PETROVA v. LATVIA - 4605/05 - Chamber Judgment [2014] ECHR 647 (24 June 2014)

in the name of the applicant, Ms Svetlana Petrova. The application form contains the necessary information about the applicant herself - full name and contact details. The application form was signed by the applicant’s sister, Ms Ļuda Belruse, who had received an authorisation from the applicant to act on her behalf. The applicant in her observations further specified that her intention had been to lodge an application on her own behalf. She quoted her submissions from the application form and confirmed that the application concerned her own rights. 54. The Court notes at the outset that an application cannot in principle be brought in the name of a deceased person, because he or she cannot be considered to be a “person” (“ personne physique ” in French) for the purposes of Article 34 of the Convention (see Dvořáček and Dvořáčková v. Slovakia , no. 30754/04, § 41, 28 July 2009, and Aizpurua Ortiz and Others v. Spain , no. 42430/05, § 30, 2 February 2010). 55. The Court reiterates the need to distinguish cases in which the applicant died in the course of the proceedings from cases where the application was lodged with the Court by the applicant’s heirs after the death of the victim (see Fairfield v. the United Kingdom (dec.), no. 24790/04, ECHR 2005-VI; Biç and Others v. Turkey , no. 55955/00, § 20, 2 February 2006; and, more recently, Ergezen v. Turkey , no. 73359/10 , § 28, 8 April 2014 (not yet final) and the case-law cited therein). In cases where the applicant died before an application was lodged with the Court, the Court has emphasised that Article 8 rights are eminently personal and non-transferable (see Sanles Sanles v. Spain (dec.), no. 48335/99, ECHR 2000-XI). Therefore, in principle Article 8 cannot be relied on by relatives or next-of-kin unless they are personally affected by the interference at issue. 56. In the present case the rights of the deceased, Mr Petrovs, and his mother, the applicant in the present case, are closely related. The domestic law at the material time explicitly provided that the right to express one’s wishes in relation to removal of organs or body tissue after death pertained not only to the person concerned but also to his or her closest relatives, including parents (see paragraphs 36 and 37 above). The Court considers, however, that there is no need to examine the issue of transferability of rights in more detail in the present case since the applicant complains of a violation of her own rights in connection with the removal of her son’s organs after his death. Contrary to what has been argued by the Government, the Court finds that on the application form the applicant expressly indicated her wish to complain in her name and she maintained that position in her observations on the admissibility and merits of the case. 57. The Government’s objection relating to the scope of the applicant’s complaint is therefore dismissed. 58. Having found that the applicant’s complaint relates to her rights under the Convention and not to the rights of her deceased son, the Court does not consider it necessary to address separately the Government’s argument pertaining to the applicant’s victim status. B. Admissibility 1. The parties’ submissions 59. First of all, the Government raised a preliminary objection concerning the exhaustion of domestic remedies, relying on the Court’s decision in Grišankova and Grišankovs v. Latvia ((dec.), no. 36117/02, ECHR-2003 II (extracts)). They considered that the applicant should have lodged a complaint with the Constitutional Court since the removal of her son’s organs had been carried out in accordance with the procedure laid down in sections 4 and 11 of the Law. She should have raised the issue of the compliance of these legal provisions with the Latvian Constitution. 60. Secondly, the Government argued that the applicant had not submitted a complaint to the MADEKKI. The Government emphasised that at the material time the MADEKKI had been the competent body to examine the applicant’s complaints. Moreover, the applicant had not appealed against the MADEKKI’s report, which it had submitted to the Security Police and to the prosecutor’s office. It was the Government’s submission that the MADEKKI’s examination of the compliance of the organ removal procedure with domestic law was a necessary precondition for instituting any civil or criminal proceedings against those responsible. They did not provide any further information in this regard. 61. Thirdly, the Government submitted that the applicant could rely on section 1635 of the Civil Law (as effective from 1 March 2006) and claim compensation for pecuniary and non-pecuniary loss in the civil courts. The possibility of using this remedy was still open to the applicant. Citing the Court’s decision in Andrasik and Others v. Slovakia (no. 57984/00, 22 October 2002), the Government argued that the proposed remedy had become available shortly after the applicant had submitted her application to the Court on 18 January 2005. The Government provided some examples of domestic case-law pertaining to the application of section 1635 in practice. They referred to the proceedings in case PAC-714 (instituted on 7 February 2005), where a claimant had sought compensation for non-pecuniary damage from a hospital where she had given birth and where tubal ligation ( surgical contraception ) had been performed without her consent (see L. H. v. Latvia , no. 52019/07, § 8, 29 April 2014 (not yet final)) . On 1 December 2006 that claim had been upheld and the claimant had been awarded