Human rights judges ruled today that the removal of tissue from a deceased man’s body, without the knowledge or consent of his wife, amounted to degrading treatment.
The European Court of Human Rights backed a complaint against Latvia (Elberte v. Latvia – application no. 61243/08) brought by the man’s wife Dzintra Elberte. It declared that as Just Satisfaction (Article 41), Latvia was to pay Elberte 16,000 euros (EUR) in respect of non-pecuniary damage and EUR 500 in respect of costs and expenses.
The case concerned the removal of body tissue from Elberte’s deceased husband by forensic experts after his death, without her knowledge or consent. Unknown to Elberte, pursuant to a state-approved agreement, tissue had been removed from her husband’s body after her husband’s autopsy and sent to a pharmaceutical company in Germany for the creation of bio-implants.
She only learned about the course of events two years after her husband’s death when a criminal investigation was launched in Latvia into allegations of wide-scale illegal removal of organs and tissues from cadavers. However, domestic authorities eventually did not establish any elements of crime.
The court held, unanimously, that there had been:
a violation of Article 8 (right for respect to private and family life) of the European Convention on Human Rights;
a violation of article 3 (prohibition of inhuman or degrading treatment) of the Convention.
The court found in particular that Latvian law regarding the operation of the consent requirement on tissue removal lacked clarity and did not have adequate legal safeguards against arbitrariness: although it set out the legal framework allowing the closest relatives to express consent or refusal in relation to tissue removal, it did not clearly define the corresponding obligation or discretion of experts to obtain consent.
Indeed, the manner in which the relatives’ right to express their wishes was to be exercised and the scope of the obligation to obtain consent were the subject of disagreement among the domestic authorities themselves.
The court further concluded that Elberte had had to face a long period of uncertainty and distress concerning the nature, manner and purpose of the tissue removal from her husband’s body, underlining that, in the special field of organ and tissue transplantation, the human body had to be treated with respect even after death.