In the high-profile case regarding the death of businessman Adnan Kivan during treatment at the private Odrex clinic, the court that will hear the criminal proceedings has been changed. After the case was transferred from the Prymorskyi to the Kyivskyi District Court of Odesa, the process will effectively have to start from scratch. Lawyers point out that such procedural actions, initiated by the defense attorneys of the accused doctor, may show signs of deliberate stalling of the case and delaying the court's transition to the examination of medical evidence, UNN reports.
This refers to criminal proceedings against Odrex clinic doctors Vitaliy Rusakov and Maryna Belotserkovska, who are being tried under Part 1 of Article 140 of the Criminal Code of Ukraine – improper performance of professional duties by a medical worker, which could have caused grave consequences for the patient.
According to the investigation, after surgery at the Odrex clinic, businessman Adnan Kivan may not have been prescribed the necessary antibacterial therapy and post-operative complications may not have been properly addressed. As a result, according to the expert findings, the patient developed sepsis, which could have been the cause of death.
The key stage of the process was supposed to be the examination of medical evidence and the hearing of an independent expert oncologist. The court was to receive a professional assessment of the doctors' actions, the compliance of the treatment with clinical protocols, and the causal link between the actions of the medical staff and the patient's death.
However, Vitaliy Rusakov's defense initiated a motion to transfer the criminal proceedings to another court. The lawyers' argument was that a representative of the victim's side had worked at the Prymorskyi District Court of Odesa six years ago. As a result, the Odesa Court of Appeal decided to transfer the proceedings to the Kyivskyi District Court of Odesa.
Procedurally, this means more than just a change of address for the court hearings. Due to the change of court, the presiding judge in the case also changes. According to the requirements of criminal procedure, if the composition of the court changes, the consideration of the case on its merits effectively starts anew, rather than continuing from the stage where it stopped in the Prymorskyi District Court.
"The case is heading to the Kyivskyi District Court of Odesa, where the consideration of the case, in essence, will begin from the very beginning,"
At the same time, medical lawyer Dmytro Kasianenko points out that formally such procedural steps are a right of the defense. However, the context in which they occur may raise questions.
"A motion to change the court, a motion to recuse a judge, or other procedural statements are in themselves a right of the defense. But if such actions are filed specifically before the interrogation of a key expert, are repeated systematically, and lack proper evidentiary justification, it may already look like stalling the proceedings or an abuse of procedural rights. The ultimate goal of such defense tactics may not just be postponing hearings, but bringing the case to the expiration of the statute of limitations so that the person avoids real criminal liability. In such cases, an additional consequence of punishment can be a restriction on the right to engage in medical activity, but if the proceedings are closed due to the statute of limitations, such a restriction may effectively not occur, and the doctor will avoid significant legal consequences,"
The lawyer also noted that in cases of medical negligence, the duration of the proceedings is of fundamental importance. After all, Article 49 of the Criminal Code of Ukraine provides for the statute of limitations for criminal prosecution, and Article 55 of the Criminal Code of Ukraine provides for the possibility of deprivation of the right to engage in certain activities.
That is why the victim's side is usually interested in the court moving as quickly as possible to the examination of medical evidence and the interrogation of experts. Meanwhile, the defense tries to delay this stage. After the court moves to the medical component of the case, it becomes much more difficult to maintain public rhetoric about allegedly 'unclear charges,' to manipulate, and to resort to emotional statements. Specific medical documents, treatment protocols, and the causal link between the doctors' actions and the patient's death become the center of the process.
As a reminder
Earlier in the case of Adnan Kivan's death, Vitaliy Rusakov's defense had already filed a motion to recuse the presiding judge Larysa Pereverzieva, and has repeatedly initiated procedural actions that affected the timeline of the proceedings.
Parallel to the court process, the accused doctor Rusakov maintains active public communication on YouTube and his own social networks, where he regularly comments on the progress of the case, criticizes the judicial process, and promotes his own version of events.