You won’t get enough before death – Newspaper Kommersant No. 152 (7353) of 08/22/2022
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The Association of Lawyers of Russia (AJUR) proposes to “speed up” the process of appealing by prisoners in a pre-trial detention center against a refusal to receive a medical examination. We are talking about seriously ill people who today can appeal the denial of a medical examination only after the verdict is passed, in anticipation of which they have to spend months and even years in a pre-trial detention center. Not everyone manages to live up to this opportunity, which the Constitutional Court drew attention to in April. OAUR proposes to make the appeal procedure immediate. However, human rights activists believe that the bill will not solve the problem of placing terminally ill people in a pre-trial detention center.
Today, seriously ill people applying for release from a pre-trial detention center due to illness are required to obtain the consent of prison doctors to conduct a medical examination from civilian doctors in a city hospital. Those should make an accurate diagnosis, which will allow changing the measure of restraint to a subscription or house arrest. But SIZO doctors almost never give consent to the transfer of a detainee to civilian colleagues, which human rights activists associate with “pressure by investigators.” The refusal to conduct a medical examination can only be appealed through the court and only after a verdict has been passed on the main charge. But waiting for the completion of the investigation and the decision of the court can take months and even years, which seriously ill prisoners almost never have.
In April, the Constitutional Court (CC) spoke extremely harshly about this, calling the current legislation “violating the right to life.” Then it was about the complaint of Nina Murgina from Kaliningrad, who was accused of fraud. The woman was arrested back in 2020, after which she spent a year in a pre-trial detention center, despite a severe heart disease. All this year she tried to get a referral to the medical board, which would give her an accurate diagnosis. This never happened; At the trial, the woman was told that she would be able to challenge the refusal to send her for a medical examination only with an appeal in the main case.
“This state of affairs creates unreasonable obstacles to the immediate exercise of the right to judicial protection,” Vladimir Gruzdev, chairman of the board of the Russian Bar Association, told Kommersant. The AJUR has been developing amendments to the legislation in recent months in accordance with the position of the Constitutional Court. Kommersant managed to get acquainted with the text of the AJUR project. It follows from the document that amendments will be made to Art. 389.2 of the Code of Criminal Procedure (CPC), which regulates the right to a medical examination for seriously ill detainees in a pre-trial detention center. It was the second and third parts of this article that the Constitutional Court called “unconstitutional” in April. For example, a refusal to be referred to a medical board will be “subject to appeal” almost immediately after a visit to the prison hospital. Therefore, you will not have to wait for the end of the investigation, the person will be able to immediately go to court and seek an examination. But what to do in case of delay in the judicial consideration of such an appeal, the document does not explain.
The project has already been “agreed” with the Ministry of Internal Affairs, the FSB, the Ministry of Finance and the Federal Penitentiary Service, and is also “supported” by the TFR, the Ministry of Health and the Supreme Court, the document says. The AJUR assures that the initiative has already passed the government commission on legislative activities and can be submitted to the State Duma in the fall. If the project is adopted, the process of passing the medical examination “will be accelerated”, Mr. Gruzdev hopes.
Recall that the list of two dozen diseases in which a person must be released from a pre-trial detention center was approved by the Russian government in 2004 (Decree No. 54) and remained unchanged for 17 years. Lawyers, lawyers and human rights activists have repeatedly criticized it for being “vague”, pointing out, for example, the variety of forms of tuberculosis or oncological diseases that are not included in the list. In November 2021, the Ministry of Justice “in order to humanize justice” expanded the list to include eating disorders, metabolic disorders, diseases of the genitourinary system, circulatory and digestive systems, Parkinson’s disease, epilepsy, and any neoplasm requiring surgical intervention.
However, the presence of such a list does not exempt people from pre-trial detention at the stage of choosing a measure of restraint. This can lead to the death of a prisoner in a pre-trial detention center even before applying for a medical board, and not only at the stage of appealing the denial of it after the verdict. Olga Podoplelova, head of the legal service of the Rus Sitting Foundation (provides assistance to prisoners and their families, applied to the Constitutional Court in the interests of Nina Murgina, is included in the register of foreign agents) Olga Podoplelova believes that the AJR amendments, although they reflect the position of the Constitutional Court, are “not the placement of seriously ill patients in custody and the extension of this measure of restraint for them. Illustrating this problem with a tragic example, Mrs. Podoplelova recalled the death of the physicist Dmitry Kolker. In July, the 54-year-old scientist died in a Moscow hospital, two days after being detained in a Novosibirsk clinic. He was hospitalized there with the last, fourth, stage of cancer. On June 30, the FSB detained Mr. Kolker in a hospital bed on suspicion of treason, and on the same day the court ruled that the scientist should be taken into custody. He was taken to Moscow, where he died on July 2.
Eva Merkacheva, a member of the Presidential Council for Human Rights (HRC) and the POC of Moscow, cites statistics: “On average, according to my calculations, for every 50 prisoners in Moscow who insist on a medical examination, doctors send only one person to the commission. Probably afraid of the investigation. Think about it, this year only two people in Moscow have been released due to illness. Although there are more than 11,000 people in the pre-trial detention center, and how many of them are seriously ill, it is not known without an appropriate examination.”
Ms. Merkacheva calls the AUR draft law “wonderful, timely and very necessary”, but points out that many prisoners who were refused by doctors and survived until the verdict (that is, until the opportunity to appeal against the refusal of the medical board) “simply do not know how to file complaints.” “They either don’t know about this possibility, or they don’t have a lawyer who would explain to them all the defense tools,” she says. “I think the next step should also be taken by lawyers – to create a complaint template provided for by the new amendments. Human rights activists could provide such samples to prisoners, place templates in isolation cells. So that in the end the draft law touches not only the most advanced, but in general everyone who needs help.”
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