belly syndrome” is a congenital, genetic malformation disease, the cause of which is not yet completely clear. Essential characteristics of the disease have already been medically clarified; these are, inter alia, a wrinkled appearance of the abdominal skin, a lack of abdominal musculature, and serious malformations of the efferent urinary tracts and of the testicles in the sense of a bilateral cryptorchidism. In addition, the testicles may be non-palpable in the scrotum and other malformations of the body may occur such as club feet, dislocations of the hip joint, polydactyly, malformations of the gastrointestinal tract and cardiac defects. Therefore, it is already possible to detect via ultrasound before birth whether the foetus shows the aforementioned essential characteristics. Apart from this preliminary diagnosis, the applicant’s child did not have a sufficient quantity of amino liquids in the womb; therefore, she was informed that the child would most likely not survive. Before birth, physicians of the hospital addressed the applicant concerning a possible post-mortem examination of the body of her yet unborn child. The applicant rejected a post-mortem for religious reasons as she wanted to bury her child according to Muslim tradition in her hometown in Turkey in the event of its death. The applicant and her spouse are of Muslim faith. The applicant gave birth to her son Y.M. in the hospital on 3 April 2007. It was a premature birth in week 25 of the pregnancy. The applicant’s son died on 5 April 2007 due to a cerebral hemorrhage caused by the premature birth. Y.M. in fact suffered from the “prune belly syndrome”, as had already been diagnosed before birth. After the child’s birth his abdomen showed clear symptoms of the aforementioned disease. 2.     The autopsy After the applicant and her spouse learned that their newborn child had died, medical staff of the hospital wanted to perform an autopsy on the deceased newborn even though the applicant and her spouse had not agreed to the post-mortem. The relevant provisions, section 25 of the Hospital Act ( Kranken- und Kuranstaltengesetz ) as well as Article 13 of the Vorarlberg Dead Body and Funeral Act ( Vorarlberger Gesetz über das Leichen- und Bestattungswesen ) do not require consent of the parents or spouse as a prerequisite for performing an autopsy. Thus, medical staff can perform an autopsy on any person deceased in a public hospital to any extent without parental consent and without any means of control or supervision by courts or authorities. Initially, the applicant and her spouse were informed by the medical staff of the hospital that the planned post-mortem of the body would only be carried out to a minor extent, by a small incision of about 4 cm. The applicant and her spouse objected to the post-mortem despite this information. On 6 April 2007, the autopsy was performed at the hospital without consent or notification of the applicant or her spouse. The hospital later explained that the doctors had not been able to clearly classify the pathology in the area of the abdomen/kidneys as well as the lungs and the brain. Other reasons for the post-mortem, such as gaining additional knowledge or a substantial public interest, were not claimed by the hospital. The autopsy was ordered by the hospital and could not be challenged by the applicant and her husband before any court or authority at that time, since there is no possibility of review according to the laws in question. During the actual post-mortem examination, all organs were removed from the deceased child’s body without the consent or even knowledge of the applicant or her spouse and preserved at the hospital. The child’s body was filled with cotton wool and a large portion of the urinary tract was removed so that the genitals of the deceased child were no longer visible. Thus, the sex of the deceased child was no longer objectively identifiable. An internal autopsy report confirmed the diagnosis already reached before and after birth. The autopsy report was initially not issued to the applicant. 3.     The funeral in Turkey The applicant and her spouse intended to bury their deceased son in accordance with Muslim beliefs in Turkey, including a burial ceremony following the rules of Muslim faith. Such ceremony is only possible, however, if the body of the deceased was in a state in which a ritual washing can be carried out. The body of the deceased child was handed over to the applicant fully clothed only after 8 April 2017. Until then, the applicant did not know where her deceased child was kept and had no access to him, even though she had asked doctors of the hospital as well as the staff of the funeral company to see the body. It was never disclosed to the domestic courts how and where the body had been stored during this time despite the clear statement of the expert Dr   L. determining that it had not been stored correctly. No investigations or reviews were initiated by any national authority or court. Therefore the question of a correct preservation of the body was never examined by the competent courts, despite their obligation to do so in course of proceedings. When the body was handed over on 8 April 2007 the applicant and her spouse were notified that a “smaller autopsy” had been performed. They were neither informed that a removal of all organs had taken place, nor that the body had been refilled with cotton wool. It was not indicated to them that the body was in a desolate state due to the lack of preservation at the hospital. The applicant and her husband were led to believe that the body was in an appropriate state to be taken to Turkey and, as previously planned and known to the medical staff, to be buried in accordance with Muslim beliefs. The applicant and her husband therefore took the body of their deceased child to their home village in Turkey for the funeral. During the funeral ceremony at which up to 300 guests were present, the body of the child was undressed by the wife of the Hodja (Turkish for “learned man”) and the applicant herself, in accordance with Muslim belief. In the course of this undressing the wife of the Hodja and the applicant noticed that the deceased child had undergone a full body autopsy, that the whole body and head had been cut open and sewn back together. It was clearly visible that all organs of the deceased child had been removed, including the eyeballs, and the body had been stuffed with cotton wool instead. Because of this sight both women were left in a state of shock and started screaming, all guests rushed to see the body, resulting in turmoil. Since the genitals of the deceased child were no longer identifiable, the washing ritual could not take place (because there are different washing rituals for male and female deceased) and the funeral had to be cancelled. Additionally, the applicant and her husband were insulted by the guests due to the extremely bad condition of the body and the objectively unidentifiable sex of the child. The parents of the child therefore had to leave their home village on the next day. Because of this they incurred significant costs. The deceased child then had to be buried in another community, without the ritual washing and ceremony required by Muslim faith. The applicant and her husband thus had to bear the additional costs of this funeral. Had the parents known that their child’s body had undergone such an extensive post-mortem, they would never have planned and conducted a funeral ceremony in Turkey but buried the deceased child in Austria. 