compensation for physical injury and moral suffering in the amount of 10,000 Latvian lati (LVL) in respect of the unlawful sterilisation on the basis of section 2349 of the Civil Law. This judgment had taken effect on 10 February 2007. The Government also referred to one of the “Talsi tragedy” cases (instituted on 15 September 2006), where on 16 March 2010 the appellate court had awarded compensation payable by the State in the amount of LVL 20,000 in connection with the incident of 28 June 1997 in Talsi where, among other children, the claimant’s daughter had died. The final decision in this case was adopted on 28 September 2011. The Government did not provide copies of the decisions in the latter case. 62. Lastly, proceeding on the assumption that the alleged violation stemmed from the actual wording of the relevant provisions of the domestic law, the Government argued that the applicant had failed to comply with the six-month time-limit since, in their view, complaints to the Security Police or the prosecutor’s office were not effective remedies. Even if they had been , the outcome of proceedings before these institutions would have been largely dependent on the examination carried out by the MADEKKI, the report of which institution the applicant had not contested. The Government insisted that the applicant had found out about the organ removal on 11 February 2003 and that the MADEKKI report had been adopted on 7 May 2003. They concluded that the applicant had failed to lodge an application with the Court within six months from either of these dates. 63. The applicant disagreed. In response to the first remedy invoked by the Government - recourse to the Constitutional Court - the applicant pointed out that the Constitutional Court’s competence did not include examining whether a specific legal provision had been correctly interpreted. The case of Gri šankovs and Grišankova concerned a legal provision which the applicants in that case considered to be contrary to the Convention. The applicant in the present case referred to section 11 and pointed out that the system of “presumed consent” in Latvia had been limited by the wishes expressed by the relatives. She considered that the issue in the present case was not a legal provision itself but rather the fact that persons responsible for the removal of the organs had carried out the procedure without trying to establish the wishes of the closest relatives. Therefore, Grišankovs and Grišankova did not apply. 64. In response to the second remedy invoked by the Government, namely a complaint to the MADEKKI, the applicant agreed that she had not personally submitted a complaint to that authority. However, in response to her complaint to the Security Police and the prosecutor’s office, both had requested the report. Even if the applicant had personally submitted such a complaint, the result would have been the same. According to the applicant, she could not have appealed against the MADEKKI report since it was not an administrative act but rather an expert report drawn up in the course of criminal proceedings, against which no appeal lay. In any event, the MADEKKI report in itself had been neither sufficient to provide redress for the applicant nor legally binding. The applicant referred to the case of Manoussakis and Others v. Greece (26 September 1996, § 33, Reports of Judgments and Decisions 1996-IV) in support. 65. In response to the third remedy invoked by the Government, the applicant pointed out that section 139 of the Criminal Law provided for criminal responsibility expressis verbis for the unlawful removal of organs or body tissue. She pointed out that, making use of her right to choose the remedy, she had sought to find out who was responsible and bore criminal responsibility for the removal. The applicant had done everything that could have been expected of her within the criminal proceedings; she could not have been required to start civil proceedings on the same matter. She relied on the cases of Assenov and Others v. Bulgaria (28 October 1998, § 86, Reports 1998-VIII) and Fredriksen and Others v. Denmark (no. 12719/87, Commission decision of 3 May 1988, DR 56, p. 237) in this regard. 66. Lastly, as regards compliance with the six-month time-limit, the applicant did not agree that criminal proceedings were not an effective remedy. She reiterated that the issue in the present case was not the compatibility of a legal provision with the Constitution but rather the fact that persons responsible for the removal had carried it out without allowing the applicant to express her wishes. The MADEKKI report had merely contained an expert’s opinion obtained in the course of criminal proceedings on some of the many questions arising in those proceedings; it had not been a final decision. 2. The Court’s assessment 67. In so far as the Government refer to a constitutional complaint as a remedy relevant in the applicant’s circumstances, the Court considers that such a complaint was not an effective means of protecting the applicant’s rights under Article 8 of the Convention for the following reasons. 