December 14, 2021
By Naoual El Yattouti
In the case Polat v. Austria, the mother of a deceased child complained that the carrying out of a post-mortem despite her and her husband’s objections based on religious reasons, violated her rights under Articles 8, 9 and 13 of the European Convention on Human Rights (hereafter: the Convention). The European Court of Human Rights (hereafter: the Court) rightly decided that there had been a violation of the rights protected by Articles 8 and 9 of the Convention due to the absence of a balancing exercise by domestic authorities. However, this case constitutes a missed opportunity for the Court to take a meaningful stance in the matter by conducting the balancing exercise itself. Furthermore, the Court failed to continue and reinforce recent case law regarding preventive remedies as meant by Article 13 of the Convention, by deciding that the violation of this Article did not need to be examined.
In 2006, a pregnant woman in Austria learned from prenatal examinations that the fetus showed clear symptoms of the rare Prune-Belly-Syndrome and was unlikely to survive. The attending physician spoke with the parents about a possible need for a post-mortem examination of the body to clarify the cause of death and to assess whether such a condition could occur in other children of the family. The parents refused for religious reasons. According to their Muslim beliefs, the corpse had to be ritually washed before the funeral and for this reason it had to remain as unscathed as possible.
When the child died shortly after birth, the parents were asked again if they would agree to a post-mortem, which they refused. The physician told them it would be carried out nonetheless, in order to clarify the diagnosis. According to the Austrian Hospital Act and the Dead Body and Funeral Act the consent of relatives of a deceased person is not required to carry out a post-mortem, if this is necessary for safeguarding scientific interests. During this post-mortem practically all internal organs of the child were removed and preserved at the hospital. The child’s body was filled with cotton wool and the sex of the child was removed. The parents were not informed about the extent of the post-mortem, and were under the impression that the body was in an appropriate state to be taken to Turkey and to be buried in accordance with their beliefs.
During the funeral the body was undressed, and it became clear that the child had undergone a full body post-mortem that included the removal of all internal organs. Moreover, the corpse was in an overall poor condition because of the decomposition that had taken place in the meantime. This was shocking to the bystanders, in particular to the mother who broke down at the sight of her child. Because the genitals of the deceased child were no longer identifiable, the ritual washing could not take place and the funeral had to be cancelled. This incident resulted in psychological damage for the mother of the child, who stated to suffer from PTSD.
In 2010, the mother lodged a civil claim for damages. The first court held the hospital liable. The hospital took the case to the Innsbruck Court of Appeal, where the mother’s claim was dismissed. This decision was affirmed by the Supreme Court, and eventually the case was brought before the European Court of Human Rights.
The applicant’s claim for the Court was based on Articles 8, 9 and 13 of the Convention. The first complaint concerns the violation of Articles 8 and 9 by conducting the post-mortem examination despite the objections made by the parents on religious grounds. Furthermore, under Article 8 she complained that she had not been informed of the extent of the post-mortem or the removal of her son’s organs. In addition, she complained under Article 13, read in conjunction with Articles 8 and 9, that there had been no legal remedies available to challenge the post-mortem ex ante.
Regarding the first complaint, the Court decided that there indeed had been an interference with the applicant’s right to a private and family life within the meaning of Article 8 of the Convention, as well as with her right to manifest her religion under Article 9 of the Convention, by performing the post-mortem despite her and her husband’s objections. To decide whether the interference was justified, the Court had to examine if it was in accordance with the law, pursued a legitimate aim and was necessary in a democratic society. According to the Court the conditions of being in accordance with the law and the presence of a legitimate aim, were met. The most extensive part of the judgment concerned the proportionality of the interference. The applicant argued that the post-mortem and the removal of the organs had not been conducted lege artis and that no balancing exercise had taken place. In fact, the law did not provide any possibility to object to the post-mortem for religious reasons. The Government argued that the Austrian legislature had struck a fair balance: for the purpose of the protection of health, there is no room for discretion in respect to any individual case. Furthermore, there had been a scientific necessity to conduct the post-mortem. The Court considered that the legitimate aim, namely the protection of the health of others, is of particular importance and weight. However, the Court stayed mindful of the applicant’s interest in ensuring that the remains of her deceased son were respected for the purpose of the funeral. Even though there was indeed a scientific interest, the Austrian law stipulates that a post-mortem can only be performed when it is scientifically necessary. The term “necessary” leaves room for a certain discretion and in no way excludes a balancing exercise between competing rights and interests. In this case the private interests of the applicant were given little to no consideration by the hospital and the domestic courts. For these reasons the Court concluded that the authorities had not struck a fair balance between the competing interests at stake, meaning that Articles 8 and 9 of the Convention had been violated.
