B Explanatory
memorandum, by Ms Maury Pasquier, rapporteur
1 Introduction
1. At their 1176th meeting (10 July 2013), the Ministers’
Deputies decided to transmit the draft Council of Europe Convention
against trafficking in human organs to the Parliamentary Assembly
for opinion.
2. At its meeting on 9 September 2013, the Committee on Social
Affairs, Health and Sustainable Development appointed me as rapporteur
in anticipation of the expected reference to the committee. On 30 September
2013, the Assembly referred the request for an opinion from the
Committee of Ministers to our committee for report and to the Committee
on Legal Affairs and Human Rights for opinion.
3. It should be noted that the Assembly has been closely involved
in the drawing up of the draft convention which has just been forwarded
to it for opinion. Mr Bernard Marquet, a former, highly dedicated
member of our committee, monitored discussion on the draft convention
at the levels of both the Committee of Experts on Trafficking in
Human Organs, Tissues and Cells (PC-TO), tasked with drawing up
a preliminary draft,
Note and
the European Committee on Crime Problems (CDPC), which completed
the work of the PC-TO by approving the draft convention on 7 December
2012. Mr Marquet’s report on the draft convention was debated in
the Assembly’s plenary session on 23 January 2013, and this resulted
in
Recommendation 2009
(2013) “Towards a Council of Europe convention to combat trafficking
in organs, tissues and cells of human origin”, which was adopted
unanimously.
4. I note that, apart from minor changes of a technical and linguistic
nature with no impact on the substance of the issues dealt with,
the draft convention submitted to the Assembly today is identical
to the one on which it took position on 23 January this year. Accordingly,
in this report, I will limit myself to reiterating the Assembly’s stance
on the draft convention as a whole and briefly reviewing its specific
recommendations, reformulating them as I think necessary. It goes
without saying that my report must be read in conjunction with
Recommendation 2009 (2013) and the explanatory memorandum thereto.
Note
2 Overall
assessment of the draft convention
5. In its
Recommendation
2009 (2013), the Assembly welcomed the draft Council of Europe Convention against
trafficking in human organs, which represents the culmination of
several years of efforts by the Council of Europe in the field of
organ trafficking. Notable achievements in this area include the
incorporation of the principle of the non-commercialisation of the
human body in the relevant legal instruments drawn up by the Council
of Europe
Note and
the joint study carried out with the United Nations
Note which concluded
that it was necessary to prepare an international legal instrument
in the field of organ trafficking. That conclusion was endorsed
by the Assembly in its
Resolution 1782 (2011) on the investigation of allegations of inhuman treatment
of people and illicit trafficking in human organs in Kosovo*.
Note
6. The draft convention submitted to us today is the Council
of Europe’s latest contribution to the fight against organ trafficking
and a response to the pressing need for an international instrument
devoted exclusively to this issue. In this context, given that organ
trafficking is a worldwide phenomenon extending beyond the territory
of the Council of Europe’s member States, it is particularly pleasing
to note that the future convention will be open to signature and
ratification by non-member States as soon as it is adopted by the Committee
of Ministers, that is to say even before it enters into force. I
am convinced that this approach will further help to heighten the
relevance and visibility of the Council of Europe in the sphere
of human rights. I would like to point out in this connection that
the “Medicrime” Convention,
Note which
took the same approach, now has three States which are not Council
of Europe members among its signatories.
Note
7. However, in its
Recommendation
2009 (2013), the Assembly criticised the draft convention for being chiefly
oriented towards criminal law. This is most regrettable for a convention
that will be the first and very likely the only legally binding
international instrument in the field of organ trafficking. In terms
of prevention of trafficking, victim protection and co-operation
outside the criminal law sphere, I believe that this is a missed opportunity,
since these questions are quite simply not sufficiently developed
in the draft convention.
Note I will return to one specific aspect
of prevention later in this document (see point 3.2 below).
3 Comments on specific
questions covered by chapters II, V and VI of the draft convention
3.1 Chapter II – Substantive
Criminal Law
3.1.1 The situation of
donors and recipients involved in organ trafficking
8. Given the complexity of criminal actions comprising
organ trafficking, which involves various players and various criminal
acts, the convention’s negotiators have eschewed an all-encompassing
definition, preferring instead to enumerate all criminal acts which
constitute trafficking in human organs in “Chapter II – Substantive Criminal
Law”. Those acts are defined in Articles 4.1, 5, 7, 8 and 9.
