CONCURRING OPINION OF JUDGE WOJTYCZEK

1. In the instant case, I have voted with the majority; however I have certain doubts about part of the reasoning.

2. I have already expressed my views concerning rights in respect of transplantation in my concurring opinion in Petrova v. Latvia ( no. 4605/05 , 24 June 2014) . I should like to add some further explanations here.

In my view, the applicant ’ s right to oppose the transplantation of her deceased husband ’ s organs is not an autonomous right which could be exercised ad libitum . This right is derived from the right of the deceased man to decide freely on the transplantation of his organs. The surviving relative acts as the depositary of the rights of the deceased. Therefore, the applicant may agree or object to the transplantation of her deceased husband ’ s organs only in so far as she expresses the wishes of the deceased. Holding otherwise would transform the body of a deceased person into an object of arbitrary decisions by relatives.

3. The fact that the applicant indeed exercises a right protecting the wishes of her deceased husband does not mean that – under the Convention – this right has identical status with her husband ’ s right. However close the connection between the two rights in question, the protection afforded to them under the Convention may be different. As I explained in my concurring opinion in Petrova , cited above, an individual ’ s right to express the wishes of a deceased relative in respect of transplantation comes within the scope of family life, within the meaning of Article 8 of the Convention. The right under consideration ensures a multidimensional protection, since it protects not only the wishes of the deceased person but also those of the deceased person ’ s relatives themselves, and relationships within the family. Whether the right to decide freely on the transplantation of one ’ s own organs comes within the scope of Article 8 of the Convention is a separate issue.

4. The Court ’ s case-law has constantly extended the scope of private life within the meaning of Article 8. Recent judgments may suggest that protection of private life is to be identified with the general freedom of decision in personal or private matters. The meaning of “private life” is thus gradually being transformed into a general freedom of action, a notion which is known as allgemeine Handlungsfreiheit in German legal science. In my view, such an extensive interpretation of Article 8 in the Court ’ s case-law does not have a sufficient legal basis in the Convention. The provision in question is sometimes misused to fill lacunae in the Convention protection.

5. In the present case the Court has declared the complaint brought by the applicant on behalf of her deceased husband inadmissible. This is explained in the reasoning on the ground that this part of the complaint is “incompatible ratione personae ”.

I accept the view that Article 8 of the Convention is not applicable to the deceased husband ’ s rights, at stake in the instant case. Such a restrictive interpretation of the Convention corresponds more closely to the applicable rules of treaty interpretation. However, in my view the application should be considered inadmissible ratione materiae rather than ratione personae . I do not see sufficiently strong arguments to consider that decisions concerning the transplantation of one ’ s own organs are covered by the notions of private life or family life as understood under the rules of treaty interpretation established in international law. To sum up, rights in respect of transplantation are only partially protected by the Convention.

[1] . www.coe.int/T/DG3/ Health/Source/CDBI_INF(2003)11_en .pdf .

[2] . Formed in December 1997, the EGE is an independent advisory body to the European Commission . Its predecessor was the Group of Advisers to the European Commission on the Ethical Implications of Biotechnology, an ad hoc advisory body.