CASE OF SOLOMAKHIN v. UKRAINE
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska
5. The applicant was born in 1964 and lived in Donetsk. He died on 13 September 2010. 6. On 23 November 1998 the applicant sought medical assistance from the Donetsk City Hospital No. 16 (Центральна міська клінічна лікарня № 16 м. Донецька – “the Hospital”), where he was diagnosed as having an acute respiratory disease. He was prescribed out-patient treatment. 7. On his next visit to the Hospital on 27 November 1998 the applicant was tested for his reaction to a vaccination against diphtheria. The test showed no susceptibility to diphtheria antigens. 8. On 28 November 1998 the applicant was vaccinated against diphtheria. According to the applicant, the vaccination was contraindicated for him. 9. On 30 November 1998 the applicant was examined by a doctor, who indicated that the applicant’s state of health had improved and that the treatment had given positive results. He was diagnosed with tracheobronchitis, which was confirmed during his further visits to the doctor on 3, 4 and 7 December 1998. 10. From 28 December 1998 the applicant spent more than half a year at different medical institutions receiving treatment for a number of chronic diseases (for instance, pancreatitis, cholecystitis, hepatitis, colitis). 11. On 4 February 1999 the Chief Doctor of the Hospital reprimanded doctor Ya. and nurse Sh. for vaccinating the applicant although he had consistently objected to the vaccination and while he was being treated for an acute respiratory infection. He considered that they had violated the rules concerning vaccinations and ordered them to pass a test on those rules. 12. On 26 April 1999 the applicant instituted proceedings in the Budyonnovskiy District Court in Donetsk against the local department of public health (Донецький міський відділ охорони здоров’я) and the Hospital, seeking compensation for damage to his health. He alleged that the vaccination on 28 November 1998 had been conducted whilst he was ill and had resulted in him suffering from a number of chronic diseases. He also complained that the vaccine had been of poor quality as it had been uncertified, had expired and had been stored in inappropriate conditions. He complained that the doctors had tried to falsify the relevant medical records and to conceal the negative effects of the vaccination. 13. Between 30 May and 30 June 2000, 17 July 2000 and 29 January 2001, 2 and 30 January 2002 and 4 March 2002 and 17 February 2003 medical expert examinations were conducted into the applicant’s allegations. 14. On 2 June 2003 the court found against the applicant. With reference to the conclusions of the medical expert examiners, the court established that the applicant’s diseases had no causal link to his vaccination. It noted that the applicant had not had an allergic reaction or showed other signs that would normally have appeared within several days following the vaccination. The only disease that could be associated with the vaccination was urticaria (commonly known as hives), which the applicant had suffered from more than eight months after the vaccination and which could not therefore have had any causal link to it. The court also established that the applicant had not had any acute symptoms of any disease upon vaccination and therefore that his vaccination had not violated any medical rules. Furthermore, the epidemic situation in the Donetsk region had called for his vaccination against diphtheria. The court noted that no physical force had been applied to the applicant and that, being an adult of sound mind, he could have refused to have the vaccination, as he had done before on several occasions. The court noted that although the vaccination had not been performed in the vaccination room as required by the regulations, it had been conducted by a qualified nurse in a doctor’s office, in a doctor’s presence, with prior verification of the applicant’s reaction to such a vaccination, and it had not caused the applicant to have any negative side-effects. The court also noted that the applicant’s allegations about the quality of vaccine had been speculative and had not been confirmed by any evidence. The court observed that none of the applicant’s diseases had had a causal link to the vaccination and that the applicant had spent so much time in hospital because he had been attempting to obtain disabled status. The court also examined the applicant’s allegations about the alleged falsification of medical records and rejected them as unsubstantiated. 15. On 19 March 2008 and 22 August 2008 respectively the Donetsk Regional Court of Appeal and the Supreme Court upheld the above judgment. 16. On 13 September 2010 the applicant died of a heart attack. By letter of 26 September 2011 the applicant’s mother informed the Court of her wish to pursue the application. 17. The relevant section of the Act reads as follows: “Preventive vaccinations against tuberculosis, polio, diphtheria, whooping cough, tetanus and measles are compulsory in Ukraine. ... Groups of the population and categories of employees subject to preventive vaccination, including those which are compulsory, and the procedure for and scheduling of their implementation shall be specified by the Ministry of Health of Ukraine ...” 18. These guidelines, approved by the Ministry of Public Health of Ukraine on 25 January 1996, provide for the organisation of vaccinations, set out a list of contraindications and side-effects and the procedure for informing the appropriate parties of any negative side-effects after vaccination. 19. On 19 March 1997 the Parliamentary Assembly of the Council of Europe adopted Recommendation 1317 (1997) on vaccination in Europe. The relevant part of this recommendation states: “... 3. The recent diphtheria epidemic in some of the newly independent states is an example of the risks confronting us. Tens of thousands of cases have been reported since the outbreak of the epidemic in 1990, and thousands have died of a disease generally believed to have been wiped out. Other pockets of infection may attain epidemic proportions at any time: poliomyelitis, tuberculosis, tuberculous meningitis, pertussis, etc. 4. The diphtheria epidemic very clearly demonstrated that health risks could not be contained locally. With millions of people now free to travel from one country to another, it has not been possible to halt such epidemics. The eruption of ethnic conflicts producing mass movements of refugees has created new problems in this respect, and the austerity imposed by economic reforms has worsened the situation. ... 6. The Assembly therefore recommends that the Committee of Ministers invite member states: i. to devise or reactivate comprehensive public vaccination programmes as the most effective and economical means of preventing infectious diseases, and to arrange for efficient epidemiological surveillance; ii. to grant increased assistance as a matter of urgency, internationally co-ordinated through the World Health Organization (who) and Unicef in particular, to countries suffering from the diphtheria epidemic, in order to supply adequate quantities of vaccines and medicines and train a medical staff qualified to handle and administer the vaccine with the following aims: a. to achieve a high immunisation level among the population; ... 7. The Assembly furthermore invites the Committee of Ministers: i. to define a concerted pan-European policy on population immunisation, in association with all partners concerned, for example who, Unicef and the European Union, aimed at the formulation and observance of common quality standards for vaccines, and to ensure an adequate supply of vaccines at a reasonable cost ...”