Bakhromjon Mukhammadiyev

Image source: www.daryo.uz

1. Introduction 

By January 5, 2024, 68 children died in Uzbekistan due to the use of the tainted medicine produced in India, and 16 children had suffered various degrees of medical injuries. This disaster has become the most serious and large-scale problem in the field of pharmaceuticals in Uzbekistan. This does not only raise the issue of the criminal responsibility of the state agency and company officials, but also raises the issue of compensation for material and moral damage. Although there are many legal questions related to this case, in this blog post, this blog analyzes the criteria for determining the compensation to the injured parties.

First, this blog introduces the facts of the case and the court’s decision on compensation, then it moves on to describe the relevant legislation in Uzbekistan and analyzes how it is applied to the situation of the Dok-1 Max. I will draw a conclusion after discussing the possible implications for further judicial practice.

2. Case facts

From December 22, 2022, cases of poisoning from the drug “Dok-1 Max” were detected in various regions of Uzbekistan. Signs of kidney damage and failure were observed in children, who used the drug for the purpose of lowering high temperature. The drug was produced by the Indian company Marion Biotech (below, Biotech) and imported to Uzbekistan by “Kuramax Medical” LLC (below, Kuramax).

As a result, on December 27, 2022, a criminal case was instigated against the officials of Kuramax and “Scientific Center for Standardization of Medicines” LLC (State Agency). After the investigation, it was announced that 68 children died in total as a result of cough syrup poisoning, and 16 children were seriously injured. Importantly, it turned out that a toxic industrial variant of one of the ingredients was used in the production of the drug, not the pharmaceutical version.

On August 11, 2023, the criminal proceedings started in the Tashkent City Court of Criminal Cases. According to the results of the investigation, a total of 23 people were charged. Among them were the former head of the Pharmaceutical Agency, the director of Kuramax (an Indian citizen), and chief experts in the Pharmacology Committee of the Scientific Center. During the court proceedings, the victims sought for compensation ranging from 1 billion to 8 billion sum.

3. Essential parts of the court’s decision

After the court negotiations, the verdict in the case was announced in the Tashkent City Court of Criminal Cases on February 26, 2024. According to the verdict, a citizen of India, director of Kuramax S.R. Pratap was sentenced to 20 years, former head of Farmagency S.Kariev – 18 years, and his deputies A.Azimov and N. Musaev – 16 years in prison. Defendants S.R.Pratap, N. Mirzaakhmedova, S.Kariev, A. Azimov, N. Musaev, Sh. Shodmanov, and J. Erkiniy jointly and severally will be charged to each of the legal representatives of the 68 deceased and 4 seriously ill children 1 billion soums as moral damages. Furthermore, the legal representatives of the remaining 4 children whose health condition is satisfactory will be ordered to pay moral damages of 500 million soums to each. In addition, it was also determined that moral damages of 200 million soums will be charged to each of the legal representatives of eight children whose health has improved. The legal representatives of the victims were given the right to appeal to civil courts in the matter of recovering material damages caused within the scope of the crime.

3.1 Standards for calculation of damages in the Dok-1 Max case

Issues of compensation for damage caused to the life and health of a citizen are defined in a separate chapter in the Civil Code. According to it, every victim in the case of Dok-1 Max is entitled to recover damages in the following 3 forms:

1) Expenses (real damage) incurred or required to be incurred to restore the child’s health, (CC 1006-article)

2) The income (lost benefit) that could have been received if the child’s health and life had not been harmed, if the affected person is 14 years old and older. (CC 1008-article)

3) The moral damage suffered by the person as a result of this damage. (CC-1021-1022-articles)

We will consider the issue of these damages one by one below, using the example of the Dok-1 Max case.

3.2 How much of material damage did the parents suffer from Dok-1 Max?

We will answer this question by analyzing the financial losses suffered by two victims:

One of the victims, whose opinion was heard during the trial for the Dok-1 Max case

a) One of the victims, whose opinion was heard during the trial for the Dok-1 Max case, said that for his 5-year-old boy’s treatment, who became disabled due to Dok-1 Max syrup, he spent more than 35,000 US dollars.

b) The father of a 3-year-old boy who became disabled from “Ambronol” syrup said that his child was in a coma for more than two months. He spent more than 350 million sum for his son.

According to the exchange rate set by the Central Bank of the Republic of Uzbekistan on February 26, 2024 (12,490.00), if the first case, the claimant spent 437,150,000 sum, the second claimant spent around 400,000,000 sum. It should not be forgotten here that, due to the fact that there are many victims and they come from different provinces and from families of different financial status, the cost of treatment may differ in each case.

3.3 How the lost profit is calculated in this case?

According to Articles 1006–1007 of the Civil Code, when a person who has the capacity to act is incapacitated for work due to the damage to his life or health in combination with the actual damage, the average salary of the previous 12 months should be paid to them. It should be paid for the period of incapacity for work. At the same time, according to Article 1008, in cases of damage to minors between 14 and 18 years of age, actual damages and lost profits are paid for the period of incapacity for work based on the sum of 5 times the base calculation amount for each month. But it is important to note that in cases of damage to children under 14 years of age, only actual damage is paid, and there is no mention of compensation for future income. Since there is no statutory basis for taking lost profits into account in this case, it was not taken into account.

