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§3. International legal bases of cooperation of the states on protection of victims of illegal circulation of human bodies

Separate problem of international legal regulation in considered sphere is maintenance of protection of victims of illegal circulation of human bodies. The international law starts with a principle of respect of human rights and declares equality of people in the rights belonging to them, is independent of any factors, including character or degree of their vulnerability [248].

During the United Nations Summit on a sustainable development, taken place on September, 25-27th, 2015 in New York, the General Assembly of the United Nations had been accepted the resolution «Transformation of our world: the Agenda in the field of a sustainable development for the period till 2030». In the resolution it is marked: «To us the world in which are provided general respect for human rights and human advantage, the supremance of law, justice, equality and nediskriminatsija, respect for a racial, ethnic and cultural variety sees; the world of equal possibilities allowing to the full to open human potential and promoting general prosperity» [249].

Such new form of transnational criminality as illegal circulation of human bodies, represents threat to basic principles in the field of human rights. Norms of international law in the field of human rights and the approaches based on observance of human rights, demand full refusal of all forms kommertsializatsii change of bodies.

Illegal circulation of human bodies leads to that the illegal market of bodies interfaced to the voluntary consent of donors which sell the bodies actively develops, trying thus to earn, and with the crimes, which purpose violent withdrawal of human bodies is. Thus given crime is connected with the transnational organised crime which benefits by vulnerable position of donors and arises in connection with deficiency and a great demand on donor bodies.

More often people from countries of Eastern Europe, the South America and Asia become victims of illegal circulation by human bodies. Promising to pay the big sums of money, poor people a deceit convince to sell the bodies. Thus the promised sums are very seldom paid in full. To much of them do not give the information on operation consequences on transplantation. As compulsion forms debt bondage and extortion are used. A victim undergo a physical and psychological damage and are exposed to social isolation as it does not provide adequate postoperative medical aid.

Poverty, unemployment and absence of social and economic possibilities are factors which do people vulnerable for illegal circulation of human bodies. So in «World report Sofi Kuzens» [250] stories of people from Nepal, suffered from earthquake are presented. As a result of act of nature they have lost the houses, remained out-of-pocket to existence and have been forced to sell the bodies, especially kidneys.

The big resonance has caused case Netcare (Southern Africa). It is informed, that from 2001 on 2003 of in hospital of one of the African countries it has been spent about 100 illegal operations on change of kidneys; the majority of recipients occurred from the countries of the Near East. People from countries of Eastern Europe and the South America became a source of bodies. As a result of the spent investigations, existence of the international syndicate on illegal trade by bodies was revealed and long time and prospering business on the organisation transplantatsionnogo tourism [251] has been deduced on a general review functioning.

In Bosnia and Herzegovina a number of doctors together with persons from the Czech Republic, involved in the illegal circulation organisation, presumably were engaged in illegal extraction of bodies. Similar incidents occurred in this region and in the past [252]. Messages on other cases have arrived from Bulgaria where the police has arrested three persons for illegal trade in kidneys for change to patients in the next Turkey. According to messages one more country, donor bodies which undertake at the people whence can arrive, wishing to sell the kidney, is Moldova [253].

Let's result concrete cases with participation of victims of illegal circulation of human bodies. So, the honour Fund, the Moldavian non-governmental organisation, has registered 31 victim who has sold a kidney [254]. Within the limits of wider researches, by estimations Shepera-Hjuza, - more than 300 victims [255]. In case of Institute of a name of A.Shalimova in Ukraine, local non-governmental organisations show, that there were 38 victims from whom, at least, 25 were Ukrainians [256], and other of Moldova, Russia, Belarus and Uzbekistan [257].

Special concern in a society is caused by illegal circulation of human bodies in the conditions of confrontations. Such crimes have been made in days of Kosovan war 1998-1999 when there trade in human bodies [258] simply "prospered". These crimes concerned as well citizens of Serbia, gipsies and disloyal to the authorities of Kosovo of the Albanians who were victims of that war [259].

The confrontation in territory of Syria has led to growth of poverty among the despaired population. The people running from war, have created the huge offer of human bodies, first of all kidneys. This offer is used by the international criminal groups trading in human bodies. According to the Department of forensic medicine of university of Damascus with 2011 for 2014 in frontier areas of the country it has been spent about 20 thousand operations on withdrawal of human bodies. The considerable part of the people who have sold the bodies, dies during time or after operation in the absence of the qualified medical aid. During the period with 2011 for 2014 in the Syrian courts has arrived about 20 statements from relatives of the people who have died as a result of sale of the bodies [260].

