CONCURRING OPINION OF JUDGE BOŠTJAN M. ZUPANČIČ

1 . I hesitated to go along with this judgment because of the question of causal link which allegedly had not been established between the procedure of administering the vaccination on the one hand and the death of the applicant on the other hand. The applicant claimed that the vaccination had been done against his will, which implies that there was no prior and informed consent. The “informed” consent implies that the patient in such circumstances must be instructed as to all the potential risks of administering any kind of medical treatment, which he must thereafter consent to in a genuinely informed way. Failing that, we cannot speak of a full consent, whereas here – in contrast to the usual medical situation – we seem to speak of a forceful administration of diphtheria vaccine without any consent on the part of the applicant and, indeed, against his so expressed will. As per his submissions, these failings had resulted in serious health problems (§ 30 of the judgment).

2 . Admittedly, the Ukrainian courts have summoned three experts to testify concerning the possible causal connection between the diphtheria vaccine injection, on the one hand, and the serious medical problems resulting in death of the applicant on the other hand.

3 . Perhaps it would be useful to sketch the basic problem concerning discrepancy between scientific perception of causation on the one hand and the legal/judicial insistence concerning the finding of a “true cause” in each criminal or tort situation, in which the consequence – in this case, death – is part of the definition of the tort or the crime in question. It is notorious that in medical cases the causal link is practically impossible to “prove”. This impossibility, however, is occurring on the legal/judicial side – rather than on the medical/scientific side.

4 . The scientists are well aware of the epistemological axiom to the effect that no consequence in the real world is “caused” by a single preliminarily necessary condition. Every consequence in the real world, in which it occurs as an event, is a product of innumerable necessary conditions which, by definition, are all indispensable if the consequence in question is to occur. For example, the authors of the Model Penal Code of the United States of America have, many decades ago, in fact done away with the theory of causation. They have adopted the sine qua non causation theory, which in reality is the denial of causation itself. It admits as a legally relevant “cause” any necessary (s ine qua non ) condition without which the result in the crime in question, for example death, would not have occurred.

5 . It is patently clear, especially so in the scientific community, that there is no such thing as causation or causal link. In the legal community, however, the juries are insufficiently conscious of the fact that the decision making by judges and other protagonists proceeds by scanning the necessary conditions for the consequence in question and then – more or less intuitively, i.e. with insufficient consciousness – choosing the critical necessary condition as the legally satisfying “cause” for the consequence in question. The scan that is so performed, however, is not a scan of objective reality.

6 . On the contrary, what judges and others look for is the blameable necessary condition, albeit objectively existing, to which the blame of the law can be attached, so that at the end of the process, be it criminal or concerning tort, a culprit is identified, condemned and punished.

7 . In most standard tort cases as well as in criminal ones the establishment of the causal link – i.e., the finding of the blameworthy necessary condition – does not represent a problem. In medical cases (See for example Calvelli and Ciglio v. Italy [GC], no. 32967/96, 17 January 2002) the necessary condition somehow does not seem to be sufficient. The problem recurs in insanity cases, where most of the jurisdictions require the psychiatrist to testify as to the real existence of a mental illness, as the cause, and the insanity of the defendant as a consequence. If that “causal link” is not accepted by the court, then the insanity defence will fail, although the defendant in question may be genuinely mentally ill in the first place.

8 . In standard medical cases where medical negligence or faulty drugs, as allegedly in this case, are to blame, it is practically impossible to have a waterproof testimony from a medical or any other kind of expert. In the best of scenarios, the experts will testify to the effect that the consequence in question is “not incompatible” with the necessary condition (medical negligence, faulty drugs, etc.).

9 . This is perhaps a paradigmatic situation that vividly illustrates the communication gap between the scientific community, on the one hand, and the legal/judicial community. Epistemologically, scientists as well as medical doctors are not either trained or conditioned to look for a blameworthy “cause”. While every doctor or scientist will, when establishing diagnosis, try to establish the cause of the symptoms, he is not looking for the legal consequences such as necessarily arise in the adversarial context of any trial. This is why the epistemological debate in the scientific community is objective and reasonable. The moment that very same debate is put on the stage of the adversarial theatre the objectivity and reasonableness become charged with potential consequences of the outcome of the trial. What was reasonable in the sense of “relative” before, suddenly becomes a discrete “yes” or “no” proposition, for which the expert appointed by the court must take full responsibility. What before was a full spectrum of experiment, suddenly becomes a “yes” or “no” proposition which commonly, moreover, may have dire consequences for the protagonists in the trial.

10 . I have dealt with this kind of problem in Tătar v. Romania (no. 67021/01, 27 January 2009) and Băcilă v. Romania ( no. 19234/04 , 30 March 2010) and the issue is always the same. The modern doctrine of the principle of precaution offers an elegant solution to this legal enigma by transferring a priori the burden of proof onto the appropriate party. In Tătar and Băcilă cases, clearly this ought to have been the Romanian State . In our case, the burden of proof, if we were to be guided by the principle of precaution, ought to have been on the company which had produced the vaccine and on the doctors who have injected it in an allegedly irreproachable way. If that burden were to be placed on them they would make an extra effort to show that the vaccine had in fact been produced and administered lege artis and the case would be, without undue burdening of the experts, resolved. This would have occurred, of course, if those who carried the burden were able to show that the allegations on the part of the applicant were in fact without any scientific basis.