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    “50 Años de Vergüenza” – The Thalidomide Shame of the Fiscal

    Posted by Ivo Cerckel on August 28th, 2015

    The Thalidomide shame of Madame the “Fiscal General del Estado” at the Spanish “Tribunal Supremo”

    “A government’s first job is to protect its citizens.”

    The Spanish film, “50 Años de Vergüenza”, “50 Years of Shame”, directed by Javier Almela, Fernando Rodríguez and Ana Salar, a documentary film about the Thalidomide scandal, was screened on 16 August 2015 at the Cebu (Philippines) International Documentary Film Festival (CIDFF).
    https://www.facebook.com/cidff.org/posts/787207951395926

    The trailer of the film argues that:
    “Fifty years ago, a drug, Thalidomide, slipped into the lives of thousands of families forever. A substance that created babies with malformations and transformed their lives into the toughest challenge.
    “Grünenthal is the pharmaceutical company that created and sold the drug; the responsible of a story that, in many places, has been barely told.”
    https://www.youtube.com/watch?v=aThgmjcDT2g

    Fact is however that before Thalidomide was ever marketed, i.e., before it was marketed (in West-Germany where it was first marketed), the product had been banned in France.
    This raises the question as to why some governments, starting with the West-German government, did not prevent Thalidomide being marketed on their territories.

    Section 1 of this blog-post copies the pamphlet which I submitted to the CIDFF.

    Sections 2 and 3 will analyse the film which forgets that a government’s first job is to protect its citizens.
    The film is based on two cornerstones, the interview of Martin Johnson, (former) executive director of the UK of NI-and-GB Thalidomide Trust, which will be examined in Section 2, and the interview of Ignacio Martínez, abogado in Murcia, counsel of AVITE, the Association of the Victims of Thalidomide in Spain, which will be examined in Section 3.

    Section 4 will return to the title of the film which speaks about “50 Years of … Shame”. The section will deal with the shame of Thalidomide monsters for their monstrosity and the shame of society for the Thalidomide scandal.

    As this is a film about the situation faced by Thalidomide monsters in Spain, the film discusses the court proceedings in compensation which the Thalidomide monsters recognised by the ministry of health of the King of Spain have filed in 2013 against Grünenthal GmbH (formerly Chemie Grünenthal GmbH), the pharmaceutical company that created and sold Thalidomide, in the Madrid Court of First Instance.
    After this lower acceded to their demand, the Provincial Court overturned the condemnation of Grünenthal.
    The original plaintiffs have filed an appeal against the judgment of the latter court to the Supreme Court, “Tribunal Supremo”, where the case will be argued (and the judgment delivered?) on 23 September 2015.

    The shame – that’s what the film should be about, according to its title – of Madame the “Fiscal General del Estado”, the Advocate-General at the “Tribunal Supremo”, will be dealt with in Section 5.

    PPOINT OF ORDER
    If I use the noun “monster”, this is for the reason which makes you afraid of it.
    Look at the dictionary definition of “monster” – a deformed person, plant or animal, says Chambers Giant Paperback Dictionary.
    We satisfy this definition.
    END OF POINT OF ORDER

    1.
    The pamphlet which I submitted on 16 August 2015 to the Cebu (Philippines) International Documentary Film Festival (CIDFF) read as follows:

    The trailer of the film “50 Years of Shame”, “50 Años de Vergüenza”, directed by Javier Almela, Fernando Rodríguez and Ana Salar, a documentary film about the Thalidomide scandal, argues that:

    “Fifty years ago, a drug, Thalidomide, slipped into the lives of thousands of families forever. A substance that created babies with malformations and transformed their lives into the toughest challenge.
    “Grünenthal is the pharmaceutical company that created and sold the drug; the responsible of a story that, in many places, has been barely told.”
    https://www.youtube.com/watch?v=aThgmjcDT2g

    Legal tabloids tell us indeed that Thalidomide is an example of the “development-risk defence” which allows producers, like Grünenthal, to escape liability if they prove that the state of scientific and technical knowledge at the time when they put the product into circulation was not such as to enable the existence of a defect to be discovered.

    Dr Herman Cousy, professor now-emeritus from the law department of the K.U. Leuven, has demonstrated in 1996 that
    the Thalidomide scandal cannot be considered to be an example of the “development-risk defence”
    by asking on p. 163, in note 28,
    of his paper “The Precautionary Principle: A Status Questionis” published in the “Geneva Papers on Risk and Insurance – Issues and Practice”, also available on the website of the “Geneva Association”, the leading international think tank of the insurance industry, whether:

    “One often cites the Thalidomide case as an example of a development risk situation, although it appears that when Thalidomide was brought onto the German market, the product had been banned in France.
    “Can it be readily upheld, under such circumstances, that the conditions for a development risk situation were fulfilled?”
    https://www.genevaassociation.org/media/231494/ga1996_gp21%2879%29-cousy.pdf

    Does this not mean that the “responsible”, the cause, or the culprit of the Thalidomide scandal is
    not Grünenthal, the pharmaceutical company that created and sold the drug,
    but the governments which, after the French government had banned Thalidomide,
    neither did prevent the product being brought onto their markets
    nor did, once the product had been brought onto their markets, immediately order its withdrawal from these markets?

