ST 120 of the Criminal Code of the Russian Federation.
1. Coercion to remove human organs or tissues for transplantation, committed with the use of violence or the threat of its use, is punishable by imprisonment for a term of up to four years with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.
2. The same act committed against a person who is known to the perpetrator to be in a helpless state or in financial or other dependence on the perpetrator is punishable by imprisonment for a term of up to five years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it.
Conceptual apparatus
What organs and tissues can be removed from a person for transplantation?
Transplantation in itself is not a crime and exists in a protected legal space , which is regulated, first of all, by Federal Law N 4180-I. It was published in 1992 and was adjusted and changed as necessary.
Based on the provisions of this bill, transplantation is the transplantation of organs from a deceased or living person to another person in order to preserve his life and treat him. It is clear that this measure is exceptional and medical staff resort to it when there are no other options left to save life and health .
Within the framework of criminal law disciplines, the provision of the law is fundamentally important, according to which organ transplantation from a living person is possible only if significant harm is not caused to him and, of course, only with his consent, of his own free will .
The list of organs suitable for transplantation is compiled by the Ministry of Health and is not subject to broad interpretation.
All transplant objects are divided into organs and tissues. such organs , and 19 tissues . The list, of course, includes the heart, lung, intestines, eyeball, skin. In the future, this list may expand as surgical capabilities increase. A real breakthrough would be brain transplantation , but no one has yet been able to perform such an operation.
Violation of the principle of voluntary donation of tissues and organs is a crime formulated in Article 120 of the Criminal Code of the Russian Federation. The composition is designed in such a way that compulsion is mandatory specifically for organ transplantation.
Let’s say that a devoted admirer of Pavlov, in a perverted form, is inspired by his experiments and blackmails or threatens to force the victim to give up an eye in order to then sew it on a dog or simply study it - such an insane crime will not fall under Article 120 in any case.
If the eye is removed simply for experiments, there is no obligatory purpose of transplantation . If an eye is sewn into an unfortunate four-legged friend, then from the point of view of the law, this is not an organ transplant, since Article One Hundred and Twentieth and the Law on Transplantation only deals with humans .
The crime in question is very specific: one person forces another to give up part of his body for the purpose of transplanting it to a third party.
Medical experiences
Often, in order to introduce a new drug, it is necessary to test it.
In this case, experiments should take place in relation to a person. The state protects human rights, and therefore it is prohibited to conduct experiments on people without obtaining consent from them or their legal representatives. The Criminal Code does not have a separate article regarding illegal experiments.
On the territory of Russia there are legislative acts adopted at the federal and international levels that regulate the conduct of experiments on people. In particular, such a law is “Fundamentals of the legislation of the Russian Federation on the protection of the health of citizens.”
This act provides for the procedure according to which new methods of treatment, prevention, as well as new medicines and drugs should be applied.
Important! The main principle of testing drugs on people is their consent and the usefulness of the experiment for the person.
Characteristics of the crime itself
Considering the specifics of the socially dangerous act under consideration, one might think that the subject of the crime is a medical worker, but such an assumption is wrong, the subject here is general. Any sane person over 16 years of age can commit such an offense.
Most often, such crimes are committed by people from the healthcare sector , but the subject can also be a person with no special knowledge of medicine at all. The subject of the crime is common.
The subjective side is expressed in two mandatory characteristics - direct intent and special purpose . Obviously, the very nature of the crime implies only its intentional carelessly or accidentally force someone to give up a fragment of their body. The purpose of the crime is no less important – transplantation of the obtained organs or tissues.
The motive for the crime can be anything and does not play a significant role, although, of course, it must be identified in order to accurately determine criminal intent.
The object of the crime is human health , his constitutional right to non-interference in the functioning of his own body without his voluntary consent.
This composition also contains the subject of the crime - the body fragments , for the sake of extraction and transplantation of which the crime is carried out.
The objective side of the crime is carried out in the form of action. The law specifies two methods: direct violence or the threat of its use . Both options have the same goal - to put psychological pressure on the victim, to force him to donate his organs.
Essentially, forced removal of human organs or tissues is in some ways similar to robbery . Of course, from the standpoint of legal science, such a comparison is incorrect, but from the point of view of the logic of life, it is quite obvious: in the case of robbery, the criminal forces the victim to give up property, and in this case, body parts .
The above comparison is important for understanding the nature of the objective side - deception is not specified by the legislator as a method of committing a crime, therefore an act that, by all other criteria, falls under Article 120 of the Criminal Code of the Russian Federation , but committed by deception, will not give rise to this crime.
