The ECHR found a violation of the requirements of Article 8 of the Convention.

Заголовок: The ECHR found a violation of the requirements of Article 8 of the Convention. Сведения: 2024-06-23 03:59:10

The ECHR ruling of July 20, 2021 in the case "Polat v. Austria" (complaint No. 12886/16).

In 2016, the applicant was assisted in preparing the complaint. Subsequently, the complaint was communicated to Austria.

In the case, the autopsy and removal for the preservation of internal organs of a premature baby with a rare disease are being appealed, despite the objections of the mother and her specific wish for burial according to religious customs. There has been a violation of article 8 of the Convention in the case.

The case is being appealed against the failure of the hospital administration to provide the child's mother with sufficient information required in connection with the special circumstances of the case. There has been a violation of article 8 of the Convention in the case.




The applicant had a child prematurely born, who died two days later. The child was diagnosed with a rare disease, so the doctors decided that it was necessary to conduct an autopsy to clarify the diagnosis. The applicant and her husband refused this on religious grounds and explained that they wanted the child to be buried in accordance with Muslim customs, which require that the body remain intact as far as possible. Despite the objections of the parents, an autopsy was performed, and almost all the internal organs of the child were removed. The applicant, who was not informed of the extent of the autopsy intervention, believed that it was possible to hold a funeral according to religious customs. She realized the extent of the interference only during the funeral organized in Turkey, which had to be canceled. The applicant unsuccessfully filed a civil claim for damages.




Regarding compliance with articles 8 and 9 of the Convention (conducting an autopsy, despite the applicant's objections). In the present case, there was interference, which was provided for by Austrian law, with the applicant's right to respect for her private and family life, as well as her right to profess her religion. In addition, the autopsy was conducted in the scientific interest and served the legitimate purpose of protecting the health of others. With regard to the proportionality of the intervention, the European Court noted first of all that the present case concerned the rules for conducting autopsies in public hospitals and the question of whether (and under what circumstances) close relatives could be given the right to object to an autopsy for reasons related to private life and religion, if the interests of public health required the adoption of such measures. measures. In this regard, by virtue of article 8 of the Convention, States parties have a positive obligation to take appropriate measures to protect the health of persons under their jurisdiction. Thus, the participating States are given a wide margin of appreciation. The European Court has also established the following.

There were no grounds to challenge the pathologist's conclusions that the autopsy was performed lege artis, as well as to challenge the Austrian authorities' choice not to allow close relatives to object to the autopsy for religious or other reasons in all cases. The rights provided for in articles 8 and 9 of the Convention are not absolute and therefore do not require States parties to provide for an absolute right to file a complaint in this regard.

Although the relevant legislation did not grant the Austrian authorities the right to conduct an autopsy in every case, it gave priority to the interests of science and the preservation of the health of others over religious or any other grounds for objections from the relatives of the deceased in cases where scientific interests need to be protected, especially if the diagnosis is unclear. In this regard, the European Court pointed to the arguments of the Austrian authorities regarding the importance of such research for the development of modern medicine, as well as the well-established and carefully maintained tradition of the autopsy law in Austria, which is considered an integral part of the constitutionally guaranteed freedom of science, as a right having close links with the positive obligation provided for in Articles 2 and 8 of the Convention to adopt appropriate measures to protect the life and health of persons under the jurisdiction of the State. Thus, the legitimate aim of protecting the health of others by conducting an autopsy was of particular importance and significance in the present case. At the same time, the European Court in this context took into account the applicant's interests in ensuring that her child's body was treated with respect for burial, as she had stated from the very beginning.

