27 April 2010

THIRD SECTION

Application no. 61243/08 by Dzintra ELBERTE against Latvia lodged on 5 December 2008

STATEMENT OF FACTS

THE FACTS

1 . The applicant, Ms Dzintra Elberte , is a Latvian national who was born in 1969 and lives in Sigulda , Latvia .

A. The circumstances of the case

2 . The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Events leading up to the applicant ' s knowledge of tissue removal

3 . On 19 May 2001 the applicant ' s husband was involved in a car accident in the Alla ži parish and died as a result of his injuries. An ambulance transported his body to the mortuary at Sigulda Hospital . He was subsequently transported to the State Centre for Forensic Medical Examination ( Valsts tiesu medicīnas expertīžu centrs ) (“the Forensic Centre”) in order to establish the cause of death. At the Forensic Centre, unknown tissue was removed from his body. The applicant first saw her deceased husband when his remains were transported back for the funeral. She saw that his legs had been tied together. He was buried that way.

4 . The applicant submits that her mother-in-law stayed with her deceased husband ' s body at Sigulda Hospital until it was transported to the Forensic Centre. The applicant herself was pregnant at the time with their second child.

5 . The applicant was not aware that tissue had been removed from her husband ' s body until about two years later, when the Security Police informed her that a criminal inquiry had been opened into the illegal removal of organs and tissue and that tissue had been removed from her husband ' s body. She was recognised as an injured party and questioned once. Nevertheless, she could not obtain information as to the precise amount or type of tissue removed from her husband ' s body.

2 . Criminal inquiry into the illegal removal of organs and tissue

6 . On 3 March 2003 the Security Police opened a criminal inquiry into the illegal removal of organs and tissue for delivery to a pharmaceutical company based in Germany (“the company”) between 1994 and 2003. The following sequence of events was established.

7 . In January 1994 the Forensic Centre concluded an agreement with the company to cooperate for the purpose of scientific research. Under the agreement various types of tissue were to be removed from deceased persons at the Forensic Centre – their selection made in accordance with international standards – and sent to the company. Once in Germany , the tissue was to be modified and sent back to Latvia for surgical transplantation as bioimplants . The Ministry of Welfare agreed to the contents of the agreement, reviewing its compliance with domestic law on numerous occasions. The General Prosecutor ' s Office issued two opinions on the compatibility of the agreement with domestic law and, in particular, with the Law on the P rotection of the B od ies of D ecease d P erson s and the U se of Human Organs and Tissue (“the Law”).

8 . Any qualified member of staff (“expert”) of the Forensic Centre was allowed to carry out the removal of tissue on his or her own initiative. The Head of the Thanatology Department of the Forensic Centre was responsible for their training and the supervision of their work. He was also responsible for sending the tissue to Germany . The experts received remuneration for their work. Initially, the removal of tissue was performed at forensic divisions in Ventspils , Saldus , Kuldīga , Daugavpils and Rēzekne . Since 1996, however, tissue removal has been carried out only at the Forensic Centre in Rīga and the forensic division in Rēzekne .

9 . Under the agreement, experts could remove tissue from deceased persons who had been transported to the Forensic Centre for forensic examination. Each expert was to verify whether the potential donor had objected to the removal of organs or tissue during his or her lifetime by checking his or her passport to make sure that there was no stamp to that effect. If relatives objected to the removal, their wishes were respected, but experts themselves did not attempt to contact relatives and did not try to establish their wishes. Tissue was to be removed within twenty-four hours of the biological death of a person.

10 . Experts were obliged to comply with domestic law but, according to their own testimonies, not all of them had read the Law. However, the content of it was clear to them as the Head of the Thanatology Department of the Forensic Centre had explained that removal was allowed only if there was no stamp in the passport indicating a refusal for organs or tissue to be removed and if the relatives did not object to the removal.

11 . In the course of the inquiry the investigators questioned specialists in the area of criminal law and the removal of organs and tissue. It was concluded that generally two legal systems regulating the removal of organs and tissue exist – “informed consent” and “presumed consent”. On the one hand, the Head of the Forensic Centre, the Head of the Thanatology Department of the Forensic Centre and the experts of the Forensic Centre were of the opinion that at the relevant time (that is to say, since the Law had entered into force on 1 January 1993) there was a system of “presumed consent” in Latvia. These persons were of the view that the system of presumed consent meant that “what was not prohibited, was allowed”. On the other hand, the investigators noted that section 2 of the Law led to the conclusion that the Latvian legal system relied more on the concept of “informed consent” and, accordingly, removal was permissible only when it was (expressly) allowed, when consent had been given either by the donor during his or her lifetime or by the relatives.

12 . On 30 November 2005 the criminal inquiry into the activities of the Head of the Forensic Centre, the Head of the Thanatology Department of the Forensic Centre and the Head of the Rēzekne Forensic Division was discontinued in respect of the illegal removal of organs and tissue. The above considerations were noted down in the decision and differences in the possible interpretation of domestic law were resolved in favour of the accused. Moreover, the 2004 amendments to the Law were to be interpreted to mean that there was a system of “presumed consent” in Latvia . It was concluded that sections 2-4 and 11 of the Law had not been violated and that no element of a crime as set out in section 139 of the Criminal Law had been established.