9. While donors and recipients of an organ feature among the
aforementioned players involved in organ trafficking, the draft
convention does not say whether or not they must be punished for
their involvement. On the other hand, paragraph 94 of the draft
explanatory report indicates that they could be considered as victims owing
to their vulnerability.
Note The
possibility of punishing the donor and/or the recipient is left,
therefore, to the discretion of the Parties.
10. In this respect, based on the same arguments as those set
out in paragraph 94 of the draft explanatory report, the Assembly
recommended that a provision be added to the draft convention, recommending
that the vulnerability of the donor and/or recipient of an organ
be taken into consideration when deciding on possible sanctions
against them. It suggested the alternative of including a sentence
in the explanatory report along similar lines.
11. In a situation where the States would have a free hand in
deciding what should happen to donors and recipients (namely to
punish or not to punish), the future convention should at least
guarantee that the sanctions that may be applied to them are fair
and proportionate. In this respect, the Assembly should insist on its
alternative proposal, in the knowledge that this could easily be
implemented in the context of Article 12.1 which focuses on the
criteria governing sanctions. Article 12.1 reads as follows:
“Each Party shall take the necessary
legislative and other measures to ensure that the offences established
in accordance with this Convention are punishable by effective,
proportionate and dissuasive sanctions …”
12. In the light of the aforegoing, I propose that the following
sentence be added after the second sentence in paragraph 81 of the
draft explanatory report concerning Article 12.1:
“The term ‘proportionate’ used
in this article implies, where applicable, that any vulnerability
of organ donors and recipients, as described in paragraph 94 of
this explanatory report, should be taken into consideration when
deciding on the penalties that may be applied to them.”
3.1.2 “Transplant tourism”
13. “Transplant tourism” is a practice whereby some patients
travel abroad to procure organs in exchange for payment. This phenomenon
is booming, partly because the less restrictive regulations of certain
countries allow such “transactions” or do not expressly prohibit
them.
14. Article 10 of the draft convention sets out the criteria according
to which the Parties must establish their jurisdiction over the
offences targeted by the convention. In this connection, the draft
explanatory report states, in paragraph 69, that there are no provisions
in the convention providing for the elimination of the usual rule
of dual criminality whereby the criminal act is considered as an
offence both in the country prosecuting the crime and in the country
where it was committed. In other words, it is possible for a country
to not prosecute a national or person having habitual residence
on its territory
Note implicated
in an offence falling within the scope of organ trafficking, simply
because the offence was committed in a country where it is not considered
as such. I believe that having such a possibility encourages “transplant
tourism” and must therefore be removed.
15. In the light of the aforegoing, the Assembly should reiterate
its proposal that a provision be included in the draft convention
whereby the usual dual criminality rule is not applicable, in the
knowledge that such a possibility was initially foreseen in the
preliminary draft convention. It is proposed, therefore, that a
new paragraph be added to Article 10 after paragraph 3, worded as
follows:
“For the prosecution
of the offences established in accordance with Articles 4 to 8 of
the present Convention, each Party shall take the necessary legislative
or other measures to ensure that its jurisdiction as regards paragraphs
1.d and e is not subordinated to the condition that the acts are criminalised
at the place where they were performed.”
3.2 Chapter V – Prevention
measures
16. As was emphasised above, the questions of prevention
of organ trafficking, victim protection and international co-operation
outside the criminal law sphere are not sufficiently developed in
the draft convention. In this respect, Chapter V on prevention measures
is notably succinct, not to say lacking – as is the relevant part
of the explanatory report. A total of two articles are devoted to
this area: Articles 21 and 22 on national and international measures
respectively. Article 21 calls on the States to take the necessary
measures to ensure inter alia the
existence of a transparent transplantation system and equitable
access to its services.
17. As a result, the sole article of the draft convention referring
to national prevention measures outside the context of criminal
law makes no mention of measures in response to the shortage of
organs, despite this being precisely one of the prime reasons why
organ trafficking exists.
Note I find
this quite simply incomprehensible. Consequently, I propose that
a sub-paragraph
d be added
to Article 21.1, worded as follows:
“that
efforts are made to remedy as far as possible the shortage of organs,
which is one of the main reasons why human organs are trafficked.”
18. In connection with this new sub-paragraph, the explanatory
report might suggest, among other things, that the States consider
the expediency of setting up a system of presumed consent for the
removal of organs from deceased persons or an official and compulsory
system for registering wishes (whether or not to donate one’s organs),
or otherwise of developing research into alternative methods. It
could also suggest organising campaigns to raise public awareness
of organ donation in order to increase the number of donors.