68. The Court has already examined the scope of the Constitutional Court’s review in Latvia (see Grišankova and Grišankovs , cited above; Liepājnieks v. Latvia (dec.), no. 37586/06, §§ 73-76, 2 November 2010; Savičs v. Latvia , no. 17892/03, §§ 113-117, 27 November 2012; Mihailovs v. Latvia , no. 35939/10, §§ 157-158, 22 January 2013; Nagla v. Latvia , no. 73469/10, § 48, 16 July 2013; and Latvijas jauno zemnieku apvienība v. Latvia (dec.), no. 14610/05, §§ 44-45, 17 December 2013 ). . The Court has noted that the Constitutional Court examined, inter alia , individual complaints challenging the constitutionality of a legal provision or its compliance with a provision having superior legal force. An individual constitutional complaint can be lodged against a legal provision only when an individual considers that the provision in question infringes his or her fundamental rights as enshrined in the Constitution. The procedure of an individual constitutional complaint cannot therefore serve as an effective remedy if the alleged violation resulted only from an erroneous application or interpretation of a legal provision which, in its content, is not unconstitutional (see Latvijas jauno zemnieku apvienība , cited above, §§ 44-45 ). 70. In the present case, the Court considers that the applicant’s complaint concerning the organ removal does not relate to the compatibility of one legal provision with another legal provision having superior force. The Government argued that the organ removal had taken place in accordance with the procedure laid down in law. The applicant, for her part, did not contest the constitutionality of this procedure. Instead, she argued that her wishes as the closest relative had not been taken into account. The Court finds 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. In such circumstances the Court considers that the applicant need not have exhausted the proposed remedy. 71. As regards recourse to the MADEKKI, the Court observes that its report was produced for the purposes of the criminal investigation into the applicant’s complaints (contrast with Žarskis v. Latvia (dec.), no. 33695/03, § 23, 17 March 2009; Ru ža v. Latvia (dec.), no. 33798/05, § 19, 11 May 2010; Buks v. Latvia (dec.), no. 18605/03, § 11, 4 September 2012; and Fedosejevs v. Latvia (dec.), no. 37546/06, § 17, 19 November 2013). The fact that the applicant herself had not complained to the MADEKKI is not relevant in the circumstances of the present case, in relation to which that institution had prepared a report for the purposes of criminal proceedings. The Court does not see how the applicant could have contested the MADEKKI’s findings in this context, given that they merely relayed the experts’ opinion as to whether or not the medical practitioners had complied with the law in carrying out the removal of organs. In any event, the Court notes that it is normally the task of the investigating and prosecuting authorities to establish whether any crime has been committed and that, in doing so, these authorities would take into account all evidence, including any specialists’ reports. Since the applicant had complained about all the decisions adopted by the investigating and prosecuting authorities, the Court cannot hold it against her that she did not lodge a separate complaint with the MADEKKI. 72. As regards the possibility of lodging a civil claim for damages, in Calvelli and Ciglio v. Italy ([GC], no. 32967/96, § 51, ECHR 2002-I) , the Court ruled: “In the specific sphere of medical negligence the obligation may for instance also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the doctors concerned to be established and any appropriate civil redress, such as an order for damages and for the publication of the decision, to be obtained. Disciplinary measures may also be envisaged.” 73. The Court has further stated that this principle applies when the infringement of the right to life or personal integrity is not caused intentionally (see Vo v. France [GC], no. 53924/00, § 90, ECHR 2004-VIII, and Öneryıldız v. Turkey [GC], no. 48939/99, § 92, ECHR 2004-XII). 74. However, the Court has also found that in the event of there being a number of domestic remedies which an individual can pursue, that person is entitled to choose the remedy which addresses his or her essential grievance (see Jasinskis v. Latvia , no. 45744/08, § 50, 21 December 2010). The Court observes that the applicant in the present case availed herself of the criminal avenue of redress in accordance with the applicable provisions of domestic law. The remedy pursued by her could have given rise to a finding that the removal of her son’s organs had been carried out contrary to the domestic procedure and that her rights as the closest relative had been breached. It could eventually have led to an award of compensation, given that the Latvian legal system recognises victims’ rights to lodge civil claims in criminal proceedings and to request compensation for damage suffered as a result of a crime (see paragraph 45 above). In such circumstances, there is nothing to suggest that the applicant could legitimately have expected that the criminal-law remedy would not be an effective one in her case. 75. The Court considers that the applicant was not required to submit to the civil courts a separate, additional request for compensation, which could also have given rise to a finding that the removal of her son’s organs had been carried out contrary to the domestic procedure and that her rights as the closest relative had been breached (see also Sergiyenko v. Ukraine, no. 47690/07 , §§ 40-43, 19 April 2012; Arskaya v. Ukraine, no. 45076/05 , §§ 75-81, 5 December 2013; and Valeriy Fuklev v. Ukraine, no. 6318/03 , §§ 77-83, 1 January 2014, where the applicants were not required to lodge separate civil claims for the alleged medical malpractice) . 76. Finally, bearing in mind the above-mentioned considerations in connection with the recourse to the Constitutional Court and the criminal-law remedy, the Court does not consider that the complaint was lodged out of time. Contrary to the Government’s submission, the last domestic decision for the purposes of calculating the six-month period was adopted by the Prosecutor General on 23 August 2004. 