Taking into account the evidence gathered by the Austrian authorities during the examination of the case, the European Court, on the basis of the conclusions of the courts of the respondent State, was convinced that the legitimate requirement of scientific interest was met during the autopsy. Despite this, Austrian law left some discretion to doctors when deciding whether an autopsy should be performed in a particular case and to what extent intervention should be carried out. The European Court also did not rule out that a balancing of opposing interests could or should have been established. However, the applicant's arguments against conducting an autopsy were not taken into account by the hospital staff. Also, the Court of Appeal, when considering the applicant's complaint, did not compare the scientific interest in conducting an autopsy with the applicant's special personal interest in keeping the body "intact as far as possible" for conducting a funeral according to religious customs. Moreover, although the Austrian Supreme Court raised to some extent the question of proportionality of interference with the applicant's rights, it either did not consider at all or did not sufficiently consider the reasons why the applicant objected to the autopsy, thus insufficiently assessing the applicant's individual rights under articles 8 and 9 of the Convention and the "necessity" of an autopsy in such a case context.

Consequently, despite the wide discretion granted to the Austrian authorities, in the present case they did not establish a fair balance between the opposing interests involved, putting public health requirements in relation to the right to respect for private and family life first and failing to assess the applicant's interest in carrying out the funeral of the child in accordance with her religious beliefs.




Violations of the requirements of articles 8 and 9 of the Convention were committed in the case (adopted unanimously).

Regarding compliance with article 8 of the Convention (regarding the obligation of the hospital administration to provide information about the autopsy). Since the essence of the applicant's complaint was not a complaint about the actions, but about the inaction of the Austrian authorities, the European Court considered the present case from the point of view of the positive obligation of the Austrian authorities under article 8 of the Convention.

Although there seemed to be no clear rule in Austrian law governing the amount of information that was necessary (or not necessary) to be communicated to the close relatives of the deceased whose autopsy was being performed, this fact alone was not sufficient to recognize a violation by the Austrian authorities of their positive obligations. Thus, the question was whether, given the circumstances of the case, the Austrian authorities had taken all reasonable measures to provide the applicant with information about the scope of the autopsy and about the removal of internal organs and their further location. The European Court of Justice answered this question in the negative. In particular, the circumstances of the present case were as special as in the Judgment of the European Court of Justice in the case of Adri-Vionnet v. Switzerland (Hadri-Vionnet v. Switzerland) (See: The Ruling of the European Court of Justice in the case of Adri-Vionnet v. Switzerland (Hadri-Vionnet v. Switzerland) dated February 14, 2008, complaint No. 55525/00.), and required the exercise of prudence and attention on the part of the hospital staff who communicated with the applicant. The applicant, who had just lost her child, was deprived of the right to object to an autopsy. She informed the hospital staff of the reasons for her disagreement and that according to her religious beliefs, the body should remain as little damaged as possible for the funeral. Consequently, the hospital staff had an even greater obligation to provide the applicant with proper information about what had been done with the body, as well as to provide her without delay with information regarding the removal of internal organs and their further location. However, the hospital staff did not do this, allowing the applicant to believe that it was possible to perform a ritual ablution and funeral according to her religious beliefs. Although the Austrian Supreme Court's argument that withholding some information could have been less of a burden for relatives could have been considered appropriate in some situations, it did not take into account the special circumstances of the applicant's case and her specific wish, which was conveyed several times to hospital staff. As the Austrian Supreme Court ruled, it was not generally known that all internal organs were removed during the autopsy of a newborn. It was also not disputed that initially the hospital staff denied the fact of organ removal, but later admitted that it had been done. The internal organs were transferred to the applicant only after the Commissioner for Patients' Rights intervened in the case twice.

As a result, the actions of the hospital staff in relation to the applicant lacked the prudence and attention required in the current situation. In conclusion, although the expert opinions unanimously indicated that an autopsy was necessary to clarify the diagnosis, they did not say anything about the need to retain organs for scientific or other purposes for weeks or months.




There was a violation of the requirements of article 8 of the Convention in the case (adopted unanimously).




In the application of article 41 of the Convention. The European Court awarded the applicant 10,000 euros in compensation for non-pecuniary damage, the claim for compensation for material damage was rejected.



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