The second complaint concerned an alleged violation of Article 8 of the Convention because of the failure of the hospital to comply with its duty to inform the parents of the extent of the post-mortem. The Court accepted that the hospital’s duty to disclose information relating to the post-mortem falls within the scope of the right to respect for private and family life. Although the Court noted that there is no clear rule under Austrian law governing the extent of information that should be given to close relatives in case of a post-mortem, given the delicate circumstances of the case, the hospital had a greater duty to provide appropriate information. According to the Court, the hospital clearly had not exercised the caution required by the specific situation, since the information was of significant importance for the religious burial of the child. Consequently, the Court decided that there had also been a violation of Article 8 of the Convention on this ground.
The last complaint of the applicant regarding the lack of a legal remedy to challenge the performance of the post-mortem before it took place, did not get examined separately. The Court argued that this complaint was closely linked to the one regarding the post-mortem, and concluded that there was no necessity to examine whether there had been a violation of Article 13 of the Convention. However, not all members of the Court supported this argumentation. Two of the judges formulated a partly dissenting opinion, stating that Article 13 of the Convention was fully detachable from the findings in respect to Articles 8 and 9. This dissenting opinion emphasizes the importance of examining this provision, particularly when it comes to irreversible consequences. The remedy required under Article 13 of the Convention must be “effective”, in practice and in law, meaning that it should be capable of directly redressing the situation complained of, in order to avoid the destructive effect of the fait accompli. By not examining this provision, issues were raised concerning the consistency in the Court’s recent case law that was clear in its preference for prevention, rather than for compensatory remedies.
Articles 8 and 9 of the Convention: the conducting of the post-mortem
In previous case law (Vavřička and others v. Czech Republic – see our blogpost here) it has been made clear that the Contracting States are under a positive obligation to take appropriate measures to protect the health of those under their jurisdiction. This implies a wide margin of appreciation for the States, but does not serve as a carte blanche, allowing States to refrain from balancing exercises between competing rights and interests. In this case there was given no weight to the applicant’s reasons for opposing the post-mortem, and it was clear that the domestic authorities had conducted no balancing exercise whatsoever. On the basis of the facts and taken into account the delicateness of the situation – a mother who loses her child and only wants to find closure by giving the child a proper Islamic burial –, it is close to disturbing how little (actually none) attention was given to her wishes by the hospital and later on by the domestic courts. The importance of a proper burial in Islam and the exact meaning of it, not only to the family members but also to the deceased child, were simply brushed aside and given no extra thought. In Islam, funerals are extremely spiritual events and they play a central role. Not only do these funerals serve the purpose of offering comfort to the grieving, it is also an opportunity to pray and ask mercy on the deceased (see here for an article about Islamic funerals). The burial is a way to ensure that the deceased is treated with dignity and respect. By refusing to hear the parents’ objections, this opportunity was taken away from the family of the deceased, and also from the deceased child. It comes as a relief that in this case ultimately a violation of Articles 8 and 9 of the Convention is found. Especially given the importance of public health and the predominant role of science in Western societies, and specifically in Austria where a constitutionally guaranteed freedom of science exists, the Court showed itself inclined to accept a possible priority of the right to family life and religion. In the least the priority of science should not be assumed.
However, even though a violation was found, an actual balancing exercise by the Court could have greatly increased the importance of the case. The Court decided that Articles 8 and 9 of the Convention were violated, not necessarily by conducting the post-mortem despite the religious objections of the parents, but by the mere absence of a balancing exercise. This could mean that the domestic authorities could have rightly decided that the right to public health prevails over the right to private life and freedom of religion in this case, if they would have conducted a balancing exercise. In other words, the same outcome is still possible, as long as the domestic authorities weigh the rights of the parties involved against each other. The Court acknowledges the delicate nature of the case, but fails to take a meaningful stance on the matter. In fact, the decision regarding the violation of Articles 8 and 9 of the Convention is made purely on a procedural basis, namely the lack of a balancing exercise. This is then not even followed through by deciding upon a violation of Article 13 of the Convention to prevent future violations. In this sense, the Court took a safe road and missed an opportunity to actually show what it means to take the delicate nature of the case into account by striking the balance itself.
