CASE OF PETROVA v. LATVIA
Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Non-pecuniary damage - award
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney
5. The applicant was born in 1955 and lives in Riga. She is the mother of Mr Oļegs Petrovs (the applicant’s son), a Latvian national who was born in 1979 and who died on 29 May 2002. 6. On 26 May 2002 at approximately 7 a.m. the applicant’s son sustained very serious injuries in a car accident near Bauska. At approximately 8.45 a.m. he was taken to hospital in Bauska. Later, at 2.45 p.m., he was transferred to Riga’s First Hospital (Rīgas 1. slimnīca – “the Hospital”) – an entity that was registered as a “non-profit municipally-owned limited-liability company” (Rīgas pašvaldības bezpeļņas organizācija sabiedrība ar ierobežotu atbildību) at the material time – where surgery was carried out on his head. Following the operation his condition remained very serious; he remained in the emergency department of the Hospital (reanimācijas nodaļa) and did not regain consciousness. 7. At 11.50 p.m. on 28 May 2002 a call from the Hospital was received by the transplantation centre of Pauls Stradiņš Clinical University Hospital – an entity that was registered as a “non-profit State-owned joint stock company” (bezpeļņas organizācija valsts akciju sabiedrība) at the material time – providing information about a potential donor who was undergoing resuscitation. A coordinator from the transplantation centre, together with another doctor, went to the Hospital. 8. At 0.45 a.m. on 29 May 2002 the applicant’s son’s condition was noted in his medical record as being fatal. It was noted that medical resuscitation had been started. The death of the applicant’s son was recorded at 1.20 a.m. in his medical record at the Hospital. 9. Between 1.35 a.m. and 3.45 a.m. a laparotomy was performed on the body, in the course of which the kidneys and the spleen were removed for organ transplantation purposes. This operation was carried out by the transplantation centre’s transplant surgeon, urologist and operating nurse, in the presence of the coordinator and the Hospital’s resuscitation specialist. On the death certificate the time of death was recorded as 2.45 p.m. on 29 May 2002 (probably by mistake – see 15 below). 10. According to the applicant, during her son’s stay in the Hospital she was in permanent contact with the doctors there. On 29 May 2002, although her son’s condition was deteriorating, the applicant was not informed of it. She was also not asked whether her son had consented to being an organ donor and whether she would consent to organ transplantation in the absence of any wishes expressed by her son. 11. According to the Government, the Hospital did not have information on record providing the contact details of any relatives, and they had informed the police about the son’s hospitalisation by dialling the emergency telephone number for the police. It had therefore, not been possible to contact any relatives. In this regard the Government referred to information provided by the Hospital which stated that “given the fact that no telephone numbers of any relatives were recorded on the patient’s medical card ... there was apparently no contact with the applicant”. 12. On 30 May 2002, in the context of criminal proceedings against the person held liable for the car accident, a forensic (post-mortem) examination on the applicant’s son’s body was carried out. It was noted, inter alia, that on 29 May 2002 between 1.35 a.m. and 3.45 a.m. a laparotomy had been performed on the body. The applicant obtained a copy of the forensic report on 11 February 2003 and realised only then that nine months earlier certain organs had been removed from her son’s body for transplantation purposes. 13. In response to a complaint lodged by the applicant, on 12 March 2003 the Hospital stated that the transplantation had been carried out by the transplant doctors in accordance with domestic law. It was noted that the applicant had not been informed of her son’s health condition because she had not visited the doctors at the Hospital. 14. In response to further complaints by the applicant to the police and the prosecutor’s office, several examinations were carried out. 15. In response to a query by the Security Police (Drošības policija), the Inspectorate of Quality Control for Medical Care and Working Capability (“the MADEKKI”) analysed the medical file and met with doctors and managers from the two medical institutions involved – Riga’s First Hospital and Pauls Stradiņš Clinical University Hospital. On 7 May 2003 it completed the examination and informed the Security Police of its conclusions. The MADEKKI provided an answer to the question of whether the medical practitioners had complied with the applicable domestic law in the following terms: “In taking the decision [to remove organs] and in carrying out the removal of organs, the medical practitioners have complied with section 10 of the Law on Protection of the Body of a Deceased Person and Use of Human Organs and Tissue and provisions of regulation no. 431 (1996) ... There is no information at the MADEKKI’s disposal as to whether there was a stamp in Mr Petrovs’ passport signifying his objection to the use of his body tissue and organs. [The applicant] was not informed about the possible removal of organs (the kidneys and the spleen) for transplantation purposes.” The MADEKKI also explained in their letter to the Security Police that the time of biological death was 1.20 a.m. on 29 May 2002 and not 2.45 p.m. as recorded, probably by mistake, on the death certificate. 16. On 27 May 2003 the Security Police replied to the applicant on the basis of the MADEKKI report that the organs of her son had been removed in compliance with domestic law. They relied on section 10 of the Law on Protection of the Body of a Deceased Person and Use of Human Organs and Tissue (“the Law”) and regulation no. 431(1996). The applicant was forwarded a copy of the MADEKKI’s letter to the Security Police. 17. On 17 June 2003 the prosecutor’s office forwarded the applicant’s complaint to the Security Police with a view to instituting an additional inquiry. 18. On 15 July 2003 the MADEKKI replied to questions put by the Ministry of Health, which had been contacted by the National Human Rights Bureau further to a complaint by the applicant. They answered that there was no information at their disposal as to whether, at the time of her son’s death, any refusal of or consent to the use of his body, organs or tissue after his death had been recorded in the Population Register (Iedzīvotāju reģistrs). They also answered that the applicant had not been informed of the possible removal of organs (the kidneys and the spleen) for transplantation purposes. There was no information at the MADEKKI’s disposal as to whether there had been a stamp in Mr Petrovs’ passport signifying an objection to the use of his body tissue and organs. On 13 August 2003 the Ministry of Health, replying in turn to the National Human Rights Bureau, concluded on the basis of the information provided by the MADEKKI that, because the applicant had not been informed about the possible transplantation, she had neither consented to it nor refused it. 19. On 29 July 2003 the Security Police informed the applicant that her complaint was still being examined. 