Судебное дело "Алина Саблина против тайной трансплантации органов"
21.09.2016
Communicated on 21 September 2016
THIRD SECTION
Application no. 4460/16
Yelena Vladimirovna SABLINA and others
against Russia
lodged on 28 December 2015
STATEMENT OF FACTS
The applicants are:
1. Ms Elena Vladimirovna Sablina, born in 1971;
2. Ms Tatyana Mikhaylovna Biryukova, born in 1950, and
3. Ms Nelly Stepanovna Sablina, born in 1942.
They are Russian nationals. The first two applicants live in
Yekaterinburg. The third applicant lives in Galdey, a village in the
Irkutsk Region. The applicants are represented by Mr A. Burkov, a
lawyer practising in Yekaterinburg.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be
summarised as follows.
The first applicant is the mother of Ms Alina Sablina (Ms A.S.), born
in 1994 but now deceased. The second and third applicants are Ms
A.S.'s grandmothers.
1. Events leading to the organ removal
On 11 January 2014 Ms A.S. was hit by a car while crossing the street,
sustained very serious injuries and fell into a coma. At approximately
11.20 p.m. that day she was taken to Moscow City Clinical Hospital
No. 1 (Городская Клиническая Больница No. 1 г. Москвы - "Moscow
Hospital No. 1"), where emergency surgery and resuscitation procedures
were carried out. Despite those efforts, Ms. A.S. remained in a
critical condition and did not regain consciousness.
The first applicant and Ms A.S.'s father were in constant contact with
the doctors from Moscow Hospital No. 1 and visited their daughter, who
remained unconscious, at least twice a day from 12 to 16 January 2014.
On 17 January 2014 they arrived again at the hospital, but were not
allowed to see Ms A.S. because she had been moved to an intensive care
ward.
Despite the treatment she received Ms A.S.'s condition deteriorated
and on 17 January 2014 at 11.40 p.m. brain death was recorded.
According to official records, her relatives were notified immediately
about her death. The applicants do not contest that they were informed
but submit that they were not provided with details about the
circumstances and cause of her death.
On 18 January 2014 the heart and kidneys were removed from Ms A.S.'s
body. The operation was performed from 3.42 to 5.50 a.m. by a surgical
team consisting of personnel from the Moscow Coordination Centre of
Organ Donation (Московский Координационный Центр Органного Донорства)
and the Federal Scientific Centre of Transplantation and Artificial
Organs (ФГБУ Федеральный научный центр транспланталогии и
искусственных органов имени академика Шумакова).
After the removal of the organs the body was transferred to a
forensic-medical mortuary for a post-mortem examination. It does not
appear that any of Ms A.S.'s relatives were at any time informed of
the operation or asked for their consent.
On 11 February 2014, in the context of the criminal proceedings
against the person responsible for the traffic accident, a forensic
examination of Ms A.S.'s body was carried out. The forensic report
stated, in particular, that a sterno-laparotomy had been performed on
the body and that certain organs had been removed.
On 15 February 2014 the first applicant obtained a copy of the report
when studying the materials of the criminal case and found out about
the organ removal.
2. Preliminary criminal inquiry
In April 2014 the first applicant lodged a complaint with the Main
Investigative Department of the city of Moscow (Главное следственное
управление по городу Москве), seeking an investigation into the organ
removal.
On 4 July 2014 an investigator from the Zamoskvoryetskiy
Inter-district Investigative Department (Замоскворецкий межрайонный
следственный отдел) informed the first applicant that there were no
grounds to initiate criminal proceedings owing to the absence of any
evidence that a crime punishable under Article 120 of the Russian
Criminal Code (coercion to human organ and tissue removal for
transplantation purposes) had been committed. The investigator
examined the events and concluded that the operation had been carried
out in accordance with domestic law. It was established that the
doctors had had no information that Ms A.S. or her relatives had ever
opposed organ removal and therefore the doctors had operated on the
presumption of consent. The removal had been carried out only after
brain death had been duly recorded and had been on the basis of an
authorisation by a senior medical official.
3. Administrative inquiry
On 7 April 2014 the first applicant filed a complaint with the
Healthcare Control Service (Федеральная служба по надзору в сфере
здравоохранения)
On 4 June 2014 the first applicant was informed that an administrative
review had been undertaken with respect to Moscow Hospital No. 1. Some
minor violations had been detected, but none of them made the removal
of her daughter's organs illegal.