3.3 Chapter VI – Follow-up
mechanism
19. Chapter VI contains provisions regarding the implementation
of the convention. The follow-up mechanism provided for in the convention
hinges chiefly on a Committee of the Parties, made up of representatives
of the Parties to the convention. The task of this committee is inter alia to monitor the implementation
of the convention and, where appropriate, facilitate its effective
use and implementation, express an opinion on any question concerning
its application and make specific recommendations to Parties concerning
its implementation.
20. In its
Recommendation
2009 (2013), the Assembly recommended that the Committee of Ministers strengthen
the provisions relating to the Committee of the Parties to provide
for an independent, strong and effective committee assigned a clear
function of co-ordination and monitoring on the basis,
inter alia, of reporting requirements
for the Parties, while entrusting the competent committees – CDPC
and the Committee on Bioethics (DH-BIO) – with a role in supervising
the convention’s implementation. The Assembly’s chief concern here
was to ensure that the functioning of the Committee of the Parties
was not dependent on the goodwill of the States.
21. I would be inclined to reiterate this recommendation while
removing the part referring to the competent committees, as I believe
that the committees concerned already have a role, albeit a limited
one, in monitoring implementation. In fact, the CDPC and the DH-BIO
are among the committees which may send a representative to the
Committee of the Parties, without the right to vote. Furthermore,
Article 25.4 stipulates that the CDPC shall be kept periodically
informed of the activities of the Committee of the Parties.
22. In the interests of consistency of the terminology used in
Article 25 concerning the functions of the Committee of the Parties,
I also propose that, in the French version, the word “application”
appearing in paragraph 1 of that article be replaced with the term
“mise en œuvre”, which is also more in keeping with the language
used at the Council of Europe [not applicable to the English version,
which uses the term “implementation” in both cases].
23. Finally, even if the Committee of Ministers were to adopt
this chapter as it stands, I remain optimistic as regards the smooth
running of the future Committee of the Parties, as long as adequate
resources are allocated to it. The experience of the Lanzarote Committee,
Note which
operates in a framework that is identical to the one provided for
in the draft convention, suggests that the States are capable of
assuming their commitments even in the absence of reporting requirements.
It remains to be seen whether this follow-up mechanism will be effective
in the long term.
4 Concluding remarks
24. In its
Recommendation
2009 (2013), the Assembly also advocated prohibiting the removal
and use for transplantation or other purposes of organs from persons
deprived of their liberty. Taken together, the sentence added to
paragraph 33 of the draft explanatory report expressly pointing
out that Article 4.1 applies to those persons and paragraph 17 of
the explanatory memorandum to
Recommendation
2009 (2013) are sufficient grounds, in my opinion, to consider that
persons deprived of their liberty are adequately protected by the
future convention. Accordingly, I will not reiterate this proposal.
25. I would also like to comment on Article 30, which lists the
articles of the convention in which States may make reservations.
The Assembly has already stated its view regarding the possibility
of making reservations in respect of Article 4.1 of the draft convention
defining the illicit removal of human organs and, accordingly, I will
simply refer the reader to paragraphs 5 and 8.7 of
Recommendation 2009 (2013).
Note
26. However, I would question the other reservation possibilities,
particularly as regards intentional attempts (Article 9.3) and the
provisions relating to jurisdiction (Articles 10.3 and 10.5). While
I understand the concern to ensure the largest possible ratification
of the convention conveyed by the drafters,
Note I believe that these
“opt-out clauses” risk weakening the scope of the future convention.
The Assembly should therefore recommend firstly that these clauses
be deleted and, failing that, invite all the States to accede to
the convention without making reservations. It should also call
on the parliaments of the States concerned to be vigilant as regards any
reservations their governments may attach to the signature or ratification,
acceptance or approval of the future convention.
27. In conclusion, I would like to highlight the fact that, at
this stage, it has not been deemed expedient to draft an additional
protocol against trafficking in human tissues and cells. However,
as
Recommendation 2009 (2013) emphasises, trafficking in human tissues and cells,
like organ trafficking, constitutes a serious threat to human rights
and individual and public health. Accordingly, I think it justified
to reiterate the recommendation urging the Committee of Ministers
to decide on a road map for the preparation of the additional protocol
against trafficking in human tissues and cells.
