Судебное дело "Алина Саблина против тайной трансплантации органов"
05.07.2017
Third Section
European Court of Human Rights
Council of Europe
F-67075 Strasbourg CEDEX
France
BY E-TRANSMISSION ONLY
30 June 2017
Legal representative:
Anton Burkov
SROO Sutyajnik
620075, Russia, Yekaterinburg,
Turgenev Str., 11-1
+79161250593
anton.burkov@gmail.com
Sablina and Others v. Russia
No 4460/16
Applicants' memorandum in reply to the Russian Government's memorandum
1. The applicants would like to submit their comments on the
memorandum provided by Agent of the Russian Federation.
2. Facts. First of all, please accept some corrections of facts that
shall be made in STATEMENT OF FACTS.
1. Page 1. "The third applicant lives in Galdey". The name "Galdey"
shall be spelled as "Gadaley" (Гадалей).
2. Page 1. "On 11 January 2014 Ms A.S. was hit by a car while
crossing the street, sustained very serious injuries and fell into
a coma." Ms Alina Sablina was crossing the street on zebra
crossing. This fact has been established by a court. Although this
fact has no influence on the outcome of the current case, it keeps
a good memory of Ms Alina Sablina.
3. Page 2, paragraph 1. "On 17 January 2014 they arrived again at the
hospital, but were not allowed to see Ms A.S. because she had been
moved to an intensive care ward." Ms Alina Sablina had been in the
intensive care ward from the very first day at the hospital.
Therefore, moving Ms Alina Sablina to the intensive care ward was
not the reason for not allowing parents to see Ms Alina Sablina.
Alina's parents, including the applicant Elena Sablina, were
allowed to see Alina in intensive care ward on 13-16 January 2014.
This was established by Zamoskvoretskiy district court of Moscow.
However, on the 17 January 2014 they were refused access to Alina.
The reason is unknown. Applicants claimed that Alina was being
prepared for organ removal or already dead. We ask the ECHR to
remove the following part from this contested sentence:
"...because she had been moved to an intensive care ward."
4. Page 2, paragraph 2. "Despite the treatment she received Ms A.S.'s
condition deteriorated and on 17 January 2014 at 11.40 p.m. brain
death was recorded. According to official records, her relatives
were notified immediately about her death. The applicants do not
contest that they were informed but submit that they were not
provided with details about the circumstances and cause of her
death." Applicants indeed argue that Elena Sablina has not been
notified about her death (See in Annex 16 to the Application No
4460/16 - "Civil Action (as amended 11.02.2015)"). It was one of
the major points of the lawsuit. We ask this Court to mention that
"The applicants contest that they were informed and that they were
provided with details about the circumstances and cause of her
death."
5. Page 2, paragraph 3. "On 18 January 2014 the heart and kidneys
were removed from Ms A.S.'s body." At the trial applicants claimed
and it was not contested by defendants and it was established by
the courts that 6 organs were removed and only 2 (heart and
kidneys) were recorded in the Act of organ removal. Four (4)
organs went missing from medical record - the Act of organs
removal. We ask the Court to mention the following: "On 18 January
2014 six organs, including the heart and kidneys, were removed
from Ms A.S.'s body. Four of the six organs were not recorded in
the Act of organs removal."
6. Page 2, paragraph 5, sentence 2. "The forensic report stated, in
particular, that a sterno-laparotomy had been performed on the
body and that certain organs had been removed." The Forensic
Report, No. 133/21, 11.02.2014 was clear on the list of organs
removed and recorded. These were six organs removed in total and
only two organs (heart and kidneys) recorded in the Act of organs
removal, four organs (part of aorta, inferior vena cava, adrenal
gland, and a piece of the lower lobe of the right lung) went
missing from the Act of organs removal (Forensic Report, No.
133/21, 11.02.2014. Annex 4 to the Application No 4460/16). The
applicants' would like to ask this Court to mention in the facts
exactly what the forensic report stated.
7. Page 3, paragraph 3. "The applicants then brought civil
proceedings against the Moscow City Health Department and the
medical institutions involved in the organ removal before the
Zamoskvoretskiy District Court of Moscow ("the District Court")
seeking compensation of non-pecuniary damage". Applicants only
sued hospitals.
8. Page 9, paragraph 2. "The applicants further submit that the
participation of a public prosecutor in those proceedings on the
defendants' side breached the principle of equality of arms."
Applicants claimed that participation of a state prosecutor in the
dispute resolution between private parties in general, no matter
on which side, is a violation, except in circumstances where a
genuine state interest is at stake, which was not the case here.
The mere fact of a state prosecutor present in private case is a
violation of a fair trial. It is also very important to mention in
the summary of facts that the prosecutor only read out her
conclusion on the case without being present during the entirety
of hearing which lasted all day on 6 April 2015 (see point 19,
part E "Statement of the facts", Application No 4460/16).
