European Laws Against Cross Border Organ Transplant Abuse

(Text basis for a poster presentation at the ELPAT (Ethical, Legal and Psychosocial Aspects of Organ Transplantation) conference in Seville, Spain, October 9^th to 11^th)

by David Matas

Background: The laws in Europe on cross border organ transplant abuse are underdeveloped. One reason is the relative newness of transplant technology. A second is that the abuse has a low visibility and accordingly a low priority.

David Kilgour and I published a report in 2006 titled “Bloody Harvest” documenting the mass killing since the early 2000s of the spiritually based set of exercises Falun Gong in China for their organs, sold on demand to transplant tourists and wealthy and well- connected Chinese.(1) A independent journalist Ethan Gutmann authored his own report on the abuse, titled “The Slaughter” in 2014.(2) The three of us then in 2016 established an NGO, the International Coalition to End Transplant Abuse in China, to combat the abuse.(3)

An international people’s tribunal in 2020 found that this forced organ harvesting was then still happening, with certainty, beyond reasonable doubt.(4) Twelve UN human rights experts in 2021 jointly expressed extreme alarm and utmost concern about the evidence of organ transplant abuse in China with prisoner of conscience victims.(5) These victims, in addition to Falun Gong, include Uyghurs in large numbers, as well as Tibetans and House Christians.

Methods: The presentation sets out the Council of Europe Convention against Trafficking in Human Organs.(6) The text then presents laws directed against cross border transplant abuse in ten different European countries. The text concludes with suggestions about what further in Europe could be done to counter cross border organ transplant abuse.

The Convention

There are 46 states members of the Council of Europe. Of those 46 states, 15 have ratified the Convention against Trafficking in Human Organs or acceded to it.(7)

Thirteen others have signed the Convention but not ratified it. Of the fifteen who have ratified or acceded to the Convention, one, Costa Rica, is not a member of the Council. Of the thirteen who have signed but not ratified, two ‑ Chile and Russia ‑ have not ratified the Convention.

There are accordingly 14 European states members of the Council who have ratified or acceded to the Convention and 11 European states which have signed but not ratified the Convention. The Convention was open for signature in 2015 and came into force in 2018. Of the eleven European signatures without ratification, ten are long standing ‑ eight from 2015, one from 2017 and one from 2018.

The Convention obligates states parties to enact several prohibitions against trafficking in human organs. The prohibitions, according to the Convention, must apply with extraterritorial effect to its nationals and habitual residents. The Convention allows states parties to opt out of this extraterritorial component through a reservation at the time of ratification, acceptance or approval of the Convention.

States generally, when it comes to the application of their criminal law, have either national or territorial jurisdiction. Many of the states of the Council of Europe have nationality jurisdiction for their criminal law. Consequently, to apply their criminal law abroad to nationals does not require specific extraterritorial legislation.

However, to apply their criminal law to habitual residents does require that specific sort of legislation. Six states of the Council of Europe have appended reservations to their ratifications, excepting themselves from the obligation to enact extra‑territorial legislation except insofar as their laws allow for it.

The Convention imposes no obligation to enact its prohibitions with extra‑territorial effect to apply to visitors or temporary residents. Accordingly, the Convention does not adopt the principle of universal jurisdiction for its prohibitions.

The Convention obligates states parties to prohibit:

1) the removal of organs without consent, or for a deceased donor, without legal authorization;

2) financial gain for the removal of organs;

3) the recruitment of an organ donor or a recipient, where carried out for financial gain;

4) giving any undue advantage to healthcare professionals or others with a view to having a removal or implantation of an organ performed;

5) the preservation and storage of illicitly removed human organs;

6) the transportation of illicitly removed human organs;

7) aiding or abetting the commission of any of these prohibitions; and

8) the intentional attempt to commit any of these prohibitions.(8)

The Convention has specific provisions about sanctions which should follow from violations of the Convention prohibitions. The Convention obligates states parties to ensure that violations of the Convention prohibitions are punishable by:

1) effective, proportionate and dissuasive sanctions; and

2) deprivation of liberty that may give rise to extradition, in the case of specific offences referenced in the Convention.

The Convention further obligates states parties to ensure that violations of the Convention prohibitions by legal persons may be punishable by:

1) temporary or permanent disqualification of the legal person from exercising commercial activity;

2) placing the legal person under judicial supervision; and

3) a judicial winding up order directed against the legal person.(9)

The Convention further obligates states parties to ensure that violations of the Convention prohibitions may be met by:

1) permit seizure and confiscation of proceeds of the Convention offences;

2) temporary or permanent closure of any establishment used to carry out any of the Convention offences

3) denial, temporarily or permanently, of the exercise of a professional activity relevant to the commission of any of the Convention offences.

