Organ transplantation
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.” AdmissibilityApplicability of Article 8 of the Convention Applicability of Article 8 of the Convention 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; Jones v. United Kingdom (dec.), no. 42639/04, 13 September 2005). In the cases of 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, 10 July 2001). 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 furthermore notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. MeritsHas there been an interference with the applicant’s rights? Has there been an interference with the applicant’s rights? 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 Articles 8 § 2 and 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 with the law 57. The applicant did not dispute that holding the post-mortem had been in accordance with the law. 58. The Government argued that Article 8 of the Convention did not per se stipulate that a domestic legal regulation – if formulated with sufficient clarity – required in any event the consent of the relatives of the deceased in question in order for a post-mortem examination to be carried out (with reference to the above cited judgments in the cases of Petrova and Elberte ). They contended that section 25 of the Hospital Act complied with the clarity requirements. 59. The Court reiterates that the expression “prescribed by law” in Articles 8 § 2 and 9 § 2 not only requires that the impugned measure should have a legal basis in domestic law, but also refers to the quality of the law in question, which should be accessible to the person concerned and foreseeable as to its effects. However, it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see, among many other authorities, Delfi AS v. Estonia [GC], no. 64569/09, § 120, ECHR 2015). 60. The Court observes that the post-mortem was carried out on the basis of section 25 of the Hospital Act and section 12(3) of the Funeral Act. The domestic courts based their assessment of the applicant’s case on those provisions (see paragraphs 38 and 42 above). Given that the Court sees no valid reason to question the interpretation of those provisions by the domestic courts, it accepts that the interference complained of was “prescribed by law”. (b) Legitimate aim 61. While the applicant conceded that post-mortem examinations might serve the aim of the protection of health, she argued that her son’s post ‑ mortem had not contributed to the advancement of science or to the attainment of new findings, but in the end had only served to confirm his individual diagnosis. Hence, this legitimate aim had not been achieved in the instant case. 62. The Government submitted that section 25 of the Hospital Act served a legitimate aim – namely the protection of health, which was rendered clear by the preparatory work on that provision: - Firstly, a post-mortem examination often constituted the only possibility for the doctor in charge to review his/her own diagnosis and applied therapy. Moreover, the reasons for a failure in treatment could also be determined as a result of a post-mortem examination. - Secondly, post-mortem examinations carried out systematically permitted the collection of secure data by the health authorities regarding the existence and frequency of individual diseases and causes of death, thus enabling them to take general preventive and combative measures. - Thirdly, the result of a post-mortem examination could also be particularly valuable for the relatives of the deceased, since it often provided essential indications of genetic predispositions towards certain diseases, thus permitting early prevention. 63. The Government submitted that post-mortem examinations were therefore not only important in order to achieve diagnostic clarity and quality control; the examination of the exact nature of Y.M.’s illness could also – by detecting any possible genetic defects – be important for the applicant and any offspring that she might have in the future. 64. The Government argued that the Austrian Supreme Court had thus rightly noted in its judgment in respect of the instant case that the legal aim of the provisions referred to was to enable experts to acquire additional (medical) knowledge without there having to be a prior intention or possibility on the part of those experts to use data and information obtained in any individual case for strictly scientific purposes. The interests of living individuals were thus given more weight than those of the deceased, in accordance with the principle mors auxilium vitae. 65. The Court notes that the Supreme Court has held that the aim of the protection of public health could also be served by eliminating any diagnostic ambiguities (see paragraph 33 above), as has been the case with the applicant’s son. The Court therefore accepts that the post-mortem was conducted for the safeguarding of scientific interests and served the legitimate aim of the protection of the health of others, as extensively demonstrated by the Supreme Court’s reasoning as well as the Government’s submissions above. (c) Proportionality of the interference (i) The applicant’s submissions 66. The applicant alleged that the post-mortem and the removal of the organs had not been conducted lege artis, which constituted per se a violation of Article 9 of the Convention, as the body of Y.M. had thereby been disfigured. 