By Hussein Nofalja's estimations (Dr. Hussein Nofal) - the doctor at University of Damascus heading chair of forensic medicine, - on all extent of the conflict in Syria human bodies, at least, 18 000 have been withdrawn

Syrians [261].

Periodically in mass-media there are data on cases of illegal circulation of human bodies during a confrontation in the east of Ukraine. According to OSCE in territory of Ukraine bodies without internal bodies [262] have been found out.

S.A.Gritsaev believes, that such acts are not so simply criminal offences, and war crimes and-or crimes against humanity, and with obviously expressed elements of "ethnic cleanings» [263].

The migratory situation in the countries of Europe promotes occurrence of threat for refugees who can become victims of the organised criminal groups which are engaged in illegal circulation of human bodies. Exists more and more proofs of that the Sudanese migrants going to Europe by means of smugglers, are target group for extraction of bodies in Egypt. Smugglers detain them in Cairo and the big sums of money for journey and other expenses demand. Victims often a deceit force to agree to sale of the bodies, or they do not know, that as payment for a prospective debt they should undergo to removal of bodies. In 2011 such 57 victims, including five children have informed on deterioration of a state of health and negative social, economic and psychological consequences after the transferred operation [264].

In 2014 smuggler Nuredin Atta forwarding refugees from Africa to Europe, has been arrested Italian pravoohraniteljami. To co-operate with the authorities the criminal has agreed only after to it have provided the program on protection of witnesses. Thanks to the information received from the smuggler, pravoohraniteljam it was possible to define a scale network of international trade in people. Nuredin Atta has noticed, that the migrants, incapable to pay "services" of smugglers, were transferred in hands of Egyptians which in a consequence killed them, took human bodies and sold in their total cost of 15 thousand dollars. Also it is noticed, that smugglers sold bodies of the migrants who have lost in the sea. For partnership in criminal acts Atta has received five years of prison term [265].

In 2018 more than 80 migrants were lost at coast of Tunis that became one of the largest incidents in country history. Organizers of illegal migration who, as a rule, are connected with a human trafic and illegal a turn of human bodies, even more often use Tunis as a platform for sending of interested persons to Europe [266].

Also there are data on withdrawals by the states of human bodies at persons who have been executed or executions are exposed. Charges in such practice are put forward concerning a number of the countries, including in East Asia, convincing and reliable proofs [267] whence have been received.

In 2010 the director of Committee of the donation of bodies of China Juan Tszefu, has declared, that more than 90 % of the bodies used in transplantation, have been withdrawn from executed prisoners in China [268].

Thus, a paramount duty of the states is protection of victims in sphere of illegal circulation of human bodies.

The important international document which has fixed a legal status of the person in a society and in mutual relations with the state, the General Declaration of human rights from 10.12.1948 According to item 3 «each person is has the right to a life, on freedom and on inviolability of person» [269].

Protection and the help to victims of crimes are a priority direction in work of the Council of Europe. In section I EKPCH [270] the basic rights and freedom of the person are fixed. In II section of the Convention positions about the European Court and its structure contain. The European Court based in 1959 is today an original legal and welfare phenomenon, acting for many an embodiment of original higher degree of the fair proceeding especially inherent in many states, podvergshimsja obshchestvennopoliticheskoj transformations in the late eighties the beginning of 90th years, objective weakness of interstate legal proceedings, but also, nevertheless, to high authority of proceeding, as optimum form of restoration of justice and broken human rights [271].

G lavnoj the purpose of creation and functioning of the European Court is maintenance of observance of the rights and freedom of people and the organisations fixed in the Convention. Thanks to European Court EKPCH is «the live tool». The European Court, considering various cases, concretises, specifies, and in something and expands the standard maintenance of human rights protected by the Convention. An example of such decisions are affairs in transplantology and donor service area: the Decision on the first business «Petrov against the Latvian Republic» (Petrova) the complaint № 4605/05 has been taken out in June, 2014 [272] and the Decision on the second business «Elberte against the Latvian Republic» (Elberte) the complaint № 61243/08 has been taken out in January, 2015 [273]. (It it was mentioned in the previous chapter).

