1. Introduction
1. In 2008, the Council of Europe and the United Nations
decided to draw up a joint study on “Trafficking in organs, tissues
and cells and trafficking in human beings for the purpose of the
removal of organs”. The joint study, published in October 2009,
concluded that it was necessary to prepare an international legal
instrument establishing a definition of trafficking in organs, tissues
and cells of human origin and setting out measures to be taken to
prevent such trafficking and to protect the victims, as well as
criminal law measures to punish trafficking.
2. At the same time, the Parliamentary Assembly, alerted by the
stories described in the memoirs of Carla Del Ponte,
began an investigation
into allegations of inhuman treatment of people and illicit trafficking
in human organs in Kosovo.
This investigation gave
rise to the adoption of
Resolution 1782 (2011), bearing the same title, in which the Assembly agreed
with the conclusion of the joint study that an international legal instrument
on the subject should be drawn up.
3. Thus, when, in July 2011, the Committee of Ministers decided
to set up a committee of experts to prepare a draft convention against
trafficking in human organs, this marked the culmination of several
years of efforts by the Council of Europe in this field. It should
nevertheless be pointed out that the principle whereby the human
body and its parts should not, as such, give rise to financial gain
has been covered by texts of the Organisation since as long ago
as 1978.
In 1997, the Convention
on Human Rights and Biomedicine (ETS No. 164), known as the “Oviedo
Convention”, reaffirmed this principle in a legally binding instrument
(Article 21), and, on that same basis, its Additional Protocol concerning
Transplantation of Organs and Tissues of Human Origin (ETS No. 186)
prohibited organ trafficking (Article 22). That protocol still remains
the only legally binding international instrument to establish such
a prohibition.
4. Under the terms of reference of the Committee of Experts on
Trafficking in Human Organs, Tissues and Cells (PC-TO), the committee
is to prepare a draft criminal law convention against trafficking
in human organs, and, if necessary, a draft additional protocol
to the draft convention against trafficking in human tissues and cells.
To this end, the PC-TO has held four meetings.
On
behalf of the Assembly, and more particularly its Committee on Social
Affairs, Health and Sustainable Development, it was my privilege
to participate in the first three meetings of the PC-TO. Furthermore,
during the Assembly’s June 2012 part-session, our committee held an
exchange of views with Dr Hans-Holger Herrnfeld, the Chairperson
of the PC-TO. This provided the opportunity to present the Assembly’s
point of view during the convention drafting process. In the same
context, the previous version of this report, in which the Assembly’s
point of view was set out in detail, was forwarded to the PC-TO.
5. On 19 October 2012, the PC-TO adopted the final version of
the preliminary draft convention against trafficking in human organs.
It decided that, at this stage, it was not advisable to prepare
an additional protocol against trafficking in human tissues and
cells. The preliminary draft convention is soon to examined by the European
Committee on Crime Problems (CDPC) at its plenary meeting on 4-7
December 2012.
The
CDPC will take position,
inter alia,
on those questions on which it has not been possible to reach a
consensus within the PC-TO and will adopt a draft convention to
be submitted to the Committee of Ministers.
2. A criminal
law convention
6. The terms of reference of the PC-TO required it first
and foremost to prepare a draft criminal law convention against
trafficking in human organs. In doing so, the PC-TO was instructed
to ensure that the text provided added value, particularly in respect
of issues relating to the criminalisation and prevention of trafficking
in human organs and in respect of assistance to victims and international
co-operation.
7. As finalised by the PC-TO, the preliminary draft convention
is a classic criminal law convention with provisions mainly devoted
to the definition of the acts constituting organ trafficking (substantive
part) and to the rules relating to prosecution of such acts (procedural
part). Measures are of course proposed with a view to the protection
of victims, to the prevention of trafficking and to co-operation,
but these are either directed to criminal law or dealt with succinctly.
