Monitoring the trial of A. Tatarintsev (session September 18, 2019)

09/18/2019 in the Kuybyshevsky district court of the Zaporizhzhya region, a hearing was held on the case of businessman Andrei Tatarintsev, accused of financing a terrorist organization, aiding in conducting an aggressive war, cruel treatment of prisoners of war and civilians. After 2014, Tatarintsev continued to carry out entrepreneurial activities in the territory bordering the uncontrolled territory of Donbass (trading diesel fuel).

Moreover, according to him, in 2014-2015 there were cases when, under duress (fearing for the life and safety of his family), he had to give fuel to armed people who seemed to be military men of the unrecognized republics of the “DPR / LPR”. There were also cases of robbery when diesel fuel and vehicles were taken from him by force and threatened with the use of weapons. To date, Tatarintsev, suffering from type 2 diabetes, has been detained for more than 2 years. ISHR experts continue to monitor this lawsuit.

The presiding judge Malevanny read out a certificate received from the branch of the state institution “Health Protection Center” of the GUIS of Ukraine in the Zaporizhzhya Region (medical unit of the pre-trial detention center) after examining Tatarintsev with type 2 diabetes in the 9th city hospital in Zaporizhia. It states that Tatarintsev needs insulin treatment, which the pre-trial detention center cannot provide due to the refusal of the prisoner to measure the level of sugar in his blood, and that Tatarintsev is in satisfactory condition and can be kept in remand prison.

Attorney Vladimir Lyapin asked the defendant if he refused to measure sugar levels, to which he answered negatively, and also said that since his examination in August 2019 he had not received any treatment and explained that treatment could not be carried out in the pre-trial detention center, because you need to take all medicines with dietary food, which is not provided there, measure sugar on an empty stomach and after meals – breakfast there at 7 in the morning, and the doctor arrives at 9. The doctor of the pre-trial detention center came to Tatarintsev after the examination only once – to find out what was prescribed to him. Then through the duty officer issued unknown “multi-colored” tablets without instructions for use.

The chief of the convoy, under oath, stated that food was not provided to the prisoner when he was taken out for trial; accordingly, a patient with diabetes on the day of the court hearing takes 7-10 hours without food.

ISHR notes that these circumstances are contrary to the European Convention (Article 3), and 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 the level that is inevitable in prison (the case of “Kalashnikov v. Russia”).

At the hearing, the endocrinologist of the city hospital in Zaporozhye Svetlana Tovstyga was questioned, who made up the treatment plan for the defendant. Under oath, she said that all the six months of the examination, the patient is in a state of decompensation – he needs active treatment, a change in lifestyle and diet, and in addition to tablets, he needs insulin therapy three times a day before main meals. Taking the prescribed drugs without diet is fraught with a hypoglycemic coma, which is life threatening. When she visited the medical unit of the pre-trial detention center, she discovered that there was no insulin at all, and the glucometer and instructions for it were in Chinese. The endocrinologist stated that Tatarintsev currently has chronic renal failure. After six months, the patient will need dialysis – an artificial kidney or a kidney transplant. All documents confirming this have been submitted to the pre-trial detention center.

In connection with the circumstances, the ISHR recalls that in the decision of the ECtHR in the case of “Salakhov and Islyamov v. Ukraine” (dated 14.03.2013) “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 the prisoner’s health and well-being be 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 …” 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 (decision of December 18, 2008 in the case of “Wuhan v. Ukraine”).

Further, the doctor Tovstyga reported that the pressure of Tatarintsev was increased – 170X100, blood sugar 12.9 with a norm of 5.5. This condition negatively affects the nervous system, the thought process, because of which the accused cannot adequately and fully perceive the information. Regarding the response of the medical unit of the pre-trial detention center about the possibility of keeping Tatarintsev in there, the endocrinologist stated that “after six months of such maintenance, we will get a disabled man from a young man who has a minimal life prognosis.”

