SHOVGUROV v. RUSSIA
Inadmissible
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković
1. The applicant, Mr Ochir Danilovich Shovgurov, is a Russian national, who was born in 1956 and lives in the town of Elista, the Republic of Kalmykia. 2. 3. The applicant’s son, O. Sh., was born on 23 February 1987. 4. Between 13 and 27 June 1988 O. Sh. was placed in the Republican Children’s Hospital with the diagnosis “acute respiratory disease, first degree stenosis and lacunar tonsillitis”. Treatment was administered to him in intramuscular injections by reusable syringes, as a result of which, along with other children, he was infected with HIV. 5. The applicant’s son was first diagnosed with HIV in March 1989 at the Infectious Diseases Hospital no. 2 of Moscow. 6. In September 1991 O. Sh. was examined by Dr J. A., professor of allergology and immunology, and Dr M. M., professor of neurology, in New York. They confirmed the diagnosis. 7. On 13 July 1998 O. Sh. was placed in the Republican Centre for the Treatment of AIDS (ЛДО «РЦ СПИД»), where on 9 August 1998 he died. According to the postmortem diagnosis, the applicant’s son suffered from HIV and a number of accompanying diseases. 8. On 25 January 1989 criminal proceedings were instituted into mass infection with HIV in the Republican Children’s Hospital. 9. On 1 November 1990 the investigation was suspended due to the failure to identify the culprits. 10. On 9 July 1992 the Deputy Prosecutor General set aside the decision to suspend the investigation. 11. On 15 November 1992 the investigation was reopened. 12. On 15 December 1992 the investigation was suspended due to the failure to identify the culprits. 13. On 11 August 1994 the investigating authorities ordered a forensic expert examination. The following questions were put to the expert: “1. What is the nature of HIV transmission by medical instruments? 2. Was HIV transmission by medical instruments possible in the Republican Children’s Hospital and the Republican Children’s Infectious Diseases Hospital? 2.1 Did the children concerned stay together in the same ward (department, unit or block) and, if so, for how long? 2.2 Were the same medical solutions administered to the children placed together at the same time by the same medical staff? If so, how many times? 2.3 In what cases is the possibility of HIV transmission by medical instruments ruled out? 3. Is the infection through blood and its products ruled out? 3.1 How many children received donor blood, how often and in what quantities? 3.2 How many donors are subject to examination? 4. Is the intrauterine infection ruled out? 5. Is the HIV infection through breastfeeding ruled out?” 14. Expert K. stated in his report that the forensic examination was focused on the HIV transmission by syringes used in the hospitals as the healthcare authorities had recognised it as the only plausible version of the HIV infection in the hospitals in the south of Russia. In the subsequent analysis he made references to medical doctrinal works on HIV transmission. 15. The analysis was based on the fact that the children, subsequently diagnosed as HIV positive, had been placed together in in-patient departments attached to one treatment unit. Expert K. further proceeded with (i) identification of the possible source of the infection, i.e. of the child infected before his placement in the nidus of infection (see paragraph 17 below); (ii) differentiation of medical manipulations according to the degree of the risk of infection with HIV (high, medium and low degree of risk); (iii) establishing situations where the same member of the hospital staff made injections of the same medicine at the same time, which raised the likelihood of the same needles having been used, and (iv) establishing the sequence of the manipulations: first with the source of the infection (a child that had been infected prior to his/her placement in the hospital) and then with other patients. Expert K. specifically noted that, although it was not difficult to establish that the same member of the hospital staff made injections of the same medicine, it was almost impossible to establish that the same needles and syringes had been used. Therefore, any conclusion as to the possibility of the infection transmission in a given situation would always be relative and based on probability. 16. Proceeding from the premise that simultaneous placement of children subsequently diagnosed as HIV positive in the same ward was a precondition for the infection transmission, expert K. proposed the following gradation of probability for the assessment of the factual material: - the transmission was probable if there had been a source of the infection, i.e. a child infected prior to his/her placement in the ward, and the same medicines had been administered by the same member of the hospital staff with the use of manipulations involving high degree of risk of transmission; - the transmission was unlikely if the same medicines had been administered by different members of the hospital staff with the use of manipulations involving medium and low degree of risk of transmission, even if the infected child had been present in the ward; - the transmission was impossible if no medicines had been administered and no manipulations had been carried out at the same time. 17. Expert K. examined 293 medical files. All instances where the children, subsequently diagnosed as HIV positive, had been placed in hospitals of the Republic of Kalmykia in the period between January 1988 and August 1989 were identified. All situations where HIV infected children had been placed in a hospital simultaneously were also identified. Such instances were analysed and referred to as niduses of infection. All possible sources of infection were established. 18. Each instance was analysed on the basis of the criteria stated above. On this basis a conclusion as to the probability of infection in the given instance was made, i.e. whether it was probable, unlikely or impossible. 