13 . On 5 December 2005 the applicant was informed of that decision. She complained about it to a supervising prosecutor. On 20 December 2005 a prosecutor replied that the criminal inquiry had been discontinued lawfully. The applicant complained to a superior prosecutor. On 6 January 2006 he determined that the decision should stand and the applicant went on to complain about it to a superior prosecutor of the Office of the Prosecutor General.

14 . On 24 February 2006 a prosecutor replied that the experts of the Forensic Centre had indeed breached provisions of the Law and the decision to discontinue the criminal inquiry was therefore quashed and the case materials were sent back to the Security Police.

15 . On 3 August 2007 the criminal inquiry, in as far as it related to removal of organs and tissue from the body of the applicant ' s deceased husband, was discontinued owing to the expiry of the limitation period (five years). However, the legal ground given for this discontinuation was the absence of any element of a crime. On 13 August 2007 the applicant was informed of this decision. She complained to a supervising prosecutor. On 19 September 2007 a prosecutor replied that the decision had been lawful. She complained to a superior prosecutor and on 8 October 2007 he determined that the decision should stand. The applicant complained to a superior prosecutor of the Office of the Prosecutor General.

16 . On 3 December 2007 a prosecutor replied that the experts of the Forensic Centre had indeed breached provisions of the Law and the decision to discontinue the criminal inquiry was once again quashed and the case materials sent back to the Security Police.

17 . On 4 March 2008 a new decision to discontinue the criminal inquiry was adopted, based on the legal ground of the expiry of the limitation period . On 6 March 2008 the applicant was informed thereof. She complained to a supervising prosecutor, who on 27 March 2008 quashed the decision and informed the applicant thereof.

18 . Additional investigation was carried out. During the course of that investigation it was established that in 1999 tissue had been removed from 152 people; in 2000, from 151 people; in 2001, from 127 people; and in 2002, from 65 people. In exchange for the shipment of tissue to the company, the Forensic Centre organised the purchase of different medical equipment, instruments, technology and computers for medical institutions in Latvia and the company paid for it. Within the framework of the agreement, the total monetary value of the equipment for which the company paid exceeded the value of the removed tissue that was sent to the company. In the decision of 14 April 2008 (see paragraph 20 below) it was noted that the tissue was not removed for transplantation purposes in accordance with section 10 of the Law but was actually removed for modification into other products to be used not only for patients in Latvia.

19 . In the same decision it was also noted that on almost all occasions an expert, of the RÄ“zekne Forensic Division for example, had interviewed the relatives prior to the removal of organs or tissue, yet he had never expressly informed them of such removal or indeed obtained their consent. According to the testimonies of all the relatives, they would not have consented to the removal of organs or tissue had they been informed and their wishes found out. Therefore, it was concluded that the experts had contravened section 4 of the Law and breached the rights of the relatives.

20 . On 14 April 2008 the criminal inquiry was discontinued owing to the expiry of the limitation period . On 16 April 2008 the applicant was informed thereof. She complained to a supervising prosecutor, who on 9 May 2008 found no fault with the decision . She complained and on 2 June 2008 a superior prosecutor determined that the decision should stand. She complained to a superior prosecutor of the Office of the Prosecutor General. On 2 July 2008 a prosecutor replied that the applicant ' s complaint about the length of the investigation was well-founded in that the investigation had indeed taken a long time owing to numerous complaints against the decisions; however, it had not been established that the length was unjustified. This reply was final in that regard. It was also noted that on 26 June 2008 a court had quashed the decision of 14 April 2008 following the experts ' appeals. In a final decision, the court had ruled that the criminal inquiry had been discontinued owing to an absence of any elements of a crime and not owing to the expiry of the limitation period . Following that ruling, a new decision to discontinue the criminal proceedings was adopted on 27 June 2008; the applicant was informed of this on 30 June 2008. She complained twice but received negative replies. Eventually, a prosecutor of the Office of the Prosecutor General replied with a final negative decision on 23 October 2008.

B. Relevant domestic law and international materials

1. Convention on Human Rights and Biomedicine and its Protocol

21 . The Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (Council of Europe Treaty Series No. 164 – “the Convention on Human Rights and Biomedicine ”) is the first international treaty in th e field of bioethics. On 1 December 1999 it entered into force in respect of the States that had ratified it. Latvia has signed the Convention on Human Rights and Biomedicine but has not ratified it. The Convention does not concern o rgan and tissue removal from deceased persons . It concerns organ and tissue removal from living donors for transplantation purposes (Articles 19, 20).

22 . In relation to organ and tissue removal from deceased persons, an Additional Protocol on Transplantation of Organs and Tissue Removal was adopted (Council of Europe Treaty Series No. 186). On 1 May 2006 it entered into force in respect of the States that had ratified it. Latvia has neither signed nor ratified this Protocol.