67. Furthermore, the applicant argued that the conducting of a balancing exercise was not provided in section 25 of the Hospital Act or section 12 of the Funeral Act, and had not been conducted in respect of her case, either. The law did not provide for any possibility to object to post-mortem examinations for religious reasons. 68. The applicant maintained that the post-mortem of Y.M. had been ordered without any medical necessity. The above-mentioned expert, Dr V., had confirmed in his opinion that the results of the post-mortem had not been entered into the personal file of the deceased Y.M., and had not resulted in any new medical discoveries. Consequently, it had not served the aim of advancing public health or safety. The post-mortem had merely served to confirm the diagnoses already arrived at. The applicant contended that the aim of quality control had not been proportionate to such a severe interference with her rights under Articles 8 and 9 of the Convention. (ii) The Government’s submissions 69. The Government submitted that the Austrian legislature had struck a fair balance of interests in the relevant provisions (section 25 of the Hospital Act and the corresponding section 12(3) of the Funeral Act – see paragraphs 38 and 42 above), defining for the purposes of the protection of health those cases where, in a public hospital, a post-mortem examination had to be carried out in any event and there was no room for discretion in respect of any individual case. If the doctor treating a patient found that there was a scientific interest (in particular, in view of a lack of diagnostic clarity) in conducting a post-mortem examination following that patient’s death, the individual interests of the relatives of that patient had to be disregarded. The applicable legal provisions ensured in any event that post-mortem examinations would be carried out only to the absolutely necessary extent. 70. The Government submitted that at all three levels of jurisdiction the domestic courts had considered the applicant’s submissions carefully and comprehensively, examining point by point whether the physicians’ activities had been in conformity with the law. The courts had examined all the relevant evidence, heard numerous witnesses (including the doctors involved and other physicians), consulted the Patients’ Ombudsperson, and obtained several expert opinions. It was for the national courts to weigh evidence; that the courts had made a mistake in this respect was not discernible. 71. The Government reiterated that both the domestic courts and the experts in their opinions had unanimously come to the conclusion that the diagnosis had been unclear within the meaning of section 25 of the Hospital Act. It was true that a diagnosis of Prune-Belly-Syndrome had been strongly indicated. However, a final confirmation of that diagnosis – especially in view of the fact that some symptoms were common to other, similar malformations – had been possible only by means of conducting a post-mortem examination. A post-mortem had thus been carried out, on the one hand in order to clarify beyond doubt the cause of death, and on the other, to clarify whether such a disease might occur in any future siblings or in descendants of siblings already born. The post-mortem of the corpse of the applicant’s son had therefore been necessary for reasons of scientific interest within the meaning of section 25 of the Hospital Act and had been rightly carried out without the applicant’s consent. It could also be seen from the experts’ opinions that the post-mortem had been carried out lege artis and that a detailed, high-quality post-mortem report had been produced. The provisional removal and storing of organs outside a corpse was part of standard post-mortem procedure and necessary in order to safeguard scientific interests; in the case of the applicant’s son, it had been carried out in an appropriate and professional manner. 72. The Government therefore took the view that the post-mortem of the corpse of the applicant’s son had not constituted a violation of her rights under Article 8 of the Convention. 73. Referring to the Supreme Court’s findings on the issue (see paragraph 33 above), the Government submitted that there had been no violation of Article 9 of the Convention either. (iii) The Court’s assessment α. General principles 74. The Court reiterates that in determining whether an impugned measure was “necessary in a democratic society”, it will consider whether, in the light of the case as a whole, the reasons adduced to justify that measure were relevant and sufficient for the purposes of paragraph 2 of Article 8 (see, among many other authorities, Paradiso and Campanelli v. Italy [GC], no. 25358/12, § 179, 24 January 2017, with further references). 75. In cases arising from individual applications the Court’s task is not to review the relevant legislation or practice in the abstract; it must as far as possible confine itself, without overlooking the general context, to examining the issues raised by the case before it ( ibid., § 180, with further references). 