4. Civil proceedings
(a) Proceedings before the first-instance court
The applicants then brought civil proceedings against the Moscow City
Health Department and the medical institutions involved in the organ
removal before the Zamoskvoretskiy District Court of Moscow ("the
District Court") seeking compensation of non-pecuniary damage.
On 23 December 2014 Moscow Hospital No. 1 applied at the preliminary
stage of the proceedings to have the trial held in camera. The
applicants objected. On the same day the District Court granted the
application. The court ordered that everyone but the parties to the
dispute should be excluded from the preliminary and trial hearings in
order to protect confidential information about Ms A.S.'s medical
treatment.
On 11 February 2015 the applicants applied to the District Court to
open the trial partially and exclude the public only when confidential
information was being examined. The application was dismissed. The
court reiterated that the exclusion of the public was justified by the
necessity to prevent the disclosure of confidential medical
information.
On the same day a public prosecutor entered the proceedings. She
objected to the applicant's application for a partially open trial.
Apart from that occasion, the public prosecutor did not attend the
preliminary hearings and made no statements.
On 2 March 2015 the applicants applied to the court to exclude the
prosecutor from the proceedings. The applicants state that their
application was left unexamined.
On 6 April 2015 the first trial hearing took place and all the
evidence and witnesses were examined. The prosecutor was not present
at that hearing.
On 7 April 2015 during closing remarks at the second and final hearing
the prosecutor again appeared and made a brief statement in support of
the defendants' position. In particular, she stated that the
applicants' claims were groundless and should be dismissed. She also
added that the doctors' actions had been lawful as no breaches of the
law had been revealed by previous investigations.
(b) The first-instance court's judgment
On 7 April 2015 the District Court dismissed the applicants' claims in
full.
The District Court examined the relevant Russian legislation and
quoted, word for word, the interpretation of that legislation by the
Constitutional Court of Russia in its decision no. 459-O of 4 December
2003.
The District Court went on to note that the removal of organs from
Ms A.S.'s body had been performed in accordance with domestic law.
Neither at the time of her death nor at the moment of the extraction
of her organs for transplantation purpose had any of A.S.'s relatives
or their legal representatives notified the medical personnel at the
hospital about any objections that she or they might have had to such
an act. The doctors had had no legal obligation to seek the consent of
Ms A.S.'s relatives. Moreover, contrary to the applicants'
allegations, the procedure for removal, as established by law, had
been complied with: the extraction had been authorised by the
competent medical officer and had taken place after brain death had
been duly recorded. In support of that conclusion the District Court
referred to the results of the preliminary criminal investigation,
which had not revealed any breaches of the law.
Lastly, the District Court rejected the applicants' argument that the
Russian law on organ transplantation was incompatible with the
Convention, stating that there had been no judgment on the matter
against Russia.
Only the operative part of the judgment was pronounced publicly.
(c) Proceedings before the appellate and cassation courts
The applicants appealed against the judgment to the Moscow City Court.
On 30 June 2015 that court fully upheld the reasoning of the District
Court and dismissed the appeal. The Moscow City Court also concluded
that the decision to hold the trial in camera had been in conformity
with both domestic law and the Convention.
On 15 October 2015 the Presidium of the Moscow City Court found no
breaches of either material or procedural law and refused the
applicants' leave to lodge a cassation appeal.
On 27 November 2015 a judge at the Supreme Court of Russia dismissed
an application by the applicants to refer the case for consideration.
The judge agreed with the conclusions of the lower courts that the
applicants had not been entitled to compensation for the lack of prior
notification about the removal of the organs because it had not been
against the law.
Neither court decision was published in full.
5. Proceedings before the Constitutional Court
On 27 July 2015 the applicants issued a separate set of proceedings
before the Constitutional Court of Russia ("the Constitutional
Court"). They challenged the compatibility of the policy of presumed
consent enshrined in section 8 of the Transplantation Act with the
Russian Constitution and the Convention. They referred, in particular,
to the cases of Petrova v. Latvia (no. 4605/05, 24 June 2014) and
Elberte v. Latvia (no. 61243/08, 13 January 2015).
