17 November 2009

THIRD SECTION

Application no. 4605/05 by Svetlana PETROVA against Latvia lodged on 18 January 2005

STATEMENT OF FACTS

THE FACTS

The applicant, Ms Svetlana Petrova, is a Latvian national who was born in 1955 and lives in Riga .

A. The circumstances of the case

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

1. Events leading to the organ transplantation

On 26 May 2002 the applicant ’ s son sustained very serious injuries in a car accident. At first he was taken to hospital in Bauska. Later on the same date he was transferred to Riga ’ s First Hospital ( Rīgas 1. slimnīca ), where an operation on his head was performed. Following the operation his condition remained very serious; he remained in the emergency department of the hospital ( reanimācijas nodaļa ) and he did not regain consciousness. At 11.50 p.m. on 28 May a call from the hospital was received at the Transplantation Centre, providing information about a potential donor who was undergoing resuscitation. A coordinator of the Transplantation Centre , together with another doctor, went to the hospital. At 12.45 a.m. on 29 May the applicant ’ s condition was noted in his medical record as being fatal. It was noted that medical resuscitation had started. His death was recorded at 1.20 a.m. Between 1.35 a.m. and 3.45 a.m. a laparotomy was performed on the body, in the course of which the kidneys and the spleen were removed for organ transplantation purposes. On the death certificate the time of death was recorded as 2.45 p.m. on 29 May 2002.

The applicant submits that during her son ’ s stay in the hospital she was in contact with the doctors there. On 29 May, while her son ’ s condition was deteriorating, the applicant was not informed. She was also not asked whether her son had consented to being an organ donor and whether she would consent to organ transplantation in the absence of any wishes expressed by her son.

The applicant was not aware that her son ’ s organs had been removed until almost nine months later. It appears that in the context of criminal proceedings against a person held liable for the car accident a forensic report on the applicant ’ s son ’ s body was submitted on 30 May 2002, in which it was noted, inter alia , that on 29 May between 1.35 a.m. and 3.45 a.m. a laparotomy had been performed on the body. The applicant obtained a copy of the forensic report on 11 February 2003 and only then became aware of the fact that certain organs had been removed from her son ’ s body for transplantation purposes.

2. Review of complaints at domestic level

Upon a complaint by the applicant, the hospital on 12 March 2003 replied that the transplantation had been carried out by the transplant doctors in accordance with domestic law. It was noted that the applicant had not been informed of her son ’ s health condition because she had not visited the doctors at the hospital.

In response to further complaints by the applicant to the police and the prosecutor ’ s office, several examinations were carried out. On 7 May 2003 the Inspectorate for Quality Control of Medical Care and Working Capability ( MADEKKI) analysed the medical file and met with the doctors and management of the two medical institutions involved – the manager of the Latvia n Transplantation Centre and the manager of the Transplantation Department of Pauls Stradiņš Clinical University Hospital . It was noted that the time of biological death was 1.20 a.m. on 29 May 2002 and not 2.45 p.m. as recorded, probably by mistake, in the death certificate. It was concluded that the doctor who had taken the decision to remove the organs had acted in accordance with domestic law. It was stated that the applicant had not been informed about the possible removal of her son ’ s organs for transplantation purposes. On 27 May 2003 the Security Police ( Drošības policija ) replied to the applicant on the basis of the MADEKKI report that the organs of her son had been removed in compliance with domestic law. They relied on section 10 of the Law on protection of the body of a deceased person and use of human organs and tissue and Cabinet Regulations No. 431 (1996).

On 15 July 2003 MADEKKI replied to questions put by the Ministry of Health, which had been contacted by the Human Rights Bureau further to a complaint by the applicant. It was noted that at the time of the death there had been no information in the Population Register ( Iedzīvotāju reģistrs ) as to whether the applicant ’ s son had objected or consented to the use of his body, organs or tissue after his death and it was not known whether any such prohibition had been recorded in his passport. The Ministry of Health, replying in turn to the Human Rights Bureau, noted that because the applicant had not been informed about the possible transplantation she had neither consented to it nor refused it.

On 12 November 2003 the Security Police adopted a decision not to initiate criminal proceedings. On the basis of the same reasons as in the above-mentioned reports, it was concluded that the transplantation had been carried out in compliance with domestic law. In addition, it was noted that the coordinator of the Transplantation Centre had been responsible for informing the relatives of the imminent transplantation. Taking into account the fact that they had not been at the hospital at the time of the biological death and that the removal of organs in such cases should be performed immediately, it had not been possible to obtain their consent or refusal in relation to the organ removal.

