Monitoring the case of Andrey Tatarintsev (hearing 8.28.2020)
On August 28, 2020, in the Kuibyshevsky District Court of the Zaporozhye Region, an open trial continued in the case of businessman Andrei 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 a terrorist organization, complicity in the conduct of an aggressive war, cruel treatment of prisoners of war and the civilian population).
Experts from the International Society for Human Rights continue to monitor this trial.
At the previous hearing, 08.27.2020, judge V.A. Malevanny planned to single-handedly consider the issue of extending the measure of restraint to Andrey Tatarintsev in accordance with the transitional provisions of the Criminal Procedure Code of Ukraine, since one of the judges of the collegium was on vacation. However, he could not do this, since lawyer V.Y. Lyapin announced the challenge of the entire collegium, and the court has no right to take any other actions until this issue is resolved. 08/28/2020, judge G.Y. Valigursky was recalled from vacation to consider a challenge.
In his speech, lawyer V.Y. Lyapin outlined the circumstances that raise doubts about the objectivity of the board. He drew attention to the fact that at the previous hearing it was once again found out that the accused, suffering from type 2 diabetes, is not provided with the treatment and diet recommended by the doctor. The defense lawyer asked to attach to the case statement from an endocrinologist and a certificate from the hospital in Belmak, where Andrei Tatarintsev was taken by an ambulance after the court hearing on August 27, 2020. The hospital doctors determined that the accused was in a state of moderate severity and needed constant medication according to the endocrinologist’s discharge. However, at today’s hearing, the accused was again given a bag with food that is strictly forbidden to use in case of diabetes mellitus and again did not provide the necessary medicines. The lawyer believes that the panel of judges is guided by a certificate from the pre-rial detention center medical unit to permanently extend the exceptional measure of restraint, which says that Andrei Tatarintsev is provided with everything he needs. According to him, the court has not yet found out whether the official who signed the certificate is a specialist in the treatment of diabetes mellitus and what is actually given to Andrei Tatarintsev. This certificate is refuted by objective data, which were repeatedly established in the courtroom – explanations of the ambulance staff, the testimony of the convoy, the conclusions of endocrinologists who examined A. Tatarintsev both in the courtroom and in the pre-trial detention center. According to the last examination on August 21, his health condition deteriorated due to inappropriate treatment. Lawyer Lyapin said that the panel of judges pays attention exclusively to the arguments of the prosecution, including those that are not substantiated by anything, and the panel ignores the factual circumstances that are established in the courtroom completely.
In this regard, it is necessary to pay attention, according to the European Court, the government must provide reliable and convincing evidence that the accused received comprehensive and appropriate medical assistance while in custody (case “Savinov v. Ukraine”, no. 5212/13, paragraph 50, dated October 22, 2015).
In addition, V.Y. Lyapin drew attention to the repeated violation of the right to defense. At this hearing, as well as at the previous hearing, on August 27, 2020, Andrei Tatarintsev’s second defense lawyer, lawyer V. Kravtsov, was absent, however, the presiding judge, violating the norms of the Criminal Procedure Code, did not ask the defendant whether it was possible to continue the hearing.
According to the practice of the ECtHR, the right of a person accused of committing a crime to an effective defense by a lawyer is one of the fundamental characteristics of a fair trial (paragraph 51 of the judgment “Salduz v. Turkey”, no. 36391/02 of 11.27.2008). This right itself includes not only the right to the presence of a lawyer, but also the right to receive legal assistance as needed (paragraph 49 of the decision “Lagerblom v. Sweden”, No. 26891/95 of 01.14.2003; paragraph 89 of the decision “Galstyan v. Armenia “, No. 26986/03 of 11.15.2007).
The defense also called the behavior of the court unacceptable and biased, which at one of the previous hearings did not make any decision on the defense’s motion to recognize as obviously inadmissible a number of evidences from the prosecution, but gave the prosecutor time to establish the circumstances referred to in the petition. The lawyer claims that this is not provided for by any provision of the Criminal Procedure Code and will violate the principle of equality of parties in the process. The European Court considers that each party should be given a reasonable opportunity to present its evidence under conditions that do not place it at a disadvantage in relation to its opponent (“Avotins v. Latvia” No. 17502/07, paragraph 119 of 05.23.2016; “Dombo Beheer BV v. The Netherlands”, no. 14448/88, paragraph 33 of October 27, 1993).
The stated challenge was not accepted, the motivation of the court ruling is not known to the observer of the ISHR, since only the operative part of the ruling was announced at the hearing.
