CONCURRING OPINION OF JUDGE WOJTYCZEK

1. I agree with the conclusions reached by the majority; however, I have serious doubts about certain points in the reasoning.

2. The judgment states that the applicant was not required to lodge a constitutional complaint. I agree with this conclusion; however, I would have given different reasons. In my view, it suffices to state that the Latvian Government did not provide sufficient evidence that the remedy would have been effective in the circumstances of the case.

There seems to be a contradiction in the reasons set out in the Court ’ s judgment with regard to the nature of the main legal issue in the instant case. On one hand, when considering the question of the exhaustion of domestic remedies, the majority affirms (in paragraph 70) that “the applicant ’ s complaint relates to the application and interpretation of domestic law, in the light particularly of the absence of relevant administrative regulation; it cannot be said that any issues of compatibility arise”. For the purpose of deciding on the issue of the complaint ’ s admissibility, the nature of the legal issue at stake is the manner in which the law is construed and applied, not the content of the law. At the same time, the judgment states (in paragraph 90) that the issues under consideration “appertain to the quality of domestic law, in particular, whether the domestic legislation was formulated with sufficient precision or afforded adequate legal protection against arbitrariness in the absence of the relevant administrative regulation.” Thus, for the purpose of considering the merits of the case, the main legal issue is no longer the interpretation and application of the law, but its content. If this is so, then the issue of the compatibility of the legislation with the principle of its foreseeability and precision inevitably arises. Prima facie there is no obstacle to lodging a constitutional complaint against legislation lacking precision and pertaining to fundamental constitutional rights. I note that in many countries a statute lacking sufficient precision and clarity may be declared contrary to the national Constitution by a constitutional court or by other courts entrusted with the constitutional review of legislation.

3. The legitimacy and the credibility of the European Court of Human Rights depends, among other things, on the depth and precision of the legal argumentation it develops to justify its decisions and judgments. The instant case raises fundamental questions concerning the substantive and temporal scope of human rights protection. I regret that the majority found it unnecessary to address these issues in a more precise and detailed way. Avoiding discussion of fundamental human rights questions which arise in cases under consideration, and which are of utmost relevance in ascertaining the correct judicial answer, does not seem to be the most efficient argumentative strategy for a human rights court.

The effectiveness of the European system of human rights protection depends on a precise delimitation of the international obligations of the States. Therefore, one of the prerequisites for adjudication under the Convention is the definition of the substance and scope of the rights protected. In the instant case, the correct methodology required defining with sufficient precision the notions of private and family life. To date the Court has not formulated such a definition. To justify such a situation, it reiterates in the present case the view that “concepts of private and family life are broad terms not susceptible to exhaustive definition” (see paragraph 77). I cannot agree with such an approach, which entails a high level of uncertainty as to the meaning and scope of Article 8 of the Convention.

Furthermore, the present case raises the question of the necessity of ensuring protection of human rights after the death of the right-holder. The reasoning rightly stresses that the rights of the deceased, Mr Petrovs, and his mother, the applicant in the present case, are closely related (see paragraph 56). However, not only does this entire question deserve deeper consideration, but, in my view, the different rights at stake and their nature were not properly identified in the judgment.

4. The judgment reiterates the view, expressed many times by the Court, that an application may not be brought in the name of a deceased person. I am not persuaded that this view is correct. In any event, such a statement is not convincingly supported by the applicable rules of treaty interpretation. The wording of the Convention does not rule out adopting a less categorical approach in this respect. The possibility of lodging an application in the name of a deceased person depends on the nature of the right under consideration and, more precisely, on the nature of the specific entitlement coming within the scope of the particular Convention right in question.

It is necessary to stress in this context, that various international instruments, and also some national constitutions, proclaim specific human rights which are intended to ensure protection after one ’ s death. Such rights are proclaimed in several international documents quoted in the judgment. In particular, they protect every person against post-mortem removal of one ’ s organs against one ’ s wishes. This protection extends beyond the death of the right-holder. It is obvious that death cannot extinguish such rights. The enforceability of such rights depends on the attitude of the closest members of the family, who act as guardians of the deceased person ’ s rights. The very nature of the rights in question entails special duties and a particular responsibility on the relatives.

5. The reasoning in the judgment seems to focus on the right of the applicant to oppose the transplantation of her deceased son ’ s organs. Such a right was recognised by the Latvian legislation. The wording in the reasoning suggests that the applicant ’ s right to object to the transplantation of her deceased son ’ s organs is one of her personal rights protected under the Convention. It may further suggest that this right may be exercised freely by the relatives, who can chose to agree or to object to transplantation.

In my view, however, the whole situation is much more complex. The right of the relative of a deceased person to object to transplantation is not her or his own personal right, and may not be exercised ad libitum . In such situations, the relatives do not act as autonomous right-holders, but as depositaries of a right which belonged to the deceased person. They should exercise this right according to the wishes of the deceased. This important aspect of the right under consideration has not been sufficiently stressed in the judgment.

At the same time, there is no doubt that the applicant ’ s human rights were affected and infringed. In my view, protection of family life under Article 8 of the Convention encompasses the right to respect for the dignity of a deceased close relative. In particular, a mother may legitimately claim the right to respect for the dignity of her deceased son.

In the instant case, an organ was illegally taken from a deceased person for the purpose of transplantation, without his consent and without consent being expressed in his name by his closest relatives. The removal of an organ from the deceased person in such circumstances violated that person ’ s right. At the same time, such treatment violated the applicant ’ s own right to respect for the dignity of her deceased son. Her right was violated not because she could not assert a personal entitlement to decide on transplantation of her son ’ s organs, but because she was denied the possibility to express her son ’ s wishes.

6. I agree with my colleagues that the Latvian legislation pertaining to the different rights at stake in the instant case was not compatible with the Convention standards. Therefore, I voted in favour of finding a violation of Article 8 of the Convention. However, I am not persuaded that we should lay so much stress on the absence of relevant administrative regulation (see paragraphs 70 and 90 of the judgment). Firstly, why is an administrative regulation the preferred solution, rather than a better drafted statute? Such a stance would require more thorough consideration under the Latvian Constitution. Secondly, the Court is entering the domain of the States ’ constitutional autonomy. In any event, it is for the Latvian authorities to identify the level of the legal hierarchy at which the legal rules require modification.

[1] http://www.coe.int/t/dg3/healthbioethic/Activities/05_Organ_transplantation_en/CDBI_INF(2003)11rev2.pdf

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