9. Furthermore, the following complaint went missing in the
"COMPLAINTS" part - the complaint under Article 6 that applicants
were denied to cross examine core witnesses of the case - the
transplantologists who removed Ms Alina Sablina's organs.
Comments on Government's memorandum.
General Comments.
After a road accident on 11 January 2014, Alina Sablina lay in a coma
for six days. Her parents were with her at Moscow City Clinical
Hospital No. 1 (the hospital) from the day after the accident until
the day before her death on 17 January 2014. Only a month after the
funeral did her parents find out that they buried their daughter
without six of her organs. While filling out paperwork in connection
with the criminal case against the driver who caused the accident, her
mother came across a forensic report that detailed the removal of her
daughter's organs at the hospital.
Another shock came with the news that only two -- the heart and
kidneys -- of the six organs removed were actually recorded in the
list of organs removed. Four organs -- part of her aorta and inferior
vena cava, her adrenal gland, and a piece of the lower lobe of her
right lung -- were missing from the body and from the list of organs
removed.
Alina never expressed her consent to donate her organs^. Alina's
parents have never been informed about planned organ transplantation
and were not asked for consent of Alina or their consent. This is
despite their constant physical presence at the hospital and numerous
discussions with the hospital's doctors during six long days at the
intensive therapy unit.
The Federal Act "On Transplantation of Human Organs and/or Tissues",
dated 22 December 1992 (the 1992 law), is a poorly written, three-page
text. Article 8 of the 1992 law establishes an artificial (imputed)
presumption of consent on the part of an individual or close relatives
to the post-mortem removal of the deceased's organs for
transplantation. The consent is artificial (imputed) because it is
presumed even when close relatives are present at a hospital and
resuscitators can approach and ask relatives for consent. Yet while
doctors approach relatives to inform them of the condition of the
patient, they do not inform relatives of organ removals already
planned for transplantation and therefore do not ask for consent. At
the same time same doctors inform transplantologists of the "potential
donor" present at the intensive care ward. This is exactly what
happened in the Case of Alina Sablina which was established by the
Zamoskvoretskiy District Court of Moscow.
Article 8 provides that:
The removal of organs and (or) tissues from a corpse is not allowed if
the health care institution at the time of removal was informed that
this person during his life or his close relatives or legal
representative stated their disagreement to removal of his organs and
(or) tissues after death for transplantation to a recipient.
10. The key provision in this Article is that relatives must inform
the medical institution about their attitude regarding removal of
organs from a corpse. Instead of the medical institution, which
plays a passive role, the close relatives of the patient must act
and inform the medical institution of their objection to organ
removal, as a rule, without any knowledge of pre-existing plans
for organ removal, and therefore cannot freely make or express
their decision.
11. The problem, therefore, is not presumed consent as such but lack
of an obligation for doctors to actually inform close relatives
about a planned organ removal. This unawareness subsequently turns
into severe moral suffering for the relatives who end up
discovering the truth. According to the Convention, ignorance of
relatives' feelings (i.e. approaching them with information on
deteriorating health conditions but failing to inform them of
organ removal already planned) and ignorance of their
decision-making power regarding organ removal violates the right
to private and family life (Petrova v. Latvia)^ and even amounts
to inhuman and degrading treatment (Elberte v. Latvia)^.
12. In Alina's case, medical personnel had not informed her parents of
the planned organ removal during any of their twice daily visits
to the hospital over the six day period that Alina spent in
intensive care. During this time the head of the intensive care
unit of the hospital did inform the Moscow Coordination Centre of
Organ Donation^ about a "potential donor", Alina Sabina. According
to the testimony of the head of the intensive care unit recorded
in the Zamoskvoretskiy District Court's minutes, this occurred on
the second day after Alina's arrival at the hospital, four days
before her death (see Annex 25 to the Application No 4460/16). On
all four days doctors spoke to Alina's parents about the declining
health condition of their daughter. Therefore the parents did not
and could not make any decision on organ donation and inform the
hospital of their decision. Consent could not be presumed in such
a situation. The ability of doctors to approach the parents, but
failure to do so, makes presumed consent artificial (imputed) and
leads to a violation of the parents' rights under the Convention.
13. The system does not provide a mechanism for expressing such
consent in advance or at the moment of death and for documenting
it. Today the only opportunity to establish consent is to ask
close relatives when the worst is already happening or has
happened. However, doctors can somehow ignore relatives and keep
them uninformed regarding organ removal.
14. The applicants want to stress that secret organ harvesting is
practiced systematically in Russia. Every case of organ removal is
simply carried out without the consent of a donor or their
relative(s). The reason for small number of such cases known to
the public or reached the courts is that organ removal is carried
out in secret. Therefore relatives are unaware of the fact that
organs were removed. Therefore they buried their loved ones
without some organs not knowing the latter.
