PARTLY DISSENTING OPINION OF JUDGE PASTOR VILANOVA, JOINED BY JUDGE HARUTYUNYAN

1. The case 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.

2. My partly dissenting opinion only concerns the fourth point of the operative part of the judgment. Indeed, the great majority of the Chamber Judges considered that it was unnecessary to examine the applicant’s complaint under Article 13 of the Convention.

3. The reasons for that refusal to examine the complaint are set out in paragraph 126 of the judgment, which explains that its finding in relation to Articles 8 and 9 made it unnecessary to consider the right to an effective remedy expressly relied upon by the applicant. That is the usual wording of a refusal by the Court implying that the complaint in question (in this case under Article 13) has already been analysed under a different provision of the Convention and that consequently no separate examination is required. I consider that that was not the case here, because Article 13 was not covered by the assessment of the substantive rights in issue. I consider that the complaint under Article 13 was fully “detachable” from the Chamber’s previous findings in respect of Articles 8 and 9 of the Convention. This is borne out by the fact that in the analysis of those two provisions, the question of the lack of an effective remedy against the performance of the post-mortem examination had simply not arisen. Indeed, the Chamber based its finding of a violation on Articles 8 and 9 on account of: (a) the failure of the national authorities to balance the competing public and private interests (see paragraph 91 of the judgment), and (b) the failure to provide the applicant with sufficient information on the extent of the post mortem (see paragraph 120).

4. In order to justify the refusal to examine Article 13, the Chamber refers, in particular, to the cases of Elberte v. Latvia , no. 61243/08, § 147, ECHR 2015, and Solska and Rybicka v. Poland , nos. 30491/17 and 31083/17, § 131, 20 September 2018. The former case concerned possible interpretations of domestic law in a case concerning the unlawful removal of tissue from a dead body. Logically, the applicant had never had any opportunity to object to the operation because of its secretive nature. I do not consider that case-law relevant.

The latter case concerned the exhumation, in the framework of a criminal investigation and against the wishes of their families, of the remains of deceased persons. The applicants had complained, inter alia , of an inability to contest the order given by a prosecutor. The Court found a violation of Article 8 of the Convention on the grounds that “ the domestic law did not provide a mechanism to review the proportionality of the restrictions on the relevant Article 8 rights of the persons concerned resulting from the prosecutor’s decision ” (§ 126). The Court further considered that it was no longer necessary to examine the complaint concerning Article 13 (§ 131). Accordingly, the Court decided not to examine the applicants’ right to an effective remedy since it had already been taken into account in the violation of their right to respect for private and family life. It can easily be deduced that, unlike in the present case, the Chamber clearly criticised the absence of a preventive remedy vis-à-vis the prosecutorial order.

5. In the present case the applicant explicitly complained of her inability, under domestic law, to challenge the performance of the post-mortem examination before it had taken place (see paragraph 121 of the judgment). There can be no doubt that under the applicable law, Austrian doctors can perform a post mortem without the family’s authorisation for scientific reasons. Not only can doctors override any explicit opposition from the family, but also their decisions cannot be the subject of any prior scrutiny before a court or any other independent domestic body. That is not a neutral issue, inasmuch as a finding of a violation by the Court could require Austria to introduce into its legal system a remedy (whether judicial or not) against unilateral decisions by medical doctors to perform a post-mortem operation in such cases.

6. The facts of the case are uncontroversial. The applicant’s child died a few days after its birth of a rare, incurable disease (Prune Belly Syndrome). The medical staff of the Feldkirch Regional Hospital (Austria) promptly informed the parents of the necessity of a post-mortem examination in the interests of their descendants (see paragraphs 7 and 9 of the judgment). They categorically refused because such an operation was against their Muslim faith, which requires the deceased’s body to remain as unscathed as possible for the purposes of the funeral (see the same paragraphs). Notwithstanding that explicit opposition, the doctors performed the post-mortem examination, removing practically all the internal organs from the child’s body, including the sexual organs (see paragraph 12). The parents were not informed of the extent of the post mortem (see paragraph 14). Moreover, they only realised the full extent of the operation some time later, during the religious funeral in Turkey. That was when they discovered that the child’s body and head had been cut open and sewn back together (see paragraph 16). Since the child’s sex could not be established visually (the funeral rites differ according to the sex of the deceased person), the funeral was cancelled (see paragraph 17). The subsequent action for damages lodged by the applicant against the company owning the hospital was ultimately rejected out of hand by the domestic courts.

