Petrova v. Latvia

ECHR 181 (2014)
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The applicant’s son at the age of 23 was in a car accident and sustained very serious injuries. He had to be operated on but his condition became worse after her surgery and he died. After a few months, she discovered that her son’s kidneys and spleen had been removed for organ transplantation after his death without her knowledge. She filed a complaint with the Public Prosecutor’s office, the police and the hospital. The Public Prosecutor dismissed her complaint stating hat domestic law allowed for organ removal and the medical practitioners were not obliged to inform the closest relatives unless the person was a child.

The applicant alleged that there had been a violation of Article 3 (Prohibition of inhuman and degrading treatment) and Article 8 (Right to Private and Family life) stating that the organ removal had been done without her son’s or her consent and she stated that there should be in place some mechanism for ascertaining and fulfilling the wishes of a dying person or of the next of kin.

The Court held that there had been a violation of Article 8 of the Convention. The Court stated not taking the applicant’s consent for the removal of her son’s organs had interfered with the right to respect for private life (Article 8). The Court stated that although the Latvian law did state the need for consent of the person or his closest relations before organ removal, there was a leeway of presuming consent. The Court stated the way the law was interpreted and applied in the applicant’s case did not afford adequate legal protection. The Court did not analyse Article 3 separately.

“As to the alleged interference, turning to the circumstances of the present case, the Court notes that following a car accident the applicant’s son sustained life-threatening injuries of which, after an attempt to save his life had been made, he had died. Immediately after his death, his kidneys and spleen had been removed for organ transplantation purposes. The applicant, who was one of his closest relatives, was not informed of this and could not therefore exercise certain rights allegedly established under domestic law – to express consent or refusal in relation to the removal of her son’s organs.” (Para 87)

“As to whether the interference was “in accordance with the law”, the Court observes that Latvian law at the material time explicitly provided for the right on the part of not only the person concerned but also his or her closest relatives, including parents, to express their wishes in relation to removal of organs after that person’s death (see paragraphs 36 and 37 above). The parties did not contest this. However, their views differed in so far as the exercise of this right was concerned. The applicant’s view was that the domestic authorities had not fulfilled their duty to provide conditions whereby her wishes in relation to the removal of the applicant’s son’s organs for transplantation purposes could be expressed. According to the Government, the “presumed consent system” in Latvia was an active process and the persons involved were expected to take positive steps if they wished to veto any organ removal. It is the Court’s view that these issues appertain to the quality of domestic law, in particular, whether the domestic legislation was formulated with sufficient precision or afforded adequate legal protection against arbitrariness in the absence of the relevant administrative regulation.” (Para 90)

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