POLAT v. AUSTRIA

• Judgment Date: 20 July 2021
• ECLI: ECLI:CE:ECHR:2021:0720JUD001288616
• Counsel: PICHLER K.P.
• Date: 20 July 2021
• Application Number: 12886/16
• Court: Fourth Section (European Court of Human Rights)
• Respondent State: Austria
• Applied Rules: 2;2-1;8;8+9;8-1;8-2;9;9-1;9-2;41

FOURTH SECTION

CASE OF POLAT v. AUSTRIA

(Application no. 12886/16)

JUDGMENT

Art 8 and Art 9 • Private and family life • Manifest religion or belief • Positive obligations • Post-mortem and organ removal for preservation of prematurely born child with rare disease despite mother’s objection • No requirement on Contracting States to grant an absolute right of objection to post-mortems • Domestic authorities’ failure to strike a faire balance between competing interests at stake • Precedence to the interests of science and the health of others • Lack of consideration to applicant’s interest in burying her son in accordance with religious beliefs

Art 8 • Private and family life • Positive obligations • Hospital’s failure to provide mother with sufficient information • Lack of diligence and prudence required in the delicate circumstances • Justified post-mortem to clarify the diagnosis, but no necessity to keep the organs for scientific or other reasons for several weeks or months

STRASBOURG

20 July 2021

FINAL

20/10/2021

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Polat v. Austria,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

Yonko Grozev, President,
Tim Eicke,
Armen Harutyunyan,
Gabriele Kucsko-Stadlmayer,
Pere Pastor Vilanova,
Ana Maria Guerra Martins,
Iulia Antoanella Motoc, judges,
and Ilse Freiwirth, Deputy Section Registrar,

Having regard to:

the application (no. 12886/16) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Austrian national, Ms Leyla Polat (“the applicant”), on 29 February 2016;

the decision to give notice to the Austrian Government (“the Government”) of the complaints concerning Articles 8, 9 and 13 of the Convention, and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated in private on 20 April and on 15 June 2021,

Delivers the following judgment, which was adopted on the last‑mentioned date:

INTRODUCTION

1. The application concerns the applicant’s objection on religious grounds to the post-mortem examination of her prematurely born and subsequently deceased son, which she alleged had violated her rights under Articles 8 and 9 of the Convention. Moreover, under Article 8 of the Convention, she complained that she had not been informed of the extent of the post-mortem or the removal of her son’s organs for preservation purposes. In addition, she complained under Article 13, read in conjunction with Articles 8 and 9, that she had not had any legal remedy available to challenge ex ante the carrying-out of the post-mortem.

THE FACTS

1. THE CIRCUMSTANCES OF THE CASE

2. The applicant was born in 1974 and lives in Bregenz. She was represented by Mr K.P. Pichler, a lawyer practising in Dornbirn.

3. The Austrian Government (“the Government”) were represented by their Agent, Mr H. Tichy, Ambassador, Head of the International Law Department at the Austrian Ministry for European and International Affairs.

1. The birth and death of the applicant’s son

4. The applicant became pregnant in 2006 and received...