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Joint Standing Committee on Foreign Affairs, Defence and Trade
08/06/2018
Human organ trafficking and organ transplant tourism

ALARCON JIMENEZ, Mr Oscar, Co-Secretary, European Committee on Crime Problems, Council of Europe

LOPEZ FRAGA, Dr Marta, Scientific Officer, European Directorate for the Quality of Medicines and HealthCare, Council of Europe

[15:24]

Evidence was taken via teleconference—

CHAIR: Thank you both for participating. Do you have anything to say about the capacity in which you appear?

Dr Lopez Fraga : I am a scientific officer at the Council of Europe, where I am a secretary to the European Committee on Organ Transplantation.

Mr Alarcon Jimenez : I am working as a legal officer, as co-secretary, of the European Committee on Crime Problems at the Council of Europe.

CHAIR: I thank you both. I will perhaps lead off by asking questions of both of you. One of the considerations we have before this inquiry is whether Australia should sign and ratify the European convention. I know a number of countries have signed it, but how many have ratified it to date?

Dr Lopez Fraga : As of today, there are five ratifications: Moldova, Norway, Malta, Czech Republic and Albania.

CHAIR: Are you able to say anything about the process in other European countries?

Dr Lopez Fraga : At the moment, there are 18 signatures. As you know, for Council of Europe conventions, it's a double step. First, there's the signature, which still doesn't bind the country to the convention. The second step is the ratification. Out of these 18 countries, a number of them are going through the process of ratification but most of them prefer to do the amendments under their national laws before they do the ratification step. This is a step that requires agreement from parliaments, so it usually takes some time.

CHAIR: In the convention, it obligates parties to criminalise the solicitation and recruitment of an organ donor for financial gain, which is article 7. Article 10 outlines that these offences apply to offences in the party's territory, or by one of its nationals, or by any resident of the party's state. Can you outline how that might apply to transplant tourism?

Dr Lopez Fraga : Oscar, do you want to answer that?

Mr Alarcon Jimenez : Could you please repeat the question? I could not hear you. I heard only about article 7, but I do not know what you said afterwards. Sorry.

CHAIR: Then article 10 outlines that the offences apply to offences in the party's territory, or by one of its nationals, or by any resident of the party' state. We're just wondering how that would be interpreted in terms of applying to transplant tourism.

Mr Alarcon Jimenez : Article 10 refers to jurisdiction, which means that every party should take legislative measures to establish jurisdiction of this offence or any particular offence within, normally, its territory or anything related to its territory—so, on board a ship, flying the flag, or anything like that. So, as far as it is related to the proposal that you mentioned concerning transplant tourists, it should be related to one of its nationals. However, this should be included, in particular, in the national law, because one of the requirements of this convention is that this is the framework. However, any country having ratified the convention should accommodate this convention into its national law. So it is at the liberty of the party to establish whatever their concern is, in particular, to transplants or to tourist transplantation regarding its national law. I don't know if I'm clear enough. Sorry.

CHAIR: My question is: if, for example, Australia entered into and ratified the convention, would article 10 have the effect of criminalising the conduct of an Australian in an overseas country—for example, China, the Philippines or India?

Mr Alarcon Jimenez : Again, it will be the country, Australia in particular, to establish that when accommodating the national law. It goes without saying that there is also the possibility for Australia to make a reservation to whatever article of the convention, provided that the convention establishes it as so. It is established also in the convention, in whatever international treaty, the possibility of doing any reservations to the convention.

In this particular case, I do not know exactly what the Australian legislation says. I've been reading the current Criminal Code of Australia from 1995, and there are, from my point of view, some elements which still need to be reviewed, because I don't know what kind of a state you have concerning federal law or even a law in one particular state. So, in this regard, I cannot answer right now the complete question that you're asking me. However, if you allow me, I can study that question in more detail and provide you with an answer, if I may.

CHAIR: If you can consider it and if there is anything further you can provide us, that would be useful. I take from what you said that ratifying the convention would not obligate Australia to have an extraterritorial aspect to its law?

Mr Jimenez : The country itself, when ratifying the convention, should accommodate its national legislation. I need to further study this to give you a complete legal answer concerning this topic. It is about one country in particular, and I would prefer to analyse this from a legal perspective and then complete this question.

CHAIR: Thank you. We would greatly appreciate anything that you can provide us.

Dr Lopez Fraga : If I may, I would like to say one thing. I believe in Australia you have human trafficking with extraterritorial jurisdiction. So that would be a similar precedent. In the case of human trafficking, it falls under what is called 'intended geographical jurisdiction' under category B. This means that perpetrators must be Australian citizens, residents or legal persons and there is a double criminality requirement.

CHAIR: Thank you. I now want to ask about article 9, which provides for criminal offences relating to aiding or abetting organ-trafficking offences. Do these offences potentially apply to medical professionals, doctors, who fail to report the intention of a patient to solicit a commercial transplant? If a patient comes to a doctor and says, 'I'm intending to go overseas to get a transplant,' does that fall within the obligations on the medical professional under article 9?

Dr Lopez Fraga : We've had a lot of conversation about this particular topic within the transplantation committee. It was a matter of real concern for many countries. The issue is that doctors in many countries have this obligation for patient-doctor confidentiality. So countries are going to have to find different solutions to determine if there are limits to this patient-doctor confidentiality requirement and under what circumstances they should be able to report this patient. What is clear, for example, is that a doctor that would provide medical records in order to facilitate an organ-trafficking procedure, or to facilitate that the patient gets medical tests for that particular thing, would certainly fall under aiding and abetting to organ trafficking.

