10 CONTROL OF TRAFFICKING IN HUMAN ORGANS
AND TISSUES
(a)
(24389)
7799/03
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(b)
(24463)
8592/03
—
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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) and 34(2b) EU
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| Document originated | (b) 25 April 2003
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| Deposited in Parliament |
(b) 29 April 2003 |
| Department | Home Office
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| Basis of consideration |
(b) EM of 14 May 2003 |
| Previous Committee Report |
(a) HC 63-xix (2002-03), paragraph 4 (30 April 2003)
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| To be discussed in Council
| No date fixed |
| 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
10.1 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 biomedicine of 1997.
The recent 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
10.2 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 previous text (a).
10.3 Article 1 provides definitions of key
terms which has been amended to include a definition of "financial
gain" which is contained in Article 1 (4).
10.4 Article 2, which establishes common
definitions of offences to be applied by Member States, has been
amended in several respects. Article 2 (3) has been simplified
and now criminalises the supply of an organ or tissue for financial
gain. Article 2 (4) which criminalised the donor has been deleted,
whilst the scope of Article 2 (5a) has been broadened so as to
criminalise organ and tissue donation together with other aspects
of organ and tissue trafficking whenever undertaken for the purpose
of financial gain. The scope of Article 2 (5b) has likewise been
broadened and now covers "any person" involved in the
transplant of an illegally traded organ.
10.5 Article 3 continues to provide for
the criminalisation of any act amounting to instigation, aiding,
abetting or attempting to commit any of the offences set out in
Article 2.
10.6 Article 4 requires Member States to
impose "effective, proportionate and dissuasive" criminal
penalties for the offences in Articles 2 and 3. Compared to the
previous text the penalty for the removal of an organ by force
has been raised to a maximum of at least 2 to 5 years. Article
4 (3) has also been amended to widen the scope of "aggravating
circumstances" by broadening the category of vulnerable persons
and by giving greater regard to the circumstances of the crime
especially those involving serious violence or resulting in physical
harm to the victims.
10.7 Article 5 provides for the liability
of legal persons, whilst Article 6 requires Member States to impose
sanctions, including fines, on a legal person held liable for
the offences under the framework decision. Both provisions remain
substantively unchanged.
10.8 An additional provision on extra-territorial
jurisdiction has been included in Article 7 (2) so as to oblige
Member States which do not extradite their own nationals to ensure
prosecution in respect of any offence referred to in Articles
2 or 3 when committed by their own nationals outside their territory.
The Government's view
10.9 In his earlier Explanatory Memorandum
of 13 March 2003, which referred to the original proposal, the
Parliamentary Under-Secretary of State (anti-drugs coordination
and organised crime), Home Office (Mr Bob Ainsworth), expresses
the Government's cautious support for this measure designed to
tackle the commercial trade in human organs and tissues. In his
Explanatory Memorandum of 15 May 2003 the Minister outlines the
Government's position in relation to the amendments proposed in
the revised text (document (b)).
10.10 The Minister welcomes the proposed
definition of "financial gain" included in Article 1
(4) which is based on a UK proposal. He adds that the definition
"is an important addition to the text and will ensure than
an individual or an organisation e.g. NHS tissue bank, who are
reimbursed for costs/expenses, are not punished as a result of
this framework decision."
10.11 Regarding Article 2 (2) the Minister
states that "there would appear to be a drafting problem…
The removal of an organ from a donor by force is clearly a criminal
offence, and it would seem unnecessary to add the words 'unlawful'
and 'with the aim of trading this organ.' The UK will seek to
reinsert the original text for this provision."
10.12 The Minister welcomes the simplification
of Article 2 (3) as the reference in the previous text "the
donor directly or through an intermediary" was otiose.
10.13 In relation to Article 2 (4) the Minister
states that "the UK sought to retain donors in this provision,
but received no support." He adds "the Government is
of the view that both donors and recipients are key parties to
the commercial trading in organs, and therefore should be included
in the scope of the framework decision. The UK will seek to clarify
the meaning of the revised Article 2 (5a). We will push for lesser
penalties for donors and recipients."
10.14 The Minister welcomes the broadening
of the scope of Article 2 (5b) to cover anybody involved in the
transplantation of an illegally traded organ.
10.15 The Minister states that the Government
welcomes the raising of the penalty for the removal of an organ
by force to a maximum of at least two to five years. He adds
that "the Government is of the opinion that this is a step
in the right direction, but that the seriousness of this offence
should warrant a penalty of a maximum of at least five to ten
years." Concerning Article 4 (3) which, compared to its
predecessor, broadens the scope of the term "aggravating
circumstances" the Minister informs us that "the majority
of Member States have supported the wording of this provision
and it is consistent with the text in the framework decision on
human trafficking. My officials have advised the Presidency that
in the UK the maximum sentence agreed must apply to the whole
offence, not just those involving aggravating circumstances.
Therefore, we will seek to secure lower penalties for offences
involving financial gain."
10.16 In relation to the new Article 7 (2)
on extra-territorial jurisdiction the Minister comments that the
Government is still considering its position. He adds that the
majority of Member States are in favour of making the extra-territorial
provisions optional and wish to align these provisions with those
in the framework decision in human trafficking.
10.17 Finally, addressing the question of
the likely financial implications of the proposed measure the
Minister comments that "legislation on a new offence of trafficking
in human beings for the purpose of organ removal is unlikely to
entail significant financial implications, as there are likely
to be relatively few prosecutions."
Conclusion
10.18 We thank the Minister for his detailed
explanation of the Government's view of the proposed amendments
to the proposal. We ask the Minister why in relation to Article
2 (5) the Government believes donors and recipients should be
expressly mentioned in the proposed measure. We also ask the
Minister why he believes that donors and recipients, who might
also be conceived as victims of the commercial trading in organs,
should be made liable to criminal penalties. Otherwise we welcome
the Government's general support for the initiative and share
its remaining reservations about the present text.
10.19 We ask
the Minister to explain the purpose of Article 7 (2), given the
provisions of the European Arrest Warrant, which would require
the extradition of a Member State's own nationals.
10.20 We look
forward to receiving the Minister's response to our questions
and to hearing about the Government's progress in securing appropriate
amendments to the draft text. We clear document (a) as it has
been superseded, but we will hold document (b) under scrutiny
in the meantime.
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