3.4 The amount of moral damage was determined based on which rules?

Now let’s consider the calculation of moral damage, which is the most controversial issue. According to the decision of the Plenum of the Supreme Court, which was accepted on April 28, 2000, “On some issues of the application of laws on compensation for moral damages”, a person may claim moral damages if he suffers mental suffering as a result of the loss of a close relative. Our legislation does not have any norms on how to calculate moral damages. As a general criterion, its amount determined objectively by a court, taking into account the level of guilt of the offender and the level of physical and moral torture (suffering, mental suffering) related to the individual characteristics of the victim, reasonableness, and justice requirements.

In this case, 200 million sum were awarded to the legal representatives of 8 children whose health has improved and 200 million to the legal representatives of 4 children whose health is satisfactory, an additional 300 million sum, and correspondingly determined by taking into account moral damage. The court awarded compensation in the amount of 1 billion sum to each of the legal representatives of the four seriously ill children, because until that day, even though 450–500 million sum were spent (Part 3.2) on each of these 4 children, their condition had not improved.  Therefore, taking into account the expenses and moral damage that should be paid for the recovery of these children, another 500 million in total compensation of 1 billion sum has been determined.

Now, taking into account the real damage done so far (450–500 million) and the expenses that need to be incurred for their further recovery, another 500 million will be taken into account in the process of assigning 1 billion sum to children in extremely difficult conditions has been determined. But if the real damage done to 68 children before their deaths is 400–500 million, why is another 500 million set? After all, if these children died, the question arises: will there be any financial expenses for their recovery? There is no real possibility of spending money for the recovery of the children who died, but as a result of the deaths of the children, their legal representatives suffer severe mental suffering and serious moral damage. It seems that the court decided to pay compensation of 1 billion sum. Besides, it would be illogical to allocate 1 billion sum to children in extremely difficult conditions and to allocate a smaller amount to those who died.

4. How the defendants will pay the compensation?

The total amount of compensation to be paid to the legal representatives of 68 people who died from drugs and 16 children who suffered health damage in various degrees amounted to 75 billion 600 million sum. And it was decided to collect this compensation money from the accounts of seven defendants jointly (CC 1000-article). This corresponds to an average of 10 billion to 800 million sum for each defendant. But how and when will this money be recovered? Some of the defendants may have larger assets, which will be confiscated and paid for. But if the other defendants do not have any assets that can be confiscated, how will the execution of the judgment should be carried out? Due to the fact that we do not have the full text of the court decision, we cannot comment on these issues.

However, it can be said that the new Constitution adopted in 2023 will help here. Article 55 of it contains the following norm: “Everyone has the right to be compensated by the state for damages caused by illegal decisions, actions, or inaction of state bodies or their officials.” Interestingly, this article was not present in the previous edition of Constitution. During the promotion of the constitution, it was said that now if citizens are harmed by the officials of the state bodies, the state will quickly compensate the damages, and later it will recover from that official. In this case, it is precisely because of the actions (or inaction) of pharmaceutical officials that so many children died and so many became disabled. That is, the state bodies are also to blame. Therefore, if the defendants fail to pay these compensations, these sums should be paid by the state.

The problem is that Article 55 of the Constitution envisages only the obligations of officials. In the case of Dok-1 Max, the heads of private companies such as Kuramax were also responsible. As Kuramax is a large importer, it can be assumed that it can easily pay this amount. However, the question of who will pay the rest of the compensation and how, if defendants cannot fulfill the joint responsibility of their personal finances, will remain open.

5. The future impact of the Dok-1 Max case on subsequent civil cases (about the issues of compensation for damage caused to the life and health of a citizen).

Prior to the Dok 1 Max case, such a large amount of compensation had not been determined for damage caused to the life and health of a citizen. Since there was no court decision on this case, I can say by analyzing the previous decisions (about the issues of compensation for damage caused to the life and health of a citizen) of the Civil courts for this category of cases that the court appointed compensation, taking into account actual damage and moral damage. The reason for the large amount of compensation in this case is the large amount of real damage mentioned in paragraph 3.1, as well as the great degree of guilt of the persons guilty in this case and the level of damage suffered by the injured people. In my opinion, the compensation set for the Dok 1 Max case can have a serious impact on the future similar cases. Although the legal system of Uzbekistan is a continental legal system and compensation for damages is determined based on the individual characteristics of each case, it is incorrect to completely reject the influence of Dok-1 Max decision on subsequent similar cases. The real impact of this case will be known only from court cases in the future.

Cite as:  Bakhromjon Mukhammadiyev, “Calculation of compensation for the victims of the Dok-1 Max drug scandal in Uzbekistan ”, Uzbekistan Law Blog, 01.07.2024.