77. Taking the foregoing into account, the Court considers that the applicant’s complaint under Article 8 of the Convention cannot be declared inadmissible for non-exhaustion of domestic remedies or for non-compliance with the six-month time-limit. Accordingly, the Government’s objections in this regard must be dismissed. Furthermore, the Court reiterates that the concepts of private and family life are broad terms not susceptible to exhaustive definition (see Hadri-Vionnet v. Switzerland , no. 55525/00, § 51, 14 February 2008). In the case of Pannullo and Forte v. France (no. 37794/97, § 36, ECHR 2001-X), the Court considered the excessive delay by the French authorities in returning the body of their child following an autopsy to be interference with the private and family life of the applicants. It has also considered that the refusal of the investigative authorities to return the bodies of deceased persons to their relatives constituted an interference with the applicants’ private and family life (see Sabanchiyeva and Others v. Russia , no. 38450/05, § 123, ECHR 2013 (extracts) and Maskhadova and Others v. Russia , no. 18071/05, § 212, 6 June 2013). The Court notes that there is no dispute between the parties that the applicant’s right - established under domestic law - to express consent or refusal in relation to the removal of her son’s organs (see paragraph 87 below) comes within the scope of Article 8 of the Convention. The Government did not contest this. The Court sees no reason to hold otherwise and thus considers that this Article is applicable in the circumstances of the case. The Court notes that this complaint is not inadmissible on any other grounds. It must therefore be declared admissible. C. Merits 1. The parties’ submissions (a) The applicant 78. The applicant considered that the removal of her son’s organs without her consent had constituted an interference with her private and family life. The applicant emphasised that she had been deprived of her rights, granted by domestic law, to object to her son’s organ removal. She pointed out that analysis of the organs later removed from his body had been carried out and blood tests had been performed while he was still alive in order to determine compatibility for transplantation purposes with the potential recipient’s body. 79. Relying on X and Y v. the Netherlands , she argued that although the object of Article 8 was essentially that of protecting the individual against arbitrary interference by public authorities, it did not merely compel the State to abstain from such interference. In addition to this primarily negative undertaking, there were positive obligations inherent in an effective respect for private or family life; these obligations involved the adoption of measures designed to secure respect for private or family life (see X and Y v. the Netherlands , 26 March 1985, § 23, Series A no. 91). She further referred to the case of Ciubotaru v. Moldova , confirming that the positive obligations included certain positive procedural safeguards, for example, an effective procedural framework whereby applicants could assert their rights under Article 8 under conditions of fairness, not least in relation to questions of proof and evidence (see Ciubotaru v. Moldova , no. 27138/04 , § 51, 27 April 2010). . The applicant further reasoned that the interference with her rights had been neither in accordance with law nor necessary within the meaning of Article 8 § 2 of the Convention. As concerns the first of these considerations, the applicant’s view was that by granting the closest relatives the right to express binding wishes in relation to organ removal, the domestic law had struck the right balance between private and family life and the rights of others. In the applicant’s case, the domestic authorities had not fulfilled their duty to provide conditions for these wishes to be expressed. For the interference to be in “accordance with the law”, the law had to be clear and had to provide the possibility of exercising the protected rights. As regards the second consideration, the applicant argued that the interference had not been proportionate. There had to be some mechanism to establish the wishes of a dying person through his or her closest relatives if that person had not made such wishes known during his or her lifetime. The existence of such a mechanism would be proportionate, imposing less of a limit on the right to private and family life and not hindering society’s legitimate interests, since the circle of close relatives who could object to organ removal would remain very limited. In such cases, the lack of an answer from the relatives - after a specified period and after contacting them and requesting them to express their wishes - could be presumed to constitute consent. The applicant concluded that there had been no pressing social need which could have exempted the authorities from their duty of seeking to establish the wishes of the closest relatives concerning organ removal. (b) The Government 81. The Government argued that the “presumed consent system” permitted interference with an individual’s right to private life under Article 8 of the Convention. They argued that the organ removal had been carried out in accordance with domestic law. The Law had implied the “presumed consent system” that had served the aim of protecting the heath and the rights of others. The Government pointed out that that the “presumed consent system” was not innovative and that Latvia was not even the only country employing this system; it was also instituted in eleven other States. 