19. All the material was subject to computer analysis. On this basis three databases were created: (i) information on HIV infected children; (ii) information on placement in a hospital of HIV infected children in 198889; and (iii) information on medical manipulations with respect to HIV infected children while they had been simultaneously placed in hospitals of the Republic of Kalmykia. 20. The expert’s research showed that seventy-six children, subsequently diagnosed as HIV positive, were placed for treatment in six children’s hospitals in Kalmykia between January 1988 and August 1989. Instances where such children were placed for treatment at the same time were distributed among the six hospitals as follows: 340 instances in the Republican Children’s Hospital, fifty-six instances in the Republican Children’s Infectious Diseases Hospital, eight instances in the Yashkul District Central Hospital, four instances in the Priozersk District Central Hospital, two instances in the Iki-Burulsk District Central Hospital and one instance in the Kaspiysk District Central Hospital. 21. The analysis of the medical documents showed that the formation of the niduses of infection had been initially connected with almost simultaneous placement in the infant department of the Republican Children’s Hospital of several babies born from HIV positive mothers, who had become the source of infection for other children. The further spread of the infection was connected with the children infected in the infant or other departments of the Republican Children’s Hospital and in some cases had a chain effect. 22. HIV transmission could only have taken place through the use of medical instruments in breach of the applicable rules if the same syringes and needles had been used consecutively in respect of several children placed in the same ward. However, no indication of such breaches could be found in the medical documents. 23. The overall conclusions of the report were the following: (i) In Elista, the Republic of Kalmykia, there was an outbreak of HIV infection of children, which began in May 1988 and ended in November 1988, as a result of which seventy-six children were diagnosed as HIV positive. (ii) The probability of HIV transmission through the use of medical instruments existed in two Elista hospitals: Republican Children’s Hospital and the Republican Children’s Infectious Diseases Hospital. 24. On 21 February 1996 the criminal proceedings were terminated under Article 5 § 1 and Article 208 of the RSFSR Code of Criminal Procedure on the ground that there was no indication of a criminal offence. 25. On 28 June 2001 the decision of 21 February 1996 was set aside, and on the same date the criminal proceedings were terminated on the ground of expiry of the statutory time-limit. 26. In September 2011 the applicant along with the parents of a number of other children infected with HIV in similar circumstances filed a complaint on the ground that they had not been granted victim status in the proceedings. 27. On 19 September 2011 the decision of 28 June 2001 was set aside and the investigation was reopened for one month. 28. On 17 October 2011 the applicant was granted victim status in the proceedings. 29. On 20 October 2011 the criminal proceedings were terminated on the ground of expiry of the statutory time-limit. According to the decision, it was established that seventy-six children had been infected with HIV while they had been undergoing in-patient treatment in the Republican Children’s Hospital and the Infectious Diseases Hospital of Elista in 1988-89. In the course of the investigation it appeared impossible to identify the hospital staff responsible for the negligence which had resulted in the spread of the infection. However, all the children infected and their parents were identified and granted victim status in the criminal proceedings. 30. The decision further stated that the offences in question were qualified as negligence under Article 293 of the Criminal Code, breach of sanitary-hygienic rules leading to mass infection or death under Article 236 §§ 1 and 2 of the Criminal Code, and infection with HIV under Article 122 § 4 of the Criminal Code. Under Articles 15 § 3 and 78 § 1 (b) of the Criminal Code the statute of limitations for these offences was six years. As more than six years had lapsed since the events in question, the criminal proceedings were discontinued under Article 24 § 3 (1) of the Criminal Code. 31. In 2011 the applicant, together with seven other persons, including his wife, Ms Shovgurova, instituted proceedings against the Republican Children’s Hospital for compensation of non-pecuniary damage caused by their children’s infection with HIV, which led to the latters’ death. The applicant and his wife sought 5,000,000 Russian roubles (RUB). 32. On 9 November 2011 the Elista Town Court partially granted the claim. The court noted that, according to the report of the forensic expert examination conducted within the criminal proceedings, there had been an outbreak of HIV infection of children in Elista, which had begun in May 1988 and had ended in November 1988, as a result of which seventysix children had been diagnosed as HIV positive. The probability of HIV transmission through the use of medical instruments existed in two Elista hospitals: Republican Children’s Hospital and the Republican Children’s Infectious Diseases Hospital. The eight plaintiffs’ children were placed for in-patient treatment in the Republican Children’s Hospital in the period concerned. Subsequently they were diagnosed as HIV positive. The court therefore found it established that their children had been infected with HIV in the Republican Children’s Hospital, which led to their death. 33. The court further noted that although the criminal investigation had been terminated on 20 October 2011 on account of expiry of the statutory time-limits, the fact that particular culprits had not been established did not deprive the plaintiffs, who had been granted victim status in the criminal proceedings, of the possibility to claim compensation for damage caused by their children’s having been infected with HIV in the Republican Children’s Hospital. 