The case of medical negligence by Odrex doctors: how prolonging the trial could help the accused avoid responsibility
Kyiv • UNN
In the case of medical negligence by Odrex doctors Vitalii Rusakov and Maryna Bielotserkovska, five consecutive court hearings have been postponed. Against the backdrop of systematic delays in considering the case, the risk of the statute of limitations expiring is growing. Lawyer Rostyslav Kravets explained how the court can counteract the delaying of proceedings and what consequences deliberate evasion could have for the accused.
The criminal case concerning medical negligence by Odrex doctors is once again on hold: the court was forced to postpone five hearings in a row. Each such postponement brings the case closer to the expiration of the statute of limitations, after which the defendants may avoid criminal liability. UNN looked into whether the court has mechanisms to counteract the delaying of proceedings.
The Kyivskyi District Court of Odesa continues hearing the criminal case against private Odrex clinic doctors Vitalii Rusakov and Maryna Bielotserkovska, who are accused of improper performance of their professional duties while treating businessman Adnan Kivan at the clinic. However, instead of conducting a consistent examination of the evidence, the trial is being interrupted with increasing frequency by motions from the defense.
In the past two weeks alone, the court postponed five hearings in a row. Thus, the hearings scheduled for October 9 and 13 did not take place because of a motion by the lawyer for the accused, Maryna Bielotserkovska. Subsequently, the court postponed three hearings at once, scheduled for October 14, 15, and 16. This time, the reason was a motion by the accused, Vitalii Rusakov, who, according to UNN sources, is on sick leave.
The situation with the postponements became more acute back in September. At that time, the court scheduled 13 hearings, expecting to expedite consideration of the criminal case. However, only six took place. More than half did not take place because of motions from the defense.
Such delays may have serious legal consequences. The doctors are accused under Part 1 of Article 140 of the Criminal Code of Ukraine, which provides for up to two years of imprisonment. Under Article 49 of the Criminal Code of Ukraine, the statute of limitations for such an offense is three years. Adnan Kivan died in October 2024, so in the absence of circumstances that suspend or interrupt the running of the limitation period, the issue of its expiration may arise as early as 2027. This means that, under certain conditions, the accused may be released from criminal liability. Even if the court finds the doctors guilty, the expiration of the limitation period may serve as grounds for releasing them from the sentence imposed.
Can the court stop the case from being delayed?
As lawyer Rostyslav Kravets explained in a comment to UNN , criminal procedural legislation provides mechanisms for responding to systematic failures by defense lawyers to appear. In particular, the court may initiate a disciplinary review of the lawyers’ actions and, where there are legal grounds, apply other procedural measures.
If we are talking about cases in which a lawyer systematically fails to appear at court hearings, the court has several mechanisms for responding. First, it may send a relevant referral to the Qualification and Disciplinary Commission of the Bar concerning the possible bringing of the lawyer to disciplinary liability. Second, where the grounds provided by law exist, the court may impose a monetary penalty on the lawyer. In addition, in cases stipulated by law, the court may appoint a defense lawyer through the system of free legal aid to participate in a specific procedural action. At the same time, such replacement must take into account the accused’s right to defense and must not create risks for his procedural interests
In the case concerning medical negligence by Odrex doctors, presiding judge Viktor Chaplytskyi has already used one of these mechanisms. He found the reasons for the accused’s lawyers’ failures to appear unjustified and sent the relevant information to the Qualification and Disciplinary Commission of the Bar. The commission must now assess whether the defense lawyers’ actions contain signs of a disciplinary offense.
At the same time, contacting the disciplinary commission in itself does not guarantee that subsequent hearings will take place without delays. The court must ensure a balance between the accused’s right to adequate defense and the need to hear the criminal case within a reasonable time.
Changing lawyers as another possible way to delay the proceedings
According to Rostyslav Kravets, the abuse of the right to change defense attorneys poses a particular danger. This concerns situations in which defendants may systematically engage new lawyers so that they can submit motions to adjourn hearings to review the case materials.
Another problem is the systematic replacement of defense attorneys by defendants. Such changes may lead to repeated motions requesting time to review the case materials, adjournments of hearings, and other procedural delays. As a result, court proceedings may last for years while the statutes of limitations expire
According to the lawyer, establishing the real reasons for the procedural actions of the defense is of fundamental importance in such situations.
In such cases, it is crucial to establish whether there were objective reasons for changing defense attorneys and adjourning hearings, or whether the relevant motions were submitted formally and systematically, despite the court having already expressed its position on them
The expiration of the statute of limitations is not an acquittal
At the same time, exemption from criminal liability due to the expiration of the statute of limitations does not mean that the defendants have been acquitted. Closing a case on this ground is not a rehabilitating decision and does not establish innocence.
If Vitalii Rusakov and Maryna Bielotserkovska are confident of their innocence and want to prove it in court, the law allows them to object to the dismissal of the case due to the expiration of the statute of limitations. In that case, the trial must continue under the general procedure. This will give the defendants an opportunity to defend their names and professional reputations and obtain a final court decision concerning the charges brought against them.
Reminder
According to the investigation, the improper performance of professional duties by medical personnel while treating businessman Adnan Kivan could have led to postoperative complications and sepsis, which, against the backdrop of his oncological illness, could have caused his death. The court must provide the final assessment of the evidence and the question of their culpability.