76. According to the Court’s established case-law, the notion of necessity implies that the interference in question corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued, regard being had to the fair balance which has to be struck between the relevant competing interests (see A, B and C v. Ireland, cited above, § 229). 77. In determining whether an interference was “necessary in a democratic society” the Court will take into account the fact that a margin of appreciation is left to the national authorities, whose decision remains subject to review by the Court for conformity with the requirements of the Convention (see X, Y and Z v. the United Kingdom, 22 April 1997, § 41, Reports 1997 ‑ II). 78. The Court reiterates that a number of factors must be taken into account when determining the breadth of the margin of appreciation to be enjoyed by the State when deciding any case under Article 8 of the Convention (see, among many other authorities, S.H. and Others v. Austria [GC], no. 57813/00, § 94, ECHR 2011; and Hämäläinen v. Finland [GC], no. 37359/09, § 67, ECHR 2014). Where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State will normally be restricted (see Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007 ‑ I). Where, however, there is no consensus within the member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it (particularly where the case raises sensitive moral or ethical issues), the margin will be wider ( ibid., § 77; see also A, B and C v. Ireland, cited above, § 232). There will usually be a wide margin of appreciation accorded if the State is required to strike a balance between competing private and public interests or Convention rights (see Evans, cited above, § 77, and Dickson v. the United Kingdom [GC], no. 44362/04, § 78, ECHR 2007 ‑ V; see also, mutatis mutandis, Vavřička and Others v. the Czech Republic [GC], no. 47621/13 and 5 others, §§ 275 and 280, 8 April 2021). 79. In a case relating to an exhumation conducted against the will of the surviving family members for the purpose of a criminal investigation, the Court has held that the State authorities are required to find a due balance between the requirements of an effective investigation under Article 2 and the protection of the right to respect for private and family life of the parties to the investigation and other persons affected under Article 8. The Court has found, in that context, that the requirements of the investigation’s effectiveness have to be reconciled to the highest possible degree with the right to respect for private and family life. There may be circumstances in which exhumation is justified, despite opposition by the family (see Solska and Rybicka, cited above, § 121). β. Application to the instant case 80. The Court considers that the case at issue concerns 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 call for such a measure. It thus relates to sensitive moral and ethical issues, and requires a balance to be struck between competing private and public interests. The Court reiterates in this context that the Contracting States are under a positive obligation, by virtue of Article 8, to take appropriate measures to protect the health of those within their jurisdiction (see Vavřička and Others, cited above, § 282). Consequently, the State’s margin of appreciation must be considered to be wide. 81. In particular, the present case required a balancing exercise between, on the one hand, the protection of the health of others through the conduct of the post-mortem examination (see paragraph 65 above) and, on the other, the protection of the applicant’s right to respect for her private and family life (Article 8) and her right to manifest her religion (Article 9). 82. In the instant case, the applicant alleged, first of all, that her son’s post-mortem had not been carried out lege artis. However, the Court notes that the expert opinion issued by the pathologist, Dr L. (see paragraph 28 above) explicitly concluded that the post-mortem had been carried out lege artis. The Court sees no reason to question that finding. 83. Secondly, the applicant alleged, essentially, that her religious convictions should have been taken into account by the hospital when deciding whether to carry out a post-mortem examination. She complained that no balancing exercise was provided for by the applicable laws, nor had such an exercise been conducted by the hospital. 84. The Court notes that Austrian law does not grant in all cases a right to object to a post-mortem examination of close relatives on religious or any other grounds. The Court sees no reason to call this legislative choice into question. The rights under Articles 8 and 9 are not absolute and therefore do not require the Contracting States to grant an absolute right to lodge an objection in that regard. 