Thus, while the text is very detailed in respect of international
co-operation “in criminal matters” and of the protection of victims’
rights and interests during “criminal proceedings”, it is much less
so in respect of prevention and victim protection measures outside
the criminal law context. For example, in order to prevent organ
trafficking, one of the proposals is for transparent systems for
transplantation and equitable access to these services, but without
emphasis on the need to take measures which could make it possible
to deal with the shortage of organs, when one of the main reasons
for organ trafficking is precisely that shortage. The fact that
it is specified in the explanatory report that “equitable access
to transplantation services” also means that the States Parties
should endeavour to ensure that there is sufficient access to organs
in my opinion reduces the crucial question of shortage to that of
access, which is not appropriate. Similarly, the text says that
victims should be assisted in their physical, psychological and
social recovery, but gives no indication of how such assistance
is to be provided, for example by guaranteeing them access to emergency
medical care. Furthermore, the only co-operation measure (outside
the criminal law sphere) proposed by the text is the designation
of a national contact point for exchange of information pertaining
to trafficking in human organs.
8. This approach, which gives precedence to the criminal law
aspect of the future legal instrument, seems to be consistent with
the terms of reference given to the PC-TO by the Committee of Ministers,
at least at first sight.
However, it is less
consistent with the procedure adopted for recent Council of Europe
conventions based on the “4P principle”, which deal with a given
problem area, not only in terms of criminal law (prosecution of
the perpetrators), but also from the angle of crime prevention,
victim protection, the promotion of appropriate policies and national
and international co-operation.
This comprehensive
approach does indeed have the merit of guaranteeing greater added
value in relation to the question dealt with. It seems important
to emphasise this difference between the preliminary draft convention
and those conventions based on the “4P principle”. In fact, by embarking
on preparation of the first legally binding international instrument
solely devoted to organ trafficking, the Council of Europe is attempting
to meet a major challenge. Whatever difficulties may arise, such
a challenge implies first and foremost a great responsibility, namely
that of preparing the most complete possible instrument in order
to prevent and combat this extremely serious worldwide phenomenon which
contravenes the most basic standards in terms of human rights and
human dignity.
9. Consequently, I consider it vital to complete the provisions
of the preliminary draft convention relating to the prevention of
organ trafficking, the protection of victims and national and international
co-operation to combat such trafficking. This does not necessarily
entail the addition of extremely detailed provisions; general formulations
could be opted for and possibly backed up by examples set out in
the explanatory report. In this context, the convention should advocate
first and foremost the introduction of measures to deal with the shortage
of organs. In this respect it could suggest,
inter
alia, the setting up of a system of presumed consent for
the removal of organs from deceased persons. Furthermore, the explanatory
report could refer to other systems such as official and compulsory
registration of people’s wishes (whether or not they wish to be donors).
It could also suggest the running of campaigns to raise public awareness
of organ donation, in order to increase the numbers of donors. Where
international co-operation is concerned, the setting up of an inter-State
and/or regional transplantation entity centralising requests for
organs and organ availability should be considered, in order to
increase the efficiency of transplantation operations,
inter alia by improving the selection of
the most suitable recipient among the patients on the waiting list.
Similarly,
special arrangements could be made at borders in order to detect
cases possibly entailing organ trafficking. Finally, at national
level, practical means of detecting trafficking in organs might
be suggested, such as identifying cases of patients who “disappear”
from waiting lists or who seek anti-rejection treatment.
3. Decision on the
preparation of an additional protocol against trafficking in human
tissues and cells
10. The PC-TO has decided that, at this stage, it is
not advisable to prepare an additional protocol against trafficking
in human tissues and cells. This decision was largely due to the
“incomplete” or inadequate nature of national regulations governing
the removal, preservation, distribution and subsequent use of tissues
and cells of human origin, or in some cases the lack of regulations
, as well as the extreme diversity
of the regulations in question. While certain international instruments
establish general principles in this respect, they do not cover
the whole range of possible uses of tissues and cells. In fact,
the principles appearing in the Additional Protocol to the Convention
on Human Rights and Biomedicine, concerning Transplantation of Organs
and Tissues of Human Origin (ETS No. 186), also applicable to cells,
govern only the field of transplantation, whereas those appearing
in Recommendation Rec(2006)4 of the Committee of Ministers on research
on biological materials of human origin (including cells and tissues)
are confined to the research sphere.