It is necessary to notice, that in item 20 of the Constitution of the Russian Federation according to item 2 EKPCH the known principle «everyone is proclaimed has the right to a life» [274]. According to item 3 EKPCH as item 21 of the Constitution of the Russian Federation affirms, that «nobody should be exposed to tortures, violence, reference another severe or degrading human advantage or punishment» [275].

2200А (XXI) HECTARES of the United Nations from 16.12.1966 have been accepted by the resolution the International pact about the civil and political rights. In item 6 it is fixed, that «the right to life is an inalienable law of each person. This right is protected by the law. Nobody can be any way deprived a life». Also «nobody should be exposed to tortures or severe, brutal or to the reference degrading its advantage or punishment. In particular, any person should not to be exposed without its free consent to medical or scientific experiences (item 7)» [276].

We agree from G.R.Galeevoj, that the maintenance of the given position «could be expanded and provided in it (besides carrying out scientific and

Medical experiences) withdrawal and transplantation of bodies of a human body »[277].

The major stage of the states in sphere of protection of victims of crimes was accepted in the HECTARES of the United Nations the Declaration of main principles of justice for victims of crimes and abuses of authority from 29.11.1985 which recommends «acceptance of measures in interests of victims of crimes at the international, regional and national levels for access improvement to justice and maintenance of the fair reference, rehabilitation, indemnification and the help» [278]. In appendix points 14-17 the rights of victims to the medical, social and psychological help, medical both social services, and other appropriate assistance are stated. The given Declaration at the international level has formulated for the first time definition «a victim of a crime» and has fixed bases of its remedial status.

In item 18 the term of "victim" which «is understood as persons to whom individually or has collectively been damnified, including physical injuries or mental cruelty, emotional anguishes, a material damage or essential infringement of their fundamental laws as a result of the act or omission which yet are not representing infringements of national criminal laws, but being infringement of the international-recognised norms, concerning human rights» [279] is fixed.

The declaration became the first international legal certificate which has been completely devoted questions of legal regulation of position of the person - a victim of a crime.

With a view of activity realisation on protection of the rights of victims against a crime of 28.09.1977 the Council of Europe has accepted the Resolution of Committee of Ministers № (77 27 from 28.09.1977 «About indemnification victim from crimes» [280]. The important legal document in this area also is the European Convention № 116 from 24.11.1983 «About payment of indemnification to victims of grave crimes» [281] which has been added subsequently by a number of recommendations. In particular, the Recommendation of Committee of ministers of the Council of Europe (85 11 from 28.06.1985 concerning position of the victim within the limits of criminal law and criminal trial; the Recommendation (87 21 from 17.09.1987 «About the help to victims and prevention viktimizatsii»; the Recommendation of Committee of Ministers (2006 8 from 14.06.2006 «About the help to victims of crimes».

Besides, position of victims also was considered in a number of specialised conventions, including the Convention of the Council of Europe on the prevention of terrorism and the Convention of 2005, and also the Convention of the Council of Europe on protection of children from sexual operation and violations of sexual character from 25.10.2007

So, the item (e) item 4 of the Convention of 2005 defines a victim as any physical person who is exposed to a human trafic according to definition "human trafic" of the given Convention [282]. The convention of 2005 is the unique obligatory international legal certificate in which definition of a victim of a human trafic is made.

The convention of the United Nations against the transnational organised crime of 2000 contains positions about the help and protection of victims against crimes. The convention obliges the state-participants «to accept, within the possibilities, appropriate measures for granting of the help and protection by victim against the crimes covered by the present Convention, especially in cases of threat by revenge or intimidations» (item 25 item 1) [283]. Also, according to item 2 of item 25 of the Convention each state-participant establishes «appropriate procedures for providing of access to indemnification and damage compensation, victims from the crimes covered by the present Convention» [284]. Article 24 of the given Convention orders to the state-participants to provide such protection to all victims who are also witnesses.

In the Palermsky report norms to acceptance of concrete measures by the state-participants on protection of victims (item 6-8) also contain. Point 1 of article 6 of the Palermsky report contains the requirement «about acceptance of measures for protection of private life and the person of victims of a human trafic, including by maintenance of confidential character of manufacture, how much it is possible, according to internal legislation» [285]. But the given Report does not establish the concrete requirement or procedure by means of which the status of victims can be established.