Forced donation as a crime has a formal composition; it does not matter whether the criminal managed to carry out his intentions to the end, it will be considered completed from the moment the commission of the objective party begins, including immediately after the threat of physical violence.
Methods of coercion
No one, being in a sober mind, will allow fragments of his body to be given away if this causes irreparable damage to health, therefore coercion is aimed at overcoming the psychological protective barrier of the instinct of self-preservation, forcing the victim to do this contrary to his own interests of preserving life and health .
Obviously, such an impact must be rough . All methods of coercion can be grouped into two types:
- Physical violence.
- Psychological violence, which consists of the threat of physical violence.
The Criminal Code contains many offenses involving the use of physical violence, so for qualification it is important to correctly determine the severity of the damage inflicted in order to understand whether the offender needs to be charged with other articles. According to the logic of the law, physical violence under Article 120 of the Criminal Code of the Russian Federation includes:
- simple torture ;
- beatings;
- causing harm to health of mild or moderate severity;
- illegal imprisonment.
If the direct physical impact on the offender’s body was broader, then the crime should be classified according to the totality of crimes .
Psychological violence is carried out through the threat of harm to health or murder . The method of informing the victim does not matter; it can be anything, including with the help of third parties. The main thing is that the victim recognizes the threat as real . The possible time of implementation of the criminal intentions expressed in the threat also does not play a role.
The question remains controversial as to how to qualify coercion to donate under the threat of physical harm not against the donor himself, but against his relatives or family members.
The Criminal Code does not give a clear answer to this question.
Some scientists believe that it is necessary to expand the article accordingly, since such threats are of a violent nature, because they suppress the will of a person . Others do not agree with them, they say that such threats are blackmail and are not violence, just like deception.
In practice, the courts do not consider that such a threat constitutes an offense under Article 120 . Let's hope that in the future the legislator will improve this rule or give more precise instructions regarding issues of its application.
Qualifying features
The second part of the article contains signs that aggravate the crime . There are three types in total:
- Helpless state of the victim.
- Material dependence.
- Another addiction.
To charge a criminal with a qualified offense, it is necessary that he is aware of the special conditions described and the fact that they facilitate his implementation of criminal intent . It does not matter whether he created these factors himself or took advantage of the current situation.
The helpless state of the victim is characterized by his significantly reduced or complete inability to resist. Examples of such a condition are: serious illness or condition after surgery, special mental illnesses that limit the sanity of the victim or his ability to prevent the criminal, childhood or frail old age.
Financial dependence is expressed in the dependence or residence of the victim in the residential area of the perpetrator.
Other dependence means :
- legal, the nature of which is law or contract;
- family, i.e. family ties;
- service dependence.
Qualified elements of coercion to remove human organs or tissues
Part 2 of Article 120 of the Criminal Code of the Russian Federation provides for a qualified corpus delicti of this crime - in relation to a person who is known to the perpetrator to be in a helpless state or in financial or other dependence on the perpetrator.
Helpless state of the victim
Helplessness is the inability of the victim to defend himself due to a physical or mental condition.
A minor is actually classified by law among other persons who are known to the perpetrator to be in a helpless state. A minor is a person under 14 years of age.
A person in a state of sleep must be recognized as knowingly for the guilty person to be in a helpless state, since the guilty person, when committing a crime, realizes that the victim in a state of sleep can neither defend himself nor provide any resistance.
The state of intoxication may be recognized as a helpless state of the victim if it deprived the victim of the opportunity to resist the perpetrator or evade an attack on his life. For example, the victim was unable to move independently, get up from the ground, etc.
The helpless state of the victim is also revealed in paragraph 7 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of January 27, 1999 No. 1 “On judicial practice in cases of murder (Article 105 of the Criminal Code of the Russian Federation)”, according to which a helpless person is characterized by inability due to physical or mental state to defend oneself, to actively resist the perpetrator. Judicial practice includes such persons as seriously ill people, the elderly, young children, and people suffering from mental disorders that deprive them of the ability to correctly perceive what is happening. The term “awareness” used by the legislator indicates the awareness by the perpetrator that the victim is in such a state.
Financial and other dependence of the victim
The financial dependence of the victim presupposes his being fully or partially dependent on the guilty person, and other dependence of the victim on the guilty person can be based on kinship, marriage, family relationships, on the law, on a contract, for example, the dependence of children on parents, guardians on guardians, an employee on boss, debtor from creditor, etc.
