CASE OF SOLOMAKHIN v. UKRAINE

1. The case originated in an application (no. 24429/03) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Sergey Dmitriyevich Solomakhin (“the applicant”), on 22 July 2003. The applicant having died in September 2010, Mrs Vera Petrovna Solomakhina, his mother, expressed the wish to pursue the application.
2. The applicant was represented by Ms I. Gavrilenko, a lawyer practising in Donetsk. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, from the Ministry of Justice.
3. The applicant alleged, in particular, that the court proceedings in his case were excessively lengthy and that his health had suffered as a result of medical malpractice.
4. On 6 May 2008 the Court declared the application partly inadmissible and decided to communicate the above complaints under Articles 6 and 8 of the Convention to the Government. It also decided to rule on the admissibility and merits of the remaining parts of the application at the same time (Article 29 § 1).
I. THE CIRCUMSTANCES OF THE CASE
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 2 8 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.
A. Health care and control of diseases Act 1994 (“the Act”)
17. The relevant section of the Act reads as follows:
Section 27 Preventive vaccination
“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 ... ”
B. Guidelines on the organisation and conduct of preventive vaccinations
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.
III. RELEVANT INTERNATIONAL MATERIALS
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 ... ”
I. AS TO THE LOCUS STANDI OF MRS SOLOMAKHINA
20. The applicant died on 13 September 2010, while the case was pending before the Court. It has not been disputed that Mrs Slomakhina (his mother) is entitled to pursue the application on his behalf and the Court sees no reason to hold otherwise (see, among other authorities, Benyaminson v. Ukraine, no. 31585/02, § 84, 26 July 2007, and Horváthová v. Slovakia, no. 74456/01, §§ 25-27, 17 May 2005). However, reference will still be made to the applicant throughout the present text.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
21. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of ... any criminal charge against him everyone is entitled to a ... hearing within a reasonable sted that argument and considered, in particular, that this case had beetime by [a] ... tribunal ...”
22. The Government conten particularly complex, given the necessity to have an expert examination of the applicant ’ s medical file and his state of health
23. The period to be taken into consideration began on 26 April 1999 and ended on 22 August 2008. It thus lasted nine years and almost four months for three levels of jurisdiction.
24. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
25. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case; and the conduct of the applicant and the relevant authorities (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
26. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender v. France, cited above).
27. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Although the case in question was admittedly a complex one and required forensic medical examination of the applicant ’ s medical conditions, such complexity could not justify the length of the proceedings which exceeded nine years for three levels of jurisdiction, including almost five years before the court of appeal. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.
There has accordingly been a breach of Article 6 § 1.
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
28. Referring to Article 2 of the Convention, the applicant complained of damage to his health as a result of alleged medical malpractice. In particular, he submitted that the vaccination on 28 November 1998 had resulted in him suffering from a number of chronic diseases. The Court, which is master of the characterisation to be given in law to the facts of the case, decided on its own motion to examine the complaint raised by the applicant under Article 8 of the Convention, which is the relevant provision and which provides insofar as relevant as follows:
“1. Everyone has the right to respect for his private ... life ...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
29. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
30. The applicant insisted that he had been vaccinated during the acute stage of an illness and that the doctors had not checked all relevant contraindications to vaccination in his case. He claimed that he had been administered an expired vaccine of poor quality and that it had been done against his will. All of these failings had resulted in his serious health problems, which the doctors at fault and judges had conspired to conceal and who had therefore falsified medical records and court documents. He considered that there had been no reason for interfering with his private life, as there had been not been an outbreak of diphtheria in his home town at the relevant time and the vaccine had been strongly contraindicated for him.
31. The Government agreed that the compulsory vaccination had constituted an interference with the applicant ’ s private life. They contended, however, that such interference had been justified in the present case. They noted that under section 27 of the Law on health care and control of diseases 1994, preventive vaccination against diphtheria had been compulsory and the Ministry of Public Health had been entrusted to specify the procedure for and terms of such vaccination. The Ministry had done so in its guidelines ( Order No. 14 of 25 January 1996 ).
