When a criminal investigation becomes torture

Coordinator of the KHPG Anti-Torture Campaign, Andriy Didenko warns that Ukraine is not observing European Court of Human Rights Regulations on ensuring civil rights during court hearings. He sees confirmation of this in the situation with the former Dean of the Kryvy Rih Technical University, Anatoly Temchenko who has been held in a SIZO [pre-trial detention centre] for almost 18 months. His state of health is such that holding him in a SIZO cannot be described as anything less than torture, Didenko says. He is seconded in this by Temchenko’s lawyer, Oleh Amelchyshyn, who is also appalled that his client’s condition is being ignored.

70-year-old Anatoly Temchenko is accused of bribe-taking. He has been gravely ill while in the SIZO. He has a heart condition, and has before had a heart attack and also suffers from diabetes.

Andriy Didenko notes that during a court hearing on 28 March, an ambulance needed to be called for Mr Temchenko twice, yet Judge Natalia Hryshchenko did not consider his application and continued the court hearing.

The next day an ambulance also needed to be called. The doctors reported that his blood pressure was 190 over 110 and that he could not take part in the hearing. Andriy Didenko reports that as soon as the ambulance had gone, the hearing was resumed.

In demanding proper treatment for the defendant, the defence has been forced to turn to the European Court of Human Rights. The court in Strasbourg has recommended that Mr Temchenko be hospitalized without delay and provided with qualified medical assistance.

According to Andriy Didenko, the defendant has still not received such assistance, and is adamant that the treatment he is receiving is tantamount to torture. "When he is taken out to a so-called "specialized" hospital bound by the leg and hand, and held for 24 hours, supposedly being treated, that is torture. How can you call it providing adequate medical assistance when a person is chained?"

In view of the situation, specialists’ recommendations as well as the fact that there are no appropriate specialized hospitals in Kryvy Rih, Mr Temchenko’s lawyers have on several occasions applied for him to be placed in the Strazhesko Cardiology Institute in Kyiv. However according to the Government’s Representative on European Court matters, Valeria Lutkovska, Mr Temchenko has himself written a statement refusing to be treated in any medical establishment other than the Strazhesko Cardiology Institute. She asserts that this stand by the defendant is getting in the way of his treatment and that it is premature to say that Ukraine is not fulfilling its obligations with regard to the European Court’s Regulations as far as Mr Temchenko is concerning since the Court has not come to a conclusion on this issue.

Experts believe that the European Court of Human Rights may yet again decide that Ukrainians have been unwarrantedly held in custody. This is even more likely since, according to his lawyer, Oleh Amelchyshyn, the legally motivated term for temporary detention of Anatoly Temchenko ended back on 29 January 2010. He is being held in the SIZO unlawfully, without the relevant court order.

Mr Amelchyshyn says that his client should have been released by the Prosecutor, yet the requirements of Article 156 of the Criminal Procedure Code in this case have been ignored. He could also have been released on the grounds of health yet this has not happened.

Andriy Didenko explains that there is an article in legislation which makes it possible to release a person who is ill from places of confinement. The relevant department makes an application and the prisoner can be released by court order. However people held in a SIZO and not convicted by a court do not fall into this list. As a result of this gap, the courts do not accept such applications.

It is not clear whether the Ukrainian courts will show justice and humanity in this case, but the case with Anatoly Temchenko and the relevant recommendations of the European Court of Human Rights show that there is a problem with lack of humanity in the Ukrainian system of criminal investigation.

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