85. Thirdly, the Court observes that the post-mortem was carried out on the basis of section 25 of the Hospital Act and section 12(3) of the Funeral Act (see paragraph 60 above). It therefore considers it appropriate for it to assess the relevant legislative choices. Pursuant to section 25 of the Hospital Act, as well as the corresponding section 12(3) of the Funeral Act (see paragraphs 38 and 42 above), in cases of a death in a public hospital, a post-mortem shall be carried out - irrespective of the consent of the close relatives - if it is necessary, inter alia, in order to safeguard scientific or other public interests. If it is not necessary to safeguard such interests and none of the other criteria enumerated in section 25 of the Hospital Act apply, a post-mortem may only be carried out with the consent of the deceased’s closest relatives. The law therefore does not give the authorities the right to conduct post-mortem examinations in each and every case. The Court notes, however, that the Austrian legislature has 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 the relatives of a deceased person in cases of necessity for safeguarding scientific interests - in particular if a case is diagnostically unclear. 86. The Court emphasises the Government’s submissions to the effect that the advancement of modern medicine has in part been made possible by post-mortem examinations establishing the cause of death and contributing to the prevention of thereby discovered illnesses and ailments in those still alive (see also the preparatory work on section 25 of the Hospital Act, cited in paragraph 39 above) – irrespective of religious or other convictions. In other words, mortui vivos docent – “the dead teach the living”. In that connection, the Court also notes the long and carefully preserved tradition of autopsy law in Austria, which is perceived as an integral part of the constitutionally guaranteed freedom of science (see paragraphs 36 and 40 above). This right is closely related to the positive obligations under the Convention, notably Articles 2 and 8, to take appropriate measures to protect the life and health of those within a State´s jurisdiction (see Vavřička and Others, cited above, § 282). 87. The Court thus considers that the legitimate aim cited by the Government, namely the protection of the health of others through the conduct of post-mortem examinations, is of particular importance and weight in the instant case. At the same time, the Court is 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 outset (see paragraphs 7, 9 and 11 above; compare Solska and Rybicka, cited above, § 122). 88. The Court notes that the evidence taken during domestic proceedings confirmed the lawfulness of the performance of the post-mortem. Two independent expert opinions found that the post-mortem had been performed in order to confirm a previous diagnosis (see paragraphs 27-28 above) and had clearly served the safeguarding of scientific interests. They stated that so-called “Prune-Belly-Syndrome” was a disease that had not yet been sufficiently explored; moreover, there also existed an illness with similar symptoms, and Y.M.’s post-mortem had served to secure diagnostic clarity in respect of his case. The Court is therefore satisfied, in line with the domestic courts’ findings, that the legal requirement that there be a scientific interest in performing a post-mortem examination was met in the instant case. 89. However, even though there was indeed a scientific interest in performing the post-mortem examination, the Court reiterates that section 25 of the Hospital Act stipulates that a post-mortem examination can only be performed in such circumstances if it is “necessary” in order to safeguard such a scientific interest, which leaves a certain scope of discretion, including as to the extent of the intervention necessary, to the doctors deciding on whether a post-mortem examination should be carried out in any given case. It therefore does not exclude that a balancing of competing rights and interests could or should be carried out. The Court considers that in the applicant’s case, however, her reasons for opposing the post-mortem of her son’s body were not taken into account by the public hospital’s staff in charge of that decision (see paragraph 9 above). Nor did the Court of Appeal, which dismissed the applicant’s claim for damages (see paragraph 30 above), weigh the importance of the scientific interest in the post-mortem against the applicant’s particular private interest in having her son’s body “as unscathed as possible” for the religious funeral (see paragraph 7 above). While the Court accepts the wide margin of appreciation of the domestic authorities (see paragraph 80 above), in the instant case they do not appear to have conducted any balancing exercise between the competing interests. 90. The Court notes that the applicant had been able to submit her complaints as to the violation of her rights under Articles 8 and 9 to the Supreme Court, and that the latter addressed, to some extent, the proportionality of the interference with her rights, agreeing with the legislative choices and confirming the scientific interest in the material post-mortem examination. It considered that in the present case, the carrying out of the latter had been in the interest of public health in order to assess the quality of the medical treatment given to the applicant’s son, to eliminate any diagnostic ambiguities and to promote scientific knowledge (see paragraph 33 above). However, the applicant’s reasons for opposing the post-mortem were given little to no consideration. The Supreme Court therefore did not sufficiently address her individual rights under Articles 8 and 9 of the Convention and the “necessity” of the post-mortem in that light. 