SABLINA and others v. Russia

The applicants in this case were Russian nationals; the first applicant being the mother to her deceased daughter (Ms. A.S.) and the other two applicants were grandmothers to the deceased. In January, the deceased faced a severe car accident for which she underwent emergency surgery and resuscitation but continued to be in an unconscious state. Five days after, the deceased was transferred to an intensive Care ward but faced brain death at night. Although they were immediately notified of her death, the applicants complained that they hadn’t been notified in detail about the situations and causes of the deceased’s death. The deceased’s heart and kidneys were removed from her body the next day in an operation undertaken by a team of professionals from the Moscow Coordination Centre of Organ Donation and the Federal Scientific Centre of Transplantation and Artificial Organs. None of the deceased’s relatives had been informed of this operation, nor had their consent been obtained.

In a criminal proceeding that began a month after the accident, the forensic report on the deceased’s body had revealed that her organs had been removed. For an investigation in to this matter, the first applicant complained to the Main Investigative Department of the city of Moscow. Concluding the operation had been done in accordance with domestic law, the investigator told the first applicant that there was no evidence to support an allegation of a criminal act (coercion to human organ and tissue removal for transplantation purposes) under the criminal code of Russia. [Page 2] The investigator found that the organ removal had been carried out on the presumed consent that none of the deceased’s relatives had objected it, after brain death occurred and with an authorization from a senior medical official. The first applicant’s complaint to the Healthcare Control Service ended with findings that found simple violations by the hospital but nothing that had deemed the organ removal illegal.

The applicants initiated civil proceedings before the Moscow District Court for a non-pecuniary damage against the City Health Department and institutions involved in the removal of the deceased’s organs. On the application of the hospital, the Court allowed in-camera hearing of the case as required by the confidentiality of the deceased’s medical information. Although the applicants requested the Court to make the hearing public and exclude the public hearing of some of the confidential matters, the Court left their frequent requests unexamined. The Court consulted the Russian Constitutional Court’s interpretation of the domestic law relevant to the issue. It held that the removal of the deceased’s organs had been in conformity with national law of the country. Because no one from her relatives had objected the removal of the deceased’s organs prior to or at the time of the extraction of the same, the Court held that the doctors didn’t have the obligation to secure the consent of the relatives of the deceased. The Court held that the required procedure for the removal of the organs had been complied with as it had been performed after brain death and with the authorization of senior medical officer. The Court also held that the organ removal wasn’t incompatible with the European Convention on Human Right (the Convention) as there was no precedent on the issue.

The applicants’ appeal to the Moscow City Court ended with the same reasoning and judgment as the lower Court and with refusal of leave to appeal before the Cassation Court. The applicants’ appeal before the Supreme Court was also dismissed with an agreement with the lower Courts’ judgment.

The applicants then lodged a separate claim with the Constitutional Court of Russia against the compatibility of the concept of presumed consent with the Transplantation Act (the Act), the Russian Constitution and the Convention. The Constitutional Court rendered the claim inadmissible stating that the “the policy of presumed consent in the sphere of organ donation for transplantation purpose was not, in itself, incompatible with either the Russian Constitution or international instruments and practice”. [Page 4]  It held that the concept of presumed consent had been enshrined under the Act of which the applicants were aware and could have moved against the removal of the deceased’s organs after her death. The Court also referred to its precedent on the issue where it held that the policy of presumed consent to be constitutional. In its decision, the Constitutional Court stated the need for detailed regulations on the issue and creation of public awareness on the policy. The Court also held that the legal framework that existed at the time had clearly provided for detailed procedures on organ transplantation and with  a draft law that was opened for discussion and debate.  Considering the legal framework to be clear and accessible to the applicants, the Court concluded that an individual or his relatives could consent on organ removal and that the policy was compatible with the Russian Constitution which protected the physical integrity of the living and the dead. The applicants’ request for a change of the policy had been rejected by the Court for lack of jurisdiction.

The preamble of the Act stated the purpose of organ transplantation i.e. saving the lives of others and helping others recover. It also stated that organ removal should be performed in accordance with relevant domestic laws and international human rights standards with due regard to the international community’s principles. The Act, under its Section 8, stated that a deceased or his/her relatives or legal representative could oppose the removal of his/her organ or tissues for transplantation after his/her death. An authorization by a chief medical officer from the respective medical institution was also required under the Act.

The Health Protection Act of 2011 provided that a deceased person or his or her spouse or close relatives could oppose the removal of his/her organs after his death. This Act also made it unlawful for any medical institution to remove organs when one of these persons opposed it.

The applicants lodged their complaint before the European Court of Human Rights (the ECHR) claiming that their consent hadn’t been obtained during the extraction of the deceased’s organs in violation of Article 8 of the Convention. They stated that domestic laws failed to provide for a sufficiently clear protection from arbitrary acts of the medical team performing organ removal without securing consent. The applicants also claimed a violation of Article 6 of the Convention due to the fact that the hearings to the case had been held in-camera and the court’s decisions hadn’t been publicized in full. The engagement of the Public Prosecutor in the proceedings supporting the defendants before domestic courts was also against the principle of equality of arms.

The ECHR looked at the following instruments from the Council of Europe. One of these instruments, the Resolution adopted by the Committee of Ministers of the Council of Europe in 1978 recommended (under Article 10) to States that they decide not to have a person’s organs removed where his/her family or legal representative objected it. The other instrument the ECHR looked into was the 2006 Additional Protocol to the Convention on Human Rights and Biomedicine on Transplantation of Organs and Tissues of Human Origin. This protocol was neither signed nor ratified by Russia. The protocol required States Parties to obtain the consent of a deceased person before removing his/her organ or tissues.

An Explanatory Report to the Additional Protocol to the Convention on Human Rights and Biomedicine concerning Transplantation of Organs and Tissues of Human Origin required medical teams for the removal of organs to obtain the consent of the relatives of the deceased when the will of the deceased wasn’t obtained. Guiding Principle 1 (of the WHO’s Guiding Principles on Human Cell, Tissue and Organ Transplantation) required the consent of a deceased person to be obtained when cells, tissues, and organs were to be removed from the bodies of a deceased person; there should not be a reason to believe that the deceased person had objected to such removal. If the policy of ‘presumed consent’ was to be in place, this Guiding Principle required that a person be “informed about the policy and are provided with an easy means to opt out”. [Page 8]

The ECHR framed specific questions for the parties in relation to the issues in this case and the allegedly violated rights.