15. Preliminary consent. The fact that there is no system of asking
for consent during the lifetime of a donor is not contested by the
Government. The absence of such a system in Russia is seen from
the analysis of the 1992 law.
16. Post mortem consent.
17. Russian doctors openly confirm that they do not inform close
relatives of the planned organs removal. Testimonies given by
doctors involved in the process of organ removal confirm that
ignoring the wishes of close relatives is not an isolated incident
but rather part of a general practice following the 1992 law on
transplantation^.
18. On a number of occasions doctors confirmed that they are not
obliged to ask for consent from relatives or inform them about
planned organ removal. Igor Loginov, intensivist
(анестезиолог-реаниматолог) of the Saint-Petersburg Center of
Organ and Tissue Donation (Центра органного и тканевого донорства
Санкт-Петербурга) on the 23:20 minute of the documentary
"Transplantology. Challenge to the Death." ("Трансплантология.
Вызов смерти.") said that: "We actively are not obliged to ask for
consent of relatives" ("Мы активно спрашивать согласия
родственников не обязаны").^
19. Admissibility.
20. Government's position. The Government mentioned that on 10 July
2014 the applicants has already applied to the ECHR (Application
no. 52859/14) and this application was ruled inadmissible.
1. Applicants' position. Application no 52859/14 was filed on the
same facts but before exhausting domestic remedies. In this
application we argued that there were no effective remedies
available, therefore it was filed before exhaustion of domestic
remedies. Apparently not accepting the applicants' argument on
lack of effective domestic remedies (decision on inadmissibility
is not clear about specific reasons), this Court ruled the
application no 52859/14 inadmissible on 29 January 2015. During
(not after decision of inadmissibility as Government mentioned in
the memorandum) consideration of Application no 52859/14 by this
Court, applicants went to national courts to exhaust domestic
remedies be they as ineffective as they proved to be. This was
done particularly due to the representative of the applicants
envisaged the inadmissibility of the application no 52859/14 and
also because the need of discovery of facts through litigation.
After going through all the Russian courts applicants applied to
the ECHR within the 6-month time limit. And this second
application No 4460/16 is now before the ECHR.
2. All these facts were provided to the ECHR by the applicants in the
Application No 4460/16 - see point 44 on page 13 of the
Application No 4460/16 and Annex 44 "ECHR's letter of 29.01.2015"
to the Application No 4460/16.
Government's position. Government said that application to national
courts with civil case is not an exhaustion of domestic remedies as
the time limit for civil cases is not set, it can be brought at any
point in time and that it will not lead to criminal investigation just
to compensation.
1. Applicants' position. The reason of the sufferings of the
applicants is in the 1992 law and its application by medical staff
and law enforcement organs, including the courts, particularly the
Russian Constitutional Court. Deriving from this, the goal of the
applicants is to challenge the legislation and the way it is
implemented so that no secret organ harvesting ever takes place
again. Civil lawsuit leading to the complaint before the
Constitutional Court was the only presumably effective domestic
remedy available to the applicants which they pursued accordingly
and in due course.
QUESTION 1
22. Government's position. The Government argues that there was no
violation of Article 8. The Government argues that relatives have
the burden of informing the hospital of any objections regarding
organ removal, rather than putting on hospitals burden to inform
parents of planned organs removal, and seek consent.
1. Applicant's' position. If we look at Article 8 of the 1992 law
through the lenses of Article 8 of the Convention as it is
interpreted in Petrova v. Latvia and Elberte v. Latvia, we see
that 1992 law contradicts to the principle of clarity of the law.
Paragraph 96 of Petrova v. Latvia states:
"While Latvian law set out the legal framework allowing the closest
relatives to express their wishes in relation to organ removal for
transplantation purposes, it did not define with sufficient clarity
the scope of the corresponding obligation or the discretion conferred
on medical practitioners or other authorities in this respect."
2. The situation in this case is identical. The rule of Article 8 of
the 1992 law is not clear enough for the close relatives to
follow. Under Article 8 of the 1992 law relatives are obliged to
inform of objection to organs removal without any knowledge of the
planned removal of organs. This rule of the 1992 law is not clear
because it contains a trap for relatives in general and applicants
to this case in particular. The applicant Elena Sablina did not
show any objection to organs removal from Alina Sablina because
she had no information from the hospital regarding organs removal
of her daughter Alina, planned by the hospital and
transplantologists for at least 4-5 days. She had no information
(no access to information) about the subject of possible
objection.
3. In the present case, it remains unclear how the "presumed consent
system", as established under the Russian law, operates in
practice in the circumstances in which the applicants found
themselves, whereby they had certain rights as the closest
relatives but were not informed - let alone provided with any
explanation - as to how and when these rights might have to be
exercised.
Government's position. The Government says that relatives have to
prove that they expressed objection.
1. The Government omits the general rule that no one can express an
objection to what is unknown. The applicant Elena Sablina says
that she was not informed of the planned organ removal, therefore
she could not express her attitude regarding unknown fact.