20. On 12 November 2003 the Security Police adopted a decision not to institute criminal proceedings. For the same reasons as were given in the above-mentioned reports, it was concluded that the transplantation had been carried out in compliance with domestic law. The reports indicated that in his lifetime Mr Petrovs had not indicated any objection to the use of his body tissue and organs after death and that no objection to the use of his organs had been received from his relatives before the start of the transplantation. The coordinator of the transplantation centre had been responsible for informing the relatives about the issues pertaining to transplantation, and for obtaining records, consent, signatures and other relevant information. Taking into account the fact that the relatives had not been at the hospital at the time of the son’s biological death and that the removal of organs in such cases has to be performed immediately, it had not been possible to obtain their consent or refusal in relation to the organ removal. 21. On 14 November 2003 the applicant was informed of this decision. 22. On 23 January 2004 the National Human Rights Bureau replied to the applicant. According to the information at their disposal, there was nothing on record in the Population Register indicating whether Mr Petrovs would have allowed or refused the use of his body, tissue and organs after his death. According to the information provided by the Ministry of Health and on the basis of the conclusions established by the MADEKKI, the applicant had not been informed about the imminent removal of her son’s kidneys and spleen, and she had therefore neither consented to it nor refused it. Finally, the applicant was advised that she should contact the prosecutor’s office because the Security Police had not indicated any procedure or time-limits for lodging an appeal. 23. On 4 March 2004, further to a subsequent complaint, a meeting was convened at which the Minister for Health discussed with the representatives of the Hospital and the transplantation centre the case of the removal of the applicant’s son’s organs. The Minister for Health was of the opinion that the relatives should have been informed about the organ removal and that their consent should have been obtained. The representatives stated that the organ removal had been conducted in compliance with the applicable law. The meeting record contained a note to the effect that in autumn 2003 a working group which had been established by the Ministry of Health had prepared amendments to the above-mentioned Law in order to define its provisions more clearly. They had made two proposals. The first proposal was to include in the Law a provision stating that on all occasions inquiries were to be made about the deceased person’s wishes with his or her closest relatives. The second proposal was to rely on the person’s wishes as expressed during his or her lifetime and, in the absence of any such wishes, to presume consent (no inquiries made with the closest relatives). It was also noted that the relevant committee of the Parliament had opted for the second option (see paragraph 41 below for the adopted text). It was also noted that once the proposed amendments were passed by the Parliament, the occurrence of such “problematic situations would be practically ruled out”. On 17 March 2004 the applicant received reply from the Ministry of Health to this effect. 24. On 6 May 2004 a prosecutor dismissed the applicant’s complaint concerning the refusal of 12 November 2003 to institute criminal proceedings. She relied on section 11 of the Law and indicated that consent from parents or from a legal guardian was required only in cases relating to the removal of organs for transplantation purposes from a dead child’s body. Accordingly, the actions of the medical practitioners did not constitute a crime and the 12 November 2003 decision had been lawful. 25. On 29 June 2004 a superior prosecutor dismissed the applicant’s complaint concerning the prosecutor’s decision of 6 May 2004. He stated that – according to the information provided by the Ministry of Health – the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (see paragraph 28 below) had not been ratified by the Latvian Parliament and that Latvia had not even signed the Additional Protocol to the Convention on Human Rights and Biomedicine concerning Transplantation of Organs and Tissues of Human Origin; Latvia was therefore not a party to this Convention. The prosecutor relied on Article 17 of the Additional Protocol and indicated that at the relevant time (May 2002) in Latvia these issues were regulated in sections 4 and 11 of the Law. These provisions did not require consent from close relatives unless the removal was from the body of a dead child. The rules relating to transplantation coordinators obliged them to obtain relatives’ consent only in cases prescribed by law. The prosecutor concluded that there were no grounds to consider that the medical practitioners, in taking the decision to remove organs and in carrying out the removal of those organs, had infringed legal provisions. Therefore, there were no grounds to charge them with a crime under section 139 of the Criminal Law; at that time no other person had been charged with the crime. At the same time, the applicant was informed about the 2 June 2004 amendments to sections 4 and 11 of the Law, in which it was specified that the organs of a deceased person might be removed for transplantation purposes if there was no information recorded in the Population Register indicating any objection and if the relatives of the deceased had not, before the start of the transplantation, informed the hospital in writing of the deceased person’s objection – expressed during his or her lifetime – to the use of his or her organs and tissue after death. 26. On 23 August 2004 the Prosecutor General in a final decision dismissed the applicant’s complaint concerning the decision of 29 July 2004. He also referred to sections 4 and 11 of the Law and noted that these provisions prohibited removal in cases where a refusal or objection had been received but not in cases where wishes of the closest relatives had not been established. These provisions, as in force in May 2002, therefore did not oblige medical practitioners to actively search for and inform the closest relatives of a deceased person about the possible removal for transplantation purposes of his or her body tissue and organs unless that person was a child. On 29 May 2002 the medical practitioners did not have any information at their disposal concerning a refusal of or objection to the removal of Mr Petrovs’ organs. He concluded that the organ removal had been performed in accordance with domestic law. The Prosecutor General also observed that activities performed on the body of a deceased person could not be treated as interference with his or her private life.