34. Having regard to Articles 444 and 445 of the Civil Code of the RSFSR, Article 131 of the Fundamentals of the Civil Legislation of the USSR and the Republics and Articles 151, 1064 and 1068 of the Civil Code of the Russian Federation, the court awarded each plaintiff RUB 100,000. 35. The plaintiffs and the defendants appealed. 36. On 15 December 2011 the Supreme Court of Kalmykia reviewed the Elista Town Court’s judgment. It upheld the findings of fact to the effect that the plaintiffs’ children had been infected with HIV in the Republican Children’s Hospital. The appellate court further dismissed the defendant’s arguments that the decision to award compensation had not been based on the law in force at the relevant time. It noted that Article 57 of the Constitution of the USSR and Article 63 of the Constitution of the RSFSR, in force at the time when the plaintiffs’ children had been infected with HIV, provided for judicial protection from encroachment upon life and health. Article 52 of the Constitution of the Russian Federation likewise provided for access to justice and the right to compensation for victims of crimes. The appellate court further noted that Article 24 of the Fundamentals of the Criminal Procedure of the USSR and the Republics and Article 53 of the Code of Criminal Procedure of the RSFSR, in force at the material time, as well as Article 42 of the Code of Criminal Procedure of the Russian Federation provided that a person who had sustained physical, pecuniary or non-pecuniary damage as a result of a crime should be recognised as a victim. 37. Having regard to Article 88 of the Fundamentals of the Civil Legislation of the USSR and the Republics, Article 444 of the Civil Code of the RSFSR and Articles 151, 1068 and 1101 of the Civil Code of the Russian Federation, the Supreme Court of Kalmykia altered the lower court’s decision in the part concerning the amount of the compensation and awarded each plaintiff RUB 300,000 (approximately 7,245 euros). 38. The applicant’s further requests for review of the judgment were refused on 11 July 2012 and 16 August 2012. 39. Article 57 of the Constitution of the USSR, in force until 26 December 1991 and Article 63 of the Constitution of the RSFSR, in force until 12 December 1993, provided for judicial protection of rights and freedoms. Article 52 of the Constitution of the Russian Federation, in force after 12 December 1993, provides that rights of victims of crimes and of abuse of power are protected by the law. The State shall provide the victims with access to justice and compensation for the damage caused. 40. Under Article 24 of the 1958 Fundamentals of the Criminal Procedure, in force until 1 July 2002, a victim was a person who had suffered moral, physical or pecuniary damage as a result of a crime. 41. The 1960 Code of Criminal Procedure of the RSFSR, in force until 1 January 2003, provided that criminal proceedings could not be opened and pending criminal proceedings should be terminated where there was no indication of a crime (Article 5 § 1). A criminal case should be closed on the grounds provided in Articles 5-9 (Article 208 § 1). A victim was a person who had suffered moral, physical or pecuniary damage (Article 53). 42. The 2001 Code of Criminal Procedure of the Russian Federation, in force after 1 January 2003, provides that criminal proceedings should be terminated if the statutory time-limit has expired (Article 24 § 3 (1)). The Code defines a “victim” as a person who has sustained physical, pecuniary or non-pecuniary damage as a result of a crime. The decision to recognise an individual as a “victim” must be taken by the examiner, investigator, prosecutor or court (Article 42). 43. The 1996 Criminal Code of the Russian Federation, in force after 1 January 1997, provides the following statute of limitations: two years in respect of a minor offence, six years in respect of an offence of medium gravity, ten years in respect of a grave offence and fifteen years in respect of a particularly grave offence (Article 78 § 1). Prior to amendments introduced to the Code by Federal Law no. 420-FZ of 7 December 2011, infection with HIV as a result of undue performance of one’s professional duties constituted an offence of medium gravity (Articles 15 § 4 and 122 § 4); a breach of sanitary-hygienic rules leading to mass infection constituted a minor offence (Articles 15 § 4 and 236 § 1); and negligence consisting of undue performance by an official of his/her functions as a result of improper or careless attitude to his/her work, which led to death of two and more persons constituted a grave offence (Articles 15 § 4 and 293 § 3, the latter Article introduced by the Federal Law no. 162-FZ of 8 December 2003). 44. Under Articles 444 and 445 of the 1964 Civil Code of the RSFSR, in force until 1 March 1996, damage caused to a person, a person’s property or an organisation should be compensated for in full by the person who inflicted the damage. An organisation was responsible for compensation of damage caused by its employees in the course of carrying out their work duties. 45. Under Article 131 of the 1991 Fundamentals of the Civil Legislation, in force between 3 August 1992 and 1 January 1995, damage, including physical and mental suffering, caused to a person by unlawful actions should be compensated by the person who inflicted the damage provided it had been caused through his/her fault. 46. The 1994 Civil Code of the Russian Federation, in force after 1 January 1995, provides that a court may order compensation of non-pecuniary damage, including physical and mental suffering, caused to a person to be paid by the person who inflicted it (Article 151). The damage is to be compensated in full (Article 1064 § 1). A juridical or natural person shall compensate damage caused by its/his/her employee in the course of carrying out work duties (Article 1068 § 1). 47. Article 28 of the 1969 United Nations Convention on the Law of Treaties (Vienna Convention) provides: “Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party.”