82. At the same time, the Government acknowledged that the issue of whether or not presumed consent was sufficient or explicit consent was required for organ removal for transplantation purposes had been neither resolved nor unanimously applied among the Contracting States themselves. They contended that the subject of debate was rooted in national legal traditions and there was no European consensus on the rigid application of either system. The Government argued that the legislator’s action in establishing a “presumed consent system” fully complied with the generally accepted rule that the removal of organs from a deceased person could not take place against the expressed or presumed wishes of the person concerned. They submitted that the Member States could decide if and under what conditions - for example vis à vis the wishes of the deceased’s next-of-kin - the removal could be carried out in the absence of the expressed wishes of the deceased. In this regard, the Government referred to Article 10 § 1 of Resolution (78) 29 (see paragraph 27 above). The Government reiterated that domestic law at the material time provided for the possibility to register a person’s wishes in relation to the removal of his or her organs. 83. Given the wide margin of appreciation in this area, the Government emphasised that the “presumed consent” laid down in domestic law was a process which required a person or his or her closest relative to actively express their objection to certain procedures on that person’s body. The Government argued that the relevant domestic law provision set out the procedure in accordance with which a person who objected to the removal of his or her organs or another person’s organs (the applicant’s son’s organs in the present case) was to take positive steps to intervene, thereby effectively vetoing such removal. 84. The Government disagreed with the applicant, arguing that under the “presumed consent system” the applicant had not in any way been deprived of her right to object to the removal of her son’s organs. The Government’s submission was that the applicant herself had failed to take any steps to establish her son’s whereabouts, obtain information about his medical condition, or make known in good time any wishes in relation to possible organ removal. They pointed out that when a deceased person’s closest relatives were not present at the hospital, national laws did not impose any obligation on a doctor or on the medical institution itself to make specific inquires in order to ascertain if there was any objection from those persons as regards possible organ removal. In this connection they referred to a domestic decision (in case no. 1840000303) where a city court had confirmed that section 4 of the Law provided for the right of the closest relatives to object to removal of the deceased person’s organs, but did not impose any obligation on the medical expert to explain these rights to the relatives. In addition, they pointed to the opinions of legal and medical scholars who considered that complicated ethical issues arose due to the inevitable conflict between the devastating emotional impact of the death on the family and the speed with which a decision on organ transplantation had to be made. 2. The Court’s assessment (a) General principles 85. The essential object of Article 8 is to protect the individual against arbitrary interference by public authorities. Any interference under the first paragraph of Article 8 must be justified in terms of the second paragraph, namely as being “in accordance with the law” and “necessary in a democratic society” for one or more of the legitimate aims listed therein. The notion of necessity implies that the interference correlates with a pressing social need and, in particular, that it is proportionate to one of the legitimate aims pursued by the authorities (see A, B and C v. Ireland [GC], no. 25579/05, §§ 218-241, 16 December 2010). 86. The Court refers to the interpretation given to the phrase “in accordance with the law” in its case-law (as summarised in S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, §§ 95-96, ECHR 2008). Of particular relevance in the present case is the requirement for the impugned measure to have some basis in domestic law, which should be compatible with the rule of law, which, in turn, means that the domestic law must be formulated with sufficient precision and must afford adequate legal protection against arbitrariness. Accordingly the domestic law must indicate with sufficient clarity the scope of discretion conferred on the competent authorities and the manner of its exercise (see, most recently, L. H. , cited above, § 47). (b) Application in the present case 87. As to the alleged interference, turning to the circumstances of the present case, the Court notes that following a car accident the applicant’s son sustained life-threatening injuries of which, after an attempt to save his life had been made, he had died. Immediately after his death, his kidneys and spleen had been removed for organ transplantation purposes. The applicant, who was one of his closest relatives, was not informed of this and could not therefore exercise certain rights allegedly established under domestic law - to express consent or refusal in relation to the removal of her son’s organs. 