91. The foregoing considerations are sufficient to enable the Court to conclude that the authorities in the instant case have 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 (compare Solska and Rybicka, cited above, § 121; see paragraph 79 above), nor did they weigh the applicant’s interest in burying her son in accordance with her religious beliefs in the balance. This failure to conduct a balancing exercise constituted a violation of Articles 8 and 9 of the Convention. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION REGARDING THE DUTY TO DISCLOSE INFORMATION 92. The applicant complained under Article 8 of the Convention that the hospital had failed to comply with its duty to inform her of the extent of the post-mortem and the removal of the inner organs of her deceased son. She submitted that this lack of information on the post-mortem had an impact on the choice of her son’s funeral arrangement, which she and her husband expressly wished to organise according to their religious beliefs. AdmissibilityApplicability of Article 8 of the Convention Applicability of Article 8 of the Convention Applicability of Article 8 of the Convention 93. The Court reiterates that the right of access to information relating to one’s private and/or family life raises an issue under Article 8 of the Convention (see, among other authorities, Roche v. the United Kingdom [GC], no. 32555/96, §§ 155-56, ECHR 2005‑X; and, in particular, Lozovyye v. Russia, no. 4587/09, § 32, 24 April 2018, in which the Court found that Article 8 was applicable to a situation where the family of a murder victim had not been informed of his death and had not been able to attend the funeral). 94. The Court has held that the concepts of “private life” and “family life” encompass the right to bury a close relative and to be present when that burial takes place (see Gülbahar Özer and Yusuf Özer v. Turkey (no. 64406/09, § 26, 29 May 2018, with further references). In the cases of Pannullo and Forte v. France (no. 37794/97, §§ 35-36, ECHR 2001‑X) and Girard v. France (no. 22590/04, § 107, 30 June 2011) the Court recognised that an excessive delay in the restitution of a body after a post-mortem or of bodily samples upon completion of the relevant criminal proceedings could constitute an interference with both the “private life” and the “family life” of the surviving family members. In the case of Hadri ‑ Vionnet v. Switzerland (no. 55525/00, § 52, 14 February 2008) the Court decided that the possibility for the applicant to be present at the funeral of her stillborn child, along with the related transfer and ceremonial arrangements, was also capable of falling within the ambit of both “private” and “family life”, within the meaning of Article 8. The Court has also held that a mother being unable to carry out her religious duties at the grave of her stillborn child raises an issue under the concept of “family life” under Article 8 (see Yıldırım v. Turkey (dec.), 25327/02, 11 September 2007). 95. Regard being had to its case-law concerning surviving family members and the above-mentioned circumstances, the Court finds that the applicant’s complaint concerning the hospital’s duty to disclose information relating to her son’s post-mortem falls within the scope of the right to respect for private and family life. The Government’s objection relating to the non-exhaustion of domestic remedies 96. The Government submitted that if it could be said that the applicant had indeed alleged a violation of Article 8 before the domestic courts in relation to the hospital’s duty to disclose information, she had done so only in substance – that is to say without mentioning Article 8. They therefore considered that complaint to be inadmissible for non-exhaustion of domestic remedies. 97. The applicant did not comment on the admissibility of that complaint. 98. The Court notes that the question of the extent of the information provided regarding her son’s post-mortem was indeed one of the subjects of the domestic liability proceedings (see paragraph 21 above), even though the applicant did not specifically refer to Article 8 of the Convention during those proceedings. It reiterates that it is sufficient that the applicant raised the above complaint in substance before the domestic courts (see, among many other authorities, Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 72, 25 March 2014). It therefore dismisses the Government’s objection of non-exhaustion in respect of this complaint. Conclusion 99. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It furthermore notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. MeritsThe applicant’s submissions The applicant’s submissions The applicant’s submissions 100. The applicant alleged that medical staff had at first told her that no post-mortem would be performed, after she had told them that she objected to it for religious reasons. Later, the hospital explained to her that the planned post-mortem of the body would only be carried out to a minor extent, and would entail making just a small incision measuring about 4 cm. She had continued to object, but the post-mortem had been performed nonetheless, without her or her husband’s consent. 