In its decision no. 224-O of 10 February 2016 the Constitutional Court
found the applicants' complaint inadmissible. It concluded that,
contrary to what was alleged by the applicants, the policy of presumed
consent in the sphere of organ donation for transplantation purpose
was not, in itself, incompatible with either the Russian Constitution
or international instruments and practice. More specifically, the
Constitutional Court observed that such a policy aimed at saving as
many human lives as possible by increasing the number of donor organs
suitable for transplantation. It further noted that the principles of
presumed content had been clearly formulated in section 8 of the
Transplantation Act, which had been duly published, with the result
that all individuals concerned, including the applicants, were aware
of the policy and able to restrict organ extraction post mortem if
they wished to do so.
The Constitutional Court went on to observe that in its decision
no. 459-O of 4 December 2003 it had already found the existing policy
in the field constitutional, but had pointed to the necessity for more
detailed regulations, in legal acts and other instruments, for the
procedures to be followed by an individual or his or her relatives to
express their will regarding organ donation. It had also pointed out
in that decision that it was necessary to increase public awareness
about existing policy and the relevant legal rules. The Constitutional
Court observed that its recommendations had been implemented in the
Health Protection Act of 21 November 2011. Section 47 of that Act
established a detailed procedure for how a person or a person's
relatives could express their views on organ transplantation.
Moreover, the Russian Healthcare Ministry had recently prepared a new
draft law on organ donation and transplantation, which had been
submitted for nationwide public discussion and debate. The final
version of that act would take into account the results of the
discussion and debate. Once adopted the act would further increase
transparency and public awarness of the particularities of organ
extraction post mortem and provide even greater protection from
arbitrariness.
In the light of those considerations, the Constitutional Court
concluded that the existing national legislation in the field was
sufficiently clear and accessible, and established sufficiently
detailed procedures to be followed by an individual or his or her
relatives to express their will on the matter. The applicants, in
essence, had requested that the existing policy be changed, but that
was outside the court's jurisdiction.
B. Relevant domestic law and practice
1. The Transplantation Act
Federal Law no. 4180-1 "On the Transplantation of Organs and/or Body
Tissues" of 22 December 1992 (Федеральный Закон от 22.12.1992
No. 4180-1 "О трансплантации органов и (или) тканей человека" - "the
Transplantation Act") provides in paragraph 2 of its preamble that the
transplantation of organs and/or body tissues can be used to save
lives and help someone recover and that it must be performed in
compliance with Russian laws and international human rights standards,
respecting the principles proclaimed by the international community.
The interests of a particular individual are to prevail over those of
society and science.
Section 8 ("Presumption of consent to extraction of organs and/or
tissues") provides that the extraction of organs and/or tissues from a
human body is not allowed where a medical institution has been made
aware that the deceased during his or her lifetime, or his or her
close relatives or legal representative, have opposed the extraction
of that person's organs or body tissues after his or her death for the
purposes of transplantation.
Section 10 ("Authorisation of extraction of organs and/or tissues from
a dead body") provides that the extraction of organs from a deceased
person can be performed only after authorisation by the chief medical
officer of a relevant medical institution.
2. The Health Protection Act
Federal Law no. 323-FZ "On the Basic Principles of Public Health
Protection in the Russian Federation" of 21 November 2011 (Федеральный
Закон от 21.11.2011 No. 323-ФЗ "Об основах охраны здоровья граждан в
Российской Федерации" - "the Healthcare Act") provides in section
47(6) that every mentally competent adult person is allowed, either
orally in the presence of witnesses or in writing (certified by a
notary or the chief medical officer of a medical institution), to
express his or her consent or to oppose organ removal from his or her
body after death.
Section 47(7) provides that where the deceased has expressed no
opinion on organ extraction, his or her spouse or close relatives
(children, parents or grandparents) can oppose transplantation.
Section 47(9) states that all the information received from an
individual in accordance with section 47(6) of the Act must be
included in his or her medical file.
Section 47(10) prohibits performing organ removal where a medical
institution is aware that a deceased person during his or her
lifetime, or his or her close relatives or a legal representative,
have opposed the extraction of organs or body tissues for
transplantation purposes.
