Monitoring the case of Andrei Tatarintsev (session 03/20/2020)
On March 20, 2020, an open court hearing was held in the Kuybyshevsky District Court of the Zaporizhsky Region in the case of businessman Andrei Tatarintsev, who is charged with committing crimes under Part 1 of Art. 258-3, p. 5, art. 27, part 2, article 28, part 2, article 437, part 1 of the article 438 of the Criminal Code of Ukraine (financing of a terrorist organization, aiding in the conduct of an aggressive war, cruel treatment of prisoners of war and civilians).
According to the lawyer, Andrey Tatarintsev’s accusation is that in 2014-2015 he was trading gasoline at a tank farm located in the territory of the Eastern Ukraine and transferring it to armed persons, allegedly military men of the unrecognized republics of the “DPR / LPR”, as well as transferring fuel to the ambulance station and other facilities in the territory of the “DPR / LPR”.
Experts from the International Society for Human Rights continue to monitor this trial.
The ISHR observer recorded that despite the quarantine measures introduced by the government in the context of the coronavirus epidemic, as well as the recommendations posted at the entrance to the court, the panel of judges, the court clerk and the convoy did not have masks. Also, the mask was not given to the accused, who, according to him, was transported in a car that did not pass through disinfection. Also, according to information provided to the ISHR observer by Tatarintsev and the convoy’s staff, no sanitary measures are taken in the pre-trial detention center, the prisoners are not provided with masks and disinfectants, the pre-trial detention center’s medical unit does not examine the prisoners either when they go to court or when they return to the pre-trial detention center, which can expose a large number of contained in tight and poorly ventilated areas to the risks of coronavirus infection.
Given that the accused suffers from severe diabetes, and therefore is at risk for coronavirus, this situation can be regarded as a violation of human rights (Article 3 of the European Convention). Thus, the decision of the ECtHR in the case of “Kudla v. Poland” (No. 30210/96, § 94, ECHR 2000-XI) states that detainees should be held in conditions compatible with respect for their human dignity, and that the nature and method of implementation of the measure the detainees were not in difficulty which intensity exceeds the inevitable level of suffering inherent in imprisonment.
Before the trial, Andrei Tatarintsev informed his lawyer about his poor health, that he had not been given sugar-lowering pills, and instead of a dietary meal, he had a torn bag with cookies, butter, white bread and other foods that are contraindicated for diabetes. In addition, the accused claimed that the last measurement of sugar was made to him in the courtroom two months ago, and since then the doctor of the medical unit did not even come to him. Attorney Vladimir Lyapin filed a request for an ambulance. However, the court, having conferred on the spot, decided that Tatarintsev cannot take part in the hearing in this state of health, and ignored the request to call an ambulance. Several attempts by the lawyer to recall the need for medical care were again ignored, and the judge, Malevanny V.A. stated the need to consider extending the measure of restraint.
ISHR experts note that such actions by the state may violate article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which states that “No one shall be subjected to torture or to inhuman or degrading treatment or punishment” (case of “Beketov v. Ukraine”), No. 44436/09, § 76, ECHR 2019-II). Also, according to the decision in the “Kalashnikov v. Russia” case (No. 47095/99, § 95, ECHR 2002 VI), the state must ensure that a person is detained in conditions consistent with respect for human dignity, so that the nature and method of execution of the measure of restraint does not cause the person suffering or difficulty, the intensity of which exceeds the inevitable level of suffering inherent in detention.
In addition, the court is not the first time, having decided to postpone the hearing due to the impossibility of Tatarintsev’s participation in it for health reasons, continues the hearing to hear the petition of the prosecution to extend the measure of restraint.
Lawyer Lyapin V. challenged the presiding judge Malevanny V.A. on the grounds that the judge by his actions endangers the life of the defendant. Returning from the deliberation room, the board rejected the challenge without giving any reason. The full text of the decision, according to the judge, will be presented later. Then the lawyer declared the second challenge – to the judge Khodko V.N., having informed that he would provide the argument of the challenge in writing at the next hearing. The challenge was rejected. We consider it necessary to pay attention that all this time Andrei Tatarintsev was without medical assistance. Judge Malevanny V.A. said that an ambulance would be called only when the board retired to the deliberation room to make a decision to extend the measure of restraint. An ambulance paramedic who appeared in the courtroom over time recorded sugar at 12.1 with a normal rate of 5.5 and high blood pressure. The paramedic was questioned and affirmed that Tatarintsev needed ro visit endocrinologist, timely medication and dietary intake. To help the patient, namely, to organize control of sugar, is possible only in a hospital. The court released the paramedic and made no decisions to provide Tatarintsev with medical care, but again ignored the requests of the lawyer and the accused himself.
In the decision of the ECtHR in the case of “Salakhov and Islyamova v. Ukraine” (No. 28005/08, § 129, ECHR 2013-III) “The Court emphasizes that Article 3 of the Convention imposes an obligation on the State to ensure, taking into account the practical requirements of imprisonment, that health and the well-being of the prisoner was adequately guaranteed, including by providing him with the necessary medical care … One of the important factors for such an assessment is a drastic deterioration in the state of health of a person in places of detention, which inevitably casts doubt on the adequacy of the medical care available there …” In addition, the ECtHR has repeatedly indicated that the provision of necessary medical assistance to persons in places of detention is the responsibility of the state (“Wuhan v. Ukraine”, No. 30628/02, § 72, ECHR 2008-XII).
The prosecutor who participated in the hearing via videoconference read out a request for an extension of the measure of restraint in the form of detention. ISHR experts express concern that the prosecutor once again repeated the same arguments in his application (the gravity of the charge, the presence of social ties in uncontrolled territory and in the Russian Federation, the possibility of pressure on witnesses) without substantiating or proving in detail, but only stating the existence of risks of non-fulfillment by the defendant of their procedural obligations and the inability to avoid these risks with the help of milder measures, which is a prerequisite for detention (Articles 176-178, 183 of the Code of Criminal Procedure).
According to the legal position of the ECtHR in the case of “Todorov v. Ukraine” (No. 16717/05, § 62, ECHR 2012-IV), there must be exceptionally good reasons for extending detention. Moreover, as the Court points out, only the gravity of the crime, the complexity of the case and the seriousness of the charges cannot serve as a basis for extending such a measure. In addition, Art. 184 of the Code of Criminal Procedure of Ukraine expressly states that the prosecutor’s application for the application of a measure of restraint should contain a statement of circumstances, based on which the prosecutor concluded that there are one or more risks noted in his application, and links to materials that confirm these circumstances. Once again, the prosecutor did not confirm the presence of risks with either written evidence or witness testimony.
The court decided to leave Andrey Tatarintsev in custody for another 60 days.
The International Society for Human Rights notes that the fact that other measures of restraint were not considered by the court when extending detention in custody may indicate a violation of paragraph 3 of Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“Buryaga v. Ukraine” 27672/03, § 62, 2010-X) – the right to trial within a reasonable time or to release pending trial. Release may be subject to guarantees of attendance of the court i.e. the right to consider an alternative measure of restraint.
ISHR observers will continue to monitor this proceeding.