Monitoring of the trial of Darya Mastikasheva (brief information on the situation in November 2017)
On December 1, 2017, in Dnepr (Ukraine), a trial should have been held on the case of Darya Mastikasheva, a Ukrainian citizen residing in Russia. She is accused of a high treason performed by way of recruiting veterans of the antiterrorist operation in the East of Ukraine (ATO) to imitate preparation of terrorist acts in Russia, which would be used by the Russian intelligence service to discredit the Ukrainian authorities. As it turned out later, Darya Mastikasheva was kidnapped and unlawfully detained for several days, whereupon she was apprehended by the Ukrainian Security Service (SBU).
After the fact of abduction and tortures exercised in respect of Darya Mastikasheva became known to a wider public, the authorities ruled to take her to a compulsory psychiatric examination. The appeal petition filed by the lawyer in respect of such a ruling by the court should have been considered on December 1, 2017.
Chronology of the latest events. On November 9, 2017, during a closed court hearing (after removing representatives of civil society from the court room) a decision was passed to send Darya Mastikasheva for a compulsory psychiatric examination. The decision was motivated by her alleged “refusal from participation in the majority of investigative actions”.
On November 24, 2017, prior to the time when the above-mentioned court decision would come into force (according to the law, no decision shall come into force until a term when the parties could challenge it elapse). Darya Mastikasheva was sent to an in-patient department of the psychiatric clinic. It must be noted that transfer to the psychiatric clinic occurred on Friday, on the eve of two days-off when no examination would be performed. The lawyer stated that he was not aware of his client transfer to a medical institution.
On December 1, 2017, a court hearing should have been held on the appeal petition filed by Valentin Rybin, the lawyer, in respect of decision of the court to send Darya Mastikasheva to a compulsory psychiatric examination. The court hearing, however, did not take place, since Darya Mastikasheva was not transported to court. Representatives of the medical institution stated they were not empowered to transport the suspect to court, while the prosecutor’s office stated they were not responsible for her movements (including those to the court) after Darya Mastikasheva was placed into clinic.
The court assigned the prosecutor’s office the responsibility to transport Darya Mastikasheva to the next court hearing scheduled for December 11, 2017. Thus, there occurs a situation when the woman is being kept in a psychiatric hospital for two weeks already without any actual decision of the court (since the decision by court dated November 9, 2017 has not come into force yet).
Compliance of the events to the norms of the European convention of human rights and fundamental freedoms (European convention) Analysis of practice by the European court for human rights (ECHR) allows to assume that some facts occurring in the process of Darya Mastikasheva can contradict with the European convention:
- The mere fact of sending the defendant for a compulsory psychiatric examination due to unwillingness to cooperate with investigation can be qualified as tortures. In the case “Selmouni v. France” ECHR provides the following definition of “tortures” – willful causing of a strong pain or suffering, physical or psychological, in particular, for the purpose of getting information, punishment or intimidation. In the case of Darya Mastikasheva, sending the accused to a psychiatric clinic, due to her “refusal from participation in the majority of investigative actions” can be qualified as causing a psychological suffering aimed at getting information (i.e. start of cooperation with investigation) or punishment (for refusal to cooperate).
- In the course of the court hearing dated December 1, 2017, based on statements by the Pre-detention Centre administration and those of the psychiatric clinic, none of them had any authority or possibility to transport Darya Mastikasheva to the court. This situation may contradict with the norms of the European convention. In the case “Gorshkov v. Ukraine” ECHR noted that access of a detained person to a judge must not depend on a good will of Pre-detention centre or medical institution administration. Therefore, the “argument” between the prosecutor’s office and the medical institution administration itself points out either to a collision in deciding on participation in court hearing of persons who were placed into a hospital, which results in violation of the European convention, or to a reluctance of the responsible persons to execute their duties, which results in violation of Darya Mastikasheva’s right to a fair trial.
The next court hearing is scheduled for December 11, 2017. The experts of the International Society for Human Rights will continue monitoring and clarifying the details of this trial. Previous materials can be viewed here.
Expert Council of ISHR