CEDH · CASELAW;CLIN;ENG — 20 juillet 2021

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Austria - 12886/16 Judgment 20.7.2021 [Section IV] Article 8 Positive obligations Article 8-1 Respect for family life Respect for private life Post-mortem and organ removal for preservation of prematurely born child with rare disease despite mother’s objection and specific wishes for ritual burial: violation   Hospital’s failure to provide mother with sufficient information required in delicate circumstances of case: violation Article 9 Article 9-1 Manifest religion or belief Post-mortem and organ removal for preservation of prematurely born child with rare disease despite mother’s objection and specific wishes for ritual burial: violation Facts – The applicant’s son was born prematurely and died two days later. He had been diagnosed with a rare disease so the treating doctors decided that a post-mortem examination would be necessary to clarify the diagnosis. The applicant and her husband refused on religious grounds and explained that they wished to bury their son in accordance with Muslim rites, which required the body to remain as unscathed as possible. Despite their objections, the post-mortem was performed and practically all the child’s internal organs were removed. The applicant, not having been informed of the extent of the post-mortem, believed she could ritually bury her son; she only realised the actual extent during the organised funeral in Turkey which consequently had to be called off. The applicant unsuccessfully brought civil proceedings for damages. Law – Article 8 and Article 9 ( performance of post-mortem examination despite applicant’s objections ): In the present case, there had been an interference, which had been prescribed by domestic law, with the applicant’s private and family life as well as her right to manifest her religion. Further, the post-mortem had been conducted for the safeguarding of scientific interests and served the legitimate aim of the protection of the health of others. As to the proportionality of the interference, the Court noted at the outset that the case concerned the regulation of post-mortem examinations in public hospitals and the question of whether and in which cases close relatives of the deceased should be granted the right to object to a post-mortem examination for reasons related to private life and religion where interests of public health clearly called for such a measure. In this connection, Contracting States were under a positive obligation, by virtue of Article 8, to take appropriate measures to protect the health of those within their jurisdiction; the State’s margin of appreciation was thus wide. The Court then found as follows: There was no ground to question the expert findings of the pathologist that the post-mortem had been carried out lege artis or the domestic legislative choice not to grant a right to object to a post-mortem examination of close relatives on religious or any other grounds in all cases; the rights under Articles 8 and 9 were not absolute and therefore did not require the Contracting States to grant an absolute right to lodge an objection in that regard. Although the relevant domestic laws did not give the authorities the right to conduct post-mortem examinations in each and every case, the Austrian legislature had chosen to give precedence to the interests of science and the health of others over religious or any other reasons for objection on the part of a deceased person’s relatives in cases of necessity for safeguarding scientific interests, particularly if a case was diagnostically unclear. In this respect, the Court pointed to the Government’s submissions on the importance of such post-mortems to the advancement of modern medicine as well as the long and carefully preserved tradition of autopsy law in Austria, which was perceived as an integral part of the constitutionally guaranteed freedom of science; a right closely related to the positive obligations under Articles 2 and 8 to take appropriate measures to protect the life and health of those within a State’s jurisdiction. The legitimate aim of the protection of the health of others through the conduct of post-mortem examinations, was thus of particular importance and weight in the instant case. At the same time, the Court was mindful of the relevance in this context of the applicant’s interest in ensuring that the remains of her deceased son were respected for the purpose of the funeral, a concern that she had expressed from the beginning. Bearing in mind the evidence taken during the domestic proceedings, the Court was satisfied, in line with the domestic courts’ findings, that the legal requirement that there be a scientific interest in performing a post-mortem examination had been met. Notwithstanding, domestic law left a certain scope of discretion to the doctors deciding on whether a post-mortem examination should be carried out in any given case and as to the extent of the intervention necessary. It therefore did not exclude that a balancing of competing rights and interests could or should have been carried out. The applicant’s reasons, however, for opposing the post-mortem, had not been taken into account by the hospital staff. Nor had the Court of Appeal, in deciding her damages’ claim, weighed the importance of the scientific interest in the post-mortem against her particular private interest in having her son’s body “as unscathed as possible” for the religious funeral.   Further, although, the Supreme Court had addressed, to some extent, the proportionality of the interference with her rights, it had given little to no consideration to her reasons for opposing the post-mortem, thus insufficiently addressing her individual rights under Articles 8 and 9 and the “necessity” of the post-mortem in that light. Consequently, albeit the wide margin of appreciation afforded to the domestic authorities, in the instant case they had not struck a fair balance between the competing interests at stake by reconciling the requirements of public health to the highest possible degree with the right to respect for private and family life nor had they weighed the applicant’s interest in burying her son in accordance with her religious beliefs in the balance. Conclusion : violation (unanimously). Article 8 ( as to the hospital’s duty to disclose information regarding the post-mortem ): As the substance of the applicant’s complaint was not that the State had acted in a certain way, but that it failed to act, the Court approached the case from the perspective of a positive obligation on the part of the respondent State under Article 8. Although there appeared to be no clear rule under domestic law governing the extent of information that must or must not be given to close relatives of a deceased person in respect of whom a post mortem had been performed, this was not sufficient in itself to find a violation of the respondent State’s positive obligations. The question was thus whether, given the circumstances, the authorities had undertaken reasonable steps to provide the applicant with information as to the extent the post-mortem performed, and of the removal and whereabouts of his organs. The Court replied in the negative. In particular, the circumstances of the case were as delicate as those in the case of Hadri-Vionnet v. Switzerland and required an equally high degree of diligence and prudence on the part of the hospital staff when interacting with the applicant. The applicant, who had just lost her child, had found herself with no legal right to object to a post-mortem. She had informed the hospital staff of the reasons of her objection and that, according to her religious beliefs, the deceased child’s body had to be as unscathed as possible for the burial ceremony. Consequently, they had had an even greater duty to provide her with appropriate information regarding what had been done and what would be done with her child’s body as well as, and without undue delay, information concerning the removal and the whereabouts of its organs. They had failed to so, however, leading her to believe that a ritual washing and a funeral ceremony in accordance with her beliefs could be held. While the Supreme Court’s argument that omitting to give detailed information would be less burdensome to the relatives might be valid in some situations, it did not take into account the specific situation in the applicant’s case and her particular wishes which had been communicated to the hospital at several occasions. As that court held, it could not be seen as common knowledge that all organs were removed during the post-mortem of a new-born. It also remained undisputed that the hospital staff had initially denied having removed any organs, but later admitted that they had in fact done so. The applicant had been handed her son’s organs only after two interventions by the Patients’ Ombudsperson. In sum, the behaviour of the hospital staff towards the applicant had clearly lacked the diligence and prudence required by the situation. Last but not least, whereas the expert opinions had unanimously found that the post-mortem had been justified in order to be able to clarify the diagnosis, nothing therein mentioned any necessity to keep the organs for scientific or other reasons for several weeks or months. Conclusion : violation (unanimously). Article 41: EUR 10,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed. (See also Hadri-Vionnet v. Switzerland , 55525/00, 14 February 2008, Legal Summary ; Solska and Rybicka v. Poland , 30491/17 and 31083/17, 20 September 2018, Legal Summary ; Vavřička and Others v. the Czech Republic [GC], 47621/13 et al., 8 April 2021, Legal Summary )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes