CASE OF ELBERTE v. LATVIA
Preliminary objections joined to merits and dismissed (Article 35-3 - Ratione materiae;Ratione personae);Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage)
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva
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. 6. On 19 May 2001 the applicant’s husband was involved in a car accident in the Allaži parish. 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 learnt about her son’s death immediately, stayed next to 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 his body tissue and he had removed tissue from Mr Elberts’ body with a total area of 10 cm x 10 cm – the outer layer of the meninges (dura mater). 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 removed tissue was larger than 10 cm x 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 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. 13. On 3 March 2003 the Security Police (Drošības Policija) 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 Bodies of Deceased Persons 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 2-4 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 Office of the Prosecutor General 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 immediately 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 about 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 Record, 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 fiveyear 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 about 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 tissues were 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 disregarding the deceased person’s refusal, as expressed during his lifetime and recorded in accordance with the law in force at the relevant time, or disregarding 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 about their rights 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 about 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 these rights to the relatives. Given that there are no legislative instruments which impose an obligation on the experts to inform relatives about 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. She 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 of the Criminal Law proscribing 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 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 Office of the Prosecutor General replied with a final negative decision.