In item 4 of item 6 of the Palermsky report position that by consideration of measures of granting of the help and protection to victims of a human trafic it is necessary for states to consider special requirements of victims of children contains.

On October, 21st, 2005 on 33 sessions of General conference of UNESCO the General declaration on bioethics and human rights has been accepted. Declaration article 3 provides, that «the full respect of human advantage, human rights and fundamental freedoms» [286] should be provided. According to item 8 «in the course of application and development of scientific knowledge, medical practice and the technologies connected with them it is necessary to consider vulnerability of the person, it is necessary to provide protection of especially vulnerable persons and groups and to respect their inviolability of person» [287].

The given declaration has recommendatory character and is not obligatory for execution from the point of view of international law. But acceptance by the state-participants of the given document allocates the declaration with moral authority and generates moral obligations.

With a view of harmonisation of the legislation of the state-participants CIS «the Modelling law has been passed About rendering assistance to victims of a human trafic» from 03.04.2008 the Given document contains definition «a victim of a human trafic - the physical person who has suffered from a human trafic, including involved in a human trafic or kept in serfdom, irrespective of its remedial status, and also presence or absence of its consent to the offer, recruitment, transportation, transfer, sale, operation or other actions connected with a human trafic» [288]. The given certificate can be considered by working out of the national legislation regulating questions of a human trafic.

In spite of the fact that the given certificate is accepted under the initiative and at active participation of the Russian Federation, in the legislation of Russia practically there are no the norms fixing the rights of victims of a human trafic, including victims of illegal circulation by human bodies.

The instruction 2011/36/ЕС the European parliament and council from 05.04.2011 «About the prevention and to counteraction of a human trafic and protection of its victims» [289] defines the rights of victims to help and support reception, and also protection during criminal investigation and manufacture. Also the given Instruction contains positions in the relation of children-victims of a human trafic. The instruction extends the action not only to a human trafic, but also on a human trafic for the purpose of extraction of bodies.

In the Resolution of the Commission on the prevention of criminality and to criminal justice 25/1 from 27.05.2016 [290] necessity of protection of live donors and the prevention of their operation from dealers is marked by bodies of the person. In the given resolution importance of respect and protection of the rights of victims of a human trafic for the purpose of withdrawal of bodies and rendering of the help by it in corresponding cases also is underlined.

Thus, the specified international legal certificates, resolutions and recommendations are directed on prevention and struggle against a human trafic, including for the purpose of extraction of bodies, on protection of victims of such trade and rendering of the help by it and on assistance to cooperation development between member states in business of realisation of these purposes.

As practice testifies, in some countries laws in sphere of legal regulation of victims from crimes are passed. In the USA the public act 106-386 about protection of victims of a human trafic (known more, as the Certificate about protection of victims of a human trafic) which provides carrying out of monitoring of a state of affairs with a human trafic in the world is accepted. It is necessary to note especially complex character of the given law which regulates all these problems. The law on counteraction of a human trafic and rendering assistance to victims is accepted also in Republic Tajikistan [291].

In the Resolution 59/156 from 20.12.2004 of the United Nations of HECTARES has expressed a regret that «illegal circulation of bodies of the person where it was made, represents gross infringement of human rights, including the right to physical inviolability, victims of such turn» [292].

The major aspect of the Convention of 2015 is protection of victims as a victim of illegal circulation by human bodies are in vulnerable position.

In the Explanatory report [293] to the given Convention conferees have come to conclusion that it is necessary to provide protection of such victims, and also to provide, that victim of the crimes, established according to the Convention, had access to the information concerning their business, protection of their health and other rights. Under condition of observance of internal legislation of the states, possibility to be heard should be given them, and also to present proofs.

The term "victim" in the given Convention is not defined, as conferees have decided, that definition of the one who can be qualified as a victim of trade by human bodies, it is better to leave to the discretion of the states according to their internal legislation.

The convention of 2015 urges the states to accept preventive measures and to protect victims of trade in human bodies.

In particular, positions of item 18 of the Convention include measures on protection of victims and indemnification it, and also to rendering assistance by victim in their physical, psychological and social rehabilitation.

Item 18 point 3 establishes the right of victims to indemnification: in the form of a material damage, for example, cost of medical treatment, and also moral harm (physical and moral sufferings). For present article the right of victims to indemnification consists in the requirement to the persons who have made illegal circulation, are dealers who bear burden of indemnification to victims. If in criminal proceeding criminal courts are not authorised to define a civil liability concerning victims, a victim should have possibility to represent the claims in the civil courts possessing jurisdiction in this question, and powers on compensation of a damage with percent.