7. The question put to the Chamber by the applicant had therefore been whether or not the lack of a preventive remedy in Austrian law had been contrary to the Convention. The majority of the Chamber tersely affirm that this legislative choice is not problematic per se (see paragraph 84). This was, to my mind, the main reason for the decision not to examine the complaint under Article 13.

8. With all due respect to the majority, I cannot follow this argument. Indeed, I take the view that this conclusion has not been properly reasoned, and that it is also contrary to the Court’s case-law. The case-law cited in the actual judgment ( Solska and Rybicka, cited above) would suggest otherwise. In that case the Court largely based the finding of a violation under Article 8 of the Convention on the absence of a preventive judicial remedy against a prosecutorial order to exhume a corpse. Secondly, in Macready v. the Czech Republic (nos. 4824/06 and 15512/08, §§ 47-48, 22 April 2010), the Court considered that in “special cases with particular issues at stake ... a purely compensatory remedy ... would not seem capable (at least on its own) of redressing the violations alleged in the instant case ... Indeed, the positive obligation on States to take appropriate action to ensure respect for the applicants’ family life within the meaning of Article 8 could be rendered illusory if the applicants only had access to a compensatory remedy liable to lead solely to the ex-post award of pecuniary reparation ...”. The Court was careful to add the following: “The Court notes, moreover, that if the applicant had put forward a complaint under Article 13, the same considerations would be applicable to it” (§ 51). That case-law was reproduced, indeed extended, in Bergmann v. the Czech Republic (no. 8857/08, 27 October 2011, § 46): “The Court has already determined, in cases concerning the various situations complained of under Article 8, that an action which could only lead to compensation could not be considered as an effective remedy to put an end to the alleged violation”; it was also reiterated in many other cases, including Kuppinger v. Germany (no. 62198/11, § 137, 15 January 2015): “The Court has observed in this respect that the State’s positive obligation to take appropriate measures to ensure the applicant’s right to respect for family life risked becoming illusory if the interested parties only had at their disposal a compensatory remedy, which could only lead to an a posteriori award for monetary compensation (see Macready , ibid. )”.

9. Those latter cases concerned Article 8, but in my view this case-law is completely transposable to other substantive rights, including those secured under Article 9. We all know that the remedy required under Article 13 must be “effective”, in practice as well as in law (see Ä°lhan v. Turkey [GC], no. 22277/93, § 97, ECHR 2000 ‑ VII). I consider that that applies particularly to an action or omission whose consequences are irreversible, irreparable or difficult to repair, as in cases concerning conditions of detention (see Ramirez Sanchez v. France [GC], no. 59450/00, § 165, ECHR 2006 ‑ IX, and Ananyev and Others v. Russia , nos. 42525/07 and 60800/08, § 98, 10 January 2012), removal of aliens (see De Souza Ribeiro v. France [GC], no. 22689/07, §§ 83 and 93, ECHR 2012) or the exercise of the right of assembly (see Lashmankin and Others v. Russia , nos. 57818/09 and 14 others, § 345, 7 February 2017), among others. The common thread running through all these judgments is the requirement of a remedy capable of directly redressing the situation complained of, in order to avoid the destructive effect of the fait accompli .

10. That plainly applies to the case before the Chamber, which was not deemed worthy of an examination on the merits by the majority. Indeed, in the absence of a preventive remedy in Austrian law, the child’s body was completely mutilated, which definitively prevented its burial in accordance with the rites of its family’s religion. The compensatory remedy was incapable of repairing the damage caused.

11. I would emphasise that the Oviedo Convention enshrines the primacy of the human being over the interest of science (Article 2), and also requires States to provide appropriate judicial protection to prevent or to put a stop to an unlawful infringement of the dignity of the human being at short notice (Article 23). The Court has even acknowledged that a dead body retains its dignity (see Magnitskiy and others v. Russia , no. 32631/09, § 281, 27 August 2019).

12. It was this structural shortcoming which led me to vote against the decision not to examine the complaint under Article 13 of the Convention. I consequently consider that this case raises a serious issue of consistency in the Court’s case-law, particularly since the long-standing Grand Chamber judgment KudÅ‚a v. Poland [GC], no. 30210/96, § 159, ECHR 2000 ‑ XI) – stating that Article 13 allowed the State to choose between preventive and compensatory remedies – seems to have been overtaken by the most recent case-law. Moreover, the Court has already clearly stated its preference for prevention (see Sürmeli v. Germany [GC], no. 75529/01, § 100, ECHR 2006 ‑ VII).