August 03
2021
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Dolores Utrilla
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20th July 2021
Consumer, Health & Environment Human Rights Justice & Litigation

ECtHR: human rights breached in case of post-mortem of baby due to failure to provide family with information and take their interests into account

In Polat v. Austria (application no. 12886/16), a case concerning the post-mortem examination of the applicant’s deceased son carried out against her will, the European Court of Human Rights (ECtHR) has unanimously found a breach of several provisions of the European Convention on Human Rights (ECHR), namely the right to respect for private and family life (Article 8 ECHR) and the freedom of thought, conscience and religion (Article 9 ECHR).

The post-mortem examination of the two-day old baby was carried out by Austrian doctors against the mother’s will and expressed religious convictions. The doctors had initially asked the applicant and her husband for permission to carry out a post-mortem examination, in the interests of science, but were refused on religious grounds. During the post-mortem examination, practically all the internal organs were removed. The baby’s body was returned to his parents, who claim that they had not been informed of the extent of the examination. The state of the baby’s corpse was discovered during the funeral rites in Turkey, which led to burial in another village without the religious ritual washing and Islamic ceremony.

In proceedings before the Austrian courts, the applicant lodged an appeal before the Supreme Court, relying on Article 9 ECHR and on the Austrian Constitution, and in parallel asking for a preliminary request to be sought from the Court of Justice. The applicant was unsuccessful, with the Supreme Court ruling in 2015 that the post-mortem had been necessary scientifically and had been a legitimate restriction of the freedom of religion.

In its judgment today, the ECtHR recalled that the ECHR protects no absolute right to object to a post-mortem taking place and that such examination can be carried out against the relatives’ wishes in the interests of science and public health, in particular where there were diagnostic doubts. However, the Strasbourg-based court concluded that, in the case at hand, the applicant’s views had not been considered when that decision had been made, either by hospital staff or by the domestic courts, and that the Austrian authorities had therefore failed to balance the competing interests involved, in breach of Articles 8 and 9 ECHR.

Moreover, the ECtHR concluded, contrary to the Supreme Court’s views, that the specific circumstances of the case had meant that the hospital staff had had a duty to inform the applicant of the post-mortem examination and of the removal of the organs, an obligation that was not complied with in the case at hand.

The judgment is available here.

To read more on the ECtHR’s case law concerning the requirements arising from the ECHR for the disposal and handling of human remains, read this Op-Ed by Dolores Utrilla.

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