Will the delay in the Odrex case have consequences for the lawyers?
Kyiv • UNN
In the case involving Odrex doctors, the court deemed the reasons for the absence of one of the defendants’ lawyers unjustified. Experts explained whether the lawyer faces disciplinary liability.
The court in the Odrex doctors’ case found the reasons for Vitalii Rusakov’s lawyers’ latest failure to appear disrespectful and appealed to the legal profession’s disciplinary bodies. UNN examined where the right to a defense ends.
Details
On September 10 and 11, the Kyiv District Court of Odesa was scheduled to continue hearing the criminal case concerning medical negligence by doctors at the private Odrex clinic, Vitalii Rusakov and Maryna Bieliotserkovska. However, neither hearing took place.
The lawyers for defendant Rusakov petitioned for yet another postponement of the hearings, as they had other court proceedings scheduled for the same dates. Presiding Judge Viktor Chaplytskyi found the reasons given disrespectful and said he would send the relevant ruling to the Qualification and Disciplinary Commission of the Bar to decide the issue of the defense lawyers’ disciplinary liability.
Oleksandr Sytnykov, a retired judge of the Higher Administrative Court of Ukraine and a Candidate of Legal Sciences, explained to UNN that the mere fact that a lawyer is absent from a hearing does not automatically constitute a disciplinary offense. What matters first and foremost is precisely how the defense lawyer justified the absence and how the court assessed those arguments.
How many absences by a lawyer are enough to appeal to the disciplinary commission?
As for systematic conduct, the law does not establish a specific number of absences after which a court must automatically appeal to disciplinary bodies. It cannot be said that if a lawyer fails to appear twice, that in itself is already grounds for such an appeal. Here, it is necessary to rely on judicial and disciplinary practice and examine how decisions were made in similar cases
However, in the Odrex doctors’ case, the issue has long gone beyond several absences. The trial has been ongoing for more than nine months. According to the chronology maintained by UNN since the beginning of the proceedings, more than a dozen court hearings were postponed or did not take place following motions by the defense.
What are the defendants really afraid of?
The court has already examined the evidence: medical records, forensic medical expert reports, clinical protocols and other materials, and has also heard the defense’s objections.
A medical expert is now to be brought into the proceedings. This specialist will provide a professional assessment of the doctors’ actions from the perspective of medical protocols and treatment standards, compare the medical records with the expert reports, and explain to the court the medical aspect of the issue of a possible causal link between the doctors’ actions and the consequences for the patient. The expert himself, of course, does not determine the defendants’ guilt — that is the exclusive competence of the court. However, his conclusions may be highly significant for the assessment of the evidence.
The expert had already appeared in court in May, but instead of hearing him, the defense initiated the issue of changing the venue.
The judge is also responsible for the deadlines
Constant postponements create a problem not only for the injured party. The judge is obliged to ensure that the proceedings are heard within a reasonable time. That is why, according to Sytnykov, the presiding judge cannot endlessly record postponements and fail to respond if he sees a systemic problem in the actions of the participants in the proceedings.
Certainly, if a lawyer’s actions lead to the delaying of the proceedings, the judge must respond. The judge is subject to procedural deadlines, and may also face disciplinary liability for failing to comply with them. Therefore, a situation may arise in which, because of constant postponements, the judge himself comes under scrutiny regarding compliance with the deadlines
A lawyer chooses which court to attend
Attorney Serhii Vylkov expressed a different view of the situation in a comment to UNN.
Each circumstance is considered individually by the disciplinary chamber. Court hearings may vary, and the priority of participation in one hearing or another is determined by the lawyer himself. If a lawyer has determined the priority and is attending another court hearing, whether he can be held disciplinarily liable for this is a matter for the disciplinary chamber to decide
So, if Rusakov’s lawyers, having other court proceedings, decided for themselves that those proceedings were a higher priority, they are entitled to do so. But as a result, for two days in a row, the case that had already once again come right up to hearing the key medical part of the evidence ended up lower on their professional calendars.
Does this mean that the lawyers consider the other cases more important or potentially more promising? Or could it be that the approaching hearing of the medical expert makes this particular stage of the Odrex case inconvenient for the defense?
As for the consequences, if the absence was for a valid reason—for example, participation in another court hearing or illness—this should be assessed specifically by the disciplinary chamber. It is necessary to establish exactly how everything happened, what the circumstances were, and why the lawyer was unable to appear. There should be an individual approach here
If the disciplinary offense is proven, the law provides for several types of penalties—from a warning to suspension of the right to practice law for a period of one month to one year. In certain cases specified by law, disbarment is also provided for.
Let us remind you
Vitalii Rusakov and Maryna Bielotserkovska are charged under Part 1 of Article 140 of the Criminal Code of Ukraine—improper performance of professional duties by medical workers.
According to the investigation, after the operation, the medical staff may have failed to prescribe the necessary antibacterial therapy to the patient, Adnan Kivan, and may have responded improperly to postoperative complications. According to the findings of the forensic medical examination, this could have led to the development of sepsis and the patient’s death. Neither defendant admits guilt.