    2.
    The film itself says that the Thalidomide scandal changed the regulation of medicines, thereby implying that the sheeple should be thankful to Thalidomide monsters for having been instrumental in bringing about this change.

    If the Thalidomide scandal in the late nineteen-fifties early nineteen-sixties has changed the regulation of medicines, why did the then European Economic Community (EEC) then wait until 25 July 1985, that’s TWENTY-FIVE YEARS, to adopt its Product-Liability Directive 85/374 EEC,
    formally Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products?
    http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:31985L0374

    The film says that Thalidomide monsters are victims of Grünenthal.
    No, Section 1 of this blog-post has demonstrated that we are victims of government.

    The two cornerstones of the film can be summarised by two interviews recorded in the film. The interview of Martin Johnson, (former) executive director of the UK of NI-and-GB Thalidomide Trust, which will be examined in this section 2 and the interview of Ignacio Martínez, abogado in Murcia, counsel of AVITE, the Association of the Victims of Thalidomide in Spain, which will be examined in dection 3.

    Johnson says that Grünenthal paid a small price for the risks taken.

    No, Mr Johnson, the risks were not taken by Grünenthal, but by the governments which after the French ban of Thalidomide did not oppose the marketing of Thalidomide on “their” territories.

    To support Johnson’s claim, the film had quoted people saying that in the early nineteen
    sixties, they called Grünenthal informing them that they suspected Thalidomide to be causing the birth defects.
    Why did those people not ask governments to force Grünenthal to withdraw the product from “their” territories?

    The heroes from Grünenthal were never forced by the bureaucrats from any government to withdraw Thalidomide from the latter’s market.

    Grünenthal withdrew Thalidomide from most European markets on 27 November 1961, ON ITS OWN INITIATIVE
    – yes after much pressure from the public (the medical profession)
    – no pressure from government, however – ,
    but, as I said, on its own initiative. (1)

    In Spain, Thalidomide continued however to be sold after this November 1961 withdrawal. The Franco regime did not oppose its marketing.

    As the next section, section 3, will demonstrate, the film goes on to complain that Grünenthal did not inform the Spanish medical profession of this withdrawal.
    Does the film mean that it was only up to Grünenthal, not up to the Spanish government, to warn the Spanish medical profession about the dangers involved in Thalidomide?
    As the film hides that France had banned Thalidomide before it was ever marketed, i.e., before it was marketed in West-Germany, the film does not complain that France did not make explicit that and why it had banned Thalidomide – before it was ever marketed (in West-Germany).

    What? A government’s job is only to protect “its” “own” citizens? Not the citizens of another government?

    The Thalidomide story has, in many places, been barely told, says the trailer of the film.

    3.
    The film interviews Ignacio Martínez, abogado in Murcia, counsel of AVITE, the Association of the Victims of Thalidomide in Spain. This interview is, as I said in section 2, together with the interview of Martin Johnson, (former) executive director of the UK of NI-and-GB Thalidomide Trust, one of the two cornerstones of the film.

    Martínez seems to centre his argument around a letter from Grünenthal to its distributor in Spain, the Laboratorios MEDicamentos INternacionales SA, hereafter Medinsa, dated December 21, 1961, which, according The Sunday Times, reads: “You write that you will not disclose the reason for the sales ban to the Spanish doctors and that you will furthermore inform your external staff only partially, not fully.” It points out that doctors in Germany, Belgium, the Netherlands, Portugal, Switzerland and several other countries have received letters warning them of the specific problems with Thalidomide. “But if you do not consider such measures necessary [in Spain] then we concur.” (2)

    “El Supositorio – Perlas médicas que se absorven poco a poco”, the blog of Dr Vicente Baos, general practitioner, indicates that
    that this letter follows on the heels of a telegram of 27 November 1961, date of the withdrawal of Thalidomide from West-Germany and its neighbours,
    which Grünenthal did send
    (“would have sent” says Dr Vicente Baos)
    to Medinsa, and to which Medinsa has replied by its letter of 05 December 1961
    (if, as Dr Baos insinuates, Grünenthal did not send this telegram of 27 November 1961,
    why would Medinsa have replied to this telegram ?)
    and in which Medinsa indicates not to be informing the Spanish medical profession of the reason for discontinuing the sales in the EEC (of which Spain was not yet a member) and to give only partial information and not all information to its external partners.
    http://vicentebaos.blogspot.com/2013/11/el-caso-de-la-talidomida-fue-una.html

