On December 23, 2020, an open court hearing was held in the Kuibyshevsky District Court of the Zaporozhye Region in the case of businessman Andrey Tatarintsev, who is accused of committing crimes under Part 1 of Art. 258-3, Part 5 of Art. 27, Part 2 of Art. 28, Part 2 of Art. 437, Part 1 of Art. 438 of the Criminal Code of Ukraine (financing of a terrorist organization, complicity in the conduct of an aggressive war, cruel treatment of prisoners of war and the civilian population).
Experts of the International Society for Human Rights continue to monitor this criminal proceeding.
At the beginning of the hearing, the accused stated that he was not feeling well, and lawyer V. Lyapin asked the judges for permission to ask the convoy if A. Tatarintsev had been given medications and diet food prescribed by the doctor for the day. The panel of judges refused to satisfy the motion, citing the fact that this had nothing to do with the essence of the case, and the presiding judge added that the lawyer already knew that none of the above had been given to the accused.
A.Tatarintsev was outraged by the court’s decision, stating that he was again given food unacceptable for diabetics and was not provided with any medicine or mask, although in the pre-trial detention center out of seven people who passed the coronavirus test, five had a coronavirus. When asked if the defendant was ill with COVID, the lawyer replied that the pre-trial detention center impedes the doctor’s ability to conduct an examination in the detention center. Despite the information provided by the lawyer, the court, without questioning the accused whether he could take part in the hearing for health reasons, invited the parties to file petitions.
The International Society for Human Rights expresses concern that the court did not respond to the accused’s statement that he was denied access to medical care, especially during the COVID19 pandemic. In the judgment in the case “Garumov v. Ukraine” (No. 70043/17, § 46, ECHR 2019-VI), the European Court of Human Rights notes that the refusal of the state to place a prisoner in a hospital for additional examination and inpatient treatment if his health deteriorates is inhuman and degrading treatment. This fact was regarded by the ECtHR as a violation of Article 3 of the Convention.
Further, the defense side announced the challenge of the panel of judges. The lawyer V. Lyapin referred to Art. 206 of the Criminal Procedure Code of Ukraine, which defines the actions of judicial control carried out by the court in order to ensure the rights of the defendants during the trial. This article requires the court, in case of a statement by the defendant about the use of violence against him during detention, to accept such a statement from the accused, to provide a forensic medical examination, to instruct the relevant investigative body to investigate the facts, to take the necessary measures to ensure security. According to the lawyer, the defense repeatedly raised the issue of not providing A. Tatarintsev with medicines and dietary food in the pre-trial detention center. The court does not take any action or decision, as a result of which the state of health of the accused is constantly deteriorating. The collegium confines itself to formal sending requests about the possibility of treating the defendant in the conditions of a pre-trial detention center and about checking the facts indicated by the defense by the supervisory authorities. Most of these orders have not been answered yet, and this does not cause any reaction from the court.
Lyapin reminded the collegium that as early as September 28, 2020, he filed a request to receive from the pre-trial detention center statements about the possibility of A. Tatarintsev’s treatment in the isolation ward. The collegium satisfied it and sent a letter to O. Shulga, the head of the “Health Protection Center” branch of the State Administration for Information Protection in the Zaporozhye region, demanding to provide the court with a video recording of the transfer of medicines to A. Tatarintsev. The video recording was not provided to the court, but the collegium again did not react to it. Also, lawyer V. Lyapin recalled the hearing held on December 2, 2020, at which the issue of extending the measure of restraint to A. Tatarintsev was considered. The defender noted that on that day, A. Tatarintsev’s blood sugar rose to 22.5 points, while the norm was 5.5, the blood pressure rose to 165/95 and the temperature rose to 37.3. The employees of the pre-trial detention center medical unit suspected the prisoner had COVID (this was confirmed by the certificate of the head of pre-trial detention center 11, D. Balashov, dated 12.02.2020). Thus, the convoy was not allowed to take A. Tatarintsev to court. A video conference was scheduled, but the state of health of the accused was such that he was physically unable to participate in it, as reported to the collegium by video link and went to the medical unit of the pre-trial detention center, where by that time the prosecutor for supervision and the doctor of the health center had arrived to examine the patient. The lawyer V. Lyapin said that the judges ignored this fact and continued the session without the participation of the accused (which is unacceptable according to the provisions of Article 193 of the Criminal Procedure Code of Ukraine), referring to his allegedly voluntary refusal to participate. On this occasion criminal proceedings began on the commission of a criminal offense under Part 1 of Art. 374 of the Criminal Code of Ukraine (violation of the right to defense), in which A. Tatarintsev was recognized as a victim.
