For over seven months of consideration of the criminal case concerning medical negligence by doctors of the private clinic Odrex, which could have led to the death of patient Adnan Kivan, the defense side has used almost the entire arsenal of procedural mechanisms, which has allowed them to significantly delay the court process. Whether such actions can have disciplinary consequences for the lawyers was investigated by UNN.
The Law of Ukraine "On the Bar and Legal Practice" stipulates that for systematic or gross violation of the Rules of Attorney Ethics, a lawyer may be subject to disciplinary action in the form of suspension of the right to practice law. Among such violations, in particular, are actions aimed at unjustified delay of court proceedings.
The very question of the boundary between the proper exercise of the right to defense and possible abuse of procedural rights has become one of the key features of the high-profile case concerning the death of businessman Adnan Kivan. Over more than half a year of court proceedings, the defense has repeatedly filed challenges, motions, initiated changes in jurisdiction, and the last 3 court hearings were postponed due to the absence of the accused doctors' lawyers.
"Any person who is aware of facts of improper conduct of a lawyer that contain signs of a disciplinary offense can file such a complaint. Anyone. If there is information about a possible violation of the Rules of Attorney Ethics, a disciplinary procedure is initiated," – told UNN the head of the Higher Qualification and Disciplinary Commission of the Bar, Andriy Misyats.
And the president of the All-Ukrainian Association of Retired Judges, Denys Nevyadomsky, emphasizes that the court must respond to possible cases of abuse of procedural rights.
"With competent work of lawyers, the line between the bona fide use of procedural rights and the abuse of these rights is very thin... Everything that delays the consideration of the case affects the expiration of the statute of limitations. The court must respond to the abuse of procedural rights by participants in the process," he noted.
In the case of medical negligence by Odrex doctors, procedural postponements have long crossed the line of what is permissible. Each new maneuver by the defense side brings the case closer to the expiration of the statute of limitations. If this happens, the criminal case may be closed without a verdict, even if medical evidence indicates the doctors' guilt in the patient's death.
That is why, according to experts, the court must respond to possible cases of abuse of procedural rights by the lawyers of the accused doctors. After all, the right to defense cannot turn into a mechanism for actually blocking justice.
If presiding judge Viktor Chaplytskyi concludes that certain procedural actions by the lawyers of Bielotserkovska and Rusakov bear signs of abuse, his assessment may become one of the key factors for a further disciplinary review of the lawyers by the bodies of the bar self-government.
Reminder
Doctors of the private clinic Odrex, Vitalii Rusakov and Maryna Bielotserkovska, are accused under Part 1 of Article 140 of the Criminal Code of Ukraine – improper performance of professional duties by medical workers, which could have led to the death of patient Adnan Kivan.
According to the investigation, after the surgery, the doctors may have failed to prescribe the necessary antibacterial therapy to Adnan Kivan and responded inadequately to postoperative complications. According to the conclusions of the forensic medical examination, this could have led to the development of sepsis and the patient's death.