88. The Court further notes that it has not been contested that both hospitals involved - Riga’s First Hospital and Pauls Stradiņš Clinical University Hospital - were public institutions and that the acts and omissions of its medical staff were capable of engaging the responsibility of the respondent State under the Convention (see Glass v. the United Kingdom , no. 61827/00, § 71, ECHR 2004-II). 89. The Court considers that the above-mentioned circumstances are sufficient for it to conclude that there has been an interference with the applicant’s right to respect for her private life under Article 8 of the Convention. 90. As to whether the interference was “in accordance with the law”, the Court observes that Latvian law at the material time explicitly provided for the right on the part of not only the person concerned but also his or her closest relatives, including parents, to express their wishes in relation to removal of organs after that person’s death (see paragraphs 36 and 37 above). The parties did not contest this. However, their views differed in so far as the exercise of this right was concerned. The applicant’s view was that the domestic authorities had not fulfilled their duty to provide conditions whereby her wishes in relation to the removal of the applicant’s son’s organs for transplantation purposes could be expressed. According to the Government, the “presumed consent system” in Latvia was an active process and the persons involved were expected to take positive steps if they wished to veto any organ removal. It is the Court’s view that these issues 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 . 91. In this context, the Court observes that the principal disagreement between the parties is whether or not the law - which in principle afforded the closest relatives the right to express wishes in relation to imminent organ removal - was sufficiently clear as regards the implementation of this right. The applicant argued that there was no mechanism permitting her to exercise her right, but the Government considered that the mechanism was in place and that it was up to the closest relatives to take action if they wished to prevent any organ removal. 92. The Court must point out, however, that where national legislation is in issue, it is not the Court’s task to review the relevant legislation in the abstract. Instead, it must confine itself, as far as possible, to examining the issues raised by the case before it (see Taxquet v. Belgium [GC], no. 926/05, § 83 in fine , ECHR 2010). 93. The Court is mindful of the fact that for almost three days, from 26 to 29 May 2002, the applicant’s son’s medical condition was very serious and that he remained unconscious until his death was recorded at 1.20 a.m. on the latter date. Against this background, while clearly there was a medical emergency given his critical condition, it cannot be said that it had been practically impossible to contact his closest relatives or at least to make an attempt to contact them, informing them of his condition and making enquiries about the possible organ transplantation. Indeed, the applicant submits that she was in contact with the doctors at the Hospital; the Government deny this for the simple reason that no contact details were recorded on her son’s medical card. Be that as it may, the starting point of the Court’s analysis is that, as established by the domestic authorities, the applicant was not informed about the possible removal of her son’s organs for transplantation purposes (see paragraphs 15, 18, 20 and 22 above). 94. As to whether the domestic law was formulated with sufficient precision, the Court notes that the domestic authorities, most notably the Security Police and the prosecutor’s office, considered that the failure to inform the applicant about the possible removal of her son’s organs did not contravene domestic law (see paragraphs 16, 20, 24-26 above). However, the Minister for Health was of the opinion that the applicant should have been informed; it has been mentioned that as a result of a proposal by a working group established in the Ministry, certain amendments to the Law had been proposed to improve clarity (see paragraph 23 above). These amendments were later adopted by Parliament with effect from 30 June 2004 (see paragraph 41 above). Such disagreement and the subsequent changes in the legislation indicate a lack of reasonable clarity as to the nature of the discretion conferred on the public authorities under domestic law at the time. While Latvian law set out the legal framework allowing the closest relatives to express their wishes in relation to organ removal for transplantation purposes, it did not define with sufficient clarity the scope of the corresponding obligation or the discretion conferred on medical practitioners or other authorities in this respect. . At the time when the applicant’s son was still alive, between 26 and 29 May 2002, no procedure was laid down in law for State institutions to follow in order to establish that person’s own views on organ transplantation (see paragraph 35 above). Following the death of the applicant’s son, as explained by the prosecution, only sections 4 and 11 of the Law were applicable (see paragraphs 25-26 above). The Government referred to domestic case-law, confirming that there was no legal duty to inform the closest relatives about imminent organ removal, and argued that the Law implied that action was needed to be taken by the relatives. The Court reiterates that the principle of legality requires States not only to respect and apply, in a foreseeable and consistent manner, the laws they have enacted, but also, as a necessary part, to ensure the legal and practical conditions for their implementation (see mutatis mutandis Broniowski v. Poland [GC], no. 