11. Like the trafficking of organs, the trafficking of human tissues
and cells constitutes a grave threat to human rights and to public
and individual health. Cases reported in the media revealing a possible
trade in body parts of dubious origin for use in the making of medical
products (such as bone grafts)
and the points raised in the joint
Council of Europe/United Nations study only confirm this statement,
and also show the need to prepare an international legal instrument
against the trafficking of human tissues and cells. However, bearing in
mind the difficulties set out in the previous paragraph, it would
be sensible to move step by step and to start by establishing the
common general principles relating to the removal, conservation,
distribution and use of tissues and cells, given that these principles
should cover all the fields in which they are used. Subsequently, on
the basis of these principles, non-compliance with which could constitute
the basis for a definition of the acts of trafficking of tissues
and cells, an additional protocol against such trafficking could
be prepared.
12. If this proposal is adopted, the relevant common general principles
could be established in a binding instrument, possibly in the form
of an additional protocol to the Oviedo Convention, during the period
2014-2015. Work on preparing an additional protocol against trafficking
in tissues and cells could begin immediately after that first text
came into force.
4. Questions of law
and ethics
13. Article 4 of the preliminary draft convention defines
illicit removal of organs. Article 4.1 reads as follows:
“1. Each Party shall take the necessary
legislative and other measures to establish as a criminal offence
under its domestic law, when committed intentionally, the removal
of human organs from living or deceased donors:
a. where
the removal is performed without the free, informed and specific
consent of the living or deceased donor, or, in the case of the
deceased donor, without the removal being authorised under its domestic
law;
b. where, in exchange for the
removal of organs, the living donor, or a third party, has been
offered or has received a financial gain or comparable advantage;
c. where in exchange for the removal
of organs from a deceased donor, a third party has been offered
or has received a financial gain or comparable advantage.”
14. This article is worded so as to leave to the discretion of
States Parties the determination of which persons are punishable
in the event of illicit removal. Hence, the preliminary draft convention
does not take a position on the difficult issue of whether or not
donors and recipients should be punished if they are involved in
organ trafficking.
Without
prejudging any debate of principle as to the legitimacy, or even
utility of punishing these two categories of persons, it is necessary,
in the determination of the penalties which may be applicable to them,
to take account of the specific nature of their situation. In fact
it is usually the case that the context in which donor and recipient
find themselves makes them extremely vulnerable: for a donor, selling
an organ might be the only way of possibly escaping from poverty,
whereas for a recipient suffering from a potentially fatal illness,
purchasing an organ might be the sole means of survival. Thus, in
order to guarantee that the future legal instrument is geared to
the realities of organ trafficking, and more specifically to ensure
that any penalties imposed on donors and/or recipients are fair
and proportionate, a provision on “mitigating circumstances” should
be added to the preliminary draft convention. This provision should
include,
inter alia, the consideration
of the particular vulnerability of organ donors and/or recipients
who have committed the offences established in the convention. Alternatively,
the explanatory report to the convention could refer to that particular
vulnerability, specifying that it should, if relevant, be taken
into account when the penalties which may be applicable to donors
and recipients are determined.
15. In conjunction with the above point, I note with satisfaction
that the preliminary draft convention considers the commission of
the offences that it establishes against a child to be an aggravating
circumstance. In fact, in so far as children are particularly exposed
to this form of crime, it is very important for the future convention
to contain such a provision.