4.     The return of the applicant’s son’s organs After the applicant had returned to Austria, she claimed the organs of her deceased child from the hospital. The hospital initially denied the removal of any organs from the body and only agreed to return a part of the removed organs after an intervention of the Vorarlberg Patient Ombudsperson ( Patientenanwalt ) on 24 April 2007 so that they could be buried in the grave of the deceased child. Only on 1 October 2007, upon further intervention by the Patient Ombudsperson, did the applicant receive the remainder of her deceased child’s organs. She buried these, too, in her son’s grave in Turkey. Due to the sight of the corpse following autopsy, the turmoil, the insults and the subsequent dispute with the hospital about the return of the organs the applicant suffered a post-traumatic stress disorder. The applicant had and still has to rely on psychological support. 5.     The ensuing civil proceedings for damages On 30 March 2010 the applicant filed a civil lawsuit against the Feldkirch Regional Hospital for damages, namely the costs of the burial which had to be interrupted, the trips to Turkey in order to bury the child’s organs after they were returned, and non-pecuniary damage for mental pain and suffering, as well as future costs of psychological treatment. She alleged that her child’s body had not been treated with the appropriate dignity; that it had been unlawful to remove the organs as she had declared that she did not agree to their removal; and a failure to comply with the doctors’ duty to properly inform her of the medical intervention performed on her child’s body, which had caused the post-traumatic stress disorder. On 13 August 2014 the Feldkirch Regional Court granted 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 of almost EUR 30,000, as well as any future damage arising in connection with the post-mortem of Y.M. It held that the requirement of a scientific interest in the post-mortem had not been given, which is why it should not have been carried out against the will of the applicant and her husband. It further held that even assumed that such a scientific interest had existed, it would not have justified the behaviour of the hospital staff, namely that they did not inform the applicant that a post-mortem had been carried out, and that the body was stuffed with cotton wool. The unlawful comportment of the doctors therefore had caused the shock reaction in the applicant, which is why the hospital was liable to pay damages. The hospital appealed. On 4 December 2014 the Innsbruck Court of Appeal ( Oberlandesgericht ) granted the appeal and dismissed the applicant’s claim. It found that the lower instance had not properly taken into account the two expert opinions on post-mortem, which had concluded that it had in fact been carried out in accordance with the law, and that there had not been an obligation to inform the applicant of the state of her son’s body afterwards. The reason of the post-mortem was, in particular, the unclear clinical diagnosis and the assessment of the quality of the pre- and postnatal treatment. It was irrelevant whether the results of the post-mortem were used for further scientific research or whether they were publicised (which they were not). “Scientific interest” also included the interest in completing the personal file of the applicant’s son by confirming the initial diagnosis. The court further held that the applicant had been informed by the hospital that the post-mortem would also be carried out without her consent. 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 had the applicant not proven that the doctors had promised her, as she alleged, that the post-mortem would only consist in a small 4-centimeter-cut. The fact that the organs had only been returned to her later was irrelevant in that context, as the applicant alleged that the happenings at her son’s funeral ceremony had been causal for her post-traumatic stress disorder, not the late return of his organs. The applicant lodged an extraordinary appeal with the Supreme Court, arguing, among other things, that her rights under Article 9 of the Convention have been violated. The Supreme Court rejected the applicant’s extraordinary appeal on 25   September 2015. It held, in essence, that there had been a legitimate aim for the post-mortem under Article 9 § 2 of the Convention, namely the interest of public health. COMPLAINTS The applicant complains 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 her right to respect of her private and family life as well as her right to freedom of religion, and that the domestic courts have not conducted a balancing exercise of the conflicting interest in that respect. Under Article   13 read in conjunction with Articles 8 and 9 of the Convention, the applicant complains that she did not have a legal remedy available to challenge the carrying-out of the post-mortem before it took place. QUESTIONS TO THE PARTIES 1.     Has there been an interference with the applicant’s rights under Article   8 § 1 of the Convention in relation to the carrying-out of the post ‑ mortem on her son’s body against her will?   If so, has the interference been in accordance with the law and necessary in terms of Article 8 § 2?   2.     Has there been an interference with the applicant’s rights under Article   9 § 1 of the Convention in relation to the carrying-out of the post ‑ mortem on her son’s body against her will?   If so, has the interference been in accordance with the law and necessary in terms of Article 9 § 2?   3.     Has the State complied with its positive obligations towards the applicant under Articles 8 and 9 of the Convention, in particular when it comes to its duty to duly inform the applicant of the extent of the post-mortem carried out on her son’s body?   4.     Has the State complied with its procedural obligations to provide adequate procedural safeguards for the protection of the applicant’s rights under Articles 8 and 9 of the Convention within the meaning of the Court’s case-aw (compare, for example, V.C. v. Slovakia , no. 18968/07, §§ 138-154, ECHR 2011 (extracts), Konovalova v. Russia , no. 37873/04, §§ 42-49, 9   October 2014, and A.-M.V. v. Finland, no. 53251/13, § 84, 23   March 2017)? In particular, has the applicant had any effective remedy available, within the meaning of Article 13 of the Convention, to challenge the hospital’s decision to carry out the post-mortem before it was actually performed?