The Convention further obligates states parties, in applying sanctions for violation of the Convention prohibitions, that these aggravating circumstances be taken into consideration:

1) the offence caused the death of, or serious damage to the physical or mental health of, the victim;

2) the offence was committed by a person abusing his or her position;

3) the offence was committed in the framework of a criminal organisation;

4) the perpetrator has previously been convicted of a Convention offence; and

5) the offence was committed against a child or any other particularly vulnerable person.(10)

Many countries have universal jurisdiction legislation for genocide and crimes against humanity. The mass forced organ harvesting in China of practitioners of the spiritually based set of exercises Falun Gong and Uyghurs are arguably genocides and are certainly crimes against humanity. As well, some countries apply their criminal law to nationals and habitual residents abroad.

The Council of Europe webpage “Countering the trafficking in human organs” provides state parties to the Convention

“are required to enact domestic legislation which will allow them to comply with the substantive provisions of the Santiago de Compostela Convention.”(11)

The webpage then sets out the country profiles of seven state parties to the Convention “in view of imparting information and assessing the current state of implementation” of the Convention.

The webpage adds a caveat what they have set out “may not always reflect the official position of the countries in question or of the Council of Europe.” The seven set out are Belgium, the Czech Republic, France, Norway, Portugal, Slovenia and Switzerland.

There are three additional European states ‑ Italy, Spain and the United Kingdom ‑ identified on the website of the International Coalition to End Transplant Abuse in China with relevant legislation.(12) Two of these states ‑ Italy and the United Kingdom ‑ have signed the Convention but not ratified it. Spain has signed and ratified the Convention and enacted relevant legislation before the Convention came into existence. A summary of the legal situation in the ten countries just mentioned follows.

B. Country legislation

1) Belgium

Belgium signed the Convention in 2015 and ratified it in 2022. Belgium enacted a law in 2019 that replicates the prohibitions in the Convention and goes beyond what the Convention requires.(13) The law asserts universal jurisdiction for its offences. The prohibitions in the law apply to “anyone” who commits the prohibited acts whether the acts occur in Belgium or “in another State”.

2) Czech Republic

The Czech Republic signed the Convention in 2015, ratified it in 2017 with entry into force in 2018. The Czech transplantation law, enacted in its current form in 2021, does not address directly complicity in transplant abuse abroad.(14) Nonetheless, the legal system of the country asserts nationality jurisdiction, meaning that nationals of the Czech Republic who commit offences abroad can be prosecuted in the Czech Republic for those offences.

The same is not true of permanent residents. The Czech Republic, in ratifying the Convention, added as a reservation to the obligation in the Convention, that the laws of the Czech Republic shall “assess the culpability of an act committed abroad by a person with no nationality who has been granted permanent residence in their territory.” In other words, habitual residents of the Czech Republic with a nationality other than Czech are not punishable in the Czech Republic for violating the Czech transplant law abroad.

3) France

France ratified the Convention in 2023 without reservation. The Government of France provided the Council of Europe with a comparison between its laws and the Convention obligations,(15) implicitly suggesting that no changes in its laws were necessary to comply with the Convention.

When it came to applying the obligations of the Convention to organ transplant abuse abroad, the French comparison stated:

“French criminal law is applicable to any crime committed by a French national outside the territory of the Republic. It is applicable to offenses committed by French nationals outside the territory of the Republic if the acts are punishable by the legislation of the country where they were committed. … This article applies even if the accused has acquired French nationality after the act attributed to him.”

As one can see, the French law is not coincident with the Convention. Yet, there is no French reservation relating to habitual residents, or relating to offenses committed by French nationals outside the territory of the Republic if the acts are not punishable by the legislation of the country where they were committed.

4) Italy

Italy, which signed the Convention in 2015 but not ratified it, nonetheless enacted in 2016 a law consistent with the Convention. The law came into effect in 2017.

The law provides for punishment of anyone who

a) unlawfully trades, sells, purchases, or procures, or handles organs or parts of organs removed from a living person. If the offense is committed by a person practising a healthcare profession, the conviction results in a lifelong disqualification from practising the profession, and

b) organizes or promotes trips or advertises or disseminates advertisements aimed at trafficking in organs or parts of organs.(16)

The Italian Code of Criminal Procedure provides that if an offence “is entirely committed abroad, competence shall be subsequently determined in relation to either the place where the accused has his habitual or temporary residence, his address for service or where he has been arrested or surrendered.”(17)

If we assume that there has been no arrest or surrender abroad and no address for service abroad, the competence for offences abroad would encompass habitual or temporary residents of Italy, not nationals of Italy who have habitual or temporary residence abroad.

