Criminal legal model of criminalization of illegal actions in relation to organs and (or) tissues

Shavlovskaya Victoria Valerievna ORCID: 0000-0002-1385-6479 Postgraduate student; Department of Criminal Law and Criminology; Kuban State University 350000, Russia, Krasnodar region, Krasnodar, Stavropol str., 149 rgp.expert@gmail.com

The problem of countering illicit trafficking in human organs and tissues is one of the key positions in the fight against latent crime both at the national and international levels. The process of preventing this type of criminal acts within the framework of international criminal law intensified at the beginning of the century. Examples of international documents prohibiting the illicit trafficking of human organs and tissues are the Istanbul Declaration on Transplant Tourism and Organ Trade, adopted by the Transplantation Society on 05/02/2008; UN General Assembly Resolution A/RES/59/156 of 12/20/2004 "Prevention, control and Punishment of illicit trafficking in human organs"; Agreement on cooperation of the CIS member States on combating trafficking in human beings, organs and human tissues dated 11/25/2005 and other normative legal acts.

The urgency of this problem has intensified since the establishment by the authorities of the Russian Federation of the facts of illegal transplantation on the territory of Ukraine. According to the Information and Press Department of the Russian Foreign Ministry, a "black" market for transplantation is currently operating in Ukraine, including through online sales ^[1].

In the Russian Federation, legal organ transplantation is regulated by the Law "On Transplantation of Organs and (or) Human Tissues". The specified regulatory legal act contains a legal procedure for transplantation of human organs and tissues. Article 1 of this Law indicates criminal liability for the purchase and sale of human organs and (or) tissues. However, the mentioned norm is still declarative in nature, since it does not find logical consolidation in the Criminal Code of the Russian Federation ^{[2, p. 360]}. Currently, within the framework of domestic criminal law, responsibility is established only for forcing the removal of human organs or tissues for transplantation (Article 120).

It is necessary to focus attention on the fact that, in general, within the framework of criminal legislation, there is indirectly a system of crimes related to the use of human organs and tissues. This is indicated, among others, by V.A. Smirnov. According to him, such crimes can be differentiated into the following groups according to their orientation:

a) crimes aimed at posthumous removal of human organs and (or) tissues: paragraph "m" of part 2 of Articles 105, 109, 244 of the Criminal Code of the Russian Federation;

b) crimes aimed at the lifetime removal of human organs and (or) tissues: Articles 111, 112, 115, 127.1 of the Criminal Code of the Russian Federation;

c) crimes against the established procedure for obtaining consent for the removal (use) of human organs and tissues: Articles 120, 126, 127, 128 of the Criminal Code of the Russian Federation;

d) crimes against the human right to receive information about the risk and consequences of organ and (or) tissue removal: Article 140 of the Criminal Code of the Russian Federation ^{[3, p. 44]}.

At the same time, in conditions of the need to observe the "purity" of the qualification of criminal encroachment, the need for a modern and correct establishment of a criminal prohibition in domestic law, there is no stable model for criminalizing illegal actions against organs and (or) tissues.

It is worth noting that the issue of criminalization of acts constituting illegal trafficking in human organs and tissues was raised within the framework of the criminal law doctrine. For example, the consolidation of criminal responsibility for these crimes is supported in the works of A.S. Yakimenko ^[4], T.A. Fabrika ^[5], Yu.P. Popova ^[6], I.N. Ulitina ^[7] and many others. At the same time, it should be noted that all the works are mainly fragmentary in terms of considering the problem we are interested in.

Currently, a number of legislations of the near and far abroad contain norms prohibiting illegal actions against human organs and tissues ^[8]. Taking into account the fact that the legislation of neighboring countries is more "related" to the domestic one, let's consider some norms that establish criminal liability for these actions.

Table 1 – Crimes against human organs and tissues contained in the criminal legislation of neighboring countries

As can be seen from the listed norms, legislators of neighboring countries approach the regulation of criminal liability in different ways. The accumulation of the presented norms shows that illegal actions against human organs and tissues can be expressed in the following:

– purchase and sale of human organs and tissues;

– illegal donation of human organs and tissues;

– violation of the rules of transplantation, including illegal transplantation of human organs and tissues;

– coercion to donate organs or tissues for transplantation;

– advertising for the purpose of illegally obtaining human organs, tissues and cells or about illegal donation of such;

– illegal export of transplanted human organs and tissues outside the country;

– violation of the rules of the transplant operation.