32. The Government further contended that the interference had pursued the legitimate aim of the protection of public health against diphtheria, which was a highly infectious and virulent disease. Given the complicated epidemiological situation in the country and in the region in which the applicant had resided, the interference had been necessary to protect the health of the applicant and of the public at large. The Government noted that the applicant ’ s fitness for vaccination and possible contraindications had been checked by the doctors prior to the vaccination. In addition, they noted that, while being compulsory, the vaccination had not been forced or violently imposed, and therefore that the applicant, being an adult of thirty ‑ four years of age at the time of the events, could have refused to have the vaccination, as he had done previously on many occasions. They finally noted that the applicant ’ s allegations about the quality of the vaccine and the negative side -effects of the vaccination on his health had been thoroughly examined by the doctors and the courts and had been found unsubstantiated. They considered that the findings of the domestic authorities, who had had the primary task of interpreting the law and assessing the proof adduced, should not be called into question.
33. The Court reiterates that according to its case-law, the physical integrity of a person is covered by the concept of “private life” protected by Article 8 of the Convention (see X and Y v. the Netherlands, 26 March 1985, § 22, Series A no. 91). The Court has emphasised that a person ’ s bodily integrity concerns the most intimate aspects of one ’ s private life, and that compulsory medical intervention, even if it is of a minor importance, constitutes an interference with this right (see Y.F. v. Turkey, no. 24209/94, § 33, ECHR 2003 ‑ IX, with further references). Compulsory vaccination – as an involuntary medical treatment – amounts to an interference with the right to respect for one ’ s private life, which includes a person ’ s physical and psychological integrity, as guaranteed by Article 8 § 1 (see Salvetti v. Italy (dec.), no. 42197/98, 9 July 2002, and Matter v. Slovakia, no. 31534/96, § 64, 5 July 1999).
34. The Court notes that in the instant case, as was uncontested by the parties, there has been an interference with the applicant ’ s private life.
35. The Court further notes that such interference was clearly provided by law and pursued the legitimate aim of the protection of health. It remains to be examined whether this interference was necessary in a democratic society.
36. In the Court ’ s opinion the interference with the applicant ’ s physical integrity could be said to be justified by the public health considerations and necessity to control the spreading of infectious diseases in the region. Furthermore, according to the domestic court ’ s findings, the medical staff had checked his suitability for vaccination prior to carrying out the vaccination, which suggest that necessary precautions had been taken to ensure that the medical intervention would not be to the applicant ’ s detriment to the extent that would upset the balance of interests between the applicant ’ s personal integrity and the public interest of protection health of the population.
37. Furthermore, the applicant himself failed to explain what had prevented him from objecting to the vaccination, when previously he had objected on several occasions. There is no evidence before the Court to prove that the vaccination in question had actually harmed the applicant ’ s health.
38. The Court also notes that the applicant ’ s allegations were thoroughly examined by the domestic courts and found unsubstantiated. The domestic courts found only one insignificant irregularity in the vaccination procedure, namely, making the vaccination outside the special vaccination room. This, they found, did not in any way affect the applicant ’ s health. They also established that none of the known side-effects of the vaccination were manifested by the applicant. They did so on the basis of several medical expert reports. The findings of the domestic courts were based on a large amount of medical data collected upon the motion of the applicant and of the courts. These findings appear to be grounded on a sufficient evidential basis and their conclusions are not arbitrary or manifestly unreasonable. The applicant did not submit any evidence to challenge the findings of the domestic authorities.
39. In view of the above considerations, the Court finds no violation of Article 8 of the Convention in the present case.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
40. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
41. The applicant claimed 54, 892.53 hryvnias (UAH) ( approximately 4,600 euros (EUR) ) in respect of pecuniary damage and UAH 700, 000 ( approximately EUR 58,700 ) in respect of non-pecuniary damage.
42. The Government considered that there was no causal link between the applicant ’ s claim of pecuniary damage and his complaints. They also contended that the claimed non-pecuniary damage was unsubstantiated, that the amount was excessive and that it did not correlate to the awards given by the Court in comparable cases against Ukraine.
43. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant ’ s mother EUR 2, 4 00 in respect of non-pecuniary damage.
44. The applicant also claimed UAH 3349.02 ( EUR 302.59 ) and UAH 489.95 (EUR 44.27 ) for costs and expenses.
45. The Government maintained that not all the claims were relevant and invited the Court to award only the expenses that were confirmed and related to the proceedings in question.
46. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 100 covering costs under all heads.
47. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the application admissible;