5) Norway

Norway signed the Convention in 2015, ratified the Convention without reservation in 2017, enacted relevant legal provisions consistent with the Convention also in 2017,(18) with entry into force of the 2017 legal provisions and the Convention in 2018. The Norwegian Penal Code provides that Norwegian criminal legislation applies to acts committed outside of Norway by a Norwegian national or by a person domiciled in Norway, when the acts are also punishable under the law of the country in which they are committed.(19)

6) Portugal

Portugal signed the Convention in 2015, and ratified it in 2018 with entry into force in 2019. Portugal enacted legislation in 2019 specifically to incorporate the provisions of the Convention.(20) The Portuguese Criminal Code provides that the Portuguese criminal law is applicable

“to acts committed outside the national territory to which the Portuguese State has, by international treaty or convention, bound itself to decide.”(21)

7) Slovenia

Slovenia enacted transplantation legislation in 2015, signed the Convention in 2018 and ratified it in 2022. The Penal Code of the Republic of Slovenia applies to any person who, in a foreign country, commits any criminal offence,

“which according to the international agreement has to be prosecuted in all signatory states, irrespective of the location where it was committed.”(22)

Despite this law, Slovenia entered a reservation to the Convention reserving the right not to apply the jurisdiction rules in the Convention for crimes committed abroad by nationals and habitual residents.

8) Spain

Spain amended its Criminal Code in 2010 to address abuse.(23) Spain signed the Convention in 2015, ratified it in 2020 to come into force in 2021.

Spanish law provides that Spanish courts have jurisdiction over any act committed by Spanish nationals or foreigners outside the national territory that is an offence in respect of which prosecution is required under a treaty that is in force for Spain.(24) Despite this law, Spain too entered a reservation to the Convention reserving the right not to apply the jurisdiction rules in the Convention for crimes committed abroad by nationals and habitual residents.

9) Switzerland

Switzerland enacted a transplant law in 2004.(25) The law provided for prosecution of offences committed abroad.(26)

Switzerland signed the Convention in 2016, and ratified it in 2021 without reservation, to come into force in 2021. The Swiss Criminal Code provides that any person who commits a crime abroad that Switzerland is obliged to prosecute in terms of an international convention is subject to the Criminal Code provided the act is also liable to prosecution at the place of commission or no criminal law jurisdiction applies at the place of commission and the person concerned remains in Switzerland and is not extradited to the foreign country.(27)

10) United Kingdom

The United Kingdom has territorial jurisdiction for its criminal laws. The UK signed the Convention in 2015 but has yet to ratify it.

The UK, at the time of signature, appended a reservation to the obligation to enact the Convention prohibitions with extraterritorial effect, both for habitual residents and nationals.

The United Kingdom, nonetheless, in 2022 amended its Human Tissue Act to give extraterritorial effect applying to nationals and permanent residents to the prohibition in that Act against commercial dealings in human materials for transplantations.(28) The UK in 2024 enacted a regulation requiring transplant nurses who become aware, in the course of their profession, of an organ transplant having taken place outside the United Kingdom, where the organ recipient is either a UK national or habitual resident, to report to a government authority detailed information about both the organ recipient and the organ source.(29)

Conclusion: There is within Europe at least some criminal legislation directed against complicity in organ transplant abuse abroad. This legislation is far from comprehensive. Precautions to remedy and prevent organ transplant abuse abroad need not be and should not be only criminal law precautions.

There should also be laws

1) preventing entry of foreigners complicit in the abuse,

2) prohibiting health insurance for transplant tourism,

3) allowing for sanctions to be imposed on those abroad involved in the abuse,

4) providing an exception to sovereign immunity which would apply to foreign abusers,

5) preventing contributions to supply chains which would facilitate the abuse,

6) denying passports to transplant tourists,

7) establishing a public reporting by country on the abuse,

8) requiring health practitioner or hospital reporting of patient transplant tourism,

9) allowing for state inspection of hospital transplant records, and

10) imposing compliance with transplant standards for professional licensing.

Systematic precautions remain to be put in place in Europe both to remedy and prevent organ transplant abuse abroad.

REFERENCES