3. Decision of the Constitutional Court of Russia
In decision no. 459-O of 4 December 2003 the Constitutional Court
found that the policy of presumed consent as established in section 8
of the Transplantation Act was compatible with the Russian
Constitution, in so far as the latter guaranteed the physical
integrity of the bodies of both the living and the dead. The
Constitutional Court pointed out that presumed consent had been a
legitimate legislative choice based, on the one hand, on the
consideration that it was inhumane, before surgery or other medical
intervention, or at the moment of informing an individual's relatives
about his or her death, to ask at the same time whether it was
possible to take out their loved one's organs for transplantation. On
the other hand, the state of modern medical science did not make it
possible to find out the opinion of an individual's relatives on the
matter after death within the time-limit short enough for preserving
organs for transplant. The court further noted that the legal
provisions in the field had been duly published and had been
accessible, and that everyone in Russia could express, in one form or
another his or her objection to organ removal, including in a document
certified by a notary.
At the same time the Constitutional Court noted that more detailed
regulation was still necessary in legal acts and other instruments
regarding questions relating to allowing an individual or his or her
relatives to exercise their right to express their will regarding
organ donation. The system of informing the general public about
regulation in that area needed to be further developed and enhanced.
C. Relevant international documents
1. Council of Europe documents
On 11 May 1978 the Committee of Ministers of the Council of Europe
adopted Resolution (78) 29 on harmonising the legislation of member
states relating to the removal, grafting and transplantation of human
substances. It recommended that the governments of the Member States
ensure that their laws conform to the rules annexed to the resolution
or adopt provisions conforming to those rules when introducing new
legislation. Article 10 of this Resolution provides:
"1. No removal must take place when there is an open or presumed
objection on the part of the deceased, in particular, taking into
account his religious and philosophical convictions.
2. In the absence of the explicit or implicit wish of the deceased the
removal may be effected. However, a state may decide that the removal
must not be effected if, after such reasonable inquiry as may be
practicable has been made into the views of the family of the deceased
and in the case of a surviving legally incapacitated person those of
his legal representative, an objection is apparent; when the deceased
was a legally incapacitated person the consent of his legal
representative may also be required."
In relation to organ and tissue removal from deceased persons, an
Additional Protocol to the Convention on Human Rights and Biomedicine
on Transplantation of Organs and Tissues of Human Origin 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. Russia has
neither signed nor ratified this Protocol.
The relevant Articles of the Additional Protocol 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."
Article 19 - Promotion of donation
"Parties shall take all appropriate measures to promote the donation
of organs and tissues."
Explanatory Report to the Additional Protocol to the Convention on
Human Rights and Biomedicine concerning Transplantation of Organs and
Tissues of Human Origin specifies:
"100. The removal of organs or tissues can be carried out on a
deceased person who has not had, during his/her life, the capacity to
consent if all the authorisations required by law have been obtained.
The authorisation may equally be required to carry out a removal on a
deceased person who, during his/her life, was capable of giving
consent but did not make known his wishes regarding an eventual
removal post-mortem.
101. Without anticipating the system to be introduced, the Article
accordingly provides that if the deceased person's wishes are at all
in doubt, it must be possible to rely on national law for guidance as
to the appropriate procedure. In some States the law permits that if
there is no explicit or implicit objection to donation, removal can be
carried out. In that case, the law provides means of expressing
intention, such as drawing up a register of objections. In other
countries, the law does not prejudge the wishes of those concerned and
prescribes enquiries among relatives and friends to establish whether
or not the deceased person was in favour of organ donation.
102. Whatever the system, if the wishes of the deceased are not
sufficiently established, the team in charge of the removal of organs
must beforehand endeavour to obtain testimony from relatives of the
deceased. Unless national law otherwise provides, such authorisation
should not depend on the preferences of the close relatives themselves
for or against organ and tissue donation. Close relatives should be
asked only about the deceased person's expressed or presumed wishes.
It is the expressed views of the potential donor which are paramount
in deciding whether organs or tissue may be retrieved. Parties should
make clear whether organ or tissue retrieval can take place if a
deceased person's wishes are not known and cannot be ascertained from
relatives or friends."
2. Other relevant international law instruments
WHO Guiding Principles on Human Cell, Tissue and Organ Transplantation
(endorsed by the sixty-third World Health Assembly in May 2010, in
Resolution WHA63.22) specify in Guiding Principle 1:
"Cells, tissues and organs may be removed from the bodies of deceased
persons for the purpose of transplantation if:
(a) any consent required by law is obtained, and
(b) there is no reason to believe that the deceased person objected to
such removal."