Article 13 of the Convention: preventive remedies
After the analysis of Articles 8 and 9 of the Convention, the Court examined the third complaint about the lack of a legal remedy to challenge the decision that the post-mortem would need to take place. It does not come as a great surprise that the Court refused to perform an in-depth examination of the exact scope of Article 13 of the Convention. After all, the Court stated in §84 of its judgment that it saw no reason to question the legislative choice not to grant a right to object to a post-mortem examination of close relatives. In this regard, the Court added that Articles 8 and 9 of the Convention do not grant absolute rights and there do not require the Contracting States to provide the possibility to lodge objections. However, the observation that Article 13 of the Convention requires measures to be practically and legally effective should in itself be a sufficient argument to question the legal impossibility of raising objections. After all, the concept of effective remedy within the meaning of Article 13 requires that the remedy must be capable of preventing the implementation of measures that are contrary to the Convention and whose effects are potentially irreversible (see article here).
The reason why the Court did not find it necessary to examine Article 13 of the Convention, is because it was under the impression that the complaint under this provision had already been properly analyzed in the examination of the possible violation of Articles 8 and 9 of the Convention. Rightly so, two of the Court’s judges did not agree with this decision. Admittedly, the complaint regarding Article 13 is closely linked to the complaints regarding the post-mortem and the duty to inform, but this does not mean that they are not detachable from each other. In the analysis of Articles 8 and 9 of the Convention, the lack of an effective remedy against the post-mortem was mentioned, but not examined. The Court did come to its decision that there had been a violation of the applicant’s rights on account of the failure of the national authorities to strike a fair balance between the competing rights (§91). However, as mentioned before, the Court did not see a reason to question the legislative choice not to grant a right to objection to a post-mortem, which implies the striking of a balance (§84). These two statements are quite contradictory and make it difficult to understand why the majority of the Court was convinced that this provision did not need any further examination.
The Court refers to the case of Solska and Rybicka v. Poland in its decision to not examine Article 13 of the Convention but, as the dissenting judges rightly point out, this case law is not fully applicable to the current case. More specifically, the case of Solska and Rybicka concerned the exhumation of the remains of two men against the wishes of their families. The applicants had complained about the inability to object, which the Court examined under the analysis of Article 8 of the Convention. In this situation it was indeed no longer necessary to examine the complaint regarding Article 13 of the Convention. However, even when the topics of two cases are comparable, this does not mean that the analysis made in one case can simply be transposed to the other.
It is somewhat peculiar to establish a violation, but to leave the mechanism that made the violation possible out of the analysis. Allowing that it may be acceptable that no remedies are provided to challenge a post-mortem prior to the execution of it, leaves the door open for future violations. Moreover, this decision goes against the Court’s most recent case law on remedies. For instance, in Macready v. the Czech Republic the Court decided that in some cases a purely compensatory remedy is not capable of redressing violations. In fact, the respect for the right to family life within the meaning of Article 8 of the Convention could be rendered illusory, if there was only a compensatory remedy (§47-48). Similarly, in Bergmann v. the Czech Republic the Court stated in §46 that: “… an action that can only result in compensation cannot be regarded as an effective remedy …” This idea was reiterated in §137 of Kuppinger v. Germany. It is clear from these cases that, in order to achieve a full protection of the rights under Article 8 of the Convention, preventive remedies need to be available to object to possible violations.
It remains a question why the Court decided not to apply its theory regarding effective remedies in this case. The decision not to further examine Article 13 of the Convention constitutes an inconsistency, in that on the one hand a violation of Articles 8 and 9 is found, while on the other hand refraining from blocking a course of action that could still lead to future violations. In addition, this decision also forms a structural inconsistency within the Court’s case law. The decision that Austria’s insensitive actions constituted a violation of the Articles 8 and 9 of the Convention is to be applauded, but it is regrettable that the Court missed the opportunity to further strengthen the protection of these rights by striking the balance itself and by conforming its case law regarding preventive remedies in this regard.