The prosecutor stated that the court had repeatedly heard medical workers who said that excessive sugar levels could not indicate that the accused was unable to attend the hearings. Lawyer Lyapin protested that not a single doctor or ambulance paramedic gave such evidence. The court upheld the protest, but the prosecutor ignored the court’s recommendation and said that the doctor of the medical unit of the pre-trial detention center said that “one cannot equate the state of health and the opportunity to take part in the session”.

In this regard, lawyer Lyapin filed a motion to summon the representatives of the pre-trial detention center to the court in order to clarify the circumstances of Tatarintsev’s refusal of treatment prescribed in the hospital. The defender connects this with the actions of the military prosecutor’s office, which, according to him, influences the staff of the remand prison. In this regard, the lawyer filed a complaint with the ECtHR, where the relevant proceedings have already been opened and a deadline has been set until mid-October for the submission of the results of the medical examination of Tatarintsev to the European Court.

The International Society for Human Rights notes that the ISHR observer was present at the sessions when the doctor of the pre-trial detention center medical unit spoke and recorded that she had not been sworn in and did not show any identification documents or documents confirming her professional competence. In addition, it turned out that this medical worker has no status in the trial, was not officially summoned by anyone either as an expert or as a witness.

Tatarintsev asked the court to announce documents in which he allegedly refused treatment, since he did not sign anything like that. The presiding judge replied that this was a medical journal with the marks “agreed / refused” but could not find it in the file. But he found the journal “providing diet food”, which is marked “given” and the signature, according to the judge, the one who issued, but not Tatarintsev.

After conferring on the spot, the court granted the defense. They also ruled that Tatarintsev’s state of health did not allow him to participate in the hearing and postponed the trial until October 17.

This is not the first time the court has decided to adjourn the session due to the impossibility of Tatarintsev’s participation in it due to health reasons, nevertheless, continues the hearing to hear the prosecution’s motion to extend the measure of restraint.

The prosecutor did not provide the defense with a written request with annexes containing documentary evidence of risks 3 hours before its consideration in accordance with Chapter 18 of the Code of Criminal Procedure of Ukraine, which the lawyer drew attention to, but the judge still invited the prosecutor to read it out. Nevertheless, lawyer Lyapin managed to achieve compliance with the Code of Criminal Procedure and obtain a copy of the application. But it turned out that the prosecutor prepared only two copies – for himself and for the court, and having given one of them to the defense, he did not have his own copy for reading in the session. In this regard, he asked the court for a break to make another copy of the petition. The lawyer protested, referring to the principle of equality and competitiveness of the parties. The court appointed the break.

In his application, the prosecutor reiterated the same arguments every time this issue is considered. According to the legal position of the ECtHR in the case of “Todorov v. Ukraine”, there must be exceptionally good reasons for extending detention.

Attorney Lyapin suggested that the court either assign Tatarintsev a bail (since according to the indictment there are no serious consequences in his case and no one died), and further detention in a pre-trial detention center will lead to disability, and possibly death, or “if the court is afraid of the military prosecutor’s office and the SBU”, recuse themselves.

Thanks to the decision of the Constitutional Court of June 25, 19 on the recognition of the provisions of part 5 of article 166 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), the court was forced to consider the possibility of making a bail, but decided to refuse to this extent, since “the defense did not provide documents on the material condition of the accused.” As a result, it was decided to extend Tatarintsev’s detention for 60 days without the right to make a bail.

The ISHR is concerned that the evidence from the medical unit that the necessary treatment and nutrition is carried out despite the testimony of the accused, the convoy, the endocrinologist, the results of the examination, and the fact that the prescribed insulin is not in the pre-trial detention center is used as justification for the extension of the detention, as well as the fact that a certificate of the possibility of detention in the detention center for health reasons was issued by the medical unit of the pre-trial detention center, in which there is no qualified specialist (endocrinologist).

The court does not consider alternative measures of restraint in custody, which may indicate a violation of paragraph 3 of Art. 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“Buryaga v. Ukraine” case).