Commentary on Guiding Principle 1 provides:
"Whether consent to procure organs and tissues from deceased persons
is "explicit" or "presumed" depends upon each country's social,
medical and cultural traditions, including the manner in which
families are involved in decision-making about health care generally.
Under both systems any valid indication of deceased persons'
opposition to posthumous removal of their cells, tissues or organs
will prevent such removal.
Given the ethical importance of consent, [presumed consent] system
should ensure that people are fully informed about the policy and are
provided with an easy means to opt out."
COMPLAINTS
The applicants complain under Article 8 of the Convention that they
were denied an opportunity to express their opinion on the extraction
of organs from their relative's body. They further submit that Russian
laws on organ transplantation are ambiguous and do not provide
sufficient protection from arbitrariness, therefore enabling doctors
to perform the removal without informing the relatives or seeking
their consent.
The applicants further complain under Article 6 of the Convention that
the civil proceedings in their case were held in camera and that the
court decisions were not pronounced publicly in full. The applicants
further submit that the participation of a public prosecutor in those
proceedings on the defendants' side breached the principle of equality
of arms.
QUESTIONS TO THE PARTIES
1. Did the removal of Ms A.S.'s organs without her prior consent or
that of the applicants constitute an interference with the applicants'
right to respect for their private and/or family life, within the
meaning of Article 8 of the Convention? The Government are invited to
comment on this question in respect of the grandmothers and in respect
of the mother separately.
If so,
(a) Was that interference "in accordance with the law"?
In particular, what was the legal basis for that interference?
Did the relevant Russian legislation, as in force at the material
time, meet the requirements of clarity and foreseeability? In
particular, were there disagreements among the competent authorities
as to the scope and interpretation of Russian legislation on organ
transplantation (see Elberte v. Latvia, no. 61243/08, S: 113, ECHR
2015)? Also, was any system of informing the general public about that
legislation, and/or regulation in that area, in place, in accordance
with the Russian Constitutional Court's decision no. 459-O of 4
December 2003?
Did the relevant Russian legislation as in force at the time provide
sufficient protection against arbitrariness?
(b) Did that interference pursue a legitimate aim?
(c) Was that interference "necessary", within the meaning of
Article 8 S: 2 of the Convention?
2. Have the applicants been subjected to inhuman and/or degrading
treatment in breach of Article 3 of the Convention on account of the
removal of A.S.'s organs without her prior consent or that of the
applicants?
3. Did the applicants have a fair and public hearing in the
determination of their civil rights and obligations, as required by
Article 6 S: 1 of the Convention?
In particular:
(a) Were the restrictions on the applicants' right to a public
hearing and pronouncement of a judgment, as provided in Article
6 S: 1, necessary and justified in the circumstances of the present
case? If not, was there a breach of the relevant guarantee of Article
6 S: 1?
(b) Was the principle of equality of arms respected as regards the
participation of a public prosecutor in the civil proceedings (see
Batsanina v. Russia, no. 3932/02, S: 27, 26 May 2009; Korolev v.
Russia (no. 2), no. 5447/03, S: 33, 1 April 2010; and Menchinskaya v.
Russia, no. 42454/02, 15 January 2009)? Was there any examination of
the applicants' application of 2 March 2015 to the Zamoskvoryetskiy
District Court of Moscow to remove the public prosecutor from the
proceedings? If so, the Government are invited to provide a copy of
the relevant decision.
(c) Was the public pronouncement of the operative parts of the court
decisions in the applicants' case sufficient to satisfy the relevant
requirement of Article 6 S: 1 (see Malmberg and Others v. Russia,
nos. 23045/05, 21236/09, 17759/10 and 48402/10, 15 January 2015, and
Ryakib Biryukov v. Russia, no. 14810/02, ECHR 2008)? If not, was there
a breach of the relevant guarantee of Article 6 S: 1?
10 SABLINA AND OTHERS v. RUSSIA - STATEMENT OF FACTS AND QUESTIONS
SABLINA AND OTHERS v. RUSSIA - STATEMENT OF FACTS AND QUESTIONS 9
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