On 4 March 2004, further to a subsequent complaint, a meeting was convened at which the Minister for Health discussed with the representatives of the hospital and the Transplantation Centre the case of the removal of organs from the applicant ’ s son. The Minister for Health was of the opinion that the relatives should have been informed about the removal of the organs and that their consent should have been obtained. The representatives stated that the removal of the organs had been in compliance with the applicable law. It was noted that in autumn 2003 amendments to the above-mentioned Law had been drafted and that they were currently pending before Parliament. Once the amendments were passed, such “problematic situations would be practically ruled out”.

On 6 May 2004 a prosecutor dismissed the applicant ’ s complaint against the refusal of 12 November 2003 to initiate the criminal proceedings. It was noted that the decision had been lawful. On 29 July a superior prosecutor dismissed the applicant ’ s complaint against the prosecutor ’ s decision of 6 May. On 23 August the Prosecutor General in a final decision dismissed the applicant ’ s complaint against the superior prosecutor ’ s decision of 29 July. It was concluded that the removal of the organs had been performed in accordance with domestic law. The Prosecutor General also noted that activities performed on the body of a deceased person could not be treated as interference with his or her private life.

B. Relevant domestic law and international materials

1. Convention on Human Rights and Biomedicine and its Protocol

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).

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.

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.”

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 protection of the body of a deceased person and use of human organs and tissue . 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 unlawful removal of organs or tissues from a living or deceased human being in order to use them for medical purposes is a criminal offence if it is carried out by a medical practitioner.

2. Law on p rotection of the b ody of a d ecease d p erson and u se of human organs and tissues

The Law on protection of the body of a deceased person and use of human organs and tissue ( l ikums “ P ar miruša cilvēka ķermeņa aizsardzību un cilvēka audu un orgānu izmantošanu medicīnā ” – “the Law”), as in force at the relevant time (with amendments effective as of 1 January 2002), provides in section 2 that every living person with legal capacity is entitled to consent or 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 a person must apply to the Office of Citizenship and Migration Affairs , in accordance with a procedure prescribed by cabinet regulations , to exercise the right to consent or object to the use of his or her body after death. Only such refusal or consent as is recorded in the Population Register has legal effect. The procedure which, in accordance with the Law, the State institutions have to follow to request and receive this information from the Population Register had not been adopted by the Cabinet of Ministers at the time the applicant ’ s son went into a coma. It was adopted on 11 June 2002 and entered into force on 15 June in the form of amendments to Cabinet Regulations No. 89 (1999).

Pursuant to section 4, which is entitled “The rights of the closest relatives”, the organs and tissues of a deceased person may not be used against his or her wishes as expressed during his or her lifetime. In the absence of express wishes, they may be used if none of the closest relatives (children, parents, siblings or spouse) objects. Transplantation may be carried out after the biological or brain death of the potential donor (section 10).

More specifically , section 11 of the Law provides that organs and tissue from a deceased donor may (are allowed to) 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.

By virtue of a transitional provision of the Law, a stamp in a person ’ s passport added before 31 December 2001 denoting objection or consent to the use of his or her body after death has legal effect until a new passport is issued or an application to the Office of Citizenship and Migration Affairs is submitted.

3 . Cabinet Regulations No. 431 (1996)

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 signifying consent to such removal (paragraph 3). In the absence of such a stamp, the provisions of the Law (see above) are to be followed.

If a potential donor arrives at the hospital, the coordinator of the Transplantation Centre must be contacted (paragraph 11). Kidney removal must be carried out by two transplant doctors, the coordinator and one or two nurses from the Transplantation Centre (paragraph 12).

COMPLAINT S

The applicant complains under Article 8 of the Convention of interference with her son ’ s physical integrity on account of the removal of his organs without his prior consent. In addition, the applicant submits that while her son was still alive an analysis of the organs later removed from him was carried out and blood tests were performed in order to determine their compatibility for transplantation purposes with the potential recipient ’ s body. Lastly, the applicant submits that the interference was not in accordance with the law on account of the insufficient clarity of the law.

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

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

4. 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 son ’ s organs without her consent or knowledge ?

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