As regards the reporting of the patient that has undergone an illicit procedure, it is still a controversial topic. Some countries are suggesting that perhaps a solution that they might go with might be that the doctors don't directly report the patients to law enforcement agencies and rather inform of these cases to national transplant authorities and then it would be at the discretion of the national transplant authorities to further investigate or to move the case to law enforcement. So it would not be the direct responsibility of the doctor to report the patient to the authorities and there would be a number of mechanisms. In different countries they will find different mechanisms. But, as I said, the actions that would be perpetrated by doctors in order to facilitate whether a patient gets an illicit transplant would certainly fall under aiding and abetting.

CHAIR: I understand. If a medical practitioner was informed by his or her patient that he or she intended to go overseas for a transplant, that would be a matter for the particular domestic law of the country. There's no hard and fast rule?

Dr Lopez Fraga : It seems that way at the moment.

Mr Alarcon Jimenez : It seems exactly as you mentioned.

CHAIR: I thank you both very much. That's been very informative in terms of our inquiry. We very much appreciate you participating and coming online and joining us.

Mr Alarcon Jimenez : Can I ask you one thing?

CHAIR: Yes, certainly.

Mr Alarcon Jimenez : Two things. First of all, I would like to stress what my colleague Marta just mentioned concerning the different countries that have signed or ratified the convention. I would like to inform the Parliament of Australia that right now Costa Rica has signed the trafficking human organs convention. This is an important step because it stresses the universality of this convention not only for European countries but for all those countries that would like to tackle this particular concern.

The other thing was a question about witnesses. I did not understand exactly. I don't know if this is the question that the Parliament of Australia would like to raise or if it was an error. I did not understand from the correspondence received by email.

CHAIR: I will ask our secretariat to clarify that in an email to you rather than—

Mr Alarcon Jimenez : Perfect. That's great.

CHAIR: Thank you. Senator Moore has a question.

Senator MOORE: We were talking earlier with groups that have a large interest in the issue around this convention. I asked them whether they knew why people began signing the convention in 2015 but we now have it ratified in 2018 and we are still waiting to get a lot of the other people to take up the full involvement. Can you tell me what the issues are that are part of the discussion to get people over the problem of signing? I had a look at the list of people who are already signed and haven't quite made the next step. What are the issues they are raising before they take that next step?

Dr Lopez Fraga : I may have partially answered this question earlier. I think that, between signature and ratification, countries normally have to make changes in their national law because, once they ratify, they become legally bound by the convention. In order to change laws, they normally need approval from the parliament of their different countries, and in many cases it can take a few years before they decide what the best way is to integrate the convention into their national law and decide whether they want to make any special situations for any particular articles. Once the law is integrated into their national legislation, it's normally at that point when they go for the ratification procedure. So it's quite normal, in fact, that it takes a few years between signature and ratification of a legal instrument.

Senator MOORE: Are there any common concerns being raised in terms of what concerns countries in changing their laws? Are there any particular clauses that are most debated?

Mr Alarcon Jimenez : On that perspective, I must say that we at the Council of Europe—at least from the criminal department—we have no particular information about it. However, as is stressed by my colleague, Marta, it is true that the time that the countries need for not only signing but ratifying is quite important. We are talking about modifying one of the most important laws within the country, which is the criminal code. As you know, when a country signs the convention, that means that the country has agreed to the principles established in the convention, but it is with ratification that the country is bound with this law. It should also be mentioned that this particular convention requires the cooperation of different ministries within a particular country: not only the ministry of justice but also the ministry of health. You know how international cooperation is, and also that communication inside the same country is not always easy. Of course, they communicate with each other. But the fact is that having two different ministries involved in one particular legal instrument requires long discussions and debates among the different committees.

I know, for example, that in the Spanish parliament there is a committee of justice dealing with it as well as the committee of health. Every single committee needs to have their internal debate and their conclusions, and then discuss those with each other. That needs time. This is one of the major elements that they would like to stress, apart from the legal aspect already raised by my colleague Marta—which is completely true.

Dr Lopez Fraga : From my side, I can perhaps add some of the discussions that we've been hearing from ministries of health about the consideration of victims.

As you know, the convention leaves the decision open to the member states to decide who the victims are. It's actually something that worries some countries quite a bit, whether a person that sells an organ voluntarily is a victim or if, in fact, this is someone who should be criminalised. Similarly, the recipients who decide to purchase an illicitly obtained organ are people who are themselves very vulnerable. There is some debate as to whether these people should be considered victims because their position of vulnerability was really exploited by the trafficking rings, or whether, in fact, they were essential elements in order to commit the crime and thus they should be criminalised themselves. The convention leaves these elements open, so it's up to the countries to decide how they want to consider both recipients and organ sellers.

Senator MOORE: Thank you.

Mr Alarcon Jimenez : From the legal perspective, I must say that some countries have concerns in relation to the corporate liability—the possibility that legal persons could be held liable for offences established in accordance with this particular convention—because not all legal systems, at least for the time being in Europe, foresee this kind of liability. Therefore, some of them are trying to modify their national legislation, even before signing or ratifying the convention. This is one of the current concerns for the some of the countries—that's in Eastern Europe.

CHAIR: Thank you very much. I again thank both of you for your participation and your contributions. They are very much appreciated. Thank you.

Dr Lopez Fraga : Thank you very much for your attention.

Mr Alarcon Jimenez : Again, thank you very much for everything. Do not hesitate to contact either my colleague Marta or myself in case you need any more information about it.

CHAIR: Thank you. That concludes today's hearings. I thank all the witnesses who have given evidence today and I declare this public hearing closed. The subcommittee stands adjourned until Tuesday 19 June 2018. Thank you very much.

Subcommittee adjourned at 15 : 43