    The Sunday Times comments that:
    “The letter is one of hundreds that has lain undisturbed for half a lifetime in the German state archives in Düsseldorf, and discovered by the UK Thalidomide Trust’s National Advisory Council (NAC). They reveal that, in Spain, Grünenthal showed a breathtakingly cynical disregard for human life on an epic scale.” (2, again)

    I just said that Martínez attacks Grünenthal. My statement was based on (the trailer of) the film. But the subtitle of the Sunday Times article I just quoted says that the “authorities” refuse to accept responsibility.
    So who’s the culprit – Grünenthal or the “authorities”?

    “A government’s first job is to protect its citizens”,
    said the subtitle of a 15 June 2013 Leader of The Economist.
    http://www.economist.com/news/leaders/21579455-governments-first-job-protect-its-citizens-should-be-based-informed-consent

    Martínez says that after Grünenthal had withdrawn the product from other European markets (Spain was not yet an EEC member), Grünenthal should have informed the medical profession of the withdrawal and of the reason for this withdrawal.

    Had the Spanish government here not a role to play as protector of “its” citizens? No, it was [only] Grünenthal’s behaviour that showed a breathtakingly cynical disregard for human life on an epic scale, says The Sunday Times? But The Sunday Times immediately adds that the “authorities” refuse to accept responsibility. So, yes, The Sunday Times admits that the Spanish Franquist-Leviathan did not act as it should have acted.

    As the film hides that France had banned Thalidomide before it was ever marketed, i.e., before it was marketed in West-Germany, the film does not complain about France not informing the European medical profession that and why it had banned Thalidomide, nor does it complain about West-Germany (and the others) feigning to ignore this ban and going on to tolerating Thalidomide being marketed on “its” (“their”) territory.

    Even if there were in the late nineteen-fifties no laws requiring the licensing of medicines in West-Germany and other countries, a government’s first job is to protect “its” citizens
    so that
    when Thalidomide appeared on “their” markets, after the French ban, the governments on “whose” markets it appeared should have ordered the removal of the product from “their” territory.

    But, as we saw at the outset of section 2, the film itself says that the Thalidomide scandal changed the regulation of medicines. Our Master, government, has distorted the facts in such a way as to enable Him to argue that the Thalidomide scandal, which He caused, demonstrates the need for Him to regulate medicines.

    Section 2 went on to argue that government is so conscious of the distortion of the facts that He, the European Economic Community (EEC),
    who was founded in 1957,
    the year Thalidomide was first marketed in West-Germany but not in France
    (France and Germany still being in 2015 the pillars of the European Union (EU)),
    waited until 25 July 1985, that’s _TWENTY-FIVE YEARS_ to adopt its Product-Liability Directive 85/374 EEC?
    Was that perhaps because Spain would join the EEC on 01 January 1986?

    The Thalidomide story has, in many places, been barely told, says the trailer of the film.

    4.
    “50 Años de Vergüenza”? “Vergüenza” means “shame”.

    This section 4 examines the shame of Thalidomide monsters for their monstrosity and the shame of society for the Thalidomide scandal.
    The next section, section 5, will deal with the shame of Madame the “Fiscal General del Estado”, the Advocate-General at the “Tribunal Supremo”.

    The reason why we were not told the truth about the cause of our handicap was the shame of our parents

    We are however also ashamed and the “culture” also. (3) (4)

    Indeed, at our births, everybody acted badly. This has frightened us within minutes. We have concluded within those same minutes that there was something wrong with us.
    [Interesting questions:
    Something wrong vis-à-vis what?
    Did we know at birth what is “normal”?
    Did we conclude that there was no order outside of the womb?]

    This reaction has been stored. The conclusions we draw from this storage, i.e., the shame, prevent us from acting comfortably with people.

    This shame is “asking” energy. Emotions are energy felt in the body. Positive emotions are useful. Negative emotions interfere with our capacity to enjoy life.

    Our energy is wrapped up in shame. This energy should be freed up.

    Our handicap is not the missing limbs. It is the shame.

    Shame can make people sick, making them want to disappear, jeopardising their life.

    People humiliate / shame us because we are monsters.

    Shame is not only with our parents.

    It is also in the CULTURE.

    This SUCKS – gloog!

    Therefore,

    ONE
    nobody dares to make explicit – to us – that France had banned Thalidomide before it was ever marketed, i.e., before it was marketed on the territory of West-Germany.

