For September, in the case involving Odrex doctors, the court scheduled 13 hearings at once—a schedule that was supposed to allow it to make progress in examining the evidence and move on to hearing the medical expert. However, nearly half of the hearings did not take place or were postponed: the reasons included motions to adjourn, motions to recuse the judge, non-appearances by participants in the proceedings, and technical circumstances. As a result, the court did not hear the key expert in September after all, UNN writes.
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The Kyiv District Court of Odesa continues the trial in the criminal case against Odrex doctors Vitalii Rusakov and Maryna Biełotserkovska, who are accused of committing a criminal offense under Part 1 of Article 140 of the Criminal Code of Ukraine—improper performance of professional duties by a medical worker. According to the investigation, their actions or inaction may have caused the death of businessman Adnan Kivan.
The proceedings have stalled because of motions by the defense to postpone hearings, motions for the judge’s recusal, and the defendants’ non-appearances. Of the 13 hearings scheduled for September, six took place. In seven other instances, the hearing was postponed or the court was unable to proceed to consideration of the case on its merits.
The series of disruptions has already drawn a reaction from the court itself. After Rusakov’s lawyers asked to postpone two consecutive hearings because they were participating in other proceedings, presiding Judge Viktor Chaplytskyi found the reasons for their non-appearance unjustified and said he would forward the information to the Qualification and Disciplinary Commission of the Bar. The commission must now assess whether the defense lawyers’ actions constitute a disciplinary offense.
Oleksandr Sytnykov, a retired judge of the Higher Administrative Court of Ukraine, previously explained to UNN that if lawyers’ non-appearances or motions systematically block the progress of a case, the court cannot limit itself to recording yet another postponement. Ensuring that proceedings are considered within a reasonable time is the court’s own duty, so the presiding judge must respond to possible delays in the proceedings.
Andrii Misiats, acting head of the Higher Qualification and Disciplinary Commission of the Bar, also drew attention to the systematic nature of such non-appearances.
A combination of non-appearances may indicate not an accidental violation, but a certain pattern of behavior by the lawyer and his bad-faith attitude toward his professional duties
And this is despite the fact that, since May, the court has been unable to move on to hearing the medical expert. The expert is to analyze the medical records, expert conclusions, compliance with treatment protocols, and explain the medical component of the possible causal link between the doctors’ actions and Adnan Kivan’s death. The final assessment of the evidence and questions of guilt is made exclusively by the court.
It should be noted that this is already the court’s second attempt to reach this stage. The previous time, in May, when the expert arrived at court, Rusakov’s defense raised the issue of changing the venue.
The regular motions filed by the lawyers for the accused doctors, which may appear to be procedural maneuvers, have a potentially much broader consequence than simply delaying the proceedings. Lawyers interviewed by UNN did not rule out that the combination of such actions could be aimed at allowing the statute of limitations in the case to expire. If this scenario materializes, the accused doctors may avoid liability even if the court of first instance finds them guilty.