The Government considers that publication of the law on
transplantation of organs is enough for relatives to express their
attitude towards organs removal.
1. This means that the only way of knowing the fact of planned organ
removal is to guess that organs will be removed according to the
1992 law. Therefore the Government's argues that publication of
the 1992 law is enough, that there is no need to inform close
relatives of the potential donor of planned organ removal is a
legal trap. This is how the Government understand presumptive
consent. In practise application of Article 8 of the 1992 law
makes consent imputed (вмененное) consent, not presumed.
Government's position (Points 23-24). Some changes to the 1992 law
were made after 4 December 2003 (first decision of the Russian
Constitutional Court in which it ruled for "secret" organ removal,
suggesting minor changes to the 1992 law). The Government said that
under the changes to the 1992 law relatives' consent could be
expressed in the same way as donor's.
1. Applicant's' position. The changes have not made any difference
and have not prevented secret organ removal from Alina Sablina.
There is no procedure in place according to which donors (those
under Russian jurisdiction) or their relatives could express their
consent. Such mechanism simply does not exist. The Government did
not prove that it exists. The Government provided no data (a
number of consents recorded) which demonstrates that the mechanism
is in place and works.
Government's position (points 27-28). Russian system corresponds to
international practice of presumed consent.
1. Applicant's' position. None of the existing systems of presumed
consent in the world allows situations where consent is not sought
at all. Only Russia has a system where no consent is sought during
the lifetime of donors, where no consent is asked from close
relatives of the donor after his or her death. For example, in
Spain, the most successful State with a presumed consent system,
presumed consent means asking consent when possible, for example,
when parents of the potential donor are available to provide
consent for a period of maximum 5 days during which the donor is
at the intensive care ward. In Latvia, the presumed consent system
has been changed in the aftermath of Petrova v. Latvia and Elberte
v. Latvia cases. The system in Latvia now function in a similar
fashion as the spanish model. In Russia, presumed consent means
not asking for consent at all, even in the situations when parents
are available to talk to during 5 days. So it is not presumed but
"imputed" (вмененное) consent.
Government's position (point 30) - "applicants admitted that Alina
Sablina did not express disagreement on the question on possible
removal of her organs in case of death", "applicants did not provide
any evidence that they objected to removal".
1. Applicants' position. This case is not only about whether wishes
of Alina Sablina were followed. This case is about sufferings of
the applicants due to the fact that doctors in the intensive care
ward failed to inform Alina's parents of planned organs removal,
failed to ask Alina's parents if Alina has ever expressed her
consent to organ donation or if Alina's parents consent to Alina's
organ donation. This case is about the 1992 law allowing doctors
to remove organs in secret from close relatives (parents) of the
donor and sufferings which is caused by this law.
Government's position (point 32). The 1992 law on transplantology of
organs was published and mass media informed many about the 1992 law.
1. Applicants' position. The 1992 was published long before Alina
Sablina's birth. This fact objectively prevented her from reading
this law.
2. Applicants point out to two social surveys on this matter - both
observed little knowledge of the population.
3. First report was run online by NGO Sutyajnik - ОТЧЕТ о результатах
социологического исследования <<Трансплантация (пересадка) органов
умерших пациентов без их прижизненного согласия или согласия их
близких родственников>> (Report on the results of sociological
research "Transplantation (removal) of organs from deceased
patients without their consent in their lifetime, or the consent
of their relatives"). (Report is attached - see Annex 1 to this
memorandum).^ The vast majority of population (62.3 per cent) did
not know anything about the fact that doctors may remove their
organs without their consent in his/her lifetime consent (page 32
of the NGO Sutyajnik's report).
4. The second sociological report led to the following conclusion:
"The analysis of the data showed that organ donation and organ
transplantation are subjects which are quite complex and
unfamiliar to respondents." (see Page 45 of the Report, Annex 2)^.
Government's position (point 37). Draft law on organ donation was
introduced by the Russian Ministry of Health to the Russian Government
for approval.
1. Applicants' position. On 12 April 2017 Gabbasova Lialia
Adygamovna, assistant to the Russian Minister of Health (Габбасова
Ляля Адыгамовна, помощник министра Здравоохранения России),
speaking at conference^ "Implementation of International and
Constitutional Guarantees of Human Rights in Russian Law and
Practice" ("Реализация международных и конституционных гарантий
прав человека в российском праве и правоприменительной практике")
with the talk "Questions of bioethics in medical practice in
Russia (surrogacy, transplantation)" ("Вопросы биоэтики в
медицинской практике в России (суррогатное материнство,
трансплантология)") confirmed that the notion of "presumed
consent" in the draft law is unchanged.^ Article 18 of the draft
law on Transplantation of Organs is unchanged - paraphrased but
similar to Article 8 of the 1992 law (Annex 3).
Government's position (point 40) - people's opinion was taken into
account.