    TWO
    after half a century, we still have to fight AGAINST (our and) their shame.

    The shame explains why we were never (fully? – I didn’t yet receive anything) compensated for the damage we are still suffering.

    And the film then features a West-German Thalidomide monster (like the UK of NI-and-GB monsters the West-German Thalidomide monsters have been overcompensated) arguing that some costs have not yet been compensated. Dear Madame, if you uphold such an argument, it would appear to me that before you can argue that some costs have not yet been compensated, you should first clearly indicate – in writing – which costs have (already) been compensated.`

    The Thalidomide story has, in many places, been barely told, says the trailer of the film.

    5.

    5.1.
    DISCLAIMER
    I am not qualified to give any opinion on Spanish law.
    END OF DISCLAIMER

    As this is a film about the situation faced by Thalidomide monsters in Spain, the film discusses the court proceedings which 5%, that’s one in twenty, of the Spanish Thalidomide monsters, those recognised by the ministry of health of the King of Spain, had filed in 2013 against Grünenthal.

    The film says that on 20 November 2013 judge Gemma Susana Fernández Díaz, Judge of First Instance number 90 of Madrid, ordered Grünenthal to pay 20’000 euro for each percentage point of disability of the victims as recognised by Spain’s Health Ministry.

    The judge did not consider it necessary to inquire into the tort which Grünenthal would have committed.
    No, Grünenthal produces an unsafe medicine, therefore it is liable for tort damages.
    What tort? No reply.

    On Wednesday 22 October 2014, Madrid’s “Audiencia Provincial”, Provincial Court, ruled that the claims of the original plaintiffs were prescribed
    (time-barred by a “statute of limitations”, would USofA-ans say),
    thereby overturning the condemnation of Grünenthal by the Judge of First Instance. (5)

    As the film was recorded in 2013, it could not mention the whole procedure.
    The film therefore ends with a message, which was later attached to it, saying that the “Audiencia Provincial” overturned the judgment of the Judge of First Instance and that the original plaintiffs have filed an appeal against this judgment of the “Audiencia Provincial” with the Supreme Court, the “Tribunal Supremo”.

    The judgment of the “Tribunal Supremo” had originally been set for release on 23 June 2015
    (at least, if that’s the correct translation of
    “la sentencia sobre el caso de la talidomida en España se dará a conocer el próximo día 23 de junio”)(6),
    but on 24 June 2015, pope Francis received the Spanish Thalidomide monsters on St Peter’s Square at the Vatican (7)
    and the release of the judgment has been postponed to 23 September 2015. (8)

    5.2.
    DISCLAIMER
    I am not qualified to give any opinion on Spanish law.
    END OF DISCLAIMER

    5.2.1

    Section 1 of Article 1 of the Spanish Constitution says that Spain is established as a _SOCIAL_ and democratic _STATE_, subject to the _RULE OF LAW_, which advocates freedom, justice, equality and political pluralism as highest values of its legal system. (9)

    This Section of Spanish Constitution thus mentions the “Rechtsstaat” (Rule of Law) and the “Sozialstaat” in the same sentence.

    5.2.2
    DISCLAIMER
    I am not qualified to give any opinion on Spanish law.
    END OF DISCLAIMER

    In a civil-law (as opposed to common-law) country like Spain (and at the European Court of Justice), the Advocate-General, the “Fiscal General del Estado”, has to give a written advice to the Supreme Court as to the request / petition filed by the plaintiff, the reply of the defendant in the “Tribunal Supremo” and the rejoinder of the plaintiff.

    If I am not mistaken, AVITE nor its counsel filed a petition / request with the “Tribunal Supremo”.

    The case seems (remember that I am not qualified to give any opinion on Spanish law) to have been brought to the “Tribunal Supremo” by the Fiscal, either the Fiscal at the “Audiencia Provincial” or the Fiscal at the “Tribunal Supremo”.

    What seems different in Spain to my native southern-Low-Countries which are also a civil-law country is that Article 124 of the Spanish Constitution and Article 11.5 of the Spanish Law of Civil Procedure (“Ley de Enjuicimianto Civil”) determine the conditions under which the intervention of the Office of Fiscal can go further than giving an advice to the court on the admissibility and the merits of the case. These articles determine the conditions under which the Office of the Fiscal can go on to intervene in proceedings in defence of the general interest, in defence of consumers and in defence of users.

    Article 124, Section 1, of the Spanish Constitution says that:
    “The Office of the Fiscal, without prejudice to functions entrusted to other bodies, has the task of promoting the operation of justice in the defence of the rule of law, of citizens’ rights and of the public interest as safeguarded by the law, whether ex officio or at the request of interested parties, as well as that of protecting the independence of the courts and securing before them the satisfaction of social interest.”