16. Another issue that deserves to be broached is “transplant
tourism”, the practice whereby certain patients travel abroad to
procure organs in exchange for payment. In a context in which this
practice, according to a World Health Organization (WHO) estimate
in 2004, represents 10% of all transplantations in the world, it seems
essential to adopt means of applying the measures set out in the
convention beyond the territories of the States Parties. Otherwise
“lawless zones” might well considerably limit the convention’s impact.
One such means entails, in respect of the offences for which the
convention provides, doing away with the usual dual criminality
rule.
The
objective of this approach would be to combat “transplant tourism”,
and this would be fully in line with the spirit and aims of the
future convention. This possibility was initially provided for in
the preliminary draft convention, before being deleted at the last
meeting of the PC-TO. I therefore propose that it be restored to
the text.
17. Still in relation to “transplant tourism”, the practice of
procuring organs in countries which allow the transplantation of
organs removed from prisoners and/or executed detainees deserves
particular attention.
Under
Article 4.1.
b and
c of the preliminary draft convention,
such a practice should be considered to be illicit removal if it
involves payment of a certain amount in return for the organ removed.
Even in the absence of such payment, it can be argued that prisoners
are not truly in a position to give consent freely and may be subject to
coercion.
In
fact, this could be applied generally to every person deprived of
his or her liberty. In the absence of such consent, the definition
of illicit removal of organs (Article 4.1.
a)
would also apply.
18. Concerning issues associated with the consent of persons deprived
of their liberty, I believe that it is important for the convention
to prohibit purely and simply the removal and use for transplantation
purposes of organs from these persons (living or deceased). Moreover,
without necessarily being deprived of their liberty, the same kind
of issue could occur for persons without (full) legal capacity,
in particular children, who need special protection in this context.
Therefore, the convention could include a provision according special protection,
including in matters of consent, to children (under the age of 18)
and persons without (full) legal capacity.
5. Monitoring of implementation
of the convention
19. Since the beginning of the work of the PC-TO, I have
emphasised the importance of stringent and effective implementation
of the criminal law conventions, and particularly those dealing
with cross-border crime, a category into which organ trafficking
generally falls. I have also said from the outset that a committee of
the parties is rarely the most effective monitoring mechanism, particularly
if there are no reporting requirements. I had therefore proposed
that reporting requirements for the Parties be included in the convention.
Alternatively, I had proposed that the competent committees, namely
the CDPC and the Committee on Bioethics (DH-BIO), be given a greater
role in monitoring and/or that provision be made for a more specific
monitoring mechanism for the convention, similar for example to
those for which the Istanbul and Warsaw Conventions provide.
20. The preliminary draft convention establishes a committee of
the parties, whose task is to supervise application of the convention
and to facilitate the collection, analysis and exchange of information,
experience and good practice between States and the effective use
and implementation of the convention and, where appropriate, to
express an opinion on any question concerning the application of
the convention and to make specific recommendations to the Parties
concerning its implementation. Provision is made for the Assembly, the
CDPC and the other competent intergovernmental or scientific committees
of the Council of Europe to each appoint a representative to the
committee of the parties. Provision is also made for the CDPC to
be kept regularly informed of the activities of the latter committee,
which will draw up its own rules of procedure.
21. According to the preliminary draft explanatory report, the
rules to be adopted by the committee of the parties must be drafted
in such a way as to ensure that the implementation of the convention
is effectively monitored. Provision is made for the participation
in the monitoring mechanism of bodies other than the Parties, such
as the Assembly, in order to guarantee a truly multisectoral and
multidisciplinary approach.
22. In the absence of reporting requirements, the effectiveness
of such a monitoring system will depend on the goodwill of the States
Parties. This amounts, in my opinion, to taking the risk of adopting
a convention which will not, or not fully, be implemented. This
is not compatible with the Council of Europe’s efforts to give its
work added value. I therefore invite the Committee of Ministers
to include reporting requirements for the Parties, while encouraging
the committee of the parties to carry out its duties bearing in
mind the objective of ensuring that the convention is stringently
and effectively implemented.