1. The applicants' opinion, including their representative, was not
taken into account. No representative of the Ministry of Health
contacted the applicants for their opinion regarding the new draft
law, particularly its presumed consent. All the attempts of the
applicants' representative to get in touch with the Ministry of
Health regarding the draft law were in vain. The most recent
attempt took place on 12 April 2017 at the MGIMO and the Council
of Europe conference when the applicants' representative spoke to
Gabbasova Lialia Adygamovna.
Government's position (point 41-48). Russia is a country with the
smallest number of transplantations.
1. Applicants' position. The sociological survey by Levada confirms
that the reason for small number of donors is not due to not
enough people giving consent needed for removal of organs. As we
learned above under the 1992 law no doctor needs a consent to
continue with organ removal, no doctor is obliged to inform of
planned organs removal. Under the 1992 law all doctors need is to
keep their mouth shut about planned organ removal. Therefore the
real reason for insufficient number of donors is in lack of
interest of reanimatologists to work with transplantoligists:
"The mechanisms of the expression of the will have not been
established. As a result, the law is sufficiently broad framework for
organs removal after the death of patients. However, the figures for
the number of donors in Russia remain 3-4 times lower even in
comparison with countries where the system of organ donation is based
on more stringent criteria for obtaining permission to use the organs
(Spain)." (page 6 of the Report, Annex 2) ("Сами механизмы выражения
волеизъявления созданы не были. В результате, закон предоставляет
достаточно широкие рамки для забора органов после смерти пациентов,
однако, показатели по количеству доноров в России остаются ниже в 3-4
раза даже по сравнению со странами, где система донорства основана на
более жестких критериях получения разрешения на использование органов
(Испания)." (стр. 6 соцопроса, Annex 2).
2. Levada addressed its own question "Why the real indicator of organ
donation remains low when formally enshrined principle of apriori
consent for the formation of the list of postmortem donors?" ("В
связи с чем при формально закрепленном принципе априорного
согласия на становление посмертными донорами, показатель реального
донорства остается таким низким?") :
"The call for a team of coordinators or transplantologists is not
based on administrative obligation for doctors-resuscitator. A message
about a potential donor to the coordination or transplantation center
means immediate start of the whole mechanism of the organization of
work with donor - resuscitation procedures to support the work of
donor's organs, conduct monitorings of donor's condition. In this
respect the institutional gap between formal norms and informal rules
of behavior of medical personnel occurs. There is no such obligation
in law - one can call [a team of coordinators or transplantologists],
but at the same time one can refrain from calling the experts. As a
result, the bond between hospitals and transplant centers is broken."
(page 38 of the Levada report, Annex 2) ("Вызов бригады координаторов
или трансплантологов не имеет под собой административной обязанности
для врача-реаниматолога. Сообщение о появлении потенциального донора в
координационный или трансплантационный центр означает незамедлительный
запуск всего механизма по организации работы с донором - проведение
реанимационных процедур для поддержания работы органов донора,
проведение обследований и мониторинг его состояния. В этом отношении
происходит институциональный разрыв между формальными нормами и
неформальными правилами поведения медицинского персонала -
законодательно такой обязанности нет - можно вызвать, а можно не
вызывать специалистов. В результате, связка между лечебными
учреждениями - центрами трансплантации оказывается нарушена." (стр. 38
соцопроса, Annex 2)).
3. This is how lack of interest for cooperation is expressed by
doctors-resuscitator:
"If we treat patients badly or if we have not cured a patient [...] we
can be blamed. That is, we are responsible. But if we lost a donor,
there is no accountability. For no one is punished. And the lack of
this responsibility, in fact, is a motive not to do this work" (head
of Department of coordination, Moscow). "Если мы плохо лечим или не
вылечили, с той или иной патологией, там, с аппендицитом, с инфарктом
человека, нас могут ругать. То есть, мы несем ответственность. А вот
если мы потеряли донора, то за это ответственности не существует. За
это никого не накажут. И отсутствие этой ответственности, собственно
говоря, это мотив для того чтобы не делать эту работу" (заведующий
отделением координации, Москва).
4. The Levada report continues: "The other side of this process is
that the structure of motivational incentives to doctors of
medical institutions is not in place. Implementation of all
additional loads to work with potential donor occurs without any
remuneration or compensation for the physical and time costs:"
(Другая сторона этого процесса состоит в том, что структура
мотивирующих стимулов для врачей лечебных учреждений также не
выстроена. Осуществление всей дополнительной нагрузки по работе с
потенциальным донором происходит без каких-либо вознаграждений или
компенсаций физических и временных затрат:):
"We do not receive any remuneration for this work. This is our good
deed. Somewhere in the West, you know, any work is paid. I understand
how important this is. Most do." (Head of Department of intensive care
unit, Saint-Petersburg). ("Мы за это вообще ничего не получаем. Это
наше доброе дело. Где-нибудь на западе, понимаете, любая работа
оплачиваема. Это дело идет к тому, что я понимаю, как это важно.
