Communicated on 5 March 2018
FOURTH SECTION
Application no. 26744/16
Gennadiy Olegovych KORBAN
against Ukraine
lodged on 27 April 2016
STATEMENT OF FACTS
The applicant, Mr Gennadiy Olegovych Korban, is a Ukrainian national, who was born in 1970 and lives in Dnipro (named Dnipropetrovsk prior to June 2016). He is represented before the Court by Mr N.S. Kulchytskyy, a lawyer practising in Kyiv.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The applicant’s involvement in Ukrainian politics
The applicant is a Ukrainian politician and businessman known, in particular, for sharp criticism of those in power.
From 16 March 2014 to 25 March 2015 he was Deputy Head and Chief of Staff of the Dnipropetrovsk Regional State Administration (“the Regional Administration”).
On 15 September 2014 the President of Ukraine awarded the applicant with an Order “For courage” “for his commitment, active civil position and high professionalism in carrying out his official duties”.
On 12 July 2015 the applicant became the leader of a newly-created political party “UKROP” («Українське об’єднання патріотів — УКРОП», “Ukrainian Association of Patriots”).
On 26 July 2015 the applicant, as the “UKROP” leader, ran for the mid-term parliamentary elections in Chernigiv. Having obtained 14.76% of votes, he lost the elections to the candidate from the “Bloc of Petro Poroshenko” (35.90%).
In the local elections of 25 October 2015 the “UKROP” party came in the fourth and received 7.43% of votes nationwide. The applicant ran for the Kyiv mayor and lost the elections, having obtained 2.61% of the vote.
2. Criminal proceedings against the applicant and his detention
From 16 March 2014 to 25 March 2015 the applicant was Deputy Head and Chief of Staff of the Dnipropetrovsk Regional State Administration (“the Regional Administration”).
On 14 August 2014 the Head of the State Agency of Land Resources (“the Agency”), R., was held in the applicant’s office against the former’s will. The applicant insisted that R. appoint a particular person at the post of the head of the Agency’s regional department, having previously dismissed the then post holder. R. complained about the incident to the police.
According to the relevant extract from the Unified registry of pre-trial investigations of 15 August 2014, on that day criminal proceedings were instituted against the applicant and another person in respect of the above-mentioned events, on suspicion of a public official’s kidnapping and aggravated car theft (R.’s car had been moved without his consent).
As indicated in another such extract, on 25 February 2015 further criminal proceedings were instituted against the applicant and another person. They were suspected of having organised kidnapping, on that same day, of V., an official of the Dnipropetrovsk City Council, who had been kept hostage, with a view to forcing the acting head of that authority, Ro., to resign.
On 7 August 2015 another set of criminal proceedings was instituted against the applicant on suspicion of embezzlement of funds of a charity organisation created in May 2014 with a view to collecting voluntary contributions for supporting Ukrainian soldiers fighting at the East of Ukraine.
On 30 September 2015 the Head of the Dnipropetrovsk Regional Election Commission received telephone threats of violence from somebody who introduced himself by the applicant’s name. On 1 October 2015 criminal proceedings were instituted against the applicant in that respect, on suspicion of interference with work of an electoral official.
On 31 October 2015 the applicant was arrested and the notification of suspicion was announced to him in respect of criminal offences under Article 191 § 5 (embezzlement of funds of a charity organisation by an organised group), Article 255 § 1 (creation of a criminal organisation), Article 289 § 2 (aggravated car theft) and Article 349 (two counts of hostage-taking of a public official) of the Criminal Code.
While, according to the available copies of the extracts from the Unified register of pre-trial investigations, criminal proceedings had been instituted against the applicant on suspicion of those offences at various dates starting from 15 August 2014 (see above), it is not known what investigative steps had been taken prior to the applicant’s arrest and how his procedural status had changed. According to the applicant, on 26 November 2014 and 4 April 2015 he was questioned as a witness in the criminal proceedings regarding the kidnappings of R. and V. The case file as it currently stands does not contain any documents in that regard.
The circumstances of the applicant’s arrest were as follows. On 31 October 2015, at 8.40 a.m., the investigator of the Prosecutor General’s Office (“the PGO”) accompanied by a special force unit, arrived at the applicant’s home in Dnipropetrovsk and demanded him to open the door, which the applicant refused to do. Having broken the entrance door, the police entered the applicant’s flat and arrested him. They took the applicant to Kyiv (455 km from Dnipropetrovsk).