Taking into account the above, it can be concluded that illegal actions against organs and (or) tissues can be conditionally divided into crimes related to manipulation of organs or (or) tissues, as well as trafficking in organs and (or) tissues.

The first group of attacks includes: illegal donation; coercion to donate organs or tissues for transplantation; advertising of illegal donation; illegal export of organs or tissues outside the country; violation of the rules of transplantation.

The second group of encroachments includes the acquisition, sale, storage, transportation or supply of organs or tissues for selfish purposes.

It is worth noting that we have already pointed out the need for legislative consolidation of criminal liability for trafficking in human organs, tissues and cells ^{[8, p. 198]}.

Touching upon the constructive features, it is necessary to indicate that the described actions are applied both to living persons and to the dead. Such an approach creates prerequisites for the differentiation of the object of criminal law protection. If the attack is directed at a living person, then the object, of course, should be public relations for the protection of life and health. In the second situation, the object of the crime is expressed in public relations that develop in the field of public morality protection.

The subject of the relevant criminal encroachments may include: human organs, tissues, cells, as well as an embryo and biological materials or human fluids.

It should be noted that in the compositions of some crimes, a special subject of encroachment is a constructive feature. This includes an official, in most cases a medical professional.

Summarizing the analysis of the criminal law model of criminalization of illegal actions against organs and (or) tissues, the following conclusions can be drawn:

1. Currently, there is a need for legislative consolidation of special norms establishing criminal liability for illegal actions against human organs and tissues. The analysis showed that the current criminal law does not have a stable system of the considered group of criminal encroachments. Supporting the opinions of the majority of experts in the field of criminal law, we consider it justified to criminalize the illegal trade in human organs, tissues and cells.

2. The criminal law model of criminalization of illegal actions against human organs and tissues can be represented in the form of two groups of criminal encroachments, namely:

– crimes related to the manipulation of human organs and (or) tissues;

– trade in human organs and (or) tissues.

Currently, domestic criminal law in its "pure" form contains only the first group of crimes, represented by one act, namely coercion to remove human organs or tissues for transplantation.

It should be noted that the specified act, taking into account the content of its composition, does not cover illegal donation, as well as its advertising; illegal export of organs or tissues outside the country; violation of the rules for transplantation of human organs and tissues.

In order to properly qualify criminal encroachments, there is a need to develop a system of criminal law norms that would prohibit the commission of the previously listed acts. Within the framework of this study, the question of the content of such norms is not raised, since this goes beyond the scope of the subject of the work.

3. The construction of a criminal law model for criminalizing illegal actions against human organs and (or) tissues can be presented in the following form:

– the object of criminal encroachment: the specific object of crimes acts in the form of public relations that develop in the field of protecting human life and health or ensuring public morality; an additional object is public relations in the field of implementing legal conditions and the procedure for transplantation of human organs and (or) tissues;

– victim of a crime: if actions against human organs and tissues are directed at a living person, then a person always acts as such; if such actions are directed at a dead person, then the victim (in the criminal legal sense) is not included in the corpus delicti;

– the subject of the crime: organs, tissues, cells, as well as an embryo and biological materials or liquids of a person;

– the objective side: in crimes related to the manipulation of human organs and tissues, actions can be expressed in illegal donation; coercion to donate organs or tissues; advertising illegal donation; illegal export of organs or tissues outside the country; violation of the rules of transplantation; when trading in human organs and tissues, the objective side is expressed in the acquisition, sale, storage, transportation or supply of human organs or tissues;

– the subject of the crime: a sane individual who has reached the age of 16; in some cases, he may be a special;

– the subjective side: an intentional form of guilt: in all cases, including in violation of the rules of transplantation, the subject of the crime must be aware of the social danger of his actions (inaction), foresee the possibility or inevitability of socially dangerous consequences and either desire their occurrence, or consciously allow such, or treat them indifferently.

The main difference between the two groups of criminal encroachments is that a selfish goal is present only in the trade in human organs and tissues.