31443/96, §§ 147 and 184, ECHR 2004 V). In the present case, it remains unclear how the “presumed consent system”, as established under the Latvian law, operates in practice in the circumstances in which the applicant found herself, whereby she had certain rights as the closest relative but was not informed - let alone provided with any explanation - as to how and when these rights might have to be exercised. . As to whether the domestic law afforded adequate legal protection against arbitrariness, the Court observes that the Security Police admitted that the co-ordinator of the transplantation centre had been responsible for informing relatives of issues pertaining to organ transplantation (see paragraph 20 above), but according to the prosecution there was no obligation laid down in law to obtain their consent (see paragraph 25 above). The prosecution also explained that the relevant provisions prohibited organ removal in cases where a refusal or an objection had been received but not in cases where the wishes of the closest relative had not been established (see paragraph 26 above). The Government, while arguing that the removal of organs from the deceased person could not take place against the expressed or presumed wishes of the person concerned, nevertheless admitted that it was not necessary for the medical expert to explain the rights of the closest relatives or to make any inquires as to their wishes. The Court notes a considerable uncertainty as to the applicable law in these various positions. A s noted by the applicant and uncontested by the Government, several medical examinations were carried out prior to the actual organ transplantation to establish whether the applicant’s son’s organs were in fact compatible with the potential recipient’s body. The amount of time required to carry out such examinations, short as it might have been, could have been sufficient to provide a real opportunity for the applicant to express her wishes in the absence of those of her son. As noted, however, no mechanism was in place for the applicant to express her wishes, which she was entitled to do under domestic law. 97. In the light of the above-mentioned considerations, the Court cannot find that the applicable Latvian law was formulated with sufficient precision or afforded adequate legal protection against arbitrariness. 98. The Court accordingly concludes that the interference with the applicant’s right to respect for her private life was not in accordance with the law within the meaning of Article 8 § 2 of the Convention. Consequently, there has been a violation of Article 8. Having regard to this conclusion, the Court does not consider it necessary to review compliance with the other requirements of Article 8 § 2 in this case (see, for example, Kopp v. Switzerland , 25 March 1998, § 76, Reports 1998-II, and Heino v. Finland , no. 56720/09, § 49, 15 February 2011). II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 99. The applicant alleged that she had been subjected to inhuman and degrading treatment on account of the fact that the removal of her son’s organs had been carried out without his prior consent or that of the applicant herself. 100. The Government contested that argument . 101. The Court notes that this complaint is linked to the complaint examined above and must therefore likewise be declared admissible. 102. Having regard to the finding relating to Article 8 (see paragraphs 97 and 98 above), the Court considers that it is not necessary to examine whether, in this case, there has also been a violation of Article 3 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 103. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 104. The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage suffered because of a violation of Article 8 of the Convention. 105. The Government considered that the applicant did not sufficiently demonstrate that she had incurred non-pecuniary damage to the extent claimed. The Government considered the amount claimed by the applicant excessive and exorbitant. With reference to the case of Shannon v. Latvia (no. 32214/03 , § 84, 24 November 2009) , the Government considered that the finding of a violation alone would constitute adequate and sufficient compensation. 106. Having regard to the nature of the violation found in the present case and deciding on an equitable basis, the Court awards the applicant EUR 10,000 in respect of non-pecuniary damage. B. Costs and expenses 107. The applicant also claimed EUR 500 for the costs and expenses incurred before the Court. 108. The Government did not contest the applicant’s claim under this head. They considered it sufficiently substantiated and reasonable. 109. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 500 covering costs under all heads. C. Default interest 110. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaints concerning Articles 3 and 8 of the Convention admissible; 2. Holds that there has been a violation of Article 8 of the Convention; 3. Holds that it is not necessary to examine whether there has been a violation Article 3 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts: (i) EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 500 (five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 24 June 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş Aracı Päivi Hirvelä Deputy Registrar President In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate concurring opinion of Judge Wojtyczek is annexed to this judgment. P. H. F. A. 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. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII