Analiza slučaja pred Evropskim sudom za ljudska prava
Evropska Konvencija o ljudskim pravima
Praktični vodič za primenu Evropske konvencije o ljudskim pravima
Priručnici i vodiči kroz praksu Evropskog suda za ljudska prava
Evropski sud za ljudska prava u 50 pitanja
Glosar Evropske Konvencije o ljudskim pravima
Nacionalna mreža sudija i tužilaca za primenu standarda Evropskog suda za ljudska prava
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EVROPSKI SUD ZA LJUDSKA PRAVA
ČETVRTO ODJELJENJE
PREDMET ELBERTE PROTIV LETONIJE
(Predstavka br. 61243/08)
PRESUDA
STRAZBUR
13. januar, 2015. godine
PRAVOSNAŽNA
13/04/2015
Ova presuda postala je pravosnažna po članu 44 stav 2 Konvencije. Ona može biti predmet redaktorskih izmjena.
U predmetu Elberte protiv Letonije, Evropski sud za ljudska prava (Četvrto odjeljenje) zasijedajući u Vijeću u sastavu:
Päivi Hirvelä, Predsjednik,
Ineta Ziemele,
George Nicolaou,
Nona Tsotsoria,
Zdravka Kalaydjieva,
Krzysztof Wojtyczek,
Faris Vehabović, sudije,
i Fatoş Aracı, Zamjenik sekretara odjeljenja,
nakon vijećanja bez prisustva javnosti dana 4. novembra i 2. decembra 2014. godine izriče sljedeću presudu koja je usvojena 2. decembra 2014. godine:
POSTUPAK
ČINJENICE
1. OKOLNOSTI PREDMETA
A. Događaji koji su vodili do saznanja podnositeljke predstavke o odstranjivanju tkiva.
B. Krivična istraga nezakonitog odstranjivanja organa i tkiva
“Bez obzira na činjenicu da određeni dio transplantata nije vraćen i korišćen za pacijente u Letoniji, nema dokaza u spisima predmeta da su oni korišćeni za preradu u druge proizvode ili za naučne ili obrazovne svrhe. Stoga sud smatra da nema dokaza u spisima predmeta da je odstranjeno tkivo korišćeno za svrhe koje nisu bile transplantacija.
Nema dokaza u spisima predmeta koji bi pokazali da je odstranjivanje tkiva za svrhe transplantacije izvršeno ne uzimajući u obzir odbijanje da se to učini koje je preminulo lice izrazilo tokom života i koje je evidentirano u skladu sa zakonom koji je na snazi u relevanno vrijeme, ili ne uzimajući u obzir odbijanje koje izrazi najuža rodbina.
Uzimajući u obzir činjenicu da zakonodavni instrumenti ne uvode obavezu ekspertima koji vrše odstranjivanje tkiva i organa sa tijela preminulih lica da obavijeste lica o njihovom pravu da odbiju odstranjivanje tkiva ili organa, sud smatra da eksperti nisu imali obavezu to da učine; i da ne obavijestivši rodbinu preminulog lica o svojoj namjeri da odstrane tkivo eksperti nisu prekršili odredbe (Zakona) koji je bio na snazi od 1994. godine do marta 2003. godine. Član 4 (Zakona) predviđa pravo najuže rodbine da odbiju odstranjivanje organa i/ili tkiva preminulog lica, ali ne uvodi obavezu ekspertu da objasni ta prava rodbini. S obzirom na to da nema zakonodavnih instrumenata kojima se uvodi obaveza ekspertima da obavijeste rodbinu o njihovim najmerama da odstrane tkivo i/ili organe i da objasne rodbini da ima pravo da ne da svoju saglasnost, sud smatra da lice ne može da se kazni zato što nije postupilo po obavezi koja nije jasno predviđena zakonodavnim instrumentima koji su na snazi. Stoga sud nalazi da eksperti, obavljajući odstranjivanje tkiva i organa sa preminulih, nisu povrijedili.... (Zakon).
... Sud nalazi da radnje eksperata nisu činile elemente krivičnog djela predviđenog članom 139 Krivičnog zakona; stoga je moguće prekinuti krivični postupak radi oslobađanja od optužbi - naime, na osnovu člana 377 (2) Zakona o krivičnom postupku - zbog nepostojanja elemenata krivičnog djela."
II. RELEVANTNI MEĐUNARODNI DOKUMENTI I DOMAĆE PRAVO
A. Dokumenti Savjeta Evrope
"1. Odstranjivanje se ne smije izvršiti kada postoji otvoreno ili pretpostavljeno protivljenje preminulog lica, naročito, kada se uzmu u obzir njegova/njena vjerska ili filozofska uvjerenja.
2. Ukoliko ne postoji eksplicitna ili implicitna želja preminulog lica, odstranjivanje se može izvršiti. Međutim, država može da odluči da se odstranjivanje ne smije izvršiti ukoliko je, nakon što se u razumnoj mjeri u kojoj je to praktično moguće, ispitaju stavovi porodice preminulog lica ili, u slučaju da su lica koja su nadživjela preminuloga pravno nesposobna, nakon što se ispita pravni zastupnik, priotivljenje odstranjivanju očigledno; kada preminulo lice nema pravnu sposobnost može se takođe tražiti saglasnost njegovog pravnog zastupnika."
Član 1- Predmet
"Potpisice ovog Protokola obavezuju se da štite dostojanstvo i identitet svakog lica i da jemče, bez diskriminiacije, poštovanje integriteta i druga prava i osnovne slobode svih lica u vezi sa transplantacijom organa i tkiva ljudskog porijekla."
Član 16 - Potvrda o smrti
"Organi ili tkiva ne smiju se odstraniti sa tijela preminulog lica ukoliko ne postoji potvrda da je to lice preminulo koja se izdaje u skladu sa zakonom.
Ljekari koji potvrđuju smrt lica ne smiju biti isti ljekari koji direknto učestvuju u odstranjivanju organa ili tkiva sa preminulog lica, ili u kasnijim postupcima transplantacije ili oni koji su zaduženi za staranje o potencijalnim primaocima organa ili tkiva."
Član 17 - Saglasnost i ovlašćenje
"Organi ili tkiva ne smiju se odstraniti sa tijela preminulog lica ukoliko se ne pribavi zakonom propisana saglasnost ili ovlašćenje.
Odstranjivanje se ne smije izvršiti ukoliko mu se preminulo lice protivilo."
Član 18 - Poštovanje ljudskog tijela
"Tokom odstranjivanja ljudsko tijelo mora se tretirati sa poštovanjem i moraju se preduzeti sve razumne mjere kako bi se povratio izgled leša."
Relevantni članovi Obrazloženja uz Dodatni protokol glase:
Uvod
2. Svrha ovog Protokola jeste da definiše i da zaštiti prava davalaca organa i tkiva, živih ili preminulih, i prava lica koja primaju implante organa ili tkiva ljudskog porijekla."
Izrada Protokola
“7. Ovaj Protokol proširuje odredbe Konvencije o ljudskim pravima i biomedicini u oblasti transplantacije organa, tkiva i ćelija ljudskog porijekla. Odredbe Konvencije treba da se primjenjuju na Protokol. Radi lakšeg korišćenja Protokol je sastavljen tako da nema potrebe da se uz njegov tekst koristi i tekst Konvencije da bi se razumjelo područje djelovanja odredbi Protokola. Međutim, Konvencija sadrži principe koje Protokol ima za cilj da razvije. Shodno tome, sistematično ispitivanje oba teksta može da se pokaže korisnim i ponekad neizostavnim."
Komentari na odredbe Protokola Preambula
“13. Preambula naglašava činjenicu da član 1 Konvencije o ljudskim pravima i biomedicini kojim se štiti dostojanstvo i identitet svih ljudskih bića i jemči svakome poštovanje integriteta, čini odgovarajuću osnovu za formulisanje dodatnih standarda za zaštitu prava i sloboda davalaca, potencijalnih davalaca i primalaca organa i tkiva.”
Član 1- Predmet
“16. Ovim se članom precizira da je predmet Protokola da štiti dostojanstvo i identitet svakog pojedinca i da jemči, bez diskriminiacije, poštovanje integriteta i druga prava i osnovne slobode svim licima u vezi sa transplantacijom organa i tkiva ljudskog porijekla."
17. Izraz "svakog pojedinca" koristi se u članu 1 jer se doživljava kao izraz koji je najviše u saglasnosti sa isključivanjem organa i tkiva embriona i fetusa iz područja djelovanja Protokola kako se navodi u članu 2 (v. stav 24 ove presude). Protokol se odnosi isključivo na odstranjivanje organa i tkiva sa nekoga ko je rođen, bilo da je živ ili ne, i na implantaciju organa i tkiva ljudskog porijekla u nekog drugog ko je isto tako rođen."
Član 16 - Potvrda o smrti
“94. Prema prvom stavu, smrt lica mora da se utvrdi prije nego što se organi ili tkiva mogu odstraniti "u skladu sa zakonom". Odgovornost je država da zakonski definišu konkretne procedure za proglašenje smrti kada se osnovne funkcije održavaju vještačkim putem. U tom smislu, može se konstatovati da u većini zemalja, pravo definiše koncept i uslove smrti mozga.
95. Smrt potvrđuju ljekari u usaglašenoj proceduri i samo ta forma potvrde o smrti može da se koristi kao dozvola za pristupanje transplantaciji. Tim za prikupljanje organa i tkiva mora da se uvjeri da je propisana procedura završena prije nego što počne operacija za uzimanje organa tj. tkiva. U nekim državama, ovaj postupak potvrđivanja smrti odvojen je od formalnog izdavanja umrlice.
96. Drugi stav člana 16 predviđa važnu zaštitu preminulog lica tako što se obezbjeđuje nepristrasnost potvrđivanja smrti time što se propisuje da medicinski tim koji potvrđuje smrt ne treba da bude isti onaj koji je uključen u bilo koju fazu procesa transplantacije. Važno je da interesi svakog tako preminulog lica i kasnija potvrda smrti jesu, i da se percepiraju kao, odgovornost medicinskog tima koji je potpuno odvojen od lica uključenih u transplantaciju. Kada se te dvije funkcije ne bi odvajale to bi ugrozilo povjerenje građana u sistem transplantacije i moglo bi imati neželjene posljedice na doniranje organa i tkiva.
97. Za svrhe ovog protokola, novorođenčad, uključujući i anencefaličnu novorođenčad, dobijaju istu zaštitu kao svako lice i pravila potvrđivanja smrti primjenjuju se i na njih."
Član 17 - Saglasnost i ovlašćenje
“98. Član 17 zabranjuje odstranjivanje organa ili tkiva ukoliko lice koje predlaže odstranjivanje organa ili tkiva ne dobije za to saglasnost ili ovlašćenje propisano u domaćem pravu. To obavezuje države članice da imaju u zakonu priznate sisteme kojima se preciziraju uslovi za ovlašćeno odstranjivanje organa i tkiva. Nadalje, po članu 8, strane potpisnice treba da preduzmu odgovarajuće mjere da bi obavijestile javnost o pitanjima vezanim za saglasnost ili ovlašćenje za odstranjivanje organa ili tkiva sa preminulog lica (v. stav 58 ove presude).
99. Ukoliko je lice tokom svog života stavilo na znanje svoje želje da uskrati ili da svoju saglasnost, te želje treba poštovati nakon smrti. Ukoliko postoji zvanični mehanizam za evidentiranje tih želja i lice registruje svoju saglasnost za doniranje organa ili tkiva, ta saglasnost treba da ima najjaču snagu: odstranjivanje organa ili tkiva treba da se obavi ukoliko je moguće. Isto tako, ono se ne smije obavti ukoliko se zna da je lice bilo protiv toga. Ipak, provjera zvaničnog registra posljednjih želja važi samo za lica koja su u njega upisana. I ne smije se smatrati da je to jedini način da se potvrde želje preminulih lica ukoliko takvo registrovanje nije obaezno.
100. Odstranjivanje organa ili tkiva može da se izvrši na preminulom licu koje tokom svog života nije imalo kapaciteta za davanje saglasnosti, ukoliko se dobiju sva ovlašćenja propisana zakonom. Ovlašćenje može isto tako da se traži za izvršenje odstranjivanja tkiva ili organa na preminulom licu koje tokom svog života jeste bilo sposobno za davanje saglasnosti, ali nije stavilo do znanja svoje želje vezane za eventualno odstranjivanje organa ili tkiva post-mortem.
101. Bez prejudiciranja sistema koji treba uvesti, ovaj član shodno tome predviđa da, ukoliko postoji bilo kakva sumnja u želje preminulog lica, mora postojati mogućnost da se u domaćem pravu nađe smjernica za izbor odgovarajućeg postupka. U nekim državama zakon dozvoljava da ukoliko nema eksplicitnog ili implicitnog suprotstavljanja doniranju organa i tkiva, odstranjivanje može da se obavi. U tom slučaju zakon predviđa sredstva za izražavanje namjere, kao što su stastavljanje registra prigovora. U drugim zemljama zakon ne prejudicira želje lica i propsuje ispitivanje rodbine i prijatelja kako bi se utvrdilo da li je preminulo lice bilo pobornik doniranja organa.
102. Kojigod da je sistem, ukoliko se ne utvrdi u dovoljnoj mjeri koje su bile želje preminulog, tim koji je zadužen za odstranjivanje organa mora najprije da nastoji da dobije izjavu rodbine preminulog. Ukoliko domaće pravo ne predviđa drugačije, takvo ovlašćenje ne treba da zavisi od preferencija same uže rodbine za ili protiv doniranja organa i tkiva. Uža rodbina treba da se pita samo o izraženim ili pretpostavljenim željama preminulog lica. Upravo su izraženi stavovi potencijalnog davaoca organa ili tkiva od najvećeg značaja kada se odlučuje da li se organi ili tkiva mogu uzeti. Strane potpisnice treba jasno da preciziraju da li se uzimanje organa i tkiva može obaviti ukoliko nisu poznate ili se ne mogu od rodbine ili prijatelja saznati želje preminulog lica.
103. Kada lice premine u zemlji u kojoj nije njegovo uobičajeno boravište, tim za uzimanje organa i tkiva mora da preduzme sve razumne mejre da se utvrde želje preminulog. U slučaju sumnje, tim za uzimanje organa i tkiva treba da poštuje relevantne primjenjive zakona u zemlji u kojoj je uobičajeno prebivalište preminulog ili pravo zemlje čiji je državljanin preminulo lice.”
Član 18 - Poštovanje ljudskog tijela
"104. Leš se pravno ne smatra licem, ali ipak ga treba tretirati sa poštovanjem. Ovaj član, shodno tome, predviđa da tokom odstranjivanja ljudsko tijelo mora da se tretira sa poštovanjem i nakon odstranjivanja tijelo treba što je više moguće da povrati svoj prvobitni izgled."
B. Dokumenti Evropske unije
“2.3 Informisanje i saglasnost
Za pribavljanje ljudskog tkiva potrebno je, u principu, dobiti prethodnu svjesnu i slobodnu saglasnost lica od koga se uzima. To se ne primjenjuje u slučaju pribavljanja tkiva koje naloži sudija u kontekstu sudskog, a naročito krivičnog, postupka.
Iako je saglasnost osnovni etički princip u Evropi, postupci i forme saglasnosti koji se koriste (usmene ili pisane, pred svjedocima ili ne, eksplicitne ili pretpostavljene, itd) stvar su domaćeg zakonodavstva i o njima se odlučuje na osnovu pravne tradicije svake zemlje.
...
2.3.2. Preminuli davaoci
Saglasnost davaoca da mu se uzme tkivo nakon smrti može biti u različitim formama, u zavisnosti od domaćeg sistema ("eksplicitna" ili "pretpostavljena" saglasnost). Međutim, ne može se nikako uzeti tkivo, uz izuzetak sudskog postupka, ukoliko je lice o kome je riječ formalno izrazilo protivljenje tome za života. Nadalje, ukoliko nije bilo izraza volje, a primjenjivi sistem je sistem "pretpostavljene" saglasnosti, ljekari moraju da obezbijede, koliko je to moguće, da rodbina ili najbliži imaju mogućnost da izraze želje preminulog lica i one se moraju uzeti u obzir."
Član 13- Saglasnost
"1. Pribavjanje ljudskog tkiva ili ćelija biće ovlašćeno samo nakon što se ispune svi uslovi o obaveznoj saglasnosti ili ovlašćenju koji su na snazi u toj državi članici.
2. Države članice imaju obavezu, poštujući svoje domaće zakonodavstvo, da preduzmu sve potrebne mjere da obezbijede da davaoci, njihovi rođaci i sva lica koja daju ovlašćenje u ime davaoca imaju odgovarajuće informacije predviđene Dodatkom”
DODATAK - INFORMACIJE O DONIRANJU ĆELIJA I/ILI TKIVA KOJE TREBA OBEZBIJEDITI
B. Preminuli davaoci
"1. Sve informacije moraju se dati i sve potrebne saglasnosti i ovlašćenja moraju se dobiti u skladu sa zakonodavstvom koje je na snazi u državama članicama.
2. Potvrđeni rezultati ocjene davaoca moraju se saopštiti i jasno obrazložiti relevantnom licu prema zakonodavstvu u državama članicama ”
C. Dokumenti Svjetske zdravstvene organizacije (u daljem tekstu: SZO)
Vodeći princip 1
"Ćelije, tkiva i organi mogu se odstraniti sa tijela preminulog lica za svrhe transplantacije ako:
(a) se dobije svaka zakonom propisana saglasnost; i
(b) ako nema razloga da se vjeruje da se preminulo lice protivilo odstranjivanju."
Komentar na Vodećii princip 1
Saglasnost je etički kamen temeljac svih medicinskih intervencija. Domaće vlasti odgovorne su za definisanje procesa dobijanja i evidentiranja saglasnosti za doniranje ćelija, tkiva i organa u skladu sa međunarodnim etičkim standardima, načinom na koji se organizuje pribavljanje organa u njihovoj zemlji i praktičnom ulogom saglasnosti kao zaštitnog mehanizma protiv zlostavljanja i povreda bezbjednosti.
Da li će saglasnost da se uzmu organi i tkiva od preminulog lica biti "eksplicitna" ili "podrazumijevana" zavisi od društvene, medicinske i kulturne tradicije svake zemlje, uključujući tu i način na koji su porodice uključene u odlučivanje o zdravstvenoj zaštiti generalno gledano. U oba sistema svaki validni pokazatelj protivljenja preminulog lica posthumnom odstranjivanju ćelija, tkiva ili organa sprečava njihovo odstranjivanje.
U režimu eksplicitne saglasnosti - koji se ponekad naziva i opting in (režim u kome se mora donijeti odluka da se postane dio šeme doniranja) - ćelije, tkiva ili organi mogu se odstraniti sa preminulog lica ukoliko se lice izričito saglasilo sa odstranjivanjem tokom svog života; u zavisnosti od domaćeg prava, ta saglasnost može da bude usmena ili da se evidentira u kartici davaoca, vozačkoj dozvoli, ličnoj karti ili u medicinskom kartonu u registru davalaca. Kada preminuli nije dao saglasnost, niti je jasno izrazio protivljenje odstranjivanju, dozvolu treba dobiti od zakonski preciziranog surogata, obično člana porodice.
Alternativa - sistem pretpostavljene saglasnosti - koji se naziva opting (ili contracting) out (režim u kome se mora donijeti odluka da se ne bude dio šeme doniranja) - dozvoljava da se materijal odstrani sa tijela preminulog lica radi transplantacije, a u nekim zemljama i radi anatomskih studija ili istraživanja, ukoliko lice nije izrazilo protivljenje tome prije smrti popunjavanjem prigovora u određenoj kancelariji ili obaviještena stranka nije izvijestila da je preminuli bio protiv doniranja organa i tkiva. S obzirom na etički značaj saglasnosti, ovakav sistem trebalo bi da obezbijedi da su ljudi u potpunosti obaviješteni o politici i da imaju način da lako mogu da izraze da ne žele da budu dio šeme za doniranje organa i tkiva.
Iako se izričita saglasnost ne traži u sistemu opting out prije ukljanjanja ćelija, tkiva ili organa preminulog lica koje nije izrazilo protivljenje dok je bilo živo, programi uzimanja organa, ćelija i tkiva mogu oklijevati to da učine ukoliko se rodbina preminulog lica protivi doniranju; isto tako, u sistemima opting in obično se traži dozvola porodice čak i kada je preminulo lice dalo pre-mortem saglasnost. Programi se mogu više osloniti na eksplicitnu ili pretpostavljenu saglasnost, bez traženja dalje dozvole od članova porodice kada je razumjevanje i prihvatanje procesa doniranja ćelija, tkiva i organa duboko ukorijenjeno u društvu i nedvosmisleno. Čak i kada se ne traži dozvola rodbine, u programima doniranja treba pregledati zdravstvenu istoriju i istoriju ponašanja preminulog sa članovima porodice koji su ga/ju najbolje poznavali, pošto tačne informacije o davaocima organa, tkiva i ćelija pomažu da se poveća bezbjednost transplantacije.
Kod doniranja tkiva, koje u sebi nosi manje izazovna vremenska ograničenja, uvijek se preporučuje da se traži odobrenje najbližih. Važna tačka koju treba riješiti jeste način na koji se mora povratiti izgled tijela preminulog lica nakon što se odstrani tkivo.
D. Domaće pravo
1. Zakon o zaštiti tijela preminulog lica i korišćenju ljudskih organa i tkiva
2. Uredba kabineta ministara br. 431 (1996)
3. Uredba institucije MADEKKI
4. Odredbe Krivičnog zakona
Član 22 - Pravo na naknadu štete
"Licu koje je pretrpjelo psihološki bol, fizičku povredu ili materijalni gubitak zbog krivičnog djela jemče se proceduralne mogućnosti da traži i dobije naknadu materijalne i nematerijalne štete".
Član 351 - Zahtjev za naknadu štete
“(1) Oštećena stranka ima pravo da preda zahtjev za naknadu štete za bol koji mu je nanesen u bilo kojoj fazi krivičnog postupka do početka sudske istrage u prvostepenom sudu. Takav zahtjev mora da sadrži obrazloženje iznosa tražene naknade.
(2) Zahtjev se može predati u pisanoj formi ili se može izraziti usmenim putem. Usmeni zahtjev u zapisnik evidentira lice koje vodi postupak.
(3) Tokom pretkrivičnog postupka državni tužilac konstatuje da je predat zahtjev i konstatuje iznos naknade, kao i svoje mišljenje o istom u dokumentu o završetku pretkrivičnog postupka.
(4) Ukoliko se ne utvrdi krivična odgovornost lica to nije prepreka da se preda zahtjev za naknadu štete.
(5) Oštećena stranka ima pravo da povuče predati zahtjev za naknadu u bilo kojoj fazi krivičnog postupka do trenutka kada se sud povlači da donese presudu. Odbijanje naknade od strane žrtve ne smije da predstavlja osnov za povlačenje ili modifikaciju optužbi, ili za oslobađanje od oputžbi.
5. Pravo da se dobije naknada
PRAVO
I. NAVODNE POVREDE ČLANA 8 KONVENCIJE
" 1. Svako ima pravo na poštovanje svog privatnog i porodičnog života, doma i prepiske.
2. Javne vlasti neće se miješati u vršenje ovog prava sem ako to nije u skladu sa zakonom i neophodno u demokratskom društvu u interesu nacionalne bezbjednosti, javne bezbjednosti ili ekonomske dobrobiti zemlje, radi sprečavanja nereda ili kriminala, zaštite zdravlja ili morala, ili radi zaštite prava i sloboda drugih."
A. Prethodna pitanja
“(i) Direktne žrtve
96. Da bi moglo predati predstavku po članu 34, fizičko lice mora biti u mogućnosti da pokaže da je na njega "direktno uticala" mjera na koju se žali (...). To je neizostavno da bi se mogao pokrenuti zaštitni mehanizam po Konvenciji, iako ovaj kriterijum ne treba primjenjivati na rigidan, mehanički i nefleksibilan način tokom postupka (...).
Nadalje, po praski Suda i u skladu sa članom 34 Konvencije, predstavke može da preda samo živo fizičko lice ili se one mogu predati samo u ime živih fizičkih lica (...). Dakle, u nizu predmeta gdje je direktna žrtva umrla prije predaje predstavke, Sud ne prihvata da direktna žrtva, čak i ako ima zastupnika, ima legitimaciju da bude podnosilac predstavke za svrhe člana 34 Konvencije (...).
(ii) Indirektne žrtve
97. Ovakvi predmeti razlikuju se od predmeta koje su imaju pravo da vode nasljednici podnosioca predstavke koja je već predata. Autoritetni izvor po ovom pitanju jeste presuda u predmetu Fairfield i drugi (...), gdje je kćerka predala predstavku nakon smrti svoga oca, navodeći povredu njegovih prava na slobodu misli, vjeroispovjesti i govora (član 9 i 10 Konvencije). Iako su domaći sudovi dali g-đi Fairfield dozvolu da vodi postupak po žalbi nakon smrti njenog oca, Sud nije prihvatio da kćerka ima status oštećenog i napravio je razliku između njene situacije i situacije u predmetu Dalban protiv Rumunije (...), gdje je predstavku predao sam podnosilac predstavke, čija je udovica dalje vodila postupak tek kada je on preminuo.
U tom smislu Sud pravi razliku između predstavke gdje je direktna žrtva umrla nakon što je predstavka predata Sudu i predstavke gdje je direktna žrtva umrla prije toga.
Kada je podnosilac predstavke preminuo nakon što je predstavka podnesena. Sud prihvata da rodbina ili nasljednik mogu u principu da nastave postupak sa predstavkom, ukoliko ima dovoljno interesa za predmet (...).
“98. Međutim, situacija je drugačija kada direktna žrtva umre prije nego što je predstavka predata Sudu. U tim predmetima Sud je, u odnosu na autonomno tumačenje koncepta "žrtve" bio spreman da prizna pravni kapacitet rođaka kada se u pritužbi radilo o pitanju od opšteg interesa koje se odnosi na "poštovanje ljudskih prava" (član 37 stav 1 in fine Konvencije), a podnosioci predstavke kao nasljednici imali legitiman interes da nastave sa predstavkom, ili ako je bilo direktnog djelovanja na prava podnosioca predstavke (...) Ovi potonji predmeti, iznijeti su pred Sud nakon ili u vezi sa domaćim postupcima u kojima je sama direktna žrtva učestvovala za života.
Dakle, Sud je rodbini priznavao pravni kapacitet žrtve koja može predati predstavku kada je žrtva umrla ili nestala u okonlnostima koje su navodno uključivale odgovornost države (...)
99. U predmetu Varnava i drugi (...) podnosioci predstavke podnijeli su predstavke i u svoje ime i u ime nestalih rođaka. Sud nije smatrao potrebnim da odluči o tome da li nestalim muškarcima treba ili ne treba dati status podnosioca predstavke pošto su, u svakom slučaju, bliski rođaci nestalih imali pravo da predaju pritužbe u vezi sa njihovim nestankom (...). Sud je ispitao predmet po osnovu toga što su rođaci nestalih lica bili podnosioci predstavke za svhe člana 34 Konvencije.
100. U slučajevima kada navodna povreda Konvencije nije bila blisko vezana sa nestancima ili smrću koji bi davali povoda za pitanja po članu 2, pristup Suda je bio restriktivniji, kao u predmetu Sanles Sanles protiv Španije (...), koji se odnosio na zabranu pomognutog samoubistva. Sud je zauzeo stav da prava koja je tražio podnosilac predstavke po članovima 2, 3, 5, 8, 9 i 14 Konvencije pripadaju kategoriji nerprenosivih prava i stoga zaključio da podnositeljka predstavke, koja je bila snaha i zakonita nasljednica podnosioca predstavke, nije mogla da tvrdi da je žrtva povrede u ime svog pokojnog djevera. Do istog zaključka je Sud došao u odnosu na pritužbe po članovima 9 i 10 koje je predala kćerka navodne žrtve (...).
U drugim predmetima po članovima 5, 6 ili 8 Sud je dao status žrtve bliskim rođacima, dozvoljavajući im da predaju predstavku kada pokažu moralni interes da se pokojna žrtva oslobodi bilo kakvog nalaza da je bila kriva (...) ili da se zaštiti njihov ugled ili ugled njihove porodice (...) ili kada pokažu materijalni interes na osnovu direktnog uticaja na njihova materijalna prava (...). Postojanje opšteg interesa koji dovodi do toga da je neophodno pristupiti razmatranju pritužbi takođe je uzet u obzir
(...)
Utvrđeno je da je učešće podnosioca predstavke u domaćem postupku samo jedan od nekoliko relevantnih kriterijuma (...)."
B. Prihvatljivost
1. Podnesci strana
2. Ocjena Suda
(a) Ne-iscrpljivanje pravnih lijekova
“U posebnoj sferi nemara u zdravstvu obaveza takođe može biti ispunjena ukoliko pravni sistem omogući žrtvama pravni lijek u građanskim sudovima, sam ili u vezi sa pravnim lijekom u krivičnim sudovima, čime se omogućava da se utvrdi svaka odgovornost uključenih ljekara i da se pruži odgovarajuće pravno sredstvo u građanskom pravu, kao što je dobijanje naloga za naknadu štete za objavljivanje odluke. Mogu se predvidjeti i disciplinske mjere."
(b) Primjenjivost
(c) Zaključak
C. Meritum
1. Podnesci strana
2. Ocjena Suda
(a) Opšti principi
b) Primjena na ovaj konkretni predmet
II. NAVODNA POVREDA ČLANA 3 KONVENCIJE
"Niko ne smije biti podvrgnut mučenju, ili nečovječnom ili ponižavajućem postupanju ili kažnjavanju."
A. Prihvatljivost
B. Meritum
1. Podnesci strana
2. Ocjena Suda
(a) Opšti principi
“113. Kako je Sud više puta naveo, član 3 Konvencije sadrži u sebi najosnovnije vrijednosti demokratskog društva. Njime se zabranjuje u apsolutnom smislu nečovječno i ponižavajuće postupanje ili kažnjavanje, bez obzira na okolnosti ponašanja žrtve (v. među mnogim drugim izvorima, presudu u predmetu Labita protiv Italije [GC], br. 26772/95, stav 119, ECHR 2000-IV).
“114. Zlostavljanje mora da dostigne minimalni nivo težine da bi ušlo u područje djelovanja člana 3. Ocjena ovog minimalnog nivoa je relativna; ona zavisi od svih okolnosti predmeta, kao što je trajanje postupanja, njegove fizičke i mentalne posljedice i, u nekim slučajevima, pol, starost i stanje zdravlja žrtve (v. npr. Jalloh protiv Njemačke [GC], br. 54810/00, stav 67, ECHR 2006-IX). Iako pitanje da li je svrha postupanja da se ponizi ili degradira žrtva jeste činilac koji treba uzeti u obzir, nedostatak takve svrhe ne može u potpunosti da isključi da je bilo povrede člana 3 (v. između ostalih izvora presudu u predmetu V. protiv Ujedinjenog Kraljevstva [GC], br. 24888/94, stav 71, ECHR 1999-IX).
“115. Postupanje se smatra "ponižavajućim" u smislu člana 3 kada ponižava ili degradira pojedinca, pokazujući nedostatak poštovanja ili umanjujući njegovo/njeno ljudsko dostojanstvo, ili kada izaziva osjećanja straha, bola ili inferiornosti koji mogu da slome moralni i fizički otpor pojedinca (v. M.S.S. protiv Belgije i Grčke [GC], br. 30696/09, stav 220, ECHR 2011, i El-Masri protiv Bivše jugoslovenske republike Makedonije [GC], br. 39630/09, stav 202, ECHR 2012). Javna priroda postupanja može da bude relevantan ili otežavajući faktor u ocjeni da li je postupanje "ponižavajuće" u smislu člana 3 (v. između ostalog, presudu u predmetu Tyrer protiv Ujedinjenog Kraljevstva, 25. aprill 1978. godine, stav 32, Serija A br. 26; Erdoğan Yağız protiv Turske, br. 27473/02, stav 37, 6. mart 2007. godine; i Kummer protiv Republike Češke, br. 32133/11, stav 64, 25. jul 2013. godine).
“116. Da bi neko postupanje bilo "ponižavajuće", patnja ili poniženje o kojima je riječ moraju u svakom slučaju biti veći od neizbježnog elementa patnje ili poniženja koje je vezano za dati oblik legitimnog postupanja (v. V. protiv Ujedinjenog Kraljevstva, citirano ranije u tekstu ove presude, stav 71). ...
“118. Poštovanje ljudskog dostojanstva čini samu suštinu Konvencije (v. Pretty protiv Ujedinjenog Kraljevstva, br. 2346/02,stav 65, ECHR 2002-III). Cilj i svrha Konvencije kao instrumenta za zaštitu ljudskog bića iziskuje da se njene odredbe tumače i primjenjuju tako da njeni zštitni mehanizmi budu praktični i djelotvorni. Svako tumačenje prava i sloboda koje se jemči mora biti u skladu sa opštim duhom Konvencije, instrumenta koji je osmišljen da čuva i promoviše ideale i vrijednosti demokratskog društva (v. Soering protiv Ujedinjenog Kraljevstva, 7. jul 1989. godine, stav 87, Serija A br. 161).
b) Primjena na ovaj konkretni predmet
III. DRUGE NAVODNE POVREDE KONVENCIJE
IV. PRIMJENA ČLANA 41 KONVENCIJE
"Kada Sud utvrdi povredu Konvencije ili protokola uz nju, a unutrašnje pravo Visoke strane ugovornice u pitanju omogućava samo djelimičnu odštetu, Sud ćе, ako je to potrebno, pružiti pravično zadovoljenje oštećenoj strani."
A. Naknada štete
B. Troškovi i izdaci
C. Zatezna kamata
IZ NAVEDENIH RAZLOGA, SUD, JEDNOGLASNO
Priključuje meritumu prigovor Vlade da je pritužba podnositeljke predstavke po članu 3 nespojiva ratione materiae i ratione personae sa odredbama Konvencije i odbija ga;
proglašava pritužbu podnositeljke predstavke po članu 8 u dijelu u kome se ona odnosi na odstranjivanje tkiva njenog preminulog supruga bez njene saglasnosti i pritužbu po članu 13 prihvatljivima, a ostatak pritužbe po članu 8 Konvencije neprihvatljivim;
proglašava pritužbu podnositeljke predstavke po članu 3 prihvatljivom;
nalazi da je došlo do povrede člana 8 Konvencije;
nalazi da je došlo do povrede člana 3 Konvencije;
nalazi da nema potrebe da ispituje pritužbu po članu 13 Konvencije;
7. nalazi
(a) da tužena država ima da plati podnositeljki predstavki, u roku od tri mjeseca od datuma na koji ova presuda postane pravosnažna u skladu sa članom 44 stav 2 Konvencije, sljedeće iznose:
(i) 16.000 eura (šesnaest hiljada eura) i sav porez koji se na to obračunava, na ime naknade nematerijalne štete;
(ii) iznos od 500 (pet stotina eura), i sav porez koji se na to obračunava, na ime troškova i izdataka;
(b) da se od isteka navedenog tromjesečnog roka do isplate iznosa obračunava obična kamata na gore navedene iznose po stopi koja je jednaka najnižoj kreditnoj stopi Evropske Centralne Banke tokom zateznog perioda uz dodatak od tri procentna poena;
8. odbija ostatak zahtjeva podnositeljke predstavke za pravičnom naknadom.
Presuda je sačinjena na engleskom jeziku i dostavljena u pisanoj formi 13. januara 2015. godine po pravilu 77 stavovi 2 i 3 Poslovnika Suda.
|
Fatoş Aracı |
Päivi Hirvelä |
|
Zamjenik Sekretara |
Predsjednik |
U skladu sa članom 45 stav 2 Konvencije i pravilom 74 stav 2 Poslovnika Suda, prilog ovoj presudi čini zasebno mišljenje sudije Wojtyczek.
P.H.
F.A.
Zasebna mišljenja nisu prevedena, ali se nalaze u zvaničnim verzijama presude na engleskom i/ili francuskom jeziku koje se mogu pronaći u bazi sudske prakse Suda HUDOC.
****
[1] http://www.coe.int/t/dg3/healthbioethic/Activities/05_Organ_transplantation_en/CDBI_IN F(2003)11rev2.pdf
[2] Osnovano u decembru 1997. godine, EGE je nezavisno savjetodavno tijelo. Njegov prethodnik je Grupa savjetnika Evropske komisije o etičkim implikacijama biotehnologije - ad hoc savjetodavno tijelo
___________________________________
Prevod presude preuzet sa https://hudoc.echr.coe.int/
Ovaj prevod urađen je uz pomoć Fonda za ljudska prava Savjeta Evrope (www.coe.int/humanrightstrustfund)
FOURTH SECTION
CASE OF ELBERTE v. LATVIA
(Application no. 61243/08)
JUDGMENT
STRASBOURG
13 January 2015
FINAL
13/04/2015
This judgment is final.
In the case of Elberte v. Latvia, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Päivi Hirvelä, President,
Ineta Ziemele,
George Nicolaou,
Nona Tsotsoria,
Zdravka Kalaydjieva,
Krzysztof Wojtyczek,
Faris Vehabović, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 4 November and 2 December 2014,
Delivers the following judgment, which was adopted on the last-mentioned date:
PROCEDURE
1. The case originated in an application (no. 61243/08) against the Republic of Latvia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Latvian national, Ms Dzintra Elberte (“the applicant”), on 5 December 2008.
2. The applicant was represented by Ms I. Nikuļceva, a lawyer practising in Riga. The Latvian Government (“the Government”) were represented by their Agents, firstly Mrs I. Reine and subsequently Mrs K. Līce.
3. The applicant alleged, in particular, that the removal of tissue from her deceased husband’s body had taken place without her consent or knowledge and that he had been buried with his legs tied together.
4. On 27 April 2010 notice of the application was given to the Government under Articles 3 and 8 of the Convention. On 9 July 2013 it was decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1 of the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1969 and lives in Sigulda. She is the widow of Mr Egils Elberts (“the applicant’s husband”), a Latvian national who was born in 1961 and who died on 19 May 2001.
A. Events leading to the applicant knowing that tissue had been removed from her husband’s body
6. On 19 May 2001 the applicant’s husband was involved in a car accident in the parish of Allaži. An ambulance transported him to Sigulda Hospital but he died on the way there as a result of his injuries. He was placed in the mortuary at Sigulda Hospital. The applicant’s mother-in-law, who worked at Sigulda Hospital and thereby learned about her son’s death immediately, stayed with his body at Sigulda Hospital until it was transported to the State Centre for Forensic Medical Examination (Valsts tiesu medicīnas expertīžu centrs – “the Forensic Centre”) in Riga.
7. At 5 a.m. on 20 May 2001 the body was delivered to the Forensic Centre in order to establish the cause of death. Between 1 p.m. and 3 p.m. an autopsy was carried out and numerous injuries were found to the deceased’s head and chest, including several broken ribs and vertebrae. There were bruises on his right shoulder, thigh and knee. A forensic medical expert, N.S., classified the injuries as serious and life-threatening and established a causal link between them and his death.
8. According to the Government, after the autopsy, N.S. had verified that there was no stamp in Mr Elberts’ passport denoting his objection to the use of tissue from his body and he had removed a 10 cm by 10 cm piece of dura mater (the outer layer of the meninges) from Mr Elberts’ body. According to the applicant, N.S. could not have checked whether or not there was a stamp in Mr Elberts’ passport because at that time it had been at their home in Sigulda. The applicant submitted that the area of tissue removed was larger than 10 cm by 10 cm and that it was not only dura mater that had been removed.
9. On 21 May 2001 the prosecutor’s office issued a permit to bury the body. According to the applicant, on 21 or 22 May 2001 her sister had arrived at the Forensic Centre with a view to obtaining the certificate showing the cause of death, in relation to which she had signed the Forensic Centre’s registration log. On 22 May 2001 her sister submitted that document, together with Mr Elberts’ passport, to the relevant authority in Sigulda to obtain the death certificate.
10. According to the Government, on 25 May 2001 the body of Mr Elberts had been handed over to a relative. According to the applicant, his body had been handed over to another person who was merely helping with its transportation prior to the funeral.
11. On 26 May 2001 the funeral took place in Sigulda. The applicant first saw her deceased husband when his remains were transported back from the Forensic Centre for the funeral. She saw that his legs had been tied together. He was buried that way. The applicant herself was pregnant at the time with their second child.
12. The applicant was not aware that tissue had been removed from her husband’s body until about two years later, when the security police (Drošības Policija) 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.
B. Criminal inquiry into the illegal removal of organs and tissue
13. On 3 March 2003 the security police opened a criminal inquiry into the illegal removal of organs and tissue for supply to a pharmaceutical company based in Germany (“the company”) between 1994 and 2003. The following sequence of events was established.
14. In January 1994 the predecessor institution of 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 ‒ selected by the Forensic Centre in accordance with international standards ‒ and sent to the company for processing. The company transformed the tissue received into bio-implants and sent them back to Latvia for transplantation purposes. The Ministry of Welfare agreed to the content of the agreement, reviewing its compliance with domestic law on several occasions. The prosecutor’s office issued two opinions on the compatibility of the agreement with domestic law and, in particular, with the Law on the protection of the body of a deceased person and the use of human organs and tissue (“the Law”).
15. 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 tissue removal was performed at forensic divisions located in Ventspils, Saldus, Kuldīga, Daugavpils and Rēzekne. After 1996, however, tissue removal was carried out only at the Forensic Centre in Riga and the forensic division in Rēzekne.
16. 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 the experts themselves did not attempt to contact relatives or to establish their wishes. Tissue was to be removed within twenty-four hours of the biological death of a person.
17. 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 denoting a refusal for organs or tissue to be removed and if the relatives did not object to the removal.
18. In the course of the inquiry, the investigators questioned specialists in criminal law and the removal of organs and tissue. It was concluded that, generally speaking, two legal systems exist for regulating the removal of organs and tissue – “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 at the Forensic Centre were of the opinion that at the relevant time (that is to say, after the Law’s entry into force on 1 January 1993) there had existed a system of “presumed consent” in Latvia. These persons were of the view that the system of presumed consent meant that “everything which is not forbidden is allowed”. The investigators, on the other hand, were of the opinion that section 2 of the Law gave a clear indication that the Latvian legal system relied more on the concept of “informed consent” and, accordingly, removal was permissible only when it was (expressly) allowed, that is to say when consent had been given either by the donor during his or her lifetime or by the relatives.
19. More particularly, as regards the removal of tissue from the applicant’s husband’s body, on 12 May 2003 the expert N.S. was questioned. Subsequently, on 9 October 2003 the applicant was recognised as an injured party (cietušais) and she was questioned on the same date.
20. On 30 November 2005 it was decided to discontinue 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 in respect of the removal of tissue. The above considerations were noted down in the decision (lēmums par kriminālprocesa izbeigšanu) and differences concerning the possible interpretations 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 to 4 and 11 of the Law had not been violated and that no elements of a crime as set out in section 139 of the Criminal Law had been established.
21. On 20 December 2005 and 6 January 2006 prosecutors dismissed complaints lodged by the applicant and held that the decision to discontinue the inquiry was lawful and justified.
22. On 24 February 2006 a superior prosecutor of the Prosecutor General’s Office examined the case file and concluded that the inquiry should not have been discontinued. He established that the experts at the Forensic Centre had breached provisions of the Law and that the tissue removal had been unlawful. The decision to discontinue the inquiry was quashed and the case file was sent back to the security police.
23. On 3 August 2007 the criminal inquiry, in so far as it related to the removal of tissue from the body of the applicant’s deceased husband, was discontinued owing to the expiry of the statutory limitation period of five years. However, the legal ground given for this discontinuation was the absence of any elements of a crime. On 13 August 2007 the applicant was informed of that decision. On 19 September and 8 October 2007, in response to complaints lodged by the applicant, the prosecutors stated that the decision had been lawful and justified.
24. On 3 December 2007 another superior prosecutor of the Office of the Prosecutor General examined the case file and concluded that the inquiry should not have been discontinued. She established that the experts at the Forensic Centre had breached provisions of the Law and that the tissue removal had been unlawful. The decision to discontinue the inquiry was once again quashed and the case file was again sent back to the security police.
25. On 4 March 2008 a new decision to discontinue the criminal inquiry was adopted, based on the legal ground of the expiry of the statutory limitation period. On 27 March 2008, in response to a complaint from the applicant, the prosecutor once again quashed the decision.
26. A fresh 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 supply of tissue to the company, the Forensic Centre had organised the purchase of different medical equipment, instruments, technology and computers for medical institutions in Latvia and the company had paid for these purchases. Within the framework of the agreement, the total monetary value of the equipment for which the company had paid exceeded the value of the removed tissue that was sent to the company. In the decision of 14 April 2008 (see paragraph 27 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 transformation into other products to be used for patients not only in Latvia, but also in other countries.
27. On 14 April 2008 the criminal inquiry was discontinued owing to the expiry of the statutory limitation period. In the decision it was noted that whenever an expert from the Rēzekne Forensic Division, for example, had interviewed the relatives prior to the removal of organs or tissue, he had never expressly informed them of such potential 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 established. According to the experts’ testimonies, they had merely checked passports for stamps and had not sought relatives’ consent as they had not been in contact with them. It was also noted that with effect from 1 January 2002 information was to be sought from the population register, which the experts had failed to do. It was concluded that the experts, including N.S., had contravened section 4 of the Law and had breached the relatives’ rights. However, owing to the five‑year statutory limitation period (which started running on 3 March 2003), the criminal inquiry was discontinued and on 9 May and 2 June 2008 the prosecutors upheld that decision in response to complaints lodged by the applicant. The applicant lodged a further complaint.
28. In the meantime, the experts, including N.S., lodged an appeal contesting the reasons for the discontinuation of the criminal inquiry (kriminālprocesa izbeigšanas pamatojums). They contested their status as the persons against whom the criminal inquiry concerning unlawful tissue removal had been instigated because they had not at any stage been informed of this inquiry and argued that, accordingly, they had been unable to exercise their defence rights. On 26 June 2008, in a final decision, the Riga City Vidzeme District Court upheld their appeal (case no. 1840000303), quashed the 14 April 2008 decision and sent the case file back to the security police. The court found as follows.
“Notwithstanding the fact that a certain proportion of the transplants were not returned to be used for patients in Latvia, there is no evidence in the case file that they were used for processing into other products or for scientific or educational purposes. Therefore, the court considers that there is no evidence in the case file that the removed tissue was used for purposes other than transplantation ...
There is no evidence in the case file demonstrating that the removal of tissue for transplantation purposes had been carried out in disregard of the deceased person’s refusal, as expressed during his lifetime and recorded in accordance with the law in force at the relevant time, or in disregard of any refusal expressed by the closest relatives.
Taking into account the fact that legislative instruments do not impose any obligation on the experts who carry out the removal of tissue and organs from deceased persons’ bodies to inform persons of their right to refuse tissue or organ removal, the court considers that the experts did not have any obligation to do so; by not informing the deceased person’s relatives of their intention to remove tissue, the experts did not breach the provisions of the [Law], as effective from 1994 to March 2003. Section 4 of the [Law] provides for the right of the closest relatives to refuse the removal of the deceased person’s organs and/or tissue, but does not impose an obligation on the expert to explain this right to the relatives. Given that there are no legislative instruments which impose an obligation on the experts to inform relatives of their intention to remove tissue and/or organs and to explain to the relatives their right to object by refusing their consent, the court considers that a person cannot be punished for a failure to comply with an obligation which is not clearly laid down in a legislative instrument in force. Therefore, the court finds that the experts, by carrying out the tissue and organ removal from the deceased, did not breach ... the [Law].
... The court finds that the experts’ actions did not constitute the elements of a crime proscribed by section 139 of the Criminal Law; therefore, it is possible to discontinue the criminal proceedings for exonerating reasons – namely on the grounds of section 377(2) of the Criminal Procedure Law ‒ owing to the absence of the elements of a crime.”
29. On 2 July 2008 the superior prosecutor responded to a complaint lodged by the applicant. The superior prosecutor admitted that the inquiry had taken a long time owing to numerous complaints against the decisions. However, she did not find any particular circumstances which would indicate that it had been unduly protracted. At the same time, she informed the applicant that the court had quashed the 14 April 2008 decision upon the appeal by the experts. She further stated that a new decision to discontinue the criminal inquiry had been adopted on 27 June 2008 and that the applicant would soon be duly notified.
30. Indeed, the applicant received the 27 June 2008 decision a few days later. It was reiterated in that decision that the experts did not have any legal obligation to inform anyone about their right to consent to or refuse organ or tissue removal. Section 4 of the Law provided for the right of the closest relatives to object to the removal of the deceased person’s organs and tissue, but did not impose any obligation on the expert to explain these rights to the relatives. A person could not be punished for a failure to comply with an obligation which was not clearly laid down in a legal provision; the experts had therefore not breached the Law. The applicant lodged further complaints.
31. On 15 August 2008 the prosecutor replied, inter alia, that there were no circumstances indicating the desecration of a human body. At the same time, she explained that the experts had performed actions in connection with the unlawful tissue removal in order to use the tissue for medical purposes. After the removal of tissue, other material was commonly implanted to restore the visual integrity of dead bodies. Therefore, the criminal inquiry had concerned actions under section 139 of the Criminal Law and not under section 228, which proscribed desecration of a dead body.
32. On 10 September 2008 a superior prosecutor replied that there were no grounds for examining the actions of the persons who had proceeded with the tissue removal under section 228 of the Criminal Law as desecration of a dead body. The experts had proceeded in accordance with an instruction issued by the Ministry of Justice, implanting other material in the place of the removed tissue. According to the instruction, tissue was to be removed in such a way so as not to mutilate the body, and, if necessary, subsequent restoration was to be carried out.
33. On 23 October 2008 another superior prosecutor of the Prosecutor General’s Office replied with a final negative decision.
II. RELEVANT INTERNATIONAL DOCUMENTS AND DOMESTIC LAW
A. Council of Europe documents
34. On 11 May 1978 the Committee of Ministers of the Council of Europe adopted Resolution (78) 29 on harmonisation of legislations of member States relating to removal, grafting and transplantation of human substances, which 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 these 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.”
35. The Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine (ETS No. 164) is the first international treaty in the field of bioethics. It came into force on 1 December 1999 in respect of the States that had ratified it. Latvia signed the Convention on Human Rights and Biomedicine on 4 April 1997, ratified it on 25 February 2010, and it came into force in respect of Latvia on 1 June 2010. The Convention on Human Rights and Biomedicine is not applicable to organ and tissue removal from deceased persons. It concerns organ and tissue removal from living donors for transplantation purposes (Articles 19‑20).
36. In relation to organ and tissue removal from deceased persons, an Additional Protocol on Transplantation of Organs and Tissues of Human Origin was adopted (ETS No. 186), to which the Government referred. On 1 May 2006 it came into force in respect of the States that had ratified it. Latvia has neither signed nor ratified this Protocol.
37. The relevant Articles of the Additional Protocol read as follows.
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 18 – Respect for the human body
“During removal the human body must be treated with respect and all reasonable measures shall be taken to restore the appearance of the corpse.”
The relevant parts of the Explanatory Report to the Additional Protocol read as follows.
Introduction
“2. The purpose of the Protocol is to define and safeguard the rights of organ and tissue donors, whether living or deceased, and those of persons receiving implants of organs and tissues of human origin.”
Drafting of the Protocol
“7. This Protocol extends the provisions of the Convention on Human Rights and Biomedicine in the field of transplantation of organs, tissues and cells of human origin. The provisions of the Convention are to be applied to the Protocol. For ease of consultation by its users, the Protocol has been drafted in such a way that they need not keep referring to the Convention in order to understand the scope of the Protocol’s provisions. However, the Convention contains principles which the Protocol is intended to develop. Accordingly, systematic examination of both texts may prove helpful and sometimes indispensable.”
Comments on the provisions of the
Protocol Preamble
“13. The Preamble highlights the fact that Article 1 of the Convention on Human Rights and Biomedicine protecting the dignity and the identity of all human beings and guaranteeing everyone respect for their integrity, forms a suitable basis on which to formulate additional standards for safeguarding the rights and freedoms of donors, potential donors and recipients of organs and tissues.”
Article 1 – Object
“16. This article specifies that the object of the Protocol is to 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.
17. The term ‘everyone’ is used in Article 1 because it is seen as the most concordant with the exclusion of embryonic and foetal organs or tissues from the scope of the Protocol as stated in Article 2 ... The Protocol solely concerns removal of organs and tissues from someone who has been born, whether now living or dead, and the implantation of organs and tissues of human origin into someone else who has likewise been born.”
Article 16 – Certification of death
“94. According to the first paragraph, a person’s death must have been established before organs or tissues may be removed ‘in accordance with the law’. It is the responsibility of the States to legally define the specific procedure for the declaration of death while the essential functions are still artificially maintained. In this respect, it can be noted that in most countries, the law defines the concept and the conditions of brain death.
95. The death is confirmed by doctors following an agreed procedure and only this form of death certification can permit the transplantation to go ahead. The retrieval team must satisfy themselves that the required procedure has been completed before any retrieval operation is started. In some States, this procedure for certification of death is separate from the formal issuance of the death certificate.
96. The second paragraph of Article 16 provides an important safeguard for the deceased person by ensuring the impartiality of the certification of death, by requiring that the medical team which certifies death should not be the same one that is involved in any stage of the transplant process. It is important that the interests of any such deceased person and the subsequent certification of death are, and are seen to be, the responsibility of a medical team entirely separate from those involved in transplantation. Failure to keep the two functions separate would jeopardise the public’s trust in the transplantation system and might have an adverse effect on donation.
97. For the purposes of this Protocol, neonates including anencephalic neonates receive the same protection as any person and the rules on certification of death are applicable to them.”
Article 17 – Consent and authorisation
“98. Article 17 bars the removal of any organ or tissue unless the consent or authorisation required by national law has been obtained by the person proposing to remove the organ or tissue. This requires member States to have a legally recognised system specifying the conditions under which removal of organs or tissues is authorised. Furthermore, by virtue of Article 8, the Parties should take appropriate measures to inform the public, namely about matters relating to consent or authorisation with regard to removal from deceased persons ...
99. If a person has made known their wishes for giving or denying consent during their lifetime, these wishes should be respected after his/her death. If there is an official facility for recording these wishes and a person has registered consent to donation, such consent should prevail: removal should go ahead if it is possible. By the same token, it may not proceed if the person is known to have objected. Nonetheless, consultation of an official register of last wishes is valid only in respect of the persons entered in it. Nor may it be considered the only way of ascertaining the deceased person’s wishes unless their registration is compulsory.
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 persons 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.
103. When a person dies in a country in which he/she is not normally resident, the retrieval team shall take all reasonable measures to ascertain the wishes of the deceased. In case of doubt, the retrieval team should respect the relevant applicable laws in the country in which the deceased is normally resident or, by default, the law of the country of which the deceased person is a national.”
Article 18 – Respect for the human body
“104. A dead body is not legally regarded as a person, but nonetheless should be treated with respect. This article accordingly provides that during removal the human body must be treated with respect and after removal the body should be restored as far as possible to its original appearance.”
38. 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 of whether removal from a living donor required authorisation and referred to Articles 19 and 20 of the Convention on Human Rights and Biomedicine and section 13 of the Law on the 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 referred to Articles 19 and 20 of the Convention on Human Rights and Biomedicine. 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 (see paragraph 53 below).
B. European Union documents
39. On 21 July 1998 the European Group on Ethics in Science and New Technologies (EGE)[2] issued Opinion no. 11 on ethical aspects of human tissue banking. Its relevant parts read as follows.
“2.3 Information and consent
The procurement of human tissues requires, as a principle, the prior, informed and free consent of the person concerned. This does not apply in the case of tissue procurement ordered by a judge in the context of judicial, in particular criminal, proceedings.
While consent is a fundamental ethical principle in Europe, the procedures involved and forms of such consent (oral or in writing, before a witness or not, explicit or presumed, etc.) are a matter for national legislation based on the legal traditions of each country.
...
2.3.2 Deceased donors
Consent of a donor for retrieval of tissues after death may take different forms depending on the national systems (‘explicit’ or ‘presumed’ consent). However, no retrieval of tissues may take place, with the exception of judicial proceedings, if the party concerned formally objected while alive. Furthermore, if there has been no expression of will and the applicable system is that of ‘presumed’ consent, doctors must ensure as far as possible that relatives or next of kin have the opportunity to express the deceased person’s wishes, and must take these into account.”
40. The relevant parts of Directive 2004/23/EC of the European Parliament and of the Council of 31 March 2004 on setting standards of quality and safety for the donation, procurement, testing, processing, preservation, storage and distribution of human tissues and cells provide as follows.
Article 13 – Consent
“1. The procurement of human tissues or cells shall be authorised only after all mandatory consent or authorisation requirements in force in the Member State concerned have been met.
2. Member States shall, in keeping with their national legislation, take all necessary measures to ensure that donors, their relatives or any persons granting authorisation on behalf of the donors are provided with all appropriate information as referred to in the Annex.”
ANNEX – INFORMATION TO BE PROVIDED ON THE DONATION OF CELLS AND/OR TISSUES
B. Deceased donors
“1. All information must be given and all necessary consents and authorisations must be obtained in accordance with the legislation in force in Member States.
2. The confirmed results of the donor’s evaluation must be communicated and clearly explained to the relevant persons in accordance with the legislation in Member States.”
C. World Health Organisation (WHO) documents
41. The WHO Guiding Principles on Human Cell, Tissue and Organ Transplantation (endorsed by the sixty-third World Health Assembly on 21 May 2010, Resolution WHA63.22) provide, in so far as relevant, as follows.
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
“Consent is the ethical cornerstone of all medical interventions. National authorities are responsible for defining the process of obtaining and recording consent for cell, tissue and organ donation in the light of international ethical standards, the manner in which organ procurement is organized in their country, and the practical role of consent as a safeguard against abuses and safety breaches.
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.
Under a regime of explicit consent – sometimes referred to as ‘opting in’ – cells, tissues or organs may be removed from a deceased person if the person had expressly consented to such removal during his or her lifetime; depending upon domestic law, such consent may be made orally or recorded on a donor card, driver’s license or identity card or in the medical record or a donor registry. When the deceased has neither consented nor clearly expressed opposition to organ removal, permission should be obtained from a legally specified surrogate, usually a family member.
The alternative, presumed consent system – termed ‘opting (or contracting) out’ – permits material to be removed from the body of a deceased person for transplantation and, in some countries, for anatomical study or research, unless the person had expressed his or her opposition before death by filing an objection with an identified office, or an informed party reports that the deceased definitely voiced an objection to donation. Given the ethical importance of consent, such a system should ensure that people are fully informed about the policy and are provided with an easy means to opt out.
Although expressed consent is not required in an opting-out system before removal of the cells, tissues or organs of a deceased person who had not objected while still alive, procurement programmes may be reluctant to proceed if the relatives personally oppose the donation; likewise, in opting-in systems, programmes typically seek permission from the family even when the deceased gave pre-mortem consent. Programmes are more able to rely on the deceased’s explicit or presumed consent, without seeking further permission from family members, when the public’s understanding and acceptance of the process of donating cells, tissues and organs is deep-seated and unambiguous. Even when permission is not sought from relatives, donor programmes need to review the deceased’s medical and behavioural history with family members who knew him or her well, since accurate information about donors helps to increase the safety of transplantation.
For tissue donation, which entails slightly less challenging time constraints, it is recommended always to seek the approval of the next of kin. An important point to be addressed is the manner in which the appearance of the deceased’s body will be restored after the tissues are removed.”
D. Domestic law
1. Law on the protection of the body of a deceased person and use of human organs and tissues
42. The Law on protection of the body of a deceased person and use of human organs and tissue (likums “Par 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 November 1995 and up until 31 December 2001), provides in section 2 that every living person with legal capacity is entitled to consent or object, in writing, to the use of his or her body after death. The wish expressed, unless it is contrary to the law, is binding.
43. Section 3 provides that any such refusal of or consent to the use of one’s body after death has legal effect only if it has been signed by a person with legal capacity, recorded in his or her medical record and denoted by a special stamp in his or her passport. The Department of Health in the Ministry of Welfare is responsible for prescribing the procedure for recording refusal or consent in a person’s medical record (contrast with the situation following legislative amendments effective as of 1 January 2002, Petrova v. Latvia, no. 4605/05, § 35, 24 June 2014).
44. Pursuant to section 4, which is entitled “The rights of the closest relatives”, the organs and tissues 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, removal may be carried out 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).
45. 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 his or her closest relatives have not prohibited it.
46. 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.
47. Section 17 provides that the State is responsible for protecting the body of a deceased person and for using organs or tissues for medical purposes. At the material time this function was entrusted to the Department of Health in the Ministry of Welfare (as of 1 January 2002, the Ministry of Welfare, as of 30 June 2004, the Ministry of Health). No organisation or authority can carry out the removal of organs and tissues and use them without an authorisation issued by the Department of Health (as of 1 January 2002, the Minister of Welfare, as of 30 June 2004, the Minister of Health).
48. Section 18 prohibits the selection, transportation and use of the removed organs and tissues for commercial purposes. It also provides that the removal of organs and tissues from any living or deceased person can only be carried out with strict respect for that person’s expressed consent or objection.
49. Section 21 originally provided that the prosecutor’s office was to supervise compliance with this Law (paragraph 1). The Department of Health of the Ministry of Welfare and other competent bodies were responsible for monitoring the legality of the use of human tissue and organs (paragraph 2). By virtue of amendments effective from 1 January 2002, paragraph 1 was repealed; the remaining paragraph provided that the Ministry of Welfare was to bear responsibility for checking the compatibility of the use of human tissue and organs with law and other legislative instruments. From 30 June 2004 this task was entrusted to the Ministry of Health. Lastly, since 27 August 2012 this section has been repealed in its entirety.
50. On 2 June 2004 amendments to sections 4 and 11 of the Law were passed by Parliament, effective as of 30 June 2004. From that date onwards, section 4 provides that if no information is recorded in the population register about a deceased person’s refusal of or consent to the use of his or her body, organs or tissue after death, the closest relatives have the right to inform the medical institution in writing of the wishes of the deceased person expressed during his or her lifetime. Section 11 provides that the organs and body tissue of a deceased person may be removed for transplantation purposes if no information is recorded in the population register about the deceased person’s refusal of or consent to the use of his or her organs or body tissue after death and if the closest relatives of the deceased have not, before the start of the transplantation, informed the medical institution in writing of any objection by the deceased person to the use of his or her organs and body tissue after death expressed during his or her lifetime. It is forbidden to remove organs and body tissue from a dead child for transplantation purposes unless one of his or her parents or his or her legal guardian has consented to it in writing.
2. Regulation of the Cabinet of Ministers no. 431 (1996)
51. This Regulation (Noteikumi par miruša cilvēka audu un orgānu uzkrāšanas un izmantošanas kārtību medicīnā) provides that removal of organs and tissue may be carried out after the biological or brain death of a person if his or her passport and medical record contain a stamp denoting consent to such removal (see paragraph 3 of the Regulation). In the absence of such a stamp, the provisions of the Law (see paragraphs 42-50 above) are to be followed.
3. Legal regulation of the MADEKKI
52. The legal regulations governing the Inspectorate of Quality Control for Medical Care and Working Capability (“MADEKKI”) in Latvian law are summarised in L.H. v. Latvia (no. 52019/07, §§ 24-27, 29 April 2014). For the purposes of the present case it suffices to note that these regulations ‒ approved by the Cabinet of Ministers (Regulation no. 391 (1999), effective from 26 November 1999 to 30 June 2004) ‒ provided, inter alia, that one of the main functions of the MADEKKI was to monitor the professional quality of healthcare in medical institutions.
4. Criminal law provisions
53. Section 139 of the Criminal Law (Krimināllikums) provides that the 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 carried out by a medical practitioner.
54. The relevant provisions pertaining to the rights of civil parties in criminal proceedings under the former Code of Criminal Procedure (Latvijas Kriminālprocesa kodekss, effective until 1 October 2005) are described in Liģeres v. Latvia (no. 17/02, §§ 39-41, 28 June 2011) and Pundurs v. Latvia ((dec.), no. 43372/02, §§ 12-17, 20 September 2011).
55. In addition, the relevant provisions pertaining to the rights of civil parties in criminal proceedings under the Criminal Procedure Law (Kriminālprocesa likums, effective from 1 October 2005), as in force at the material time, read as follows.
Section 22 – Right to compensation for damage
“A person who has sustained psychological distress, physical injury or pecuniary loss as a result of a criminal offence shall be guaranteed procedural opportunities to request and receive compensation for pecuniary and non-pecuniary damage.”
Section 351 – Claim for compensation
“(1) An injured party shall have the right to submit a claim for compensation for harm caused at any stage of criminal proceedings up to the commencement of a judicial investigation in a court of first instance. The claim shall contain justification of the amount of compensation requested.
(2) A claim may be submitted in writing or expressed orally. An oral request shall be recorded in the minutes by the person directing the proceedings.
(3) During pre-trial proceedings, the public prosecutor shall indicate the submission of a claim and the amount of compensation claimed, as well as his or her opinion thereon, in the document concerning the completion of pre-trial proceedings.
(4) Failure to ascertain the criminal liability of a person shall not be an impediment to the submission of a compensation claim.
(5) An injured party shall have the right to withdraw a submitted compensation claim at any stage of criminal proceedings up to the moment when the court retires to give judgment. The refusal of compensation by a victim may not constitute grounds for the revocation or modification of charges, or for acquittal.”
5. The right to receive compensation
56. Article 92 of the Constitution (Satversme) provides, inter alia, that “any person whose rights are violated without justification has a right to commensurate compensation”.
57. Domestic legal provisions pertaining to compensation for pecuniary and non-pecuniary damage under the Civil Law (Civillikums), before and after the amendments that were effective from 1 March 2006, are quoted in full in Zavoloka v. Latvia (no. 58447/00, §§ 17-19, 7 July 2009). Sections 1635 and 1779 are further described in Holodenko v. Latvia (no. 17215/07, § 45, 2 July 2013).
58. Under section 92 of the Administrative Procedure Law (Administratīvā procesa likums), in force since 1 February 2004, everyone has the right to receive commensurate compensation for pecuniary and non‑pecuniary damage caused by an administrative act or action of a public authority. Under section 93 of the same Law, a claim for compensation can be submitted either together with an application to the administrative courts to declare an administrative act or action of a public authority unlawful, or to the public authority concerned following a judgment adopted in such proceedings. Under section 188, an application to an administrative court regarding an administrative act or action of a public authority must be lodged within one month or one year depending on the circumstances. In relation to an action of a public authority, the one-year time-limit runs from the date on which the applicant finds out that such action has occurred. Lastly, under section 191(1) an application will be refused if more than three years have elapsed since the applicant found out or ought to have found out that such action occurred. This time-limit is not amenable to extension (atjaunots).
59. The amount of compensation and the procedure for claiming damages from a public authority on account of an unlawful administrative act or an unlawful action of a public authority are prescribed by the Law on compensation for damage caused by public authorities (Valsts pārvaldes iestāžu nodarīto zaudējumu atlīdzināšanas likums), in force since 1 July 2005. Chapter III of the Law provides for the procedure to be followed when an individual claims damages from a public authority. Under section 15, an individual is entitled to lodge an application with the public authority that was responsible for the damage. Pursuant to section 17, such an application must be lodged not later than one year from the date when the individual became aware of the damage and, in any event, not later than five years after the date of the unlawful administrative act or unlawful action of a public authority.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
60. The applicant complained in substance under Article 8 of the Convention, firstly, that the removal of tissue from her husband’s body had been carried out without his or the applicant’s prior consent. Secondly, she complained that ‒ in the absence of such consent ‒ his dignity, identity and integrity had been breached and his body had been treated disrespectfully.
61. Article 8 of the Convention reads as follows.
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
62. The Government denied that there had been a violation of that Article.
A. Preliminary issues
63. The Court must start by examining whether it is competent ratione personae to examine the applicant’s complaint; this issue calls for consideration by the Court of its own motion (see Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 27, ECHR 2009).
64. The Court’s approach as concerns direct and indirect victims has been recently summarised in Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania ([GC], no. 47848/08, §§ 96-100, ECHR 2014) as follows (references omitted).
“(i) Direct victims
96. In order to be able to lodge an application in accordance with Article 34, an individual must be able to show that he or she was ‘directly affected’ by the measure complained of ... This is indispensable for putting the protection mechanism of the Convention into motion, although this criterion is not to be applied in a rigid, mechanical and inflexible way throughout the proceedings ...
Moreover, in accordance with the Court’s practice and with Article 34 of the Convention, applications can only be lodged by, or in the name of, individuals who are alive ... Thus, in a number of cases where the direct victim has died prior to the submission of the application, the Court has not accepted that the direct victim, even when represented, had standing as an applicant for the purposes of Article 34 of the Convention ...
(ii) Indirect victims
97. Cases of the above-mentioned type have been distinguished from cases in which an applicant’s heirs were permitted to pursue an application which had already been lodged. An authority on this question is Fairfield and Others ..., where a daughter lodged an application after her father’s death, alleging a violation of his rights to freedom of thought, religion and speech (Articles 9 and 10 of the Convention). While the domestic courts granted Ms Fairfield leave to pursue the appeal after her father’s death, the Court did not accept the daughter’s victim status and distinguished this case from the situation in Dalban v. Romania ..., where the application had been brought by the applicant himself, whose widow had pursued it only after his subsequent death.
In this regard, the Court has differentiated between applications where the direct victim has died after the application was lodged with the Court and those where he or she had already died beforehand.
Where the applicant has died after the application was lodged, the Court has accepted that the next of kin or heir may in principle pursue the application, provided that he or she has sufficient interest in the case ...
98. However, the situation varies where the direct victim dies before the application is lodged with the Court. In such cases the Court has, with reference to an autonomous interpretation of the concept of ‘victim’, been prepared to recognise the standing of a relative either when the complaints raised an issue of general interest pertaining to ‘respect for human rights’ (Article 37 § 1 in fine of the Convention) and the applicants as heirs had a legitimate interest in pursuing the application, or on the basis of the direct effect on the applicant’s own rights ... The latter cases, it may be noted, were brought before the Court following or in connection with domestic proceedings in which the direct victim himself or herself had participated while alive.
Thus, the Court has recognised the standing of the victim’s next of kin to submit an application where the victim has died or disappeared in circumstances allegedly engaging the responsibility of the State ...
99. In Varnava and Others ... the applicants lodged the applications both in their own name and on behalf of their disappeared relatives. The Court did not consider it necessary to rule on whether the missing men should or should not be granted the status of applicants since, in any event, the close relatives of the missing men were entitled to raise complaints concerning their disappearance ... The Court examined the case on the basis that the relatives of the missing persons were the applicants for the purposes of Article 34 of the Convention.
100. In cases where the alleged violation of the Convention was not closely linked to disappearances or deaths giving rise to issues under Article 2, the Court’s approach has been more restrictive, as in Sanles Sanles v. Spain ..., which concerned the prohibition of assisted suicide. The Court held that the rights claimed by the applicant under Articles 2, 3, 5, 8, 9 and 14 of the Convention belonged to the category of non-transferable rights, and therefore concluded that the applicant, who was the deceased’s sister-in-law and legal heir, could not claim to be the victim of a violation on behalf of her late brother-in-law. The same conclusion has been reached in respect of complaints under Articles 9 and 10 brought by the alleged victim’s daughter ...
In other cases concerning complaints under Articles 5, 6 or 8 the Court has granted victim status to close relatives, allowing them to submit an application where they have shown a moral interest in having the late victim exonerated of any finding of guilt ... or in protecting their own reputation and that of their family ..., or where they have shown a material interest on the basis of the direct effect on their pecuniary rights ... The existence of a general interest which necessitated proceeding with the consideration of the complaints has also been taken into consideration ...
The applicant’s participation in the domestic proceedings has been found to be only one of several relevant criteria ...”
65. As regards the first part of the complaint, the Court considers that the applicant has adequately demonstrated that she has been directly affected by the removal of tissue from her deceased husband’s body without her consent (see also Petrova v. Latvia, no. 4605/05, § 56, 24 June 2014). The Court is therefore satisfied that the applicant can be considered a “direct victim” in that regard (see paragraph 60 above). However, in so far as the applicant’s complaint relates to the lack of consent from her deceased husband, the Court considers that it is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) of the Convention and must therefore be rejected in accordance with Article 35 § 4.
66. As regards the second part of the complaint, the Court notes that the applicant conceded that it concerned her deceased husband’s rights. Accordingly, it must also be rejected as incompatible ratione personae with the provisions of the Convention in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
67. Lastly, the Court notes that in certain respects the second part of the complaint overlaps with the applicant’s complaint under Article 3 of the Convention. Accordingly, the Court will examine it below in so far as it relates to the applicant’s rights.
B. Admissibility
1. The parties’ submissions
68. The Government conceded that the applicant’s complaint fell within the ambit of “private life” under Article 8 of the Convention, but they did not accept that it concerned “family life”.
69. First of all, relying on the Court’s decision in Grišankova and Grišankovs v. Latvia ((dec.), no. 36117/02, ECHR 2003-II), the Government argued that the applicant had failed to exhaust domestic remedies. They submitted that the applicant should have lodged a complaint with the Constitutional Court since the removal of tissue from her husband’s body 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.
70. Secondly, the Government argued that the applicant had not submitted a complaint to the MADEKKI. The Government pointed out that at the material time the MADEKKI had been the body with competence to examine the applicant’s complaints, since its function was to monitor the professional quality of healthcare in medical institutions. It was the Government’s submission that an examination by MADEKKI of the compliance of the tissue 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.
71. Thirdly, the Government submitted that the applicant could have relied on section 1635 of the Civil Law (as effective from 1 March 2006) and claimed compensation for pecuniary and non-pecuniary damage before the civil courts. 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 (referring to L.H. v. Latvia, no. 52019/07, § 8, 29April 2014). On 1 December 2006 that claim had been upheld and the claimant had been awarded compensation for physical injury and psychological distress 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), in which on 16 March 2010 the appellate court had awarded compensation payable by the State in the amount of LVL 20,000 in connection with an incident of 28 June 1997 in Talsi, in which the claimant’s daughter, among other children, had died. The final decision in that case had been adopted on 28 September 2011. The Government did not provide copies of the decisions in that case.
72. The applicant disagreed. She submitted that her complaint fell within the ambit of private and family life under Article 8 of the Convention.
73. In response to the first remedy cited by the Government – recourse to the Constitutional Court – the applicant pointed out that the court’s competence was limited to reviewing compliance with the Constitution of laws and other legal instruments. The applicant argued that the tissue removal had been contrary to sections 4 and 11 of the Law; she did not consider these legal provisions to be contrary to the Constitution. The decision in Grišankova and Grišankovs, cited above, concerned the wording of the Education Law. The present case, however, concerned an individual action – the removal of tissue from her husband’s body. Moreover, the applicant argued that if any provisions of the Law were indeed not compatible with the Constitution, the criminal court, the Prosecutor General or the Cabinet of Ministers should and could themselves have submitted an application to the Constitutional Court.
74. In response to the second remedy cited by the Government, namely a complaint to the MADEKKI, the applicant submitted that it would not have been the competent body. Tissue removal was not healthcare. The applicant referred to section 21 of the Law and explained that at the relevant time supervision had been the responsibility of the prosecutor’s office (see paragraph 49 above).
75. In response to the third remedy cited by the Government, the applicant argued that the Forensic Centre was a State institution under the supervision of the Ministry of Health. Since the entry into force of the Administrative Procedure Law on 1 February 2004, administrative acts and actions of public authorities had been amenable to judicial review by the administrative courts. Thus, an appeal against an action of a public authority – in this case, the removal of tissue from the body of the applicant’s husband – could only be lodged in the administrative courts. Referring to the Forensic Centre’s regulations, the applicant noted that the actions of its employees were amenable to appeal before its head, whose decisions or actions were subsequently amenable to judicial review by the administrative courts. Appeals under the Administrative Procedure Law, however, would have been time-barred in the applicant’s case by the time the final decision had been taken in the criminal proceedings. The applicant concluded that the actions of the expert concerned could not be subject to judicial review by the civil courts.
76. The applicant also pointed out that the amount of compensation and the procedure for claiming damages from a public authority on account of an unlawful administrative act or unlawful action by a public authority were prescribed by the Law on compensation for damage caused by public authorities and not by the Civil Law. An action under the former law, however, would also have been time-barred.
77. Lastly, even if the applicant had, as suggested by the Government, lodged a civil claim under section 1635 of the Civil Law against the experts who had removed tissue from her husband’s body, it would have been bound to fail since in the criminal proceedings it had been established that they were not guilty. The applicant also pointed out that the examples of domestic case-law referred to by the Government were not comparable. In the first case the civil proceedings had been instituted against a private hospital and not against a State institution. The second case concerned events which dated back to 1997, long before the Administrative Procedure Law and the Law on compensation for damage caused by public authorities had come into effect. In addition, at that time, the Code of Civil Procedure contained a chapter concerning litigation in matters arising from administrative relations, which had been superseded by the entry into force of the Administrative Procedure Law.
2. The Court’s assessment
(a) Non-exhaustion of domestic remedies
78. In so far as the Government referred to a constitutional complaint as a relevant remedy in the applicant’s circumstances, the Court considers that such a complaint could not constitute an effective means of protecting the applicant’s rights under Article 8 of the Convention for the following reasons.
79. 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, §§ 113-17, 27 November 2012; Mihailovs v. Latvia, no. 35939/10, §§ 157-58, 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).
80. The Court noted in the above cases 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 the erroneous application or interpretation of a legal provision which, in its content, is not unconstitutional (see Latvijas jauno zemnieku apvienība, cited above, §§ 44-45).
81. In the present case, the Court considers that the applicant’s complaint concerning the removal of tissue does not relate to the compatibility of one legal provision with another legal provision having superior force. The Government argued that the tissue 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 the tissue removal from her husband’s body constituted an individual action that was contrary to sections 4 and 11 of the Law. The Court finds that the applicant’s complaint relates to the application and interpretation of domestic law, particularly in the light of the absence of any relevant administrative regulation; it cannot be said that any issues of compatibility arise. In such circumstances the Court considers that the applicant was not required to avail herself of the proposed remedy.
82. The Court understands the Government’s argument in relation to the examination by the MADEKKI (see paragraph 70 above) as chiefly pertaining to civil remedies; the Court will examine it immediately below. It is not clear from the evidence in the case file whether the MADEKKI carried out any examination in relation to the criminal proceedings in the present case (contrast Petrova, cited above, § 15). In any event, it does not appear that any examination by the MADEKKI was necessary in order to institute criminal proceedings. Be that as it may, it is irrelevant that the applicant did not lodge a separate complaint with the MADEKKI, as long as she complained of all the decisions adopted by the investigating and prosecuting authorities, whose task it is normally to establish whether any crime has been committed (ibid., § 71).
83. 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 held:
“... 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.”
84. 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).
85. 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 was originally unaware of the fact that tissue from her husband’s body had been removed; she learned about it only when the security police opened a criminal inquiry into these facts. Subsequently, she availed herself of the criminal avenue of redress – she was declared an injured party in these proceedings and she pursued them by lodging various complaints with the investigating and prosecuting authorities. The criminal-law remedy could have given rise to a finding that the removal of tissue from her husband’s body 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 a compensation award, 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 paragraphs 54-55 above). In such circumstances, there is nothing to suggest that the applicant could have legitimately expected that the criminal-law remedy would not be an effective one in her case.
86. The Court is of the view 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 tissue from her husband’s body 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, 16 January 2014, where the applicants were not required to lodge separate civil claims for the alleged medical malpractice). The Court concludes that the applicant exhausted the available domestic remedies by pursuing the criminal-law remedy.
87. In the light of the above conclusion, the Court does not consider it necessary to address the Government’s argument that an examination by the MADEKKI was necessary to institute civil proceedings. Nor does it consider it necessary to address the applicant’s argument that her claim under the Administrative Procedure Law and the Law on compensation for damage caused by public authorities was time-barred or that her claim under the Civil Law was bound to fail.
(b) Applicability
88. The Court notes that, while the Government did not accept that the applicant’s complaint concerned “family life”, they did not dispute that it fell within the ambit of “private life” under Article 8 of the Convention.
89. 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 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 an interference with the applicants’ private and family life. It has also held that the refusal of the investigating 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, and Maskhadova and Others v. Russia, no. 18071/05, § 212, 6 June 2013). However, that issue does not arise in the present case and no complaint has been made to that effect. 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 tissue from her husband’s body comes within the scope of Article 8 of the Convention in so far as private life is concerned. The Court sees no reason to hold otherwise and thus considers that this Article is applicable in the circumstances of the case.
(c) Conclusion
90. The Court notes that the applicant’s complaint ‒ in so far as it concerns the removal of tissue from her deceased husband’s body without her consent ‒ is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
C. Merits
1. The parties’ submissions
91. The applicant submitted that the removal of tissue from her husband’s body without her consent had constituted interference with her private life. She argued that she had been prevented from expressing her wishes regarding the removal of tissue from her deceased husband’s body. She had not even been informed of this intrusive fact. The applicant also submitted that the expert could not have verified the existence of a stamp in her husband’s passport because it had been at their home in Sigulda and therefore unavailable to the expert.
92. First of all, relying on Hokkanen v. Finland (23 September 1994, § 55, Series A no. 299‑A), the applicant argued that the interference had not been in accordance with the law and had not pursued a legitimate aim. The applicant referred to sections 4 and 11 of the Law and argued that in 2001 the system of “explicit consent” had operated in Latvia. The applicant was of the opinion that the experts should have enquired whether the closest relatives had agreed or objected to tissue removal and that they had been under an obligation to do so under the aforementioned provisions. She argued that the aim of the Law was to protect the body of a deceased person and that it was necessary for this aim to be taken into account when interpreting its provisions. In this connection she also referred to international material (see paragraph 37 above). Lastly, the 2004 amendments to the Law demonstrated that previously the system of “explicit consent” had prevailed. The discussion regarding “explicit” and “presumed” consent systems in Latvia had only started at about the time that the criminal inquiry was opened in the present case. As a result, substantive legislative amendments had been passed by Parliament in 2004 (see paragraph 50 above). The applicant submitted that even after these amendments the relevant legal provisions were still not clear enough, but their wording had been changed to establish the system of “presumed consent”.
93. The applicant argued furthermore that the domestic law was not foreseeable in its application because it did not provide for the possibility for the relatives to object to tissue removal. She referred to various findings by the domestic authorities that the legal provisions were unclear (see, for example, paragraph 28 above) and noted that several prosecutors had considered that the Law had indeed been breached (see, for example, paragraphs 22, 24 and 27 above). The applicant argued that the experts had exploited the lack of clarity for their own ends and had derived financial benefit from it. The applicant concluded that the removal of tissue from her husband’s body had not been carried out in accordance with the law.
94. Secondly, the applicant submitted that “saving the lives of others” could not constitute a legitimate aim for removing tissue without consent. And, thirdly, she argued that it had not been sufficiently proved by the Government to be necessary in a democratic society.
95. The Government maintained that the interference with the applicant’s private life as a result of the removal of tissue from her husband’s body without his or the applicant’s prior consent had complied with the criteria set out in Article 8 § 2.
96. Firstly, the Government argued that the tissue removal had been carried out in accordance with domestic law. They specifically pointed out that the Court – if it were to reject their non-exhaustion argument as regards recourse to the Constitutional Court – ought to proceed on the assumption that national law was compatible with the standard laid down in Article 8 of the Convention.
97. They referred to paragraph 3 of Regulation no. 431 (1996) and sections 4 and 11 of the Law and argued that the tissue removal had been carried out in accordance with domestic law. No prior consent had been necessary, nor had it been necessary to seek permission from the deceased person’s closest relatives. It had not been unlawful to proceed with the tissue removal without the consent of the deceased person or his or her closest relatives. The Government argued that under sections 4 and 11 of the Law only “an absence of any objection by the deceased person expressed prior to his death or an absence of explicit objection by [the closest relatives] expressed prior to the tissue removal” had been required. The Government thus argued that the system of “presumed consent” had been operating in Latvia at the material time. They pointed out that the system of “presumed consent” was not innovative and that Latvia had not been the only country employing this system; it was also established in eleven other States.
98. According to the Government, the expert had verified ‒ prior to the tissue removal ‒ that there was no stamp in Mr Elberts’ passport denoting his objection to the use of his body tissue, and this had allegedly been noted in the form of an abbreviation (“zīm. nav”) in the registration log. However, in the copy of the registration log provided to the Court no such legible abbreviation could be seen.
99. At the same time, the Government acknowledged that national laws did not impose any obligation on a doctor to make specific enquiries in order to ascertain if there were any close relatives and to inform them of possible tissue removal. In this connection they referred to the court’s decision in the criminal proceedings (see paragraph 28 above).
100. Secondly, the Government argued that the tissue removal had been carried out in order to “save and/or improve the lives of others”. They referred to the court’s decision in the criminal proceedings (see paragraph 28 above), which had noted that “tissue [was] removed in the name of humanity with the aim of improving the health of others and prolonging their lives”. They also referred to the Preamble to the Additional Protocol on Transplantation of Organs and Tissues of Human Origin to the effect that the practice of tissue donation and tissue removal for transplantation purposes “contributes to saving lives or greatly improving their quality” and that “transplantation of ... tissues is an established part of the health services offered to the population”. The Government concluded that the tissue removal had had a legitimate aim – namely the protection of the health and the rights of others.
101. Thirdly, the Government reiterated that the States enjoyed a margin of appreciation when determining measures to be taken in response to the pressing social need to protect the health and the rights of others. The Government relied on Dudgeon v. the United Kingdom (22 October 1981, § 52, Series A no. 45) and argued that it was for the national authorities to make the initial assessment of the pressing social need in each case and that the margin of appreciation was left to them. Tissue removal and transplantation contributed to saving lives and could greatly improve their quality. Thus, there was a “pressing social need” for tissue donation because tissue transplantation had become an established part of the health services offered to the whole population. They reiterated that Mr Elberts’ tissue had been removed in order to secure bio-material for transplantation purposes to potentially improve and/or save the lives of others.
102. It was primarily the duty and responsibility of the deceased’s closest relative to duly inform the medical personnel in good time of the deceased person’s objection to his or her tissue removal. The national law at the time had not prevented either Mr Elberts or the applicant, as his closest relative, from expressing their wishes in relation to tissue removal. They could have objected to the donation of tissue. However, neither of them had done so before the tissue had been removed in accordance with the Law. The Government concluded that a fair balance had been struck between the applicant’s “right to private life under the Convention ‒ as national laws envisaged the closest relative’s right to object to the removal of the deceased person’s tissue prior to the removal procedure (which had not been exercised either by Mr Elberts or by the applicant) ‒ and the pressing social need to secure bio-implants for tissue transplantation as part of the health services offered to the whole population”.
2. The Court’s assessment
(a) General principles
103. 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, §§ 218-41, ECHR 2010).
104. 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; this, 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. v. Latvia, cited above, § 47).
(b) Application in the present case
105. As to the alleged interference, turning to the circumstances of the present case, the Court notes that following a car accident the applicant’s husband sustained life-threatening injuries, of which he died on the way to hospital. On the following day, his body was transported to the Forensic Centre, where an autopsy was carried out. Subsequently, some of his body tissue was removed and later sent to a company in Germany to be transformed into bio-implants with the intention that they would be sent back to Latvia for transplantation purposes. The applicant, who was one of his closest relatives, was not informed of this and could not exercise certain rights established under domestic law – notably the right to express consent or refusal in relation to the removal of tissue from her husband’s body. She did not learn about the tissue removal until about two years later, when the security police opened a criminal inquiry into the illegal removal of organs and tissue between 1994 and 2003 and contacted her.
106. The Court notes that it has not been contested that the Forensic Centre was a public institution and that the acts or omissions of its medical staff, including experts who carried out organ and tissue removal, 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).
107. 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.
108. 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 the person’s closest relatives, including his or her spouse, to express their wishes in relation to the removal of tissue after that person’s death (see paragraphs 44-45 above). The parties did not contest this. However, their views differed as far as the exercise of this right was concerned. The applicant considered that the experts were obliged to establish the wishes of the closest relatives. The Government argued that the mere absence of any objection was all that was required to proceed with tissue removal. It is the Court’s view that these issues relate to the quality of domestic law, in particular the question of whether the domestic legislation was formulated with sufficient precision and afforded adequate legal protection against arbitrariness in the absence of relevant administrative regulations.
109. 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 consent or refusal in relation to tissue removal – was sufficiently clear and foreseeable in its application as regards the exercise of this right. The applicant argued that there had been no possibility for her as the closest relative to object to the tissue removal, but the Government were of the view that she could have nonetheless exercised that right as nothing had prevented her from expressing her wishes or her objection.
110. The Court reiterates, 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). The Court observes that the parties submitted detailed arguments on the dispute as to whether the system of “explicit consent” or “presumed consent” had been operating in Latvia at the material time (see also the divided views of experts and investigators in paragraph 18 above). It has to be borne in mind, however, that the issue before the Court in the present case is not the general question of whether the respondent State should provide for a particular consent system. The issue is rather the applicant’s right to express wishes in connection with the removal of tissue from her husband’s body after his death and the domestic authorities’ alleged failure to ensure the legal and practical conditions for the exercise of that right.
111. The starting-point for the Court’s analysis is the fact that the applicant was not informed of the removal of tissue from her husband’s body when it was carried out. The domestic authorities established that it was common practice at the time for the experts at the Forensic Centre who carried out such removal not to attempt to contact relatives of the deceased (see paragraph 16 above); there was also evidence that, even where the experts did have some contact with the relatives, they neither informed them of the imminent removal of tissue nor obtained their consent (see paragraph 27 above).
112. As to whether or not the domestic law was formulated with sufficient precision, the Court observes that the domestic authorities themselves held conflicting views as to the scope of the obligations enshrined in national law. On the one hand, while the security police considered that tissue removal was allowed only with prior express consent and that its absence rendered the removal unlawful, they also accepted ‒ referring to the views held by the experts ‒ that different interpretations of domestic law were possible, thus rendering it impossible to secure a conviction (see paragraphs 18 and 20 above). On the other hand, various supervising prosecutors concluded that by removing the tissue without prior express consent the experts had breached the law and were to be held criminally liable (see paragraphs 22, 24 and 25 above). Eventually, the security police accepted the prosecutors’ interpretation of the domestic law and found that the rights of the closest relatives, including the applicant, had been breached. However, any criminal prosecution had in the meantime become time-barred (see paragraph 27 above). Lastly, a domestic court, while accepting that the closest relatives had the right to express consent or refusal in relation to the removal of tissue, overruled the view adopted by the prosecution and found that the domestic law did not impose an obligation on the experts to inform the closest relatives and explain their rights to them. The experts could not be convicted of breaching an obligation which was not clearly established by law (see paragraph 28 above).
113. The Court considers that such disagreement as to the scope of the applicable law among the very authorities responsible for its enforcement inevitably indicates a lack of sufficient clarity. In this regard, the Court refers to the domestic court’s finding that, although section 4 of the Law provided for the right of the closest relatives to refuse the removal of the deceased person’s organs and/or tissue, it did not impose an obligation on the expert to explain this right to the relatives (see paragraph 28 above). The Government also relied on this statement to argue that the tissue removal had not been unlawful (see paragraphs 97 and 99 above). The Court therefore concludes that, although Latvian law set out the legal framework allowing the closest relatives to express consent or refusal in relation to tissue removal, it did not clearly define the scope of the corresponding obligation or the margin of discretion conferred on experts or other authorities in this respect. The Court notes, in this connection, that the relevant European and international documents on this matter accord particular importance to the principle that the relatives’ views must be established by means of reasonable enquiries (see paragraphs 34 et seq. above). More specifically, as noted in the Explanatory Report to the Additional Protocol, whichever system a State chooses to put in place – be it that of “explicit consent” or that of “presumed consent” – appropriate procedures and registers should also be established. If the wishes of the deceased are not sufficiently clearly established, relatives should be contacted to obtain testimony prior to tissue removal (see, in particular, the commentary on Article 17 of the Additional Protocol, paragraph 37 above).
114. Furthermore, the Court reiterates that the principle of legality requires States not only to respect and apply, in a predictable and consistent manner, the laws they have enacted, but also, as a necessary element, to assure the legal and practical conditions for their implementation (see, mutatis mutandis, Broniowski v. Poland [GC], no. 31443/96, §§ 147 and 184, ECHR 2004‑V). Following the death of the applicant’s husband on 19 May 2001, an expert from the Forensic Centre was authorised to remove tissue from his body within twenty-four hours of verifying that his passport did not contain a special stamp denoting objection (see paragraph 16 above). However, it appears that at the material time there was no common register of stamps that had been entered in passports in order to denote refusal of or consent to the use of the passport-holder’s body after death (contrast with the situation following legislative amendments effective as of 1 January 2002 and the inclusion of this information in the population register, as described in Petrova, cited above, § 35). Moreover, it appears that there was no procedure for the State institutions and experts to follow in order to request and obtain this information. The Government argued that the expert had physically checked Mr Elberts’ passport prior to removing the tissue, but the applicant claimed that her husband’s passport was at home. Therefore, the procedure followed by the expert to verify the information contained in his passport remains unclear. Irrespective of whether or not the expert checked Mr Elberts’ passport, it remains unclear how the system of consent, as established under Latvian law at the material time, operated in practice in the circumstances in which the applicant found herself, where she had certain rights as the closest relative but was not informed how and when these rights might be exercised, still less provided with any explanation.
115. As to whether the domestic law afforded adequate legal protection against arbitrariness, the Court notes that the removal of tissue in the present case was not an isolated act as in the above-cited Petrova case, but was carried out under a State-approved agreement with a pharmaceutical company abroad; tissue removal had been carried out on a large number of people (see paragraphs 13, 14 and 26 above). In such circumstances it is all the more important that adequate mechanisms are put in place to counterbalance the wide margin of discretion conferred on the experts to carry out tissue removal on their own initiative (see paragraph 15), but this was not done (see also the international material cited in paragraphs 34 et seq. above). In response to the Government’s argument that nothing had prevented the applicant from expressing her wishes in relation to tissue removal, the Court notes the lack of any administrative or legal regulation in this regard. The applicant was, accordingly, unable to foresee what was expected from her if she wished to exercise that right.
116. In the light of the foregoing, the Court cannot find that the applicable Latvian law was formulated with sufficient precision or afforded adequate legal protection against arbitrariness.
117. 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 of Judgments and Decisions 1998‑II, and Heino v. Finland, no. 56720/09, § 49, 15 February 2011).
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
118. The applicant also complained under Article 3 of the Convention that the removal of tissue from her husband’s body had been carried out without her prior consent or knowledge and that she had been forced to bury him with his legs tied together.
119. Article 3 of the Convention reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
120. The Government contested that argument.
A. Admissibility
121. The Government raised the same preliminary objections pertaining to non-exhaustion of domestic remedies as already referred to above, and the applicant disagreed (see paragraphs 69-77 above). In this connection the Court refers to its assessment (see paragraphs 78-87 above) and considers it applicable also under this head.
122. Furthermore, the Government referred to an instruction issued by the Ministry of Justice (effective until 1 January 2002) concerning the procedure for post mortem forensic examinations and the Law on the order of examination of applications, complaints and suggestions by State and municipal institutions (effective until 1 January 2008). They argued that the applicant could have lodged a complaint regarding the condition of her deceased husband’s body. The applicant disagreed. The Court notes that the Government did not specify the manner in which the proposed remedy could provide redress in respect of the applicant’s complaint. The Court considers it sufficient to refer to its assessment above to the effect that the applicant’s recourse to a criminal-law remedy was appropriate (see paragraph 85 above). The Court would add here that the applicant also complained of acts of desecration on her husband’s body after the tissue removal in the criminal proceedings concerning the allegedly unlawful tissue removal. Prosecutors at two levels examined her complaints and dismissed them, holding that there was no evidence of desecration (see paragraphs 31-32 above). The Government’s objection is therefore dismissed.
123. The Government argued that the applicant had failed to comply with the six-month time-limit, given that she had found out about the condition of her deceased husband’s body on 26 May 2001, the day of his funeral. The Court notes, however, that on that date the applicant was not yet aware of the removal of tissue from her husband’s body; she learned about it only two years later, when the criminal inquiry was opened. She subsequently became a party to this investigation. The Court therefore regards the final decision in respect of the applicant’s complaint as having been issued on 23 October 2008, when the criminal inquiry was discontinued by means of a final decision. It dismisses the preliminary objection in this respect.
124. The Government, relying on Çakıcı v. Turkey ([GC], no. 23657/94, § 98, ECHR 1999‑IV), argued that the applicant could not be considered a victim under Article 3 of the Convention since neither she nor her husband had ever objected to the removal of tissue. They also argued that, since the applicant had never complained at the domestic level that she had been forced to bury her husband with his legs tied together, she could not claim to be a victim before the Court now. The applicant pointed out that Çakıcı was a disappearance case, whereas she had herself seen her husband’s remains before the funeral and his legs had been tied together. She had been shocked, but at the time she was unaware of the tissue removal. The Court considers that in the present case the question of whether or not the applicant can be considered a victim is closely linked to the merits of the case. It should therefore be joined to the merits.
125. Lastly, the Government maintained that the applicant’s complaint was incompatible ratione materiae with the provisions of the Convention. The Government argued that only the outer layer of the meninges (dura mater) had been removed. While they agreed that the removal of tissue from a deceased person without the consent or knowledge of that person’s closest relatives might on an individual and subjective basis give rise to distress, they did not consider that this ‒ in itself ‒ raised an issue under Article 3 of the Convention. The Government submitted that Article 3 did not lay down a general obligation to obtain consent for or to inform the closest relatives of tissue removal. The Government considered that the applicant’s complaint fell to be examined solely under Article 8 of the Convention. The Court considers that in the present case the question of whether or not the applicant’s complaint falls within the scope of Article 3 of the Convention is closely linked to the merits of the case. It should therefore be joined to the merits.
126. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds, subject to the questions joined to the merits. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
127. The applicant submitted that the minimum level of severity for Article 3 of the Convention to apply had been reached in the present case. She had witnessed the condition of her husband’s body ‒ with the legs tied together ‒ after the tissue removal. She had also been pregnant at the time with their second child. The applicant submitted that the unlawful tissue removal amounted to inhuman and degrading treatment prohibited by Article 3 of the Convention, since it had caused her shock and suffering. In support, she provided a written statement from her sister, who stated that she had seen Mr Elberts’ body in Sigulda, after it had been transported from the Forensic Centre prior to the funeral, and that his legs had been tied together with dark tape; she had assumed that this had been due to the car accident.
128. Furthermore, the applicant stressed that throughout the criminal inquiry she had been denied the possibility of finding out which organs or tissue had been removed from her husband’s body. At first, she had thought that his legs had been tied together to prevent certain consequences of the car accident. Later, she had assumed that they had been tied together following the removal of tissue from the legs and because other material had been inserted. The applicant was finally able to discover what specific body tissue had been removed from her husband’s body only when she received the Government’s observations in the present case.
129. The applicant, relying on Labita v. Italy ([GC], no. 26772/95, § 131, ECHR 2000‑IV), argued that there had been no effective investigation. The inquiry had lasted for five years; it had been terminated because of the expiry of the statutory time-limit. The applicant pointed out that she had lodged some thirteen complaints and that four decisions had been quashed. She considered that the inquiry had not been completed within a reasonable time and that it had been unduly protracted. The applicant, together with other victims, had been left with no redress and the experts had received no punishment.
130. The Government insisted that the tissue removal had been carried out in accordance with domestic law. The applicant had failed to demonstrate that the removal of tissue from her husband’s body had amounted to inhuman or degrading treatment. With reference to Selçuk and Asker v. Turkey (24 April 1998, § 78, Reports 1998‑II), the Government argued that the applicant had failed to demonstrate “anguish and suffering” on account of the removal of tissue without her prior consent. With reference to Ireland v. the United Kingdom (18 January 1978, § 167, Series A no. 25), they likewise argued that she had failed to demonstrate that she had experienced “feelings of fear, anguish and inferiority capable of humiliating and debasing” her. The Government reiterated that only dura mater had been removed from the body. Even if the applicant might have experienced a certain level of emotional suffering and distress on account of the removal of tissue without her consent or knowledge, accompanied by the suffering and distress inherent in losing a close family member, such suffering did not attain the minimum level of severity required for it to fall within the scope of Article 3 of the Convention. The Government also argued that during the autopsy, the heart had also been removed from the applicant’s husband’s body and that dura mater had in any event had to be removed and examined in order to assess whether his skull had been damaged. This could also be said to have caused emotional suffering, but would not attain the minimum level of severity required for Article 3 to apply.
131. The Government pointed out that the applicant had not been present at Sigulda Hospital and that it had been the responsibility of the closest relatives to inform the medical staff of their whereabouts and to contact them if they wished to object to tissue removal. They further emphasised that the removal had taken place under the agreement with the company, that tissues had been sent to the company for transformation into bio‑implants and then sent back to Latvia for transplantation purposes, and that the aim behind this had been to improve and save the lives of others. The Government emphasised that tissue removal had to be carried out “very quickly” and that even the most insignificant of delays would have meant losing some of the precious time during which tissue removal was possible. The Government, relying on the fact that during his lifetime the applicant’s husband had not objected to tissue removal or expressed such a view to the applicant, argued that she could not claim that it had been carried out contrary to his or her wishes.
132. The Government further submitted that the applicant’s allegation that her deceased husband’s legs had been tied together was false since it was not substantiated by any credible evidence. In their submission, according to the information provided by the Forensic Centre, his body had been tidied, cleansed and washed after the autopsy. They reiterated that no complaints had been registered concerning the condition of his body. According to the autopsy report, his legs had not been damaged in the car accident. In the present case, the standard of proof “beyond reasonable doubt” was not fulfilled as the applicant’s allegation concerning the condition of her deceased husband’s body had not been substantiated by any evidence.
2. The Court’s assessment
(a) General principles
133. In Svinarenko and Slyadnev v. Russia ([GC], nos. 32541/08 and 43441/08, §§ 113-18, ECHR 2014) the Court recently summarised the applicable principles as follows.
“113. As the Court has repeatedly stated, Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see, among many other authorities, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV).
114. Ill‑treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, for example, Jalloh v. Germany [GC], no. 54810/00, § 67, ECHR 2006‑IX). Although the question whether the purpose of the treatment was to humiliate or debase the victim is a factor to be taken into account, the absence of any such purpose cannot conclusively rule out a finding of violation of Article 3 (see, among other authorities, V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999-IX).
115. Treatment is considered to be ‘degrading’ within the meaning of Article 3 when it humiliates or debases an individual, showing a lack of respect for, or diminishing, his or her human dignity, or when it arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance (see M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 220, ECHR 2011, and El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 202, ECHR 2012). The public nature of the treatment may be a relevant or aggravating factor in assessing whether it is ‘degrading’ within the meaning of Article 3 (see, inter alia, Tyrer v. the United Kingdom, 25 April 1978, § 32, Series A no. 26; Erdoğan Yağız v. Turkey, no. 27473/02, § 37, 6 March 2007; and Kummer v. the Czech Republic, no. 32133/11, § 64, 25 July 2013).
116. In order for treatment to be ‘degrading’, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment (see V. v. the United Kingdom, cited above, § 71). ...
118. Respect for human dignity forms part of the very essence of the Convention (see Pretty v. the United Kingdom, no. 2346/02, § 65, ECHR 2002‑III). The object and purpose of the Convention as an instrument for the protection of individual human beings require that its provisions be interpreted and applied so as to make its safeguards practical and effective. Any interpretation of the rights and freedoms guaranteed has to be consistent with the general spirit of the Convention, an instrument designed to maintain and promote the ideals and values of a democratic society (see Soering v. the United Kingdom, 7 July 1989, § 87, Series A no. 161).”
134. The Court further notes that in assessing evidence in connection with a claim of a violation of Article 3 of the Convention, it adopts the standard of proof “beyond reasonable doubt”. Such proof may, however, follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Farbtuhs v. Latvia, no. 4672/02, § 54, 2 December 2004, and Bazjaks v. Latvia, no. 71572/01, § 74, 19 October 2010).
(b) Application in the present case
135. Turning to the circumstances of the instant case, the Court observes that the applicant alleged emotional suffering on account of the fact that the removal of tissue from her husband’s body had been carried out contrary to domestic law without her prior consent or knowledge and that she had been forced to bury her husband with his legs tied together; the Government argued that the first of these allegations did not reach the level of severity for Article 3 of the Convention to apply and that the second was not proved “beyond reasonable doubt”.
136. The Court notes that the applicant learned about the fact of tissue removal two years after her husband’s funeral and that a further period of some five years elapsed before the final conclusions were reached as to the possibility of criminal acts in this respect. The applicant alleged, and the Government did not deny, that during this entire time she had not been informed what organs or tissue had been removed from her deceased husband’s body; she had learned the answer only upon receiving the Government’s observations in the present case. Also, the applicant had come up with several reasons as to why her husband’s legs had been tied together and her submissions were further corroborated by written evidence from a family member. In view of these facts the applicant, as her husband’s closest relative, may have endured emotional suffering.
137. The Court’s task is to ascertain whether, in view of the specific circumstances of the case, such suffering had a dimension capable of bringing it within the scope of Article 3 of the Convention. The Court has never questioned in its case-law the profound psychological impact of a serious human rights violation on the victim’s family members. However, in order for a separate violation of Article 3 of the Convention to be found in respect of the victim’s relatives, there should be special factors in place giving their suffering a dimension and character distinct from the emotional distress inevitably stemming from the aforementioned violation itself (see Salakhov and Islyamova v. Ukraine, no. 28005/08, § 199, 14 March 2013). Relevant elements include the closeness of the family bond and the way the authorities responded to the relative’s enquiries (see, for example, Çakıcı, cited above, § 98, where this principle was applied in the context of enforced disappearance; Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, no. 13178/03, § 61, ECHR 2006-XI, where the Court further relied on this principle in consideration of a mother’s complaint regarding her suffering on account of her five-year old daughter’s detention in another country; and M.P. and Others v. Bulgaria, no. 22457/08, §§ 122-24, 15 November 2011, where the relevant complaint concerned the suffering of the relatives of an abused child). In the cases cited the Court attached weight to the parent-child bond. It has held that the essence of a violation lay in the authorities’ reactions and attitudes to the situation when it was brought to their attention (see Salakhov and Islyamova, cited above, § 200). Similar considerations may be said to be applicable in the present case involving the applicant and her deceased husband.
138. The Court would distinguish the present case from cases brought before the Court by family members of the victims of “disappearances” or extra-judicial killings committed by the security forces (see, for example, Luluyev and Others v. Russia, no. 69480/01, §§ 116-18, ECHR 2006‑XIII), and from cases where people were killed as a result of actions of the authorities in contravention of Article 2 of the Convention (see, for example, Esmukhambetov and Others v. Russia, no. 23445/03, §§ 138‑51 and 190, 29 March 2011). Nor is there any suggestion in the present case that the body had been mutilated (see Akkum and Others v. Turkey, no. 21894/93, §§ 258-59, ECHR 2005‑II, and Akpınar and Altun v. Turkey, no. 56760/00, §§ 84-87, 27 February 2007) or dismembered and decapitated (see Khadzhialiyev and Others v. Russia, no. 3013/04, §§ 120-22, 6 November 2008).
139. While it cannot be said that the applicant was suffering from any prolonged uncertainty regarding the fate of her husband, the Court finds that she had to face a long period of uncertainty, anguish and distress in not knowing what organs or tissue had been removed from her husband’s body, and in what manner and for what purpose this had been done. In this context, the Government’s argument that only dura mater was removed is of no relevance here. In any event, the applicant discovered this only during the proceedings before the Court. At the time of the events, the applicant had no reason to question the activities carried out in the Forensic Centre, as her husband’s body had been delivered there to establish the cause of death. Subsequently, a criminal inquiry was opened to determine the legality of the tissue removal carried out in the Forensic Centre and it was revealed that tissue had been removed not only from her husband’s body but also from hundreds of other persons (nearly 500 people in only three years, by way of example) over a period of some nine years (see paragraphs 13-33 above). It was also established that removals had been carried out under a State-approved agreement with a pharmaceutical company abroad. This scheme had been implemented by State officials – forensic experts – who, in addition to their ordinary duties of carrying out forensic examinations, had carried out removals on their own initiative (see paragraph 15 above). These are special factors which caused additional suffering for the applicant.
140. The Court considers that the applicant’s suffering had a dimension and character which went beyond the suffering inflicted by grief following the death of a close family member. The Court has already found a violation of Article 8 of the Convention because, as the closest relative, the applicant had a right to express consent or refusal in relation to tissue removal, but the corresponding obligation or margin of discretion on the part of the domestic authorities was not clearly established by Latvian law and there were no administrative or legal regulations in this respect (see paragraphs 109-16 above). While there are considerable differences between the present case and the above-cited Petrova case as concerns the scale and magnitude of the organ or tissue removal, the Court has nonetheless noted in both cases certain structural deficiencies which have prevailed in the field of organ and tissue transplantation in Latvia. These factors are also to be taken into account in the Latvian context as far as Article 3 of the Convention is concerned. In addition, not only were the applicant’s rights as the closest relative not respected, but she was also faced with conflicting views on the part of the domestic authorities as to the scope of the obligations enshrined in national law. Furthermore, while the security police and various prosecutors disagreed as to whether or not domestic law was sufficiently clear to allow a person to be prosecuted on the basis thereof, they all considered that removal without consent was unlawful (see paragraphs 18, 20, 22, 24 and 25 above). However, criminal prosecution had become time-barred by the time their disagreement had been resolved (see paragraph 27 above) and, in any event, the domestic court would not have allowed such a prosecution because the law was not sufficiently clear (see paragraph 28 above). These facts demonstrate the manner in which the domestic authorities dealt with the complaints brought to their attention and their disregard vis-à-vis the victims of these acts and their close relatives, including the applicant. These circumstances contributed to feelings of helplessness on the part of the applicant in the face of a breach of her personal rights relating to a very sensitive aspect of her private life, namely giving consent or refusal in relation to tissue removal, and were coupled with the impossibility of obtaining any redress.
141. The applicant’s suffering was further aggravated by the fact that she was not informed of what exactly had been done in the Forensic Centre. She was not informed of the tissue removal and, having discovered that her deceased husband’s legs were tied together on the day of the funeral, assumed this to be a consequence of the car accident. Two years later she was informed of the pending criminal inquiry and the potentially unlawful acts carried out in respect of her deceased husband’s body. It is clear that at this point the applicant experienced particular anguish and realised that her husband might possibly have been buried with his legs tied together as a consequence of the acts that had been carried out in the Forensic Centre on his body. The Government’s argument that this was not proved “beyond reasonable doubt” is misplaced, since the applicant’s complaint relates to the anguish resulting from precisely that uncertainty regarding the acts carried out at the Forensic Centre in respect of her deceased husband’s body.
142. In the special field of organ and tissue transplantation it has been recognised that the human body must still be treated with respect even after death. Indeed, international treaties including the Convention on Human Rights and Biomedicine and the Additional Protocol, as noted in the Explanatory Report to the latter, have been drafted to safeguard the rights of organ and tissue donors, living or deceased. The object of these treaties is to protect the dignity, identity and integrity of “everyone” who has been born, whether now living or dead (see paragraph 37 above). As cited in paragraph 133 above, respect for human dignity forms part of the very essence of the Convention; treatment is considered “degrading” within the meaning of Article 3 of the Convention when, inter alia, it humiliates an individual, showing a lack of respect for human dignity. The applicant’s suffering was caused not only by the breach of her rights as the closest relative and the ensuing uncertainty regarding what had been done in the Forensic Centre, but was also due to the intrusive nature of the acts carried out on her deceased husband’s body and the anguish she suffered in that regard as his closest relative.
143. In these specific circumstances, the Government’s objections that the applicant’s complaint does not fall within the scope of Article 3 of the Convention and that she cannot be considered a victim in that regard are dismissed. The Court has no doubt that the suffering caused to the applicant in the present case amounted to degrading treatment contrary to Article 3 of the Convention. It accordingly finds a violation of that provision.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
144. Lastly, the applicant relied on Article 13 of the Convention in connection with her contention that there were several possible interpretations of domestic law.
145. The Government contested that argument.
146. The Court notes that this complaint is linked to the complaint examined above under Article 8 of the Convention and must therefore likewise be declared admissible.
147. The Court considers, however, that it has already examined the lack of clarity of the domestic law under Article 8 of the Convention above. Accordingly, it does not consider it necessary to examine this complaint separately under Article 13 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
148. 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
149. The applicant claimed 40,000 euros (EUR) in respect of non-pecuniary damage.
150. The Government argued that the applicant had not sufficiently demonstrated that she had sustained non-pecuniary damage to the extent claimed and deemed the amount claimed by her excessive and exorbitant. With reference to 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.
151. Having regard to the nature of the violations found in the present case and deciding on an equitable basis, the Court awards the applicant EUR 16,000 in respect of non-pecuniary damage.
B. Costs and expenses
152. The applicant also claimed EUR 500 for the costs and expenses incurred before the Court.
153. The Government did not contest the applicant’s claim under this head. They considered it sufficiently substantiated and reasonable.
154. 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
155. 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. Joins to the merits the Government’s objections that the applicant’s complaint under Article 3 is incompatible ratione materiae and ratione personae with the provisions of the Convention and dismisses them;
2. Declares the applicant’s complaint under Article 8, in so far as it relates to the removal of her deceased husband’s tissue without her consent, and the complaint under Article 13 admissible and the remainder of the complaint under Article 8 of the Convention inadmissible;
3. Declares the applicant’s complaint under Article 3 admissible;
4. Holds that there has been a violation of Article 8 of the Convention;
5. Holds that there has been a violation of Article 3 of the Convention;
6. Holds that there is no need to examine the complaint under Article 13 of the Convention;
7. 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 16,000 (sixteen 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;
8. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 13 January 2015, 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 opinion of Judge Wojtyczek is annexed to this judgment.
P.H.
F.A.
CONCURRING OPINION OF JUDGE WOJTYCZEK
1. In the instant case, I have voted with the majority; however I have certain doubts about part of the reasoning.
2. I have already expressed my views concerning rights in respect of transplantation in my concurring opinion in Petrova v. Latvia (no. 4605/05, 24 June 2014). I should like to add some further explanations here.
In my view, the applicant’s right to oppose the transplantation of her deceased husband’s organs is not an autonomous right which could be exercised ad libitum. This right is derived from the right of the deceased man to decide freely on the transplantation of his organs. The surviving relative acts as the depositary of the rights of the deceased. Therefore, the applicant may agree or object to the transplantation of her deceased husband’s organs only in so far as she expresses the wishes of the deceased. Holding otherwise would transform the body of a deceased person into an object of arbitrary decisions by relatives.
3. The fact that the applicant indeed exercises a right protecting the wishes of her deceased husband does not mean that – under the Convention – this right has identical status with her husband’s right. However close the connection between the two rights in question, the protection afforded to them under the Convention may be different. As I explained in my concurring opinion in Petrova, cited above, an individual’s right to express the wishes of a deceased relative in respect of transplantation comes within the scope of family life, within the meaning of Article 8 of the Convention. The right under consideration ensures a multidimensional protection, since it protects not only the wishes of the deceased person but also those of the deceased person’s relatives themselves, and relationships within the family. Whether the right to decide freely on the transplantation of one’s own organs comes within the scope of Article 8 of the Convention is a separate issue.
4. The Court’s case-law has constantly extended the scope of private life within the meaning of Article 8. Recent judgments may suggest that protection of private life is to be identified with the general freedom of decision in personal or private matters. The meaning of “private life” is thus gradually being transformed into a general freedom of action, a notion which is known as allgemeine Handlungsfreiheit in German legal science. In my view, such an extensive interpretation of Article 8 in the Court’s case-law does not have a sufficient legal basis in the Convention. The provision in question is sometimes misused to fill lacunae in the Convention protection.
5. In the present case the Court has declared the complaint brought by the applicant on behalf of her deceased husband inadmissible. This is explained in the reasoning on the ground that this part of the complaint is “incompatible ratione personae”.
I accept the view that Article 8 of the Convention is not applicable to the deceased husband’s rights, at stake in the instant case. Such a restrictive interpretation of the Convention corresponds more closely to the applicable rules of treaty interpretation. However, in my view the application should be considered inadmissible ratione materiae rather than ratione personae. I do not see sufficiently strong arguments to consider that decisions concerning the transplantation of one’s own organs are covered by the notions of private life or family life as understood under the rules of treaty interpretation established in international law. To sum up, rights in respect of transplantation are only partially protected by the Convention.
[1]. www.coe.int/T/DG3/Health/Source/CDBI_INF(2003)11_en.pdf.
[2]. Formed in December 1997, the EGE is an independent advisory body to the European Commission. Its predecessor was the Group of Advisers to the European Commission on the Ethical Implications of Bi
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