Собственно, все у нас заведующие отделения реанимации больше вообще-то
понимают, как это важно" (зав.отделением реанимации,
Санкт-Петербург)).
"And here is the chief doctor, where this donor is placed, says: "Why
do I need this? The person is already dead. I do not have the right to
write off medicine and the time doctors spent on a patient, and so on
and so forth. It is easier for me if there is no donor"
(transplantologist of kidneys, Moscow) (p. 38-39 of the Levada report,
Annex 2). (<<И вот тот главный врач, где находится вот этот донор, он
говорит: "А зачем мне это надо? Человек уже мертв. Я на него не имею
права списывать лекарства, затрату времени врачей и так далее и так
далее. То есть мне проще, чтоб его не было">> (трансплантолог почки,
Москва) (стр. 38-39 соцопроса, Annex 2)).
32. Government's position (point 49). "Intervention in the rights of
the applicants was carried out according to the statute, persuaded
legitimate aim and was necessary."
1. Applicants' position. The statute is vague. This vagueness allows
doctors to altogether conceal information on planned organ removal
from close relatives of the patient ("potential donor").
2. In this case of Alina Sablina there was no legitimate aim in
removal of her organs as four (4) organs went missing, they were
removed from Alina not for the purpose of transplantation. The
Government failed to mention the whereabouts of those organs.
3. It was not necessary to make applicants suffer because of the
secrecy of the procedure. The organ removal procedure could be
open without unduly interfering with the transplants. Instead, the
Government decided to keep the system secret as it exists today,
namely a system in which public agents have unfettered discretion
when it comes to seeking close relatives' consent prior to organ
transplants. Such a system is incompatible with the right to
private life guaranteed under Article 8 of the Convention, as is
demonstrated by the harm suffered by the applicants in the present
case.
4. The Government failed to address grandmothers separately despite
the invitation from the ECHR to do so.
QUESTION 2
33. Government's position (point 60). The applicants have not been
subjected to inhuman and/or degrading treatment. (point 63) -
sufferings were connected with the death, and other circumstances
but not the removal or organs.
1. Applicants' position. In reply the representative of the
applicants would like to highlight the interview of Elena Sablina
to various media outlets which could be summarized as saying that
"When I learned that Alina's organs were removed I felt that I
lost my daughter for the second time" and other quotes from the
written motion dated 6 April 2015 to enclose evidence (the list of
exhibits) of moral sufferings by Elena Sablina to the
Zamoskvoretskiy district court case file (see Annex 24 to the
Application no 4460/16).
Government's position (point 65): "Removal of Alina's organs was not
reflected on the exterior of the body of Alina."
1. Applicants' position. Applicants chose not to reply or comment to
this point as the latter is a deviation from the question this
Court asked. The applicants have never claimed non-pecuniary
damages due to "Removal of Alina's organs reflected on the
exterior of the body of Alina." The applicants suffered due to
secret organ removal.
Government's position (point 67) - circumstances of Sablina case is
different from Elberte v. Latvia.
1. Applicants' position. Applicants and their representative do not
see practical difference between mentioned cases. In fact,
similarities between the cases were explained in every
application, motion, or oral arguments submitted to all the
national courts.
Government's position (point 68) - there was an autopsy but applicants
agreed with it and this is a normal procedure.
1. Applicants' position. Applicants chose not to reply or comment to
this point as the latter is a deviation from the question this
Court asked. The Government deviates the attention of this Court
from the issue - secret removal of organs and not knowing
whereabouts of 4 organs out of 6 removed (2/3 of removed organs).
No mention as to the whereabouts of the 4 missing organs from the
body of Alina, which is unacceptable.
Government's position (point 69): "missing [they mean the two recorded
organs] organs hardly could influence emotional state of applicants
more than the fact of death of Alina".
1. Applicants' position. Representative of the applicants would like
to repeat that Elena Sablina's feelings about secret organ removal
from her daughter's body: "When I learned that Alina's organs were
removed I felt that I lost my daughter for the second time" (see
Annex 24 to the Application no 4460/16).
Government's position (point 70): in the case of Petrova v. Latvia the
ECHR concluded that it was not necessary to consider application under
art 3 because it was connected with art 8 which has been already
addressed.
