UHHRU advocates protected family life of the clients with TB in complex litigation

On February 22, 2019 UHHRU won a court case regarding reunion of the mother and the child. This case would be rather simple except for the fact that the child was born in detention facilities. After that both the mother and the child got infected with TB.

 Olena Protsenko, the lawyer of UHHRU Strategic Litigation Center gives more details on the course of the litigation.

The case is complex and controversial. Anna applied to us with the request for help back in May 2018 because she was separated from her five-month old son, as both of them got infected with TB in the detention facilities. Guardianship and tutelage institution motivated their interference with the fact that ill client posed the threat for the child’s heath, and filed the case for taking away the child for one year. Anna was sent for treatment to the specialized prison in Ternopil oblast, and the child was taken to the childcare institution. However, the son was not returned to Anna even after she came through TB.

Olena Protsenko, the lawyer of UHHRU Strategic Litigation Center

Anna wanted to return her son, and to be released from prison because of the child.

Initially we tried to release Anna at the place detention facility – in court of Zbarzh. However, the judges were not persuaded by the arguments on numerous illnesses of the child and the fact that he required special care and mother’s support. Both first instance and appeal courts dismissed the motion on release, grounding their decision by the criminal past of the client. However, the most surprise was caused by the reasoning of the Appeal Court that Anna gave birth to a child not during the period of serving the sentence, which to the court’s opinion, was excluding the opportunity to apply to her Article 83 of the Criminal Code. Since it was evidently contradicting the facts of the case, the UHHRU lawyers decided to try to apply to court once more, this time in Kyiv, where the client was transferred.

At the same time, we were actively working on reunion of the mother and the child.

Eugen Chekariov, lawyer of UHHRU

The advocates managed to gather evidence that Anna passed active phase of treatment from TB and posed no threat to the child. After the evidences were handed over to the court, the guardianship and tutelage institution dropped their case and provided the decision on appropriateness of returning the child to the mother. It took over a month for the state to implement this decision, and only after application to prosecutor’s office and other regulating bodies.

“Anna’s long separation with the child after she was not already posing the threat to him, and untimely fulfillment of the decision of the guardianship and tutelage institution were the basis for future application to the European Court of Human Rights” Olena Protsenko (UHHRU)

When finally, Anna, which stayed in Kyiv pre-trial detention facility waiting for the Supreme Court hearing, was returned the child we prepared new case for the court. Thanks to the volunteers of Kyiv- Ridnyi Dim NGO and other not indifferent people the child went through full medical check in a hospital and the conclusion was made that the child required complex treatment and specialist care. Orthopedist informed that in future he would require planned surgery on the legs. Besides, the advocates were proving that the conditions of keeping mothers with children under 3 years in Kyiv pre-trial detention facility were inhuman – mold, draughts, insufficient nutrition. In the end, the advocates provided the court with evidences that the client had the place for residence, and Kyiv- Ridnyi Dim NGO committed to provide her support after the release.

The biggest surprise for the advocates was that Prosecutor’s Office supported the motion for the client’s release.

Olena Protsenko (UHHRU) with Anna and Ruslan on the 1st of March 2019

Already on March 1, 2019 Anna and little Ruslan left Kyiv pre-trial detention facility.

“The main problem in follow up of the case was the fact that the client had criminal past and because of that the court in Ternopil did not believe in the fact that she was pursuing a better path. However, we were proving that the main priority in resolving of the case should be the interests of the child, and luckily, Shevchenkivskyi Court in Kyiv took our side” Olena Protsenko (UHHRU)

When handling such cases, we recommend to try and gather as much as possible evidence that the client with the child after the release can provide relevant development and treatment to the child. There are a lot of non-governmental organizations and rehabilitation centers ready to provide support to the persons released from the detention facilities.

One of them of Kyiv – Ridnyi Dim NGO, whose testimony became one of the decisive proofs when resolving the case in the court.

Ukrainian Helsinki Human Rights Union implements the project “Development of the legal network for protection of the people leaving with HIV/AIDS, representatives of key PLHIV communities and persons ill with TB” with the financial support of the Charitable organization “All-Ukrainian Network of the People Living with HIV/AIDS” in the framework of implementation of the project “Releasing the Burden of TB and HIV infection through creation of the open access to timely and quality diagnostics and treatment of the TB and its resistant forms, expanding evidence based prevention, diagnostic and treatment of HIV infection, and creation of stable and sustainable health protection systems”, which is implemented with the financial support of the Global Fund to Fight AIDS, TB and Malaria.

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