In Polat v Austria  ECHR 658, Ms Polat had given birth to a son, YM, in hospital in 2007. His birth was premature, he weighed less than 900 grams and, despite intensive medical care, he died two days later . Ms Polat and her husband, Turkish Muslims, refused their consent to a post-mortem  – but their consent was not required by law and the post-mortem was carried out regardless. They had explained that, in accordance with their Muslim beliefs, they wished to wash the corpse prior to the funeral and that, for that purpose, it had to remain as unscathed as possible . In the event, however, most of YM’s organs were removed for preservation, including a large part of his urinary tract – which meant that his sex was no longer apparent [10 & 12].
At the funeral back in Turkey, when Ms Polat and her helper undressed the body for ritual washing they were severely shocked and Ms Polat fainted. Since YM’s sex could no longer be determined, the ritual washing could not take place (because there are different washing rituals for males and females) and the funeral had to be cancelled . He had to be buried in another community – without the ritual washing and the ceremony required by Islam . The organs that had been removed were returned only after intervention by the Vorarlberg Patients’ Ombudsperson; they were buried in YM’s grave in Turkey .
In the subsequent civil claims, the Regional Court ruled in favour of Ms Polat [23-29], but in 2014 the Innsbruck Court of Appeal allowed the hospital’s appeal and dismissed Ms Polat’s claim. Her further appeal to the Supreme Court was unsuccessful [32-35].
Before the ECtHR, Ms Polat complained that performing the post-mortem on her son against her will had violated her Article 8 and Article 9 rights and that the domestic courts had not conducted the necessary balancing exercise on the conflicting interests involved . The disfiguring of her son’s body had been a violation of Article 9 per se , s.25 of the Hospital Act and s.12 of the Funeral Act did not provide for the conduct of a balancing exercise, and the law made no provision for objection to post-mortem examinations on religious grounds . Further, because there had been no medical necessity for the post-mortem and it had merely served to confirm the diagnoses already arrived at, it had not been proportionate to such a severe interference with her rights under Articles 8 and 9 . There had also been a failure to provide her with an effective remedy as required by Article 13 .
The Government argued that the domestic law struck a fair balance, defining those cases where a post-mortem had to be carried out in a public hospital for the protection of health. There was no room for discretion in any individual case: if a doctor treating a patient found that there was a scientific interest in conducting a post-mortem (in particular, in view of a lack of diagnostic clarity), the relatives’ interests had to be disregarded. The applicable legal provisions ensured that in any event, a post-mortem examination would be carried out only where absolutely necessary . The domestic courts at all three levels had considered the applicant’s submissions carefully and comprehensively, had heard numerous witnesses including the doctors involved and other physicians, had consulted the Patients’ Ombudsperson and had obtained several expert opinions. It was for the national courts to weigh the evidence, and they had not been mistaken . 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 YM, it had been carried out in an appropriate and professional manner . There had therefore been no violation [72 & 73].
The Court began from the proposition that under the positive obligation by virtue of Article 8 to take appropriate measures to protect the health of those within their jurisdiction, states parties had a wide margin of appreciation in the matter . The Court saw no reason to call into question the fact that Austrian law did not grant close relatives a right to object in all cases to a post-mortem on religious or any other grounds: the rights under Articles 8 and 9 were not absolute and did not require states parties to grant an absolute right to lodge an objection . The Court also noted that the law distinguished between cases where it was necessary, inter alia, to safeguard scientific or other public interests and cases where it was not: in the latter, the consent of relatives was required .
However, in the present case, Ms Polat’s reasons for opposing the post-mortem were not taken into account by the hospital staff in charge of that decision, nor had the Court of Appeal weighed the importance of the scientific interest in the post-mortem against Ms Polat’s particular private interest in having her son’s body “as unscathed as possible” for the religious funeral. Even given the wide margin of appreciation of the domestic authorities, they did not appear to have conducted any balancing exercise between the competing interests . Further, though Ms Polat had been able to submit her complaints about the violation of her rights under Articles 8 and 9 to the Supreme Court, they were given little or no consideration and the Supreme Court had not sufficiently addressed her individual Convention rights and the alleged “necessity” of the post-mortem in that light . A fair balance had not been struck, and that failure had been a violation of Articles 8 and 9 .
Ms Polat had further complained under Article 8 that the hospital had failed to comply with its duty to inform her of the extent of the post-mortem and the removal of her son’s internal organs, and that the lack of information on the post-mortem had impacted the choice of her son’s funeral arrangements, which she and her husband had expressly wished to organise according to their religious beliefs .
The Court noted that, while the expert opinions had unanimously agreed that the post-mortem had been justified in order to clarify the diagnosis, nothing in them had mentioned any necessity to keep the organs for scientific or other reasons for several weeks or months afterwards . Given that she had told the hospital that her son´s body should remain as unscathed as possible for the funeral, the hospital staff should have told her without undue delay about the removal of her son’s organs and their whereabouts . In the specific circumstances of the case, the hospital’s failure to do so had therefore violated Article 8 . It was not necessary to examine separately whether there had been any violation of Article 13 .
I note from the judgment that Ms Leyla Polat’s son, YM, was born on 3 April 2007. The ECtHR judgment is dated 20 July 2021. Whatever the reasons for the delay (and the timeline of the proceedings is set out in the judgment), it is surely a scandal that it has taken over 14 years since YM’s death for Ms Polat’s claim over the insensitive actions of the Austrian authorities to be finally resolved.
I noticed that as well and had the same reaction.