101. She furthermore contended that she had not been informed that the removal of all internal organs had taken place (including the urinary tract, which had rendered the child’s sex unrecognisable) or that the body had been refilled with cotton wool. The post-mortem and the removal of the organs had made a burial in accordance with her religious beliefs impossible. 102. The applicant submitted that the post-traumatic stress disorder from which she suffered was a direct result of the shock that she had had when seeing her child’s body in such an unexpected state at the funeral ceremony. She would never have planned and conducted a funeral ceremony in Turkey (but would instead have buried her son in Austria) had she known that her child’s body had undergone such an extensive post-mortem. The Government’s submissions 103. The Government submitted that physicians’ duty to provide information and explanations to the relatives of deceased patients stemmed mutatis mutandis from section 5a of the Hospital Act and section 30 of the Vorarlberg Hospital Act as a subsidiary duty under the treatment contract. Such clarifications typically served the purpose of preventing foreseeable damage. The Government added that according to the Supreme Court’s case-law, the existence and scope of the obligation, under a private-law contract, to provide information always depended on the circumstances of each individual case. It was difficult to issue general statements regarding precisely when there was a duty to warn and inform. However, it could be said that the standard to be applied became stricter the higher the damage that could emanate from a certain risk. But in any event, the duty to disclose information ended at the point where it became clear such a disclosure would threaten the interests of the person to be informed. 104. The Government argued that a physician’s duty to inform a patient about a medical treatment was not applicable to the same extent in respect of the case at issue: in the present case there had been no duty to disclose information, as the case had not concerned the right to self-determination of a patient whose physical integrity had been unlawfully and with irreversible consequences affected by a certain treatment measure (see the above-mentioned Supreme Court judgment, paragraphs 32-34 above). What the Government considered to be at issue in the instant case was rather the rights of the relatives after the death of a patient, which is why another standard had to be applied regarding doctors’ duty to provide information. The Court’s assessment 105. At the outset, the Court notes that it has not been contested that the hospital was a public institution and that the acts or omissions of its medical staff – including the doctors and physicians who decided to perform and who carried out the post-mortem – were capable of engaging the responsibility of the respondent State under the Convention (see Glass v. the United Kingdom, no. 61827/00, § 71, ECHR 2004‑II, and Elberte, cited above, § 106). 106. The Court points out that while the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations inherent in effective “respect” for family life. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and the community as a whole, and in both contexts the State is recognised as enjoying a certain margin of appreciation (see Hokkanen v. Finland, judgment of 23 September 1994, Series A no. 299-A, p. 20, § 55; and Pannullo and Forte, cited above, § 35). 107. In choosing how to comply with their positive obligations, States enjoy a broad margin of appreciation (see A, B and C v. Ireland [GC], no. 25579/05, § 249, ECHR 2010). 108. The substance of the applicant’s complaint is not that the State acted in a certain way, but that it failed to act (see Airey v. Ireland, 9 October 1979, § 32, Series A no. 32); namely, she alleged that the hospital omitting to inform her of the extent of the post-mortem and the removal of the organs had violated her rights, as guaranteed by Article 8 of the Convention. The Court finds it appropriate to approach the present case from the perspective of a positive obligation on the part of the respondent State under Article 8 of the Convention (see, to similar effect, Lozovyye, cited above, § 37). 109. In order to establish whether the requirements of Article 8 of the Convention were met in the present case the Court will examine, firstly, whether an appropriate legal framework was in place in Austria concerning any possible duty to disclose information to close relatives regarding the extent and manner of a post-mortem conducted on a deceased person (see, mutatis mutandis, Lozovyye, cited above, § 39). 110. The Court notes that in the instant case, the Supreme Court held that the laws concerning a patient’s right to information were not directly applicable, as they concerned the treatment of the living and aimed at enabling patients to take informed choices in respect of their own health (see paragraph 34 above). The Government submitted that the physicians’ duty to provide information and explanations to the relatives of a deceased person stemmed mutatis mutandis from section 5a of the Hospital Act, but did not apply to the same extent as it applied to the living. 111. The Court notes that there appears to be no clear rule under Austrian 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 has been performed. 