4 Control of trafficking in human organs
and tissues
| (a)
(24279)
6290/03
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(b)
(24389)
7799/03
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Draft Framework Decision on the prevention and control of trafficking in human organs and tissues.
Draft Framework Decision on the prevention and control of trafficking in human organs and tissues.
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| Legal base | Articles 29, 31 (e), 34 (2) (b) EU
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| Document originated | (a) 13 February 2003
(b) 26 March 2003
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| Deposited in Parliament | (a) 19 February 2003
(b) 27 March 2003
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| Department | Home Office |
| Basis of consideration | (a) EM of 13 March 2003
(b) EM of 9 April 2003
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| Previous Committee Report | None
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| To be discussed in Council | No date fixed
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| Committee's assessment | Legally and politically important
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| Committee's decision | (a) Cleared
(b) Not cleared; further information requested
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Background
4.1 The proposal builds upon the Protocol to prevent, suppress
and punish trafficking in persons of the UN Convention against
trans-national organised crime, and the Convention of the Council
of Europe on Human Rights and Bio-medicine of 1997. The recent
Council Framework Decision of 19 June 2002 on Combating Trafficking
in Human Beings does not include provisions on the trafficking
of human organs. The present proposal addresses this problem
and seeks to close the gaps.
The document
4.2 The draft Framework Decision seeks to approximate Member
States' legislation in respect of trafficking in human organs
and tissues. Document (b) is a revised proposal which replaces
the original text (document (a)).
4.3 Article 1 provides definitions of key terms.
Article 2 establishes common definitions of offences to be applied
by Member States. These are:
· the
trafficking of human beings for the purpose of organ or tissue
removal;
· organ or tissue
removal by coercion, force, threats or fraud;
· the offer of
financial gain to a donor in order to obtain his consent for organ
or tissue removal;
· the receipt
of financial gain by a donor in order to obtain his consent for
the removal of an organ or tissue;
· the commercial
dealing in illegally-removed organs or tissue; and
· the transplantation
of illegally-obtained organ or tissue by medical or nursing staff.
4.4 Article 3 provides for the criminalisation
of any act amounting to instigation, aiding, abetting or attempting
to commit any of the offences set out in Article 2.
4.5 Article 4 requires Member States to impose
"Effective, proportionate and dissuasive" criminal penalties
for the offences in Articles 2 and 3. Article 4 imposes two further
specific requirements. The first is a penalty of a maximum of
at least between one and three years of imprisonment for the offence
of organ or tissue removal through coercion, force, threats or
fraud. Secondly, it obliges Member States to impose maximum penalties
of at least 10 years imprisonment where aggravating factors are
present in the commission of any of the offences set out in Articles
2 and 3.
4.6 Article 5 provides for the liability of legal
persons, whilst Article 6 requires Member States to impose sanctions,
including fines, if legal persons are held liable for the offences
under the Framework Decision.
4.7 Article 7 contains very wide provisions which
oblige Member States to establish jurisdiction not only for offences
committed entirely or partly in their territory but also in cases
where the perpetrator is one of its nationals or the crime is
committed for the benefit of a legal person established in its
territory.
The Government's view
4.8 The Parliamentary Under-Secretary of State
(Anti-drugs coordination and organised crime), Home Office (Mr
Bob Ainsworth) expressed in his Explanatory Memorandum of 13 March
2003, referring to the original proposal the Government's cautious
support for the Draft Framework Decision. He writes:
"The Government does not have firm evidence
that people are being trafficked for the purpose of organ or tissue
removal. However, we have received anecdotal reports that organised
crime is active in the illegal organ-donor trade in Eastern Europe.
We consider that it is therefore perhaps timely that this issue
should be addressed at EU level and are supportive of measures
to tackle the commercial trade in human organs and tissues, and
the trafficking of human beings for the purpose of moving their
organs and tissues."
4.9 However, the Minister's Explanatory Memorandum
accompanying the revised proposal indicates several remaining
concerns. In relation to Article 2 the Minister states:
"The Government supports the revised definition
of Article 2.1, which clearly identifies the exploitative element
of the offence. It is also consistent with the definition of
trafficking in the Framework Decision on human trafficking. We
are also pleased to note that some progress has been made to simplify
the definition of offences in Article 2, but officials have questioned
the need for provision which criminalises the removal of an organ
by force. There is some support to retain this provision because
of the divergence in the level of penalties imposed by Member
States for this type of offence.