1. Applicants' position. In Petrova v. Latvia, the Court decided that
it was not necessary to decide whether there had been a violation
of Article 3 because of its finding under Article 8. The Court
decided to exercise its discretion because of the two alleged
violation under Articles 3 and 8 were closely related. Conversely,
in Elberte v. Latvia, the Court found violations under both
articles. The Court explained, that "in order for a separate
violation of Article 3 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" (para. 137). In Elberte, the closeness of the family bond
and the way the authorities responded to the relative's enquiries
were said to be relevant factual elements capable of bringing the
relatives' sufferings within the scope of Article 3. The
Applicants submit to the Court that both special factors are
present in this case. Firstly, it is undisputed that a close
family bond existed between Alina and the Applicants. And that
family bond combined with illegal (in violation of the Convention)
actions of the authorities cause applicants non-pecuniary
sufferings (See Annex 24 to the application No 4460/16). Secondly,
medical authorities completely ignored interests of the Applicants
in knowing what is being done to the body of Alina and ignored
their wishes. The law enforcements authorities dismissed the
Applicants' claim to fully understand what happened with Alina's
organs. The State has vigorously contested the legal proceedings
initiated by the Applicants before seven (7) Russian domestic
courts (Zamoskvoretskiy District Court, the court of appeal -
Moscow City Court, the court of cassation - the Presidium of
Moscow City Court, the court of cassation - the Supreme Court of
Russia, the Constitutional Court - the applicants initiated three
cases before the Constitutional Court). All these litigations were
initiated to fully investigate why the applicants' feelings and
wishes were ignored, what have been done to Alina's body. Instead
of effectively dealing with the applicants' cases, authorities
threatened Elena Sablina with criminal proceedings (see Annex 15
to the Application No 4460/16).
QUESTION 3
39. Government's position. The trial hearings were closed for public
because it was necessary to protect medical information of Alina.
1. Applicants' position. The applicants were not arguing that Alina
was treated in the hospital in a wrong way. The lawsuit did not
rest on any such argument. The only argument applicants advanced
was that organs were removed secretly. To demonstrate this
argument, there is no need to divulge secret medical information
or secrecy regarding Alina's treatment. Information about organ
removal was already in the public domain. This initiative was
advanced by defenders for the only purpose of seeking a closed
hearing away from the public eye under false pretences. The
defendants could have asked the court to close the hearing for
certain number of minutes to discuss the medical treatment and
open the hearing for the rest of the proceedings. Instead
defendants asked the court to close the entire hearing with the
only goal of concealing the entirety of the facts of the case from
the attention of the public and the media. This is especially true
with regards to the appeal hearing because according to the
minutes of the appeal hearing (Annex 35 of the Application No
4460/16) no medical information was discussed at all. This point
of the applicants was raised before every court and was fully
ignored by all the courts.
Government's position (point 88): The applicant's representative of
applicants participated in cross examination of witnesses.
1. The applicants' position. The court refused the applicants'
representative to examine main witnesses, namely the
transplantologists (see point 18 of the Statement of facts on page
10 in the Application No 4460/16 and Annex 23; also see point 5 of
"F. Statement of alleged violation(s) of the Convention" of the
Application No 4460/16).
Government's position (point 89)
1. The applicants' position. Applicants received a copy of the
judgment which was never publicly announced or published in paper
or online. On the web-site of the Moscow city court this judgment
is classified as not for public (see Annex 4).
Government's position (point 92): the state admitted that the
prosecutor was not required in the hearing.
1. The applicants' position - the procurator participated in the form
of presenting to the court the procurator's position with
conclusions on the matter of the case. The latter could influence
the judge and in fact her only aim was to influence the judge. The
procurator was not present at the hearing at the stage of
examination of evidence. Procurator only appeared at the
conclusive part of the hearing - parties' closing arguments - to
read our procurator's conclusion. This means that the procurator
made her conclusions without knowledge of the case and any
evidence which was presented. These circumstances confirm that the
procurator's reading out the conclusion had the only goal to
influence the judge rather than examine all facts of the case
which she clearly did not do.
2. On 12 January 2017 the legal norm of the Civil Procedure Code
which allows this behaviour of the prosecutor was challenged
before the Constitutional Court of Russia (Annex 5). Applicant
Elena Sablina is still awaiting for a decision of the Russian
Constitutional Court. Full update on the litigation which led to
the application to the Constitutional Court was submitted to the
ECHR in the letter dated 28 April 2016 which reached the ECHR on 6
May 2016.
Applicants would like to update this Court on the outcome of the
applicants' complaint considered by the Russian Constitutional Court
on the issue of constitutionality of the "presumed consent" of Article
8 of the 1992 law as it is interpreted in the medial and court
practice. This applicants' initiative was mentioned in point 40 on
page 13 of the Application No 4460/16. The complaint to the
Constitutional Court and follow up communication with the
Constitutional Court was attached to the Application No 4460/16 (see
Annexes 41-43). The Constitutional Court issued Decision No 224-О of
10 February 2016 on inadmissibility of the complaints. The ECHR was
updated about this by letter of 3 June 2016 received by the ECHR on 14
June 2016. The complaint to the Constitutional Court and Decision No
224-О of 10 February 2016 was annexed to the letter dated 3 June 2016.