    Section 2 of this Article 124 says:
    “The Office of Fiscal shall discharge its duties through its own bodies in accordance with the principles of unity of operation and hierarchical subordination, subject in all cases to the principles of the rule of law and of impartiality.”
    http://www.congreso.es/portal/page/portal/Congreso/Congreso/Hist_Normas/Norm/const_espa_texto_ingles_0.pdf

    Article 11.5 of the Spanish Law of Civil Procedure (“Ley de Enjuicimianto Civil”) says that:
    “The Office of the Fiscal is entitled to bring any action in defence of the interests of consumers and users.”
    “El Ministerio Fiscal estará legitimado para ejercitar cualquier acción en defensa de los intereses de los consumidores y usuarios.”
    http://www.boe.es/buscar/act.php?id=BOE-A-2000-323

    In a press article of January 2015, Madame the “Fiscal General del Estado” is quoted as saying that she is intervening in virtue of Article 124 of the Spanish Constitution and Article 11.5 of the Spanish Law of Civil Procedure (“Ley de Enjuicimianto Civil”). (10)

    This concerns the admissibility of her intervention which thus goes further than giving an advice to the court on the admissibility and the merits of the arguments invoked
    – in fact no arguments are being invoked as no request / petition seems to have been filed with the “Tribunal Supremo” –
    by the plaintiffs at the “Tribunal Supremo” against the judgment of the “Tribunal Provincial”.

    I repeat that I am not qualified to give any opinion on Spanish law.

    5.2.3
    DISCLAIMER
    I am not qualified to give any opinion on Spanish law.
    END OF DISCLAIMER

    Section 5.2.2 dealt with the “admissibility” of the intervention of the “Fiscal General del Estado” at the “Tribunal Supremo”.

    What arguments does the Fiscal invoke on the “merits” of her intervention? That’s the question with which this section 5.2.3 deals.

    From what I gather in the quoted May 2015 press article which merely reports the statements of AVITE – without the press being able to read the advice of the “Fiscal General del Estado” – the said Fiscal would support AVITE’s argumentation and would be arguing four things, i.e., would be making four statements. (6, again)

    ONE Grünenthal was not allowed to adopt the behaviour it adopted in Spain.
    (“Grünenthal no podía haber tenido la conducta que ha tenido con los afectados españoles, pues no se lo habrían permitido.”)

    TWO, THREE, AND FOUR
    Then the advice says, according to AVITE, as reported in the press:
    “y no podemos dejar de dar una solución coherente con el Ordenamiento Jurídico nacional e internacional a los afectados españoles”, por lo que “intentar resolver el problema de los afectados en España con 120.000 euros –para todos–, ataca en lo más profundo el valor de justicia reconocido en el artículo 1 de la Constitución Española…”

    As Bing and Google are unable to translate this in one coherent sentence, I will divide this into three separate statements, TWO, THREE and FOUR.

    TWO, the problem raised by the Spanish victims of Thalidomide is a problem which victims of Thalidomide invoke all over the planet. We [the authorities established on the territory of the Kingdom of Spain] cannot fail to give to the Spaniards affected a solution consistent with national and international law.

    THREE, this solution consistent with national and international law consists in paying 120’000 euro – for all (“para todos”) –,

    FOUR,
    this amount of 120’000 euro is a compensation for the damage caused by the infringement of Article 1 of the Spanish Constitution [whose Section 1 says, as we saw in section 5.2.1 of this blog-post, that Spain is established as a social and democratic state, subject to the rule of law, which advocates freedom, justice, equality and political pluralism as highest values of its legal system.]

    It appears immediately that AVITE does not say how the “Fiscal General del Estado”, the Advocate-General at the “Tribunal Supremo”, the Supreme Court of Spain, replies to the argument of the “Audiencia Provincial” that the demands are prescribed
    (time-barred by a “statute of limitations”, would USofA-ans say).

    AVITE does not outline how the “Fiscal General del Estado” proposes that the “Tribunal Supremo” could conclude that the original plaintiffs’ demand is not prescribed.

    This seems to confirm what I said in section 5.2.2 of this blog-post, i.e., that AVITE did not file any petition / request with the “Tribunal Supremo”, but that the case was brought to the said Tribunal by the Fiscal in virtue of Article 124 of the Spanish Constitution and Article 11.5 of the Spanish Law of Civil Procedure (“Ley de Enjuicimianto Civil”).

    Me, Ivo Cerckel, I can admit anything you want,
    but when I realise that the “Fiscal General del Estado” would, according to AVITE, be writing in her advice to the “Tribunal Supremo” that
    the Kingdom of Spain is established as a _SOCIAL STATE_,
    I cannot but conclude that it is not up to Grünenthal
    (that it was not up to Grünenthal under the Spanish Constitution under the Franco regime,
    Constitution which, I suppose, did not say that Spain was a Social state)
    to establish or constitute such a state.

