Panama's social security services and six Panamanian citizens who were the victims of a mass poisoning have taken Spain to the European Court of Human Rights, accusing it of arbitrarily dismissing their case.
At least 170 people died and over 1,000 suffered ill effects after taking a cough syrup that contained diethylene glycol, an industrial solvent, in place of glycerin, which is used in food and medicine. The poisonous substance was unwittingly used by the Panamanian health authorities to make 260,000 bottles of cough medicine, which it distributed for free in 2006.
Within days, people began experiencing multiple organ failure, paralysis and breathing difficulties. Panama's health authorities launched an emergency investigation that initially targeted other suspect drugs before testing the cough syrup and finding it contained diethylene glycol.
The substance had been exported to Panama by a Catalan trading company called Rasfer, which in turn had ordered the product from China. So far the Spanish firm has accepted no responsibility in the affair, claiming it labeled the product correctly and was unaware it was meant for human consumption.
The origins of the case go back to 2003. Panama's national health program needed 9,000 kilograms of glycerin for pharmaceutical use. The contract was awarded to a national firm, Medicom, which placed the order with Barcelona-based Rasfer Internacional, which in turn bought the product from another trader in China, Fortune Way, which acquired it from a manufacturer in Hengxiang.
People experienced organ failure, paralysis and breathing difficulties
A Barcelona court initially investigated the case, and later sent it to the High Court. In June 2011, this tribunal dismissed the case. Panama's social security service appealed to the Spanish Constitutional Court, but the case was not admitted.
Panama and the six individual plaintiffs feel the Spanish justice system has not done enough to investigate the case, violating two articles of the European Convention on Human Rights. Lawyers are comparing the incident to a famous case of mass poisoning in Spain when people ingested adulterated rapeseed oil.
"The Supreme Court established in 1989 that denaturalized, industrial-grade rapeseed oil was consciously channeled to human consumption out of boundless greed," the lawyers argue. "Exactly what happened here: glycerin, instead of oil, was delivered in its industrial instead of pharmaceutical form out of greed."
The Spanish High Court found that the Panamanian contractor Medicom had not asked the Catalan firm Rasfer for pharmaceutical glycerin, but simply "pure glycerin." He furthermore held that Rasfer correctly labeled the product, noting that it was "TD glycerin" (a glycerin substitute). The judge also accepted Rasfer's claim that a company invoice describing the product as "glycerin CP" (pharmaceutical glycerin) was not sent to the Panamanians, but was simply an internal document, and that it was Medicom that re-labeled the product as "YSP glycerin," using the US acronym for pharmaceutical glycerin.
Medicom employees have already been prosecuted over this, but victims feel that Rasfer, which bought the substance from Chinese suppliers, should also be brought before justice.
The Spanish supplier claims it labeled the product correctly
But High Court Judge Ismael Moreno found that Rasfer was just "a middleman" and "not under any obligation to test the product." All the blame was laid at the door of Medicom, letting Rasfer off the hook.
The lawyers for the prosecution, Jaime Ingram and José Luis Mazón, say the court simply believed what the Spanish firm claimed, without checking the truth of the statements. "Medicom's business was the sale of products to make medicine. It's peculiar that Rasfer should say it did not know whether the glycerin they ordered was for human consumption," says Mazón. "How can they claim it's all right to send a glycerin that is deadly if ingested to a company with a name like Medicom?"
"On the other hand, the Catalan firm, in a document it sent to Panama's Medicom, indicated that what was being sold was glycerin for pharmaceutical use, which was not true," Mazón continues. "In the first statement by the manager of Rasfer to the Civil Guard, she said what was sold to the Panamanians was '99.5 percent pure glycerin, CP-grade (Chinese Pharmacopoeia)'."
An article published in The New York Times on May 6, 2007 traced the product from Panama back to the Chinese manufacturer via all the intermediaries, and found that "traders bought the syrup without knowing where it came from, or who made it. With this information, the traders might have discovered — as The Times did — that the manufacturer was not certified to make pharmaceutical ingredients."
"In any case, the point now is not to assess whether Rasfer is guilty," says the lawyer for the plaintiffs. "What Strasbourg is going to analyze is whether the Spanish justice system did enough investigating. And it did not. We requested a letters rogatory from China, which was denied to us even though a Chinese vice-minister had said Rasfer ordered industrial glycol, not pharmaceutical glycerin. All communications between Medicom and Rasfer should have been analyzed, as well as those between Rasfer and the Chinese companies. But the Spanish courts did not do so. Hundreds of dead people and over 1,000 injured deserve for the case to be investigated fully."