112. Nonetheless, in the Court’s view this lack of a clear rule is not sufficient in itself to find a violation of the respondent State’s positive obligations under Article 8 of the Convention in the present case (compare Lozovyye, cited above, § 42). 113. The Court will therefore next examine whether the Austrian authorities undertook reasonable steps to provide the applicant with information as to the extent the post-mortem performed, given the circumstances. 114. The Court has held, in a case where State employees organised the burial of the applicant’s child without informing her of the time or place thereof, that it is the duty of the Contracting States to organise their services and to train their agents in such a way that they can meet the requirements of the Convention. It furthermore stated that in an area as personal and delicate as the management of the death of a close relative, a particularly high degree of diligence and prudence must be exercised by the authorities (see Hadri-Vionnet, cited above, § 56). 115. In the instant case, the applicant had just lost a child and was confronted with a situation in which she had no legal right to object to a post-mortem examination being conducted on that child. She had informed the hospital staff that according to her religious beliefs the deceased child’s body needed to be as unscathed as possible for the burial ceremony. The Court considers that these specific circumstances are as delicate as those in the case of Hadri-Vionnet (cited above) and required an equally high degree of diligence and prudence on the part of the hospital staff when interacting with the applicant. Given the fact that the hospital staff was made aware by the applicant of the reasons for her objection to the post-mortem, the Court considers that the hospital 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. The Court notes that after her son’s death, the applicant was informed that a post-mortem would be performed despite her objections (see paragraph 9 above). Whether she was indeed told that “only a small incision of about 4 cm” would be made cannot be confirmed from the documents at hand (see paragraph 13 above), moreover it was not established by the domestic courts. However, the Court finds it established that the hospital had not informed the applicant of the extent of the post-mortem, which led her to believe that a ritual washing and a funeral ceremony in accordance with her beliefs could be held. Therefore, she and her husband proceeded to organise such a ceremony in Turkey. 116. The Court reiterates that the Supreme Court stated in its final judgment that the doctors concerned had rightly refrained from giving detailed explanations to the applicant and her husband regarding the extent of the post-mortem (see paragraph 34 above). It conceded, at the same time, that the routine removal of organs during post-mortem examinations was not common knowledge but considered that omitting to give detailed explanations regarding a post-mortem examination would potentially be less burdensome to the relatives of the deceased. The Court considers that the Supreme Court’s argument that omitting to give detailed information would be less burdensome to the relatives may be valid in some situations, but did not take into account the specific situation in the applicant’s case: she had made it clear that she wished to have a funeral in accordance with her beliefs which required her son’s body to remain as unscathed as possible. The details on the extent of the post-mortem were therefore of particular importance for her, a fact which she had communicated to the hospital at several occasions. 117. Moreover, the Court considers that in the specific circumstances of the instant case, the hospital had a duty to inform the applicant about the removal of her son’s organs. The Court notes, in this regard, that the Supreme Court held that it could not be seen as common knowledge that all organs are removed during the post-mortem of a new-born. It remained undisputed by the Government that the hospital staff initially denied having removed any organs, but later admitted that they had in fact done so. The applicant was handed her son’s organs only after two interventions by the Patients’ Ombudsperson. This was not disputed by the Government, either. 118. In sum, the Court considers that the behaviour of the hospital staff towards the applicant clearly lacked the diligence and prudence required by the situation. It finds (as did the Feldkirch Regional Court, as the court that examined the matter at first instance – see paragraph 29 above) that the hospital staff should have informed the applicant and her husband of the extent of their son’s post-mortem. This information was important to them, in particular for religious reasons, as it was crucial to the planning of the burial ceremony, of which they had informed the hospital very early (see paragraph 7 above). 119. The Court furthermore notes that while the expert opinions 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 (see paragraphs 18 and 19 above). The Court considers that in the specific circumstances of the case, where the applicant had informed the hospital that her son´s body should remain as unscathed as possible for the funeral (see paragraph 7 above), it was the hospital’s duty to inform the applicant without undue delay of the removal and the whereabouts of her son’s organs. 