    The Thalidomide story has, in many places, been barely told, says the trailer of the film.

    5.2.4
    DISCLAIMER
    I am not qualified to give any opinion on Spanish law.
    END OF DISCLAIMER

    Section 1 of Article 124 of the Spanish Constitution mentions that Spain is subject to the rule of law, mentions thus that Spain is a “Rechtsstaat”, but does not mention that Spain is a “Sozialstaat”.

    Section 1 of Article 1 of the Spanish Constitution says that Spain is established as a _SOCIAL_ and democratic _STATE_ , subject to the _RULE OF LAW_, which advocates freedom, justice, equality and political pluralism as highest values of its legal system. (9, again)

    This Section 1 of Article 1 of Spanish Constitution thus mentions the “Rechtsstaat” (Rule of Law) and the “Sozialstaat” in the same sentence. (11)

    This “rule of law”, “Rechtsstaat”, is of course an ago-old concept which is diametrically opposed to the “Sozialstaat”, but as the latter (“Sozialstaat”) is the younger, the “Sozialstaat” should have precedence over the “Rechtsstaat”.

    This is one more argument in favour of the view that the “Fiscal General del Estado” is arguing that the “Tribunal Supremo” could condemn the Welfare State to pay in lieu of the original defendant, Grünenthal.

    It’s not my fault that some (German and other) so-called “intellectuals” have introduced (the concept of) the Welfare State jointly with, and in the same bad faith as with, Thalidomide after the Second World-War.

    The Thalidomide story has, in many places, been barely told, says the trailer of the film.

    5.3.
    DISCLAIMER
    I am not qualified to give any opinion on Spanish law.
    END OF DISCLAIMER

    The proceedings before the Madrid Court of First Instance were instituted in 2013.

    I am confused because I find a press article already from 2011 saying that Grünenthal had proposed this amount of 120’000 euro, which the Fiscal now says is a compensation for the damage caused by the infringement of Article 1 of the Spanish Constitution, to be paid to Thalidomide monsters. Remember however that I am totally unqualified to give any opinion on Spanish law.

    Indeed when I search on https://www.google.es/
    for
    “talidomida 120.000 euros –para todos” https://www.google.es/#q=talidomida+120.000+euros+%E2%80%93para+todos%E2%80%93

    this brings up on the first page a 2011 article which says that AVITE considers the offer of 120’000 by Grünenthal insufficient. (12)

    120’000 can easily be divided in into 12.

    And yes, there is a 14 October 2013 press article saying that Grünenthal offered this as an “annual” amount (of 120’000, i.e., 12 monthly payments of 10’000 euro) but that the Spanish Thalidomide monsters rejected this. (13)

    So the Spanish Thalidomide monsters rejected an offer of a pension of 10’000 euro per month?

    Maybe there is something wrong with my translation, in section 5.2.3 of this message, of part of the 20 May 2015 ABC.es article “El Supremo fallará sobre el caso de la talidomida el 23 de junio” quoted in note 6. (6, again)

    Or did AVITE or the press misquote or misreport the contents of the advice of the Fiscal?

    If the annual amount of 120’000 euro of which the Fiscal talks is the same amount which was offered by Grünenthal in 2011, i.e., before the 2013 court proceedings were instituted, is the Fiscal then not saying that this offer was satisfactory? But that offer is no longer valid since the would-be beneficiaries of this offer have instituted court proceedings.

    These proceedings have demonstrated that the demand of the would-be beneficiaries of the 2011 offer of Grünenthal is prescribed. If the “Tribunal Supremo” annuls the judgment of the Madrid “Audiencia Provincial” and sends the case back to another “Audiencia Provincial”, the latter “Audiencia Provincial” will not be able to condemn Grünenthal to pay this amount without demonstrating how the demands would not be prescribed. But no request / petition in cassation has been filed by the plaintiffs as the case has in fact been instituted by the Fiscal at the “Audiencia Provincial” or the Fiscal at the “Tribunal Supremo” (remember that I am not qualified to give an opinion of Spanish law) in virtue of Article 124 of the Constitution and of Article 11.5 of the Law of Civil Procedure. So the case could not possibly be sent back to another “Audiencia Provincial”?

    We are therefore again forced to conclude that the advice of the Fiscal is saying that it is up to the Spanish “Sozialstaat” to pay.

    As I said, it is not up to Grünenthal
    (it was not up to Grünenthal under the Spanish Constitution under the Franco regime, Constitution which, I suppose, did not say that Spain was a Social state)
    to establish or constitute a “Sozialstaat”.