Consequences
What is the liability for coercing the removal of human organs or tissues for transplantation?
Analyzing the sanction of the norm, we come to the conclusion that coercion to donate is a crime of moderate gravity . In a simple form, the maximum sentence , expressed in imprisonment , is 4 years, and with a qualified composition - 5 years.
Since the commission of a crime requires special knowledge and skills in the field of medicine, the legislator provided an additional punishment - deprivation of the right to occupy certain positions or practice certain activities. The maximum statutory period for such restrictions is three years .
How is compensation for damage caused during transplantation of human organs and tissues?
Compensation for harm occurs mostly within the framework of civil law . This is evidenced by the Transplantation Law, which states that a medical organization that has performed an organ transplantation operation with violations shall compensate for the damage caused in accordance with the law.
In criminal law, compensation is expressed as follows:
- The court may award compensation for moral damages to the victim.
The court may deprive the guilty person of the right to engage in certain activities and hold a specific position, which together allowed him to do what he intended. This stops the threat of relapse .- The court imposes a penalty in accordance with the sanction of the article. By punishing the criminal , he restores social justice.
Court decisions
It is almost impossible to find judges’ decisions made under Article 120 of the Criminal Code, which is due to the underdevelopment of the black transplant market in Russia.
The reasons on which it is based that people do not commit the crimes in question on the territory of the Russian Federation are that:
- such a branch of medicine as transplantology developed at the end of the USSR, which suggests that there are few specialists involved in this area;
- Transplant specialists receive decent salaries, and therefore there is no point in taking risks;
- in order to perform an organ transplant operation, it is necessary to assemble a team of doctors and have special equipment, which is very problematic;
- organs can only be stored under special conditions;
- It is quite difficult to persuade people to donate.
From the above, we can conclude that committing an act is quite problematic, and this is due to its non-proliferation. However, the presence of appropriate standards in the Criminal Code is required, since outside of Russia the practice of black transplantology is very extensive.
Arbitrage practice
When qualifying for this type of crime, it is important to correctly distinguish it from related offenses. First of all, coercion to donate, according to the logic of the legislator should be qualified in conjunction with other articles if serious or especially serious harm to health was caused.
If the perpetrator planned to kill the victim for the purpose of removing organs, the qualification will be under the relevant part of Article 105 .
As for specific judicial practice , it is practically or completely absent. For a long time, the media covered two high-profile cases - the “Transplant Case” and the case in which a grandmother tried to sell her grandson’s organs. In the first case, the doctors were acquitted, but in the second they were sentenced under a different article.
There are practically no real court cases under Article 120 of the Criminal Code of the Russian Federation . Both the investigation and the doctors themselves have repeatedly stated that there is no black market for organ trafficking in Russia. Their confident statements appear logically justified.
Firstly, to perform this kind of operation an extremely highly qualified doctor ; in Russia there are not only a few of them, but the income of such specialists is very high, they simply have no need to take such risks.
Secondly, one transplantologist is not enough; the participation of other doctors is also necessary who will provide surgical care and help, which increases the potential complexity of the crime.
Thirdly, transplantology is a fairly young field of medicine , which, of course, has not yet reached the apogee of its development. The risk of tissue incompatibility and rejection is very high, which again complicates the task.
Fourthly, organs removed from the body require special storage , and their shelf life is very short.
Fifthly, it is the potentially easy victims of this crime, minors, sick or helpless, who are least suitable for this for medical reasons.
Results
The presence of such a crime as coercion to remove human organs or tissues for transplantation is due to a certain stage in the development of this ethically very complex branch of medicine.
On the one hand, it has already been developed to such an extent that crimes in this area have become possible , and therefore the law must prevent them. On the other hand, the ideal situation seems to be when scientists learn to “produce” all the necessary spare parts for a person, and transplantation from person to person will simply not be necessary .
However, until this revolutionary day comes, the law must protect citizens from possible offenses .
The analyzed norm, of course, needs improvement, but on the whole it is fully consistent with the spirit of the criminal law.
Fortunately, this crime is extremely complex and therefore unpopular , and little judicial practice is known about it.
How to protect yourself
This issue is complex, since persons who commit illegal organ harvesting practice various schemes.
Those who belong to socially vulnerable segments of the population are primarily at risk. For your safety you must:
- carefully study the documentation that is signed in medical institutions;
- be interested in treatment methods, especially in situations where there are suspicions;
- Travel around the world with caution.