6. Geographical scope
of the convention
23. The PC-TO has decided to refer to the CDPC the question
of the geographical scope of the convention. There are currently
two proposals on this matter: one is that the convention be opened
for signature by States which are not members of the Council of
Europe as soon as it is adopted by the Committee of Ministers,
and the other
is that it should be possible for them to accede to the convention
once it has come into force.
Both opening to signature
and accession are subject to invitation by the Committee of Ministers,
and where accession is concerned, provision is made for the relevant
invitation to be subject to consultation and to the unanimous consent
of the Parties to the convention.
24. Given that organ trafficking occurs worldwide, extending beyond
the territory of the Council of Europe's member States, the Assembly
should call for the widest possible geographical scope for this
convention. In this context I should like to reiterate that the
convention, once it has been adopted, will be the first legally
binding international instrument devoted solely to organ trafficking.
It will fill a blatant gap at international level, and it would
be highly regrettable for non-member States to be excluded from
its scope. In this context, it should be made possible for non-member
States to participate in the convention as soon as the text has
been adopted by the Committee of Ministers, and even prior to its
entry into force. This would encourage the largest possible number
of non-member States to participate in the convention. Postponing
that possibility until the convention's entry into force and making
the procedure extremely cumbersome (namely making the invitation
from the Committee of Ministers subject to consultation and unanimous
consent of the Parties to the convention) would amount to more or
less ruling out such a possibility. In this respect, it is important
to point out that the Council of Europe Convention on the Counterfeiting
of Medical Products and Similar Crimes involving Threats to Public Health
(CETS No. 211, “Medicrime Convention”), which also deals with a
problem of international scope, opted for the possibility of participation
by non-member States, even prior to its entry into force, and that
one State which is not a member of the Council of Europe recently
signed it
(another non-member State has expressed its
wish to do so in the near future).
25. Still in connection with this point, I note with satisfaction
the first proposal, which sets at five the number of ratifications,
acceptances or approvals required for the convention's entry into
force.
The
Assembly should support such a proposal, which is intended to avoid
any needless delay in the convention's entry into force, while reflecting
the belief that a minimum number of Parties is needed in order to
be able to begin to take up the challenge of combating trafficking
in organs.
7. Conclusions
26. It is an arduous task to prepare an international
legal instrument against the trafficking of human organs. This field
is in fact an awkward one, particularly because of the technical
nature of the issues relating to the transplantation of organs and
the differences in national legislation on the subject. The PC-TO
has thus taken up a huge challenge, and can only be congratulated
on the quality of the work that it has done.
27. It is now for the CDPC and the Committee of Ministers to deal
with the issues set out in this report. My proposals in this respect
may be summarised in the following terms:
- complete the provisions of the preliminary draft convention
relating to measures for the prevention of organ trafficking, the
protection of victims and national and international co-operation
against such trafficking;
- include a provision in the convention on “mitigating circumstances”
which includes, inter alia,
the consideration of the particular vulnerability of organ donors
and/or recipients who have committed the offences established in
the convention, or refer to that particular vulnerability in the
explanatory report to the convention, specifying that it should
be taken into account when the penalties which may be applicable
to these two categories of persons are determined;
- include a provision in the convention whereby the usual
dual criminality rule is not applicable;
- include a provision in the convention prohibiting the
removal and use for transplantation purposes of organs from persons
deprived of their liberty, living or deceased;
- include a provision in the convention according special
protection, including in matters of consent, to children (under
the age of 18) and persons without (full) legal capacity;
- provide for reporting requirements for the Parties, while
encouraging the committee of the parties to carry out its duties
bearing in mind the objective of ensuring that the convention is
stringently and effectively implemented;
- opt for the convention to be opened for signature by States
which are not members of the Council of Europe as soon as it has
been adopted by the Committee of Ministers;
- decide on a roadmap for the preparation of the additional
protocol against trafficking in human tissues and cells.