Also, according to the text of the defense petition, a few months ago Tatarintsev’s blood sugar reached 15 units, and now it reaches 20 and above, which indicates an obvious deterioration in the health of the accused, who, with such indicators, may fall into a coma. A. Tatarintsev himself told the court that every day at 7 am employees of the medical unit come to him to measure sugar and blood pressure, but they do not bring medicine. According to the accused, the chief medical officer D. Balashov in a privat conversation explained to him that such a demand came directly from the head of the financial institution of the public health center in the Zaporozhye region, O. Shulga, from whom the Zaporozhye prosecutor’s office demanded to act in this way.
The International Society for Human Rights draws attention to the fact that Art. 6 of the Convention clearly states that the implementation of court decisions is part of the right to a fair trial. Each party must be given a reasonable opportunity to present its evidence in conditions that do not place it at a disadvantage in relation to its opponent (“Avotins v. Latvia” No. 17502/07, para. 119 of 05.23.2016; “Dombo Beheer B.V. The Netherlands”, No. 14448/88, para. 33 of 10.27.1993).
In addition, the Court considers that the government must provide reliable and convincing evidence that the accused received comprehensive and appropriate medical assistance while in detention (“Savinov v. Ukraine”, No. 5212/13, para. 50, of 10.22.2015), since it is the State that is responsible for the detention of persons in conditions that respect human dignity, including the provision of necessary medical care (“Kalashnikov v. Russia”, No. 47095/99, para. 95, ECHR 2002 VI; “Wuhan v. Ukraine”, No. 30628/02, para. 72, ECHR 2008-XII). A sharp deterioration in the state of health of a person in places of detention inevitably casts doubt on the adequacy of the medical care available there (“Salakhov and Islyamova v. Ukraine”, No. 28005/08, para. 129, ECHR 2013-III).
While the board was in the deliberation room, an ambulance arrived at the court. The paramedic recorded Tatarintsev’s blood sugar at 17.1 (with a norm of 5.5) and a blood pressure of 160/100. Since the ambulance kit does not include hypoglycemic drugs, the paramedic offered to take the defendant to the hospital to provide him with medical assistance. The convoy picked up the accused and took him to the hospital in Belmak.
Leaving the deliberation room, the board rejected the challenge, and since A. Tatarintsev was no longer in the courtroom, suggested postponing the hearing. Lawyer V. Lyapin stated that he had received a letter from Strasbourg from the head of the ECtHR Filtration Section, Judge Klaudiusz Ringilevich, which indicated that the complaint about A. Tatarintsev was given priority in accordance with Rule 41. On 13 November 2020, an emergency examination of the complaint under Rule 39, with the requirement to ensure the transfer of the applicant to a specialized clinic for treatment, was suspended by the European Court in order to provide additional information on the reaction of the authorities to the applicant’s health problems, as well as on the applicant’s attempts to obtain legal protection for his complaints and the results of these attempts. By January 15, 2021, the state must provide the European Court with the following materials and answers to the questions raised:
– whether the applicant had access during the last 6 months to consultations of medical specialists specialized in the relevant fields related to his diseases;
– whether all prescribed medical tests have been performed and has been provided with all medications or other prescribed treatment;
– copies of the applicant’s complete medical record, including medical records of his current state of health and copies of documents issued by specialist doctors who advised him and prescribed treatment;
– details of the food offered to the applicant in the remand prison and during transport between the remand prison and the courthouse;
– copies of the menu according to which the applicant was given food in the remand prison and during transport between the remand prison and the courthouse.
Experts from the International Society for Human Rights will continue to monitor this proceeding.