Russia: Drop Charges for Aiding Dying Patient
|Publisher||Human Rights Watch|
|Publication Date||11 November 2013|
|Cite as||Human Rights Watch, Russia: Drop Charges for Aiding Dying Patient, 11 November 2013, available at: http://www.refworld.org/docid/52820db64.html [accessed 24 January 2018]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
Russian authorities should immediately withdraw drug trafficking and forgery charges against a doctor and a woman who helped a dying cancer patient in excruciating pain obtain pain medication. Authorities should also petition the local court to void a ruling barring the defendants' lead lawyer from acting in the case.
A retrial began on October 11, 2013 for the doctor - Alevtina Khorinyak, 71 - and L.T., a 50-year-old female friend of the patient's family. An appeals court decision on September 3 that voided a previous guilty verdict but sent them for retrial also effectively removed their main lawyer from the case during the retrial, putting them at a disadvantage.
"The charges of opioid trafficking and forgery are completely disproportionate and absurd," said Tanya Cooper, Russia researcher at Human Rights Watch. "Khorinyak and L.T. are being punished because they refused to let a dying man suffer in agonizing and unnecessary pain."
The prosecutor should withdraw the charges and ask the court to acquit the two women, Human Rights Watch said.
During and after the first trial, the lawyer, Viacheslav Bogdanov, had actively drawn public attention to the case against Khorinyak and L.T. He engaged the Krasnoyarsk region's human rights ombudsman, spoke with the media, and posted case information on his law firm's website.
When the women appealed their guilty verdict, the prosecutor filed a petition with the appeals court asking that the verdict be voided and the case retried due to Bogdanov's alleged failure to provide an adequate defense because of what it said was a conflict of interest in representing both defendants. The appeals court cited the prosecutor's argument in its ruling, which has had the effect of excluding Bogdanov from acting in the case any further. Khorinyak told Human Rights Watch that neither she nor L.T. had complaints about Bogdanov'slegal services.
On October 10 Khorinyak and L.T. appealed the Krasnoyarsk Regional Court's ruling. While the appeal is pending, they are forced to search for new lawyers and lose the experience of the lawyer most familiar with the case. Bogdanov told Human Rights Watch that on October 11 a judge of the Oktyabrsky District Court of Krasnoyarsk refused Khorinyak's petition to be represented by Bogdanov during the retrial. L.T. had asked the court to be represented by another lawyer so that Khorinyak could continue to be represented by Bogdanov.
"Excluding the lawyer who exposed the groundlessness of the prosecution's charges from acting further in the case is beyond cynical and undermines the accused women's right to a fair trial," Cooper said.
According to court documents, the patient, Viktor Sechin, had been in the terminal phase of cancer since 2008 and needed strong pain medication to relieve severe and constant pain he was experiencing due to the illness. His general practitioner prescribed several pain medications, including tramadol, an opioid pain reliever effective for moderate pain. Sechin received his medications free under a state-run program to benefit socially vulnerable people.
Bogdanov told Human Rights Watch that in late April 2009 the pharmacy linked to Sechin's hospital ran out of its state-subsidized supply of tramadol. Other pharmacies had tramadol in stock, but it was not subsidized. Sechin's doctor declined to prescribe him non-subsidized medication because he was entitled to receive the free drugs.
To help Sechin get relief from his pain, Dr. Khorinyak, a longtime family friend, wrote Sechin two prescriptions for tramadol. L.T. bought the medication, which lasted until late May 2009, when Sechin's general practitioner renewed the prescription for the subsidized tramadol, which was back in stock.
In July 2011, one month after Sechin died, the State Drug Control Service opened a criminal case against Khorinyak and L.T., alleging that the two women had colluded in drug trafficking and forgery (articles 234 and 327 of the Russian Criminal Code). In May 2013 the Oktyabrsky District Court of Krasnoyarsk found both women guilty and sentenced them to a fine of 15,000 rubles (US$472) each.
The lawyer told Human Rights Watch that the prosecution presented no evidence that any of the medication was misused or diverted, which the Russian Criminal Code requires to prove the crime of trafficking of potent substances.
In a June 11 letter, Human Rights Watch urged the prosecutor general's office to support Khorinyak and L.T.'s appeal in the Krasnoyarsk Regional Court to annul the guilty verdict and acquit them of criminal charges.
The Krasnoyarsk Regional Court's September 3 ruling was based on a petition filed by the prosecutor's office for a retrial, asserting that Bogdanov had failed to mount an effective defense. The petition, which Human Rights Watch has reviewed, stated that because Bogdanov argued, among other things, that Khorinyak and L.T. did not act in collusion with one another, he was wrongly assigning full blame to L.T. Bogdanov told Human Rights Watch that the prosecutor provided no details to substantiate this claim. Despite the ruling and the subsequent district court decision preventing him from acting further in the case, he remains free to represent other clients.
The prosecutor's petition also alleged that some of Bogdanov's statements in court contradicted L.T.'s evidence in court. Khorinyak and L.T. firmly denied that allegation to Human Rights Watch. The women told Human Rights Watch they were completely satisfied with Bogdanov's defense.
The next hearing in the women's retrial at the Oktyabrsky District Court is scheduled for November 12. The women need to find lawyers in time for the hearing.
Russia's regulations on medical use of controlled substances are among the most onerous in the world, Human Rights Watch said. Under international law, countries have an obligation to regulate the availability and accessibility of strong opioid medications. But World Health Organization guidelines say that drug control efforts should be balanced against the responsibility to ensure opioid availability for medical purposes, in line with the right to health.
Russia is a party to the International Covenant on Economic, Social and Cultural Rights, which specifies that everyone has a right "to the enjoyment of the highest attainable standard of physical and mental health." Countries are obligated not to put policies in effect or undertake actions that arbitrarily interfere with providing palliative care because it is an essential part of healthcare, Human Rights Watch said.
This obligation requires countries to ensure that their drug control regulations do not unnecessarily, and therefore arbitrarily, impede the availability and accessibility of essential palliative care medications such as opioids.
"The criminal charges against Khorinyak and L.T. are excessive and should be dropped immediately," Cooper said. "In the meantime, Bogdanov should be promptly reinstated so that he can act for them during any current legal proceedings."