23 . The relevant Articles of the Additional Protocol on Transplantation read:

Article 1 – Object

“ Parties to this Protocol shall protect the dignity and identity of everyone and guarantee, without discrimination, respect for his or her integrity and other rights and fundamental freedoms with regard to transplantation of organs and tissues of human origin. ”

Article 16 – Certification of death

“Organs or tissues shall not be removed from the body of a deceased person unless that person has been certified dead in accordance with the law.

The doctors certifying the death of a person shall not be the same doctors who participate directly in removal of organs or tissues from the deceased person, or subsequent transplantation procedures, or having responsibilities for the care of potential organ or tissue recipients.”

Article 17 – Consent and authorisation

“Organs or tissues shall not be removed from the body of a deceased person unless consent or authorisation required by law has been obtained.

The removal shall not be carried out if the deceased person had objected to it.”

24 . In May 2002 the Secretary General of the Council of Europe sent a questionnaire to the Council of Europe member States concerning aspects of law and practice in relation to transplantation. [1] The Latvian Government replied in the affirmative to the question whether removal from a living donor required authorisation and referred to Articles 19 and 20 of the Convention and section 13 of the Law on the P rotection of the B od ies of D eceased P erson s and the U se of H uman O rgans and T issue . They noted that written consent was required. In their response to the question “What kind of relationships should exist between the living donor of an organ and the recipient?” they simply referred to Articles 19 and 20 of the Convention. In their response to the question “What sanctions are provided for [organ-trafficking] offenders, in particular, for intermediaries and health professionals?”, the Latvian Government referred to section 139 of the Criminal Law, which provides that the removal of organs or tissue from a living or deceased human being by a medical practitioner for medical uses is a criminal offence.

2. Law on the P rotection of the B od ies of D ecease d P erson s and the U se of Human Organs and Tissue

25 . The Law on the P rotection of the B od ies of D eceased P erson s and the U se of H uman O rgans and T issue ( l ikums “ P ar miruša cilvēka ķermeņa aizsardzību un cilvēka audu un orgānu izmantošanu medicīnā ” – “the Law”), as in force at the relevant time (before amendments that came into effect on 1 January 2002) , provides in section 2 that every living person with legal capacity is entitled to give consent or to object to the use of his or her body after death. The wish expressed, unless it is contrary to the law, is binding. Section 3 provides that such refusal or consent has legal effect only if it has been signed by a person with legal capacity and has been recorded in his or her medical record and passport with a special stamp. The procedure is determined by the Health Department of the Ministry of Health.

26 . Under section 4, which is entitled “The rights of the closest relatives”, the organs and tissue of a deceased person may not be removed against his or her wishes as expressed during his or her lifetime. In the absence of express wishes, they may be removed if at least one of the closest relatives (children, parents, siblings or spouse) does not object. Removal for the purposes of transplantation may be carried out after the biological or brain death of the potential donor (section 10).

27 . More specifically , section 11 of the Law provides that organs and tissue from a deceased donor may be removed for transplantation purposes if that person has not objected to such removal during his or her lifetime and if the closest relatives have not prohibited it.

3 . Cabinet Regulations No. 431 (1996)

28 . These regulati o ns ( Noteikumi par miruša cilvēka audu un orgānu uzkrāšanas un izmantošanas kārtību medicīnā ) specify that removal of organs may be carried out after the biological or brain death of a person if his or her passport and medical record contain a stamp indicating consent to such removal (paragraph 3). In the absence of such a stamp, the provisions of the Law (see above) are to be followed.

COMPLAINTS

29 . The applicant complains under Article 6 § 1 of the Convention of the lengthy investigation leading to the termination of the criminal proceedings owing to the expiry of the limitation period . She complains under Article 8 § 1 of the Convention of a breach of her deceased husband ' s physical integrity. She also complains that her right to respect for her private and family life was infringed on account of not having been asked to give or refuse consent to the removal of tissue from her deceased husband ' s body. She relies on Article 10 § 1 of the Convention in that regard. She submits that she was forced to bury her deceased husband with tied legs and that at a time, being in a state of shock after her loss and being pregnant with their second child, she could not imagine that it was due to the fact that her husband ' s body had been desecrated. Finally, she complains under Article 13 of the Convention.

QUESTIONS TO THE PARTIES

1. Can the applicant claim to be the victim of a violation of the Convention, within the meaning of Article 34, in the circumstances of the present case?

2. Has the applicant exhausted all domestic remedies for her Convention complaints under Articles 3 and 8, as required by Article 35 § 1 of the Convention? In particular, what avenues under domestic law were available and effective in the context of these complaints in the circumstances of the present case?

3. Has there been an interference with the applicant ' s right to respect for her private and family life, within the meaning of Article 8 § 1 of the Convention? In particular did the removal of her husband ' s tissue in the absence of his prior consent or that of the applicant herself constitute an interference with her right to respect for her private and family life as protected under Article 8?

4 . If so, was that interference in accordance with the law and necessary within the meaning of Article 8 § 2 of the Convention?

5 . Has the applicant been subjected to inhuman or degrading treatment in breach of Article 3 of the Convention on account of the removal of her husband ' s tissue without her consent or knowledge or on account of the manner in which he was buried ?

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