The applicants' to this case also challenged before the Constitutional
Court provisions of the Civil Procedure Code which allows the court to
close the hearing from the public during the entirety of the hearing
and not publish the final judgment. The complaint to the
Constitutional Court dated 23 November 2016 and the Decision by the
Constitutional Court No 1063-O of 25 May 2017 is annexed to this
memorandum for information of this Court (Annex 6-7 to this
memorandum).
CLAIMS FOR JUST SATISFACTION. COSTS AND EXPENSES
Claims for Just Satisfaction.The applicants claim 24000 EUR each for
compensation of their non-pecuniary damage. This claim is based on the
ECHR case-law Petrova v. Latvia and Elberte v. Latvia. Applicants
claim that there was inhuman and degrading treatment (violation of
Article 3) in addition to violation of private and family life
(Article 8). Due to the similarities of facts of Sablina and Others v.
Russia with the circumstances in Petrova and Elberte, the applicants
claim 16000 minimum for violation of Article 3 and 8. Taking into
account that the way to the ECHR the applicants had to fight through
violations of their right to fair trial (no possibility to cross
examine main witnesses, participation of the prosecutor, lack of
public access to the hearing and to the case-files, including
judgments) without access to an effective remedy, including the
Constitutional Court (Article 13), the applicants claim additional
8000 EUR as a compensation for non-pecuniary damage caused by
violation of Article 6 and 13. In total each applicant claim 24000 EUR
for compensation of their non-pecuniary damage. Grand total is 24000
EUR X 3 = 72000 EUR.
Annexes (enclosures):
1. Report on the results of sociological survey "Transplantation
(removal) of organs from deceased patients without their consent
in their lifetime, or the consent of their relatives",
Yekaterinburg, NGO Sutyajnik, 2017.
2. Olga Karaeva, Donorstvo organov: problemy i perspektivy razvitiya
v Rossii (Moskva: Levada-Tsenter, 2013), (Olga Karaeva, Organ
Donation: Problems and Prospects Development in Russia (Moscow:
Levada-Centre 2013
3. Draft law on Transplantation of Organs.
4. Screenshot of the web-page of the Moscow city court's web-site.
5. The 12 January 2017 application of Elena Sablina and Yuriy Mironov
to the Constitutional Court of Russia.
6. The complaint to the Constitutional Court dated 23 November 2016.
7. The Decision by the Constitutional Court No 1063-O of 25 May 2017.
Yours faithfully,
Anton Burkov
The applicants' legal representative
^The system does not provide a mechanism for expressing such consent
and documenting it. Today the only opportunity to establish consent is
to ask close relatives when the worst is already happening or has
happened. However, doctors ignore relatives and keep them uninformed
regarding organ removal so that relatives could not express their
decision regarding organs removal.
^Petrova v. Latvia, 24 June 2014, No. 4605/05.
^^Elberte v. Latvia, 13 January 2015, No. 61243/08.
^^The only medical institution authorized to carry out organ removal
for further transplantation. Second defendant in the Sablina case.
^Olga Karaeva, Donorstvo organov: problemy i perspektivy razvitiya v
Rossii (Moskva: Levada-Tsenter, 2013), 40-42 (Olga Karaeva, Organ
Donation: Problems and Prospects Development in Russia (Moscow:
Levada-Centre 2013), p. 40-42). Available at
[1]http://www.levada.ru/old/sites/default/files/otchet_donorstvo_organ
ov_v_rossii_levada-centr.pdf.
^23 Minute 20 second of the documentary "Transplantology. Challenge to
the Death." ("Трансплантология. Вызов смерти."). Available at
[2]http://russia.tv/brand/show/brand_id/58423.
^Report on the results of sociological survey "Transplantation
(removal) of organs from deceased patients without their consent in
their lifetime, or the consent of their relatives", Yekaterinburg, NGO
Sutyajnik, 2017, is also available online
[3]http://sutyajnik.ru/documents/5030.pdf (Annex 1)
^Olga Karaeva, Donorstvo organov: problemy i perspektivy razvitiya v
Rossii (Moskva: Levada-Tsenter, 2013), (Olga Karaeva, Organ Donation:
Problems and Prospects Development in Russia (Moscow: Levada-Centre
2013). Available at
[4]http://www.levada.ru/old/sites/default/files/otchet_donorstvo_organ
ov_v_rossii_levada-centr.pdf (Annex 2).
^This conference was organized by MGIMO university in cooperation with
the Council of Europe.
^The recording of her talk is available at
[5]http://sutyajnik.ru/news/2017/04/2775.html
21
References
1. http://www.levada.ru/old/sites/default/files/otchet_donorstvo_organov_v_rossii_levada-centr.pdf
2. http://russia.tv/brand/show/brand_id/58423
3. http://sutyajnik.ru/documents/5030.pdf
4. http://www.levada.ru/old/sites/default/files/otchet_donorstvo_organov_v_rossii_levada-centr.pdf
5. http://sutyajnik.ru/news/2017/04/2775.html
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