    Why does the “Fiscal General del Estado”, the only Fiscal who’s intervening in the proceedings
    even if these proceedings would have been instituted by the Fiscal at the “Audiencia Provincial”
    (that’s what is meant by the “unity of operation” about which Section 2 of Article 124 of the Constitution speaks)
    say that “we” cannot fail to give to the Spaniards affected a solution consistent with national and international law
    (“y no podemos dejar de dar una solución coherente con el Ordenamiento Jurídico nacional e internacional a los afectados españoles”) ?

    Why does she, the Fiscal, not say that the solution consistent with blahblahblah consists in blahblahblah?

    Why does she say that “we” cannot fail to give to Spaniards affected a solution consistent with blahblahblah?

    Is that not because she is also ashamed?

    The “Fiscal General del Estado” is ashamed of what?

    Is she ashamed of the fact that, after half a century, the solution has not yet been provided?

    Or does she realise that, as my 16 August 2015 Cebu (Philippines) International Documentary Film Festival (CIDFF) pamphlet concluded,
    the “responsible”, the cause, or the culprit of the Thalidomide scandal is
    not Grünenthal, the pharmaceutical company that created and sold the drug,
    but the governments which, after the French government had banned Thalidomide,
    neither did prevent the product being brought onto their markets
    nor did, once the product had been brought onto their markets, immediately order its withdrawal from these markets?
    (section 1 of this blog-post)

    Remember
    that Thalidomide was – after the French ban – first marketed in 1957,
    that the then-EEC, which was also instituted in 1957, waited three decades, until 1985, to adopt its product-liability directive,
    that after Franco had died in 1975, the 1978 Spanish Constitution went on to decree that Spain was a “Sozialstaat”,
    that on 01 January 1986 when Spain acceded to the EEC, the product-liability directive was in effect,
    n’est-ce pas Jacques H. Herbots ?

    Fact is:
    Before Thalidomide was ever marketed, i.e., before it was marketed in West-Germany, the product had been banned in France.

    The question is therefore not:
    Why did Grünenthal continue selling Thalidomide in Spain after it had stopped distribution in most of the rest of Europe in November 1961?

    But is:
    Why did some governments, starting with the West-German government, not prevent Thalidomide being marketed on their territories?

    The Thalidomide story has, in many places, been barely told, says the trailer of the film.

    Ivo Cerckel
    ivocerckel@siquijor.ws

    NOTES

    (1)
    Chronik des Contergan-Falls: Tragödie – Katastrophe – Skandal?
    http://www1.wdr.de/themen/archiv/sp_contergan/contergan176.html
    SNIP
    27. November 1961:
    Die Firma Grünenthal kündigt in einem Telegramm an das Düsseldorfer Innenministerium an, ihre Thalidomid-Präparate im In- und Ausland sofort aus dem Handel zu nehmen.

    (2)
    The forgotten victims
    When the Thalidomide scandal erupted in 1961, the drug was soon banned. Yet pregnant women in Spain continued taking it until the 1980s — and the authorities refuse to accept responsibility.
    Caroline Scott Published: 3 May 2015
    http://www.thesundaytimes.co.uk/sto/Magazine/Article1547785.ece

    (3)
    Culture is the values, beliefs, behaviour, and material objects that together form a people’s way of life. Culture includes what we think, how we act, and what we own. Culture is both a bridge to our past and a guide to the future.
    (John J. Macionis, “Sociology”, Prentice Hall, 2003 inr’l ed., p. 61 referring to Wolf Soyinka, “Africa’s Culture Products”, in: “Society”, Vol. 28, No 2, January-February 1991, pp. 32 – 40).

    (4)
    Cultural forces constantly mould human biology. For example, culture is a key environmental force determining how human bodies will grow and develop. Cultural traditions promote certain activities and abilities, discourage others and set standards of physical well-being and attractiveness. Physical activities, including sports, which are influenced by culture, help build the body. For example, North American girls are encouraged to pursue, and therefore do well in, competitive track and field, swimming, diving, and many other sports […] Why are girls encouraged to excel as athletes in some nations but discouraged from physical activities in others [e.g. Latin America]?
    (Conrad Phillip Kottak, “Anthropology – The Exploration of Cultural Diversity”, McGraw Hill, 2000, 8th ed. p. 7)

    (5)
    I discussed these proceedings here:

    Historical Criticism, Thalidomide, Statutes of Limitations and Prescription – Update 1.0
    Posted by Ivo Cerckel on October 23rd, 2014
    http://bphouse.com/honest_money/2014/10/23/historical-criticism-Thalidomide-statutes-of-limitations-and-prescription/

