Monitoring of the trial in the case of Andrei Tatarintsev (session on August 15, 2019)
08/15/19, the Zaporozhya Court of Appeal held a hearing in the case of Tatarintsev Andrey, accused of participating in events in eastern Ukraine, namely, in a terrorist organization, aiding in the conduct of the aggressive war, by prior conspiracy by a group of people, cruel treatment of prisoners of war and civilians.
The day before of the trial court, the hearings on the Tatarintsev case, scheduled for August 13 and 14, 2019 were canceled due to the impossibility of the appearance of the prosecutor. Also, before the appeal, Tatarintsev was taken for medical examination to the city hospital No. 9 of Zaporozhie, where deterioration of his health was confirmed (the accused is ill with diabetes). The panel of judges of the Zaporozhya Court of Appeal considered the appeal of the lawyer V. Lyapin against the judgment of the Kuybyshevsky District Court of Zaporozhya Region dated July 23, 2019 – on the next extension of the measure of restraint to A. Tatarintsev in the form of detention for 60 days. The court session was held in a form of video conference with the Volnyansky pre-trial detention center, where the accused has been held for more than a year. He participated in the session by video link, and directly in the courtroom of the Zaporozhie Court of Appeal were the prosecutor and lawyer of A. Tatarintsev.
The court immediately began examining the merits of the lawyer’s complaint. The lawyer in his speech drew attention, firstly, to a violation by the prosecutor of the norms of criminal procedural law when filing a request on July 23, 2019 to extend the detention of A. Tatarintsev: the prosecutor did not provide the lawyer with the written text of the petition; secondly, that in all petitions for an extension of the measure of restraint, the prosecutor repeats the same arguments, without substantiating or proving the existence of risks of non-fulfillment by the defendant of his 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).
And this was done with disregard to the fact that the Constitutional Court of Ukraine on June 25, 2019 recognized the provisions of paragraph 5 of Article 176 of the Criminal Procedure Code of Ukraine as unconstitutional (on the non-alternative measure of restraint in the form of detention for persons accused of committing crimes under articles 109-114-1, 258-258-5, 260, 261 of the Criminal Code of Ukraine). At the same time, the European Court of Human Rights (ECtHR) has repeatedly stated that after some time the existence of a reasonable suspicion ceases to be the basis for detention (the case of “Jablonski v. Poland”), and the fact that other measures of restraint were not even considered by the court when extending detention, may indicate a violation of paragraph 3 of Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the case of “Buryaga v. Ukraine”).
Also, in the contested decision of the district court of 07.23.19 on the extension of the measure of restraint, it is indicated that it cannot be appealed, which is a violation of the norms of Art. 372 Code of Criminal Procedure of Ukraine. The Court of Appeal accepted the appeal of the lawyer and examined it at this session.
The prosecutor, in his speech in the reporting session, essentially repeated all the same arguments of the motions that were submitted by him throughout the entire trial of the consideration of the case by the court of first instance, without justifying in any way the impossibility of avoiding the risks he named in the case of applying a milder measure of restraint, for example, bail, as the lawyer has repeatedly requested. The Court of Appeal at this session, however, demonstrated its willingness to consider milder measures of restraint against Tatarintsev. The presiding judge asked A. Tatarintsev whether he had registration in the territory controlled by Ukraine and where he plans to reside if released from custody.
After receiving answers to questions and returning from the deliberation room, the court announced the determination to leave the lawyer’s complaint unsatisfied, the definition of the district court unchanged. Thus, once again the period of detention was extended, this time until September 20, 2019.
Dismissing the lawyer’s complaint, the appellate court did not take into account the chronic disease of Tatarintsev A. (Type 2 diabetes), and the fact that during the period of pre-trial investigation and judicial review by the state authorities of the penal system, its proper treatment was not actually provided, as a result, there is a deterioration in the state of health of Tatarintsev A., which is confirmed by medical documents and what the lawyer repeatedly drew attention to.
Such an attitude is contrary to the European Convention (Article 3), and, according to the decisions of the ECtHR, the state is obliged to take measures so that the person to whom the measure of restraint in the form of detention is applied does not experience deprivation and suffering to a higher degree than that level that is inevitable in prison (the case of “Kalashnikov v. Russia”).
Also, in the decision of the ECtHR in the case “Salakhov and Islyamova v. Ukraine” (decision of March 14, 2013): “The court emphasizes that Article 3 of the Convention obliges the State to ensure, taking into account the practical requirements of imprisonment, that the health and well-being of the prisoner are adequately guaranteed, including by providing him with the necessary medical care … One of the important factors for such an assessment is a sharp 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 …”
The ECtHR has repeatedly pointed out that the provision of necessary medical assistance to persons in places of detention is the responsibility of the state (judgment of December 18, 2008 in the case of “Wuhan v. Ukraine”).
The Court observes that Article 3 of the Convention imposes an obligation on the State to protect the physical health of persons deprived of their liberty. The court admits that the assistance that is available in the institutions of the penitentiary system may not always be at the same level as in the best public medical institutions. However, the state must provide adequate protection for the health of prisoners, including by providing the necessary medical care (the case of “Kudla v. Poland”).
The full text of the ruling of the court of appeal supposed to be announced and issued to the parties on August 20, 2019, however, the full text of the decision has not yet been given to the lawyer, and at the moment it is not possible to evaluate and comment on the reasoning part of the decision of the court of appeal to refuse to satisfy the lawyer’s complaint.
The next hearing in the case of Tatarintsev A. will be held in the Kuibyshevsky District Court of the Zaporozhya Region on September 18, 2019, at 10:00 am. Experts from the International Society for Human Rights will continue monitoring this trial. The previous materials can be found here.