"Article 2.3 and 2.4 deal with offences relating
to the sale of human organs for 'financial gain or comparable
advantage'. The majority of Member States have asked for 'financial
gain' to be defined in Article 1 but sought clarification of the
term 'comparable advantage'. The UK has made a proposal for the
term 'financial gain' to be defined in Article 1 as 'money or
money's worth'. The Government is supportive of the principle
of punishing the donor/recipient[s] in order to tackle this trade,
but considers that these groups should receive significantly lower
penalties. The Government also considers that references to 'consent'
should be deleted because it is immaterial in determining whether
an offence has been committed. The majority of Member States
have taken the view that donors should be excluded from this Framework
Decision, and it is likely that the next draft will reflect this
majority view.
"Article 2.5 (b) [sic] criminalises the
transplantation of an unlawfully obtained organ by medical staff.
The Government is of the view that any person responsible for
transplanting an organ in the knowledge that it was unlawfully
obtained should be punished. My officials will seek to broaden
the scope of this offence to cover any person."
4.10 The Government likewise has reservations
about Article 4 which deals with the penalties for offences defined
in Article 2 of the proposals. The Minister writes:
"The Government is still concerned that the
harshest penalties are reserved for offences involving aggravating
circumstances. In the UK, the maximum sentence agreed must apply
to the whole offence not just aggravating circumstances. We can
accept a penalty of a maximum of at least 5-10 years, for trafficking
of persons for the purpose of organ removal. But we will seek
to negotiate lower penalties for all offences relating to the
trading in human organs for financial gain. We consider that
the penalty of a maximum of at least 1-3 years, for the removal
of an organ by force, is too low. In response to pressure from
Member States, it is likely that the penalty will be raised to
a maximum of at least 2-5 years."
4.11 The Minister also expresses concern about
the broad scope of the jurisdiction provisions contained within
Article 7. He writes:
"As drafted, this Framework Decision will require
Member States to establish extra-territorial jurisdiction for
the offences. A number of Member States are against this and
are seeking for the text to be aligned with the Framework Decision
on human trafficking. The Government can see the added value
in establishing extra-territorial jurisdiction for this type of
offence and is considering its position on the issue."
4.12 In his Explanatory Memorandum of 13 March
2003 the Minister also indicates that
"The Framework Decision would necessitate significant
changes to primary legislation in the UK as the text currently
stands. The trafficking of human beings for the purpose of organ
or tissue removal is not a criminal offence in the United Kingdom
domestic law. Provisions are contained within the Sexual Offences
Bill, which cover for the purpose of sexual exploitation. They
do not cover for the purpose of organ or tissue removal. These
provisions in the Sexual Offences Bill will replace and repeal
the trafficking for prostitution offences in the Nationality,
Immigration and Asylum Act 2002. The Government will need to
legislate on the trafficking in persons for the purpose of organ
or tissue removal separately.
"The Human Organ Transplants Act 1989 governs
the law on illegal organ transplants. This act prohibits commercial
dealing in human organs, but only provides for a maximum three-month
penalty for the offences. This is due to be raised to 51 weeks
under the Criminal Justice Bill, as part of a general review of
summary offences. The Department of Health (DoH) is preparing
a Bill, which will create a new offence and penalty to cover the
commercial dealings and trafficking in all human body parts.
In addition, the DoH is intending to raise the penalties significantly
for existing offences within the Human Organ Transplant Act.
We are liaising with DoH to ensure consistency with the UK's approach
to EU negotiations.
"The Government will also need to consider legislation
to give effect to the liability of legal person provisions in
Article 5 which requires Member States to impose 'sanctions' on
a legal person, where a lack of supervision or control has contributed
to the committing of the offence of [sic] its benefit.
The Home Office is currently in the process of exploring options
for legislation. The DoH's new legislation will establish a 'responsible
person' to whom penalties would be applied. This is likely to
be the named person on the licence or register for those activities
requiring a licence or registration, and the individual carrying
out the activity for all other activities covered by the Bill."
4.13 Finally the Minister tells us in his later
Explanatory Memorandum that the consultation process with outside
interests has begun. The response from the Unregulated Life Transplant
Authority (ULTRA) indicates support for the Government's view
that the donor/recipient should receive lower penalties for the
offences of selling or receiving organs for financial gain.
Conclusion
4.14 We thank the Minister for
his detailed explanation of the Government's view of the proposed
measures. We welcome the Government's general support for the initiative
and share its remaining reservations about the present text.
- We look forward to hearing about
the Government's progress in securing appropriate amendments
to the draft text and will hold the document under scrutiny
until a revised proposal has been deposited.
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