    (6)
    El Supremo fallará sobre el caso de la talidomida el 23 de junio
    jaime recarte jrrecarte / madrid
    Día 20/05/2015 – 02.36h
    http://www.abc.es/sociedad/20150520/abci-fallo-supremo-talidomida-201505191625.html
    SNIP
    La Asociación de Víctimas de la Talidomida en España (AVITE) ha señalado que la sentencia sobre el caso de la talidomida en España se dará a conocer el próximo día 23 de junio.
    En una carta remitida a los medios, la asociación ha explicado la Fiscalía del General del Estado ha apoyado todas las peticiones de AVITE con un extenso alegato en el que ha explicado que la farmacéutica alemana Grünenthal «no podía haber tenido la conducta que ha tenido con los afectados españoles, pues no se lo habrían permitido».
    El Ministerio Fiscal ha expuesto, según AVITE, que “el problema de los afectados por la talidomida es un clamor mundial… y no podemos dejar de dar una solución coherente con el Ordenamiento Jurídico nacional e internacional a los afectados españoles”, por lo que “intentar resolver el problema de los afectados en España con 120.000 euros –para todos–, ataca en lo más profundo el valor de justicia reconocido en el artículo 1 de la Constitución Española…”.

    (7)
    I discussed this papal reception of Spanish Thalidomide monsters here:

    Pape François Saint Thomas et Victimes Thalidomide Espagne
    Auteur: Ivo Cerckel
    Date: 24-05-2015 02:05
    http://www.thomas-aquin.net/PHPhorum/read.php?f=1&i=18283&t=18283

    (8)
    El Supremo fallará sobre el caso de la talidomida en septiembre
    Madrid – 03-07-2015
    http://www.consalud.es/pacientes/el-supremo-fallara-sobre-el-caso-de-la-talidomida-en-septiembre-19142
    SNIP
    El Tribunal Supremo ha señalado el próximo 23 de septiembre para la celebración del pleno de la Sala de lo Civil en el que los magistrados votarán y fallarán el caso de la talidomida en España, por el que los afectados reclaman indemnizaciones a la farmacéutica alemana Grünenthal.

    (9)
    La Constitución española de 1978.
    http://www.congreso.es/consti/constitucion/indice/titulos/articulos.jsp?ini=1&fin=9&tipo=2
    Título preliminar
    Artículo 1.
    1.
    España se constituye en un Estado social y democrático de Derecho, que propugna como valores superiores de su ordenamiento jurídico la libertad, la justicia, la igualdad y el pluralismo político.
    2.
    La soberanía nacional reside en el pueblo español, del que emanan los poderes del Estado.
    3.
    La forma política del Estado español es la Monarquía parlamentaria

    (10)
    La Fiscalía General del Estado se personará en las demandas judiciales de los afectados por la talidomida
    [SUBTITLE] Entiende que estas personas tienen que ser resarcidas porqe la propia farmacéutica reconoció públicamente su responsabilidad
    ep / madrid
    Día 21/01/2015 – 18.29h
    http://www.abc.es/sociedad/20150121/abci-Fiscalia-afectados-talidomida-201501211737.html
    SNIP
    Sin embargo, la Fiscalía les ha trasladado su compromiso de personarse en este recurso amparándose en el artículo 124 de la Constitución y en el artículo 11.5 de la Ley de Enjuiciamiento Civil, cuya modificación aprobada en 2014 amplía la legitimación del Fiscal para intervenir en procedimientos en defensa de los intereses generales, y de los consumidores y usuarios.

    (11)
    Yes, this Section 1 of Article 1 of Spanish Constitution also says that Spain is a “democratic” state.
    What “democracy” means, I still don’t know.
    “Tot sententiae quot homines!”(There are as many definitions of democracy as there are people who hold them.)
    I can only guess that the Spanish Constitution uses this concept of “democracy” as a reaction against the Franco regime.

    (12)
    Víctimas de la talidomida en España piden en los juzgados …
    http://www.infosalus.com/actualidad/noticia-victimas-talidomida-espana-piden-juzgados-156-millones-euros-companias-responsables-farmaco-20110620140949.html
    SNIP
    20 jun. 2011 – Según esta demanda de conciliación, AVITE considera “insuficiente” los 120’000 euros que Grünenthal ha ofrecido para indemnizar a todos ..

    (13)
    Las víctimas de la talidomida pedirán este lunes 204 millones de euros de indemnización
    EFE. 14.10.2013 – 10:18
    http://www.20minutos.es/noticia/1946266/0/talidomida/indemnizacion/juicio/#xtor=AD-15&xts=467263
    SNIP
    La farmacéutica ofreció 120.000 euros anuales para todos los afectados, pero éstos lo rechazaron.

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