120. The foregoing considerations are sufficient to enable the Court to conclude that, in the specific circumstances of the case, there has been a violation of Article 8 of the Convention on account of the hospital omitting to provide the applicant with sufficient information on the extent of her son’s post-mortem, and of the removal and whereabouts of his organs. ALLEGED VIOLATION OF ARTICLE 13 READ IN CONJUNCTION WITH ARTICLES 8 AND 9 OF THE CONVENTION 121. The applicant complained under Article 13, read in conjunction with Articles 8 and 9 of the Convention, that there been no legal remedy at her disposal by which to challenge the performance of the post-mortem examination before it took place. Article 13 reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 122. The Government submitted that the applicant had not raised that complaint before the domestic courts. They therefore considered the complaint to be inadmissible for non-exhaustion of domestic remedies. 123. The applicant did not comment on the admissibility of the complaint. 124. The Court reiterates that it is incumbent on the Government pleading non-exhaustion to satisfy it that the remedy was an effective one available in theory and in practice at the relevant time, that is to say that it was accessible, was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success ( Molla Sali v. Greece [GC], no. 20452/14, § 89, 19 December 2018, with further references). It notes that the Government have not specified which remedy the applicant should have used to raise this complaint, or why such remedy would have been effective in the circumstances. It therefore dismisses the Government’s objection as to the alleged non-exhaustion of domestic remedies. 125. The Court furthermore notes that this complaint is closely linked to the one examined above regarding the post-mortem and must therefore likewise be declared admissible. 126. However, having regard to its finding in relation to Articles 8 and 9 (see paragraphs 80-91 above), the Court does not consider it necessary to examine separately whether, in this case, there has been a violation of Article 13 (see, mutatis mutandis, the above-cited cases of Elberte, § 147, and Solska and Rybicka, § 131). APPLICATION OF ARTICLE 41 OF THE CONVENTION 127. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 128. The applicant claimed EUR 8,500 in respect of pecuniary damage (namely, the fee that she had had to pay for the halted burial ceremony in Turkey). Under the head of non-pecuniary damage, she claimed 50,000 euros (EUR) for the stress and frustration that she had suffered as a result of the violation of the Convention. In addition, she claimed EUR 25,800 in respect of “future non-pecuniary damage”. 129. The Government considered those claims to be excessive. They submitted that the applicant had not itemised her claims in respect of pecuniary damage or submitted any bills as evidence that those costs had actually been incurred. 130. According to Rule 60 of the Rules of Court, an applicant must submit itemised particulars of his claims, supported by relevant documents, failing which the Court may reject the claims in whole or in part. It therefore rejects the applicant’s claim for pecuniary damage. On the other hand, the Court accepts that the applicant has suffered considerable distress on account of the violations found. It therefore awards the applicant EUR 10,000 in respect of non-pecuniary damage. Costs and expenses 131. The applicant also claimed EUR 89,660.42 for the costs and expenses incurred before the domestic courts (comprising EUR 32,796.92, which she had had to pay to the opposing party for its legal fees, and EUR 56,863.50 for her own legal representation as well as court fees), and EUR 20,000 for legal fees that she had incurred in respect of proceedings before the Court. 132. The Government pointed out that the applicant had failed to submit a detailed itemisation of her claims in respect of costs and expenses. 133. Regard being had to Rule 60 of the Rules of Court (see paragraph 130 above) and the documents in its possession, the Court grants the applicant EUR 32,796.92, which she had to pay in legal fees to the opposing party at the domestic level, but rejects the claim for the costs and expenses sustained at the domestic level for her own legal representation, as the applicant has failed to adduce itemised bills thereof. Moreover, it considers it reasonable to award EUR 5,000 for the proceedings before the Court. In total, the Court therefore awards the applicant EUR 37,796.92 in respect of costs and expenses and rejects the remainder of her respective claims. Default interest 134. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that there had been a violation of Article 9 (freedom of thought, conscience and religion) of the Convention, finding that, 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. The Court also held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention, finding that the behaviour of the hospital staff towards the applicant had clearly lacked the diligence and prudence required by the situation. In addition, 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.