Then, in the order of Art. 331 of the Criminal Procedure Code of Ukraine, the collegium proposed to make a decision on the advisability of extending the measure of restraint to Andrey Tatarintsev in the form of detention and passed the floor to the prosecutor. Prosecutor Aleksey Kozakevich began to talk about the presence of risks that the defendant will hide from the court, since he has close social ties in the uncontrolled by the Ukrainian government city of Krasnodon (Sorokino) of the Lugansk region, will illegally influence witnesses, and will also be able to access material evidence in the case.
According to the legal position of the ECtHR in the case “Todorov v. Ukraine” (no. 16717/05, § 62, ECtHR 2012-IV), there must be extremely compelling reasons for the prolongation of detention. Moreover, as the European 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 directly states that the prosecutor’s request for the application of a measure of restraint must contain a statement of the circumstances on the basis of which the prosecutor came to the conclusion about the presence of one or several risks noted in his request, and references to materials that confirm these circumstances. The ISHR experts express concern that in his speech the prosecutor, once again repeated the same arguments, without substantiating or proving in detail, but only stating the existence of risks of the defendant’s failure to fulfill his procedural duties and the impossibility of avoiding these risks with the help of milder measures, which is a prerequisite for detention (Articles 176-178, 183 of the CCP).
The lawyer V. Lyapin lodged a protest, since he had previously registered a petition to change the measure of restraint in the court office, therefore it (within the framework of Art. 201 of the Criminal Procedure Code of Ukraine) should have been considered earlier. The defense lawyer also asked the prosecutor to provide written evidence of the existence of the risks to which he referred. The prosecutor replied that the evidence is partially already examined and not yet examined materials of the criminal case. The lawyer expressed surprise, since at the moment only the extract from the ERDR and the order on the appointment of a group of prosecutors were considered, which can in no way be evidence of the existence of a risk. It is impossible to refer to materials not yet considered directly by the court; they must be considered in the court session before making a decision. Nevertheless, the court stated that since the prosecutor believes that what he has said is enough, it is his right to examine documents confirming the existence of risks in court, but court will assess the arguments of the parties in the deliberation room.
V. Lyapin, a lawyer, said that in this case the right to defense would be violated. The defense will not be able to file a properly drawn up appeal against the court’s decision. There must be a motivational part in the decision. Refer to Part 5 of Art. 176 of the Criminal Procedure Code, which was declared unconstitutional, is no longer possible. Also, the law prohibits referring to the indictment as documentary evidence of the existence of risks (although the court did this on several occasions). Since the prosecutor did not provide any documents, but only expressed his opinion, the defense does not understand what the court’s argumentation will be for making a decision and about what to write in the appeal.
The lawyer also said that according to the doctor’s recommendation, Andrei Tatarintsev should take diet food 6 times a day and medications along with meals. Considering that the accused was taken from the pre-trial detention center to court in the morning, and will be returned after dinner, he will starve for almost 24 hours and will not be able to take medicine. This is a violation of the right to life and health.
The defense attorney recalled that in September it will be 6 years since, according to the “Savchenko law”, A. Tatarintsev is in the pre-trial detention center, which raises doubts about the reasonableness of the terms of his detention without a sentence. The very fact that the accused is not provided with medical assistance during the trial is bound to be the reason for the appeal to overturn any sentence imposed by the court of first instance. Thus, the consideration of the case may take a period that exceeds the maximum term of punishment provided for by the articles under which Tatarintsev is accused. Therefore, lawyer V. Lyapin asked the court to appoint a measure of restraint for the accused in the form of house arrest or bail, which he could pay.
The detention was extended. Only the operative part of the decision was announced.
The International Society for Human Rights expresses concern about this position of the court, since a reference to the same grounds, if they are repeated for the entire period of a person’s detention, for the extension of an exceptional measure of restraint may be a violation of paragraph 3 of Art. 5 of the Convention (“Kharchenko v. Ukraine”, No. 40107/02, paragraphs 80, 81 and 99 of 02.10.2011; “Ignatov v. Ukraine”, No. 40583/15, paragraph 41, of 12.15.2016). The ECtHR also considers that the fact that other measures of restraint during the extension of detention were not considered by the court may indicate a violation of paragraph 3 of Art. 5 of the Convention (“Buryaga v. Ukraine” No. 27672/03, paragraph 62, 03.04.2010).
Experts from the International Society for Human Rights will continue to monitor this proceeding.