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Publicado el 14/12/2017
The defendants offered 6,000 euros to a Moroccan citizen in an irregular situation in Spain for the transplant of one of his kidneys to one of the convicts, who was ill.
The Criminal Chamber of the Supreme Court has confirmed the sentences of up to six years in prison for a crime of illegal trafficking of human organs imposed by the Provincial Court of Barcelona to the three members of a family and a friend who offered 6,000 euros to a Moroccan citizen in an irregular situation in Spain, who lived by begging, by the transplant of one of his kidneys to one of the condemned, who was sick.
For the Supreme Court, a de facto action is not admissible "aimed at procuring an organ behind the order and the principles that inform it and that give reason to be the public transplants system designed according to the basic principles of action of altruism, gratuity, solidarity and objectivity in the allocation of the organs for the transplant ".
The Chamber emphasizes that the crime of organ trafficking, which was introduced in 2010, "is not just about protecting the health or physical integrity of people, but the object of protection goes further; destined to protect the physical integrity, of course, but also the conditions of dignity of the people, avoiding that the same ones by their economic conditionings can be reified, treated like an object that holds organs that, by their bilaterality or by their non-principality, they can be trafficked. " He adds that the national transplant system itself establishes a national altruistic and solidary system for obtaining and distributing organs for transplantation to patients who need it.
The facts gathered in the judgment under appeal relate that the condemned Toni suffered from kidney disease and that, after undergoing dialysis sessions, he was prepared for a kidney transplant. He was informed of the existing regulation and his file was sent to Bellvitge Hospital. Since he did not have a health card, he pretended to be his brother Django, who was also condemned, every time he went to the doctor. The father and his two children, with the help of Oussama, planned to lighten the time for kidney transplantation by looking for a donor compatible with the patient so that in exchange for a sum of money he would appear before the doctors as a friend of the family and undergo a kidney transplant in contravention of the legal requirements that require the donor to expressly, freely, consciously and disinterestedly consent.
The donor was a Moroccan citizen, in an irregular situation in Spain, with problems expressing himself in Spanish, who asked for alms and lived in a house occupied by homeless people in L'Hospitalet de l'Infant, Tarragona. He agreed to undergo a transplant of one of his kidneys in exchange for 6000 euros and went to the hospital where it was found compatible with the patient. Then they took him to the Notary to sign a public deed in which he stated that he was Toni's friend and the authorization for the transplant, which he was going to do for free and for friendship. However, the donor regretted and refused to sign at the Notary. After the father, his son Django and Oussama went to look for him in the house and, besides insulting him, they beat him for his refusal to transplant, causing injuries.
The father and head of the clan was condemned for the crime of organ trafficking but also for coercion, so in his case the penalty is six years and six months in prison. His son Django, six years in prison for a crime of organ trafficking and another crime of misappropriation of civil status. The penalty for his son, Toni, who needed the transplant, for these same crimes is lower - four and a half years of prison - when an attenuated subtype of the crime of organ trafficking is applied because he is the receiver. Finally, the friend who sought the donor was sentenced to six years in prison for a crime of organ trafficking.
The Chamber rejects the situation of need alleged by the convicted patient in one of the grounds of his appeal. In this regard, he affirms that it was the public health system that proposed the "remedy" to his illness with the transplant. The sentence, of which the magistrate Andrés Martínez Arrieta has been rapporteur, indicates that although the condemned man had been informed of the existence of the public transplant system, he decided not to follow it and looked for an organ of a person who due to his economic need had access to the intervention in exchange for money.