The convention of 2015 in item 19 «Position of victims in the criminal trial» urges to take measures on protection of the rights and interests of victims at all stages, both during criminal investigation, and during proceeding. Judicial and administrative procedures are frequently very difficult, and consequently the help of legal advisers that they could defend the rights properly is necessary for victims. The given position does not give to victims of the automatic right to a legal aid. Conditions of granting of such help should be defined by each state, that is when the victim receives the status of the participant of criminal trial.

Article 20 of the Convention of 2015 «Protection of witnesses» is based on item 1 of item 24 of the Convention of the United Nations against the transnational organised crime of 2000 item 20 Point 1 obliges the states to provide effective protection of the witnesses participating in criminal manufacture. If necessary protection should be extended to relatives and other persons close to them. Item 20 point 2 provides also protection of victims as they are witnesses in the same way as it is specified in item 1 of item 20 of the given Convention.

It is necessary to notice, that many victims who have suffered from illegal circulation of human bodies, never can have an opportunity to realise the legal right to judicial protection as there is a problem of identification of victims of such illegal circulation. However, in case of revealing of victims of such crime, there are obstacles to remedies at law. For example, many of the victims leaving for performance of operation on transplantation in other country, cannot be identified, will not return home yet, that does extremely inconvenient maintenance of reception of indemnification from the country in which they have undergone to illegal withdrawal of human bodies. A victim of the given crime, as a rule, are badly formed owing to their poverty. Therefore, that victim of illegal circulation of human bodies had possibility to take advantage of the right to remedies, besides adjustment of transboundary cooperation under the authority of litigations, the important measure will be providing of access to the information and legal aid.

Victim of illegal circulation of human bodies can be involved in the criminal liability for the crimes connected with forging of documents, swindle, infringement of the migratory legislation. It is necessary to notice, that victims owing to the vulnerability have been forced to make the given criminal actions. In this connection, we believe, that they should not be instituted criminal proceedings.

Prominent aspect of the majority mentioned above the cases connected by victims of illegal circulation of human bodies is the small amount of the official information. G lavnym a source of data are substantially journalistic investigations of mass-media that complicates carrying out of more detailed analysis of the given problems.

The analysis of positions universal and regional mezhdunarodnopravovyh certificates in sphere of counteraction shows to illegal circulation of human bodies, that norms about protection of the rights of victims of the given crime have mainly optional character, and the states have the right to define independently their features implementatsii at interstate level.

Effective struggle against illegal circulation of human bodies is possible only on the basis of close cooperation of the states within the limits of the developed legal and organizational mechanisms, both on universal, and on regional levels. Protection of victims of illegal circulation by human bodies also demands cooperation between international governmental and non-governmental organisations, judicial and law enforcement bodies, bodies of the immigration control, bodies of public health services and other organisations giving support to victims. Concerning victims of illegal circulation of human bodies of the state should provide access to justice, the legal and social help, and also medical maintenance so that victim from the given crimes could restore the broken rights and to be protected. Therefore the first and main duty of the states work on maintenance of operative and exact identification of victims of illegal circulation of human bodies should be.

For the purpose of revealing of new threats monitoring of a migratory situation in the states of the Council of Europe as they first of all can become victims of the organised criminal groups which are engaged in illegal circulation of human bodies is necessary for well-being of refugees.

Thus, it is necessary for all states to bend all efforts to the prevention of illegal circulation of human bodies, for the purpose of protection of human rights and to provide complex protection of such victims against the given acts, as addition to efforts in counteraction of illegal circulation of human bodies.

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A source: Kozlova Anastas Alekseevna. INTERNATIONAL LEGAL BASES of COOPERATION of the STATES In SPHERE of COUNTERACTION to ILLEGAL CIRCULATION of HUMAN BODIES. The dissertation on competition of a scientific degree of the master of laws. Moscow -. 2018

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  1. Kozlova Anastas Alekseevna. INTERNATIONAL LEGAL BASES of COOPERATION of the STATES In SPHERE of COUNTERACTION to ILLEGAL CIRCULATION of HUMAN BODIES. The dissertation on competition of a scientific degree of the master of laws. Moscow -, 2018 2018
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