At 8.37 p.m. on the same day the investigator drew up a report on the applicant’s arrest. As indicated therein, the applicant was arrested on suspicion of having committed criminal offences under Articles 191 § 5, 255 § 1, 289 § 2 and 349 of the Criminal Code. The report template contained the following two pre-printed grounds for the arrest: (1) where the person was caught in flagrante delicto; or (2) where, immediately after the criminal offence, eyewitnesses including the victim pointed at the person as the offender, or this was suggested by the totality of obvious indications on that person’s body or clothes or at the site of the events. The investigator underlined the second of the above-mentioned options as the ground for the applicant’s arrest. The space envisaged in the report template for “indicating specific facts and data” remained blank.
On 2 November 2015 the investigator applied to the investigating judge of the Chernigiv Novozavodskyy District Court (“the Novozavodskyy Court”) for the applicant’s pre-trial detention as a preventive measure pending trial (the case was examined in Chernigiv under the PGO’s decision of 16 September 2015 to entrust the investigation to the Chernigiv Regional Prosecutor’s Office). The investigator referred to the gravity of the charges against the applicant, the potential penalty for which was up to fifteen years’ imprisonment. It was further observed in the application that the applicant had friendly relations with officials of law-enforcement, judicial and other authorities. The investigator therefore considered that the applicant could use his connections for influencing witnesses, victims or other suspects in the proceedings, or for hindering the investigation by destroying evidence or otherwise.
On the same day the applicant was transported from Kyiv to Chernigiv (150 km). According to the applicant, he was held in a detainees’ transportation vehicle from 9 a.m. to 5 p.m., without any water or food and without being allowed to use the toilet.
Also on 2 November 2015 the applicant complained to Kyiv Pecherskyy District Court (“the Pecherskyy Court”, the court situated by the location of the PGO) that his arrest had been arbitrary and unlawful. The applicant observed, in particular, that the legal preconditions for an arrest without a judicial warrant had not been met in his case. He also complained about the manner, in which he had been arrested, alleging that brutal force had been applied to him without any justification. In addition to alleging various other procedural shortcomings, the applicant complained that the arrest report had been drawn up with an unjustified delay.
On the same date, 2 November 2015, another set of criminal proceedings was instituted against the applicant, on suspicion of aggravated interference with work of an electoral official. Namely, during the night from 30 to 31 October 2015 the applicant, together with several other persons, had allegedly hindered the activity of a member of the Dnipropetrovsk City Election Commission “by violence and threats of violence and had demonstrated power by the presence of armed persons and military equipment near the electoral commission’s premises”.
On 3 November at 8.40 a.m. the maximum term of the applicant’s arrest without a judicial decision (seventy-two hours) expired and he was released in the hearing room of the Novozavodskyy Court. However, already at 8.42 a.m., before he could leave that room, the applicant was re-arrested, by the investigator’s decision, on suspicion of having committed a criminal offence under Article 157 § 3 of the Criminal Code (aggravated interference with work of an electoral official). The applicant was immediately brought to Kyiv and the investigator drew up a report on his arrest at 11.22 a.m. Similarly to the arrest report of 31 October 2015, the investigator underlined the pre-printed phrase “where, immediately after the criminal offence, eyewitnesses including the victim pointed at the person as the offender, or this was suggested by the totality of obvious indications on that person’s body or clothes or at the site of the events” as the ground for the applicant’s re-arrest.
On the same day the PGO decided that its own Main Investigation Department was to take over the investigation, instead of the Chernigiv Prosecutor’s Office. Following his re-arrest, the applicant was brought from Chernigiv to Kyiv. Still on the same day he complained to the Pecherskyy Court about the unlawfulness of his arrest on 31 October and his re-arrest on 3 November 2015.
On 4 November 2015 the investigating judge of the Novozavodskyy Court ruled, in the light of the above-mentioned developments, to leave without examination the investigator’s application of 2 November 2015 regarding the applicant’s pre-trial detention (see above).
On the same date the PGO’s investigator in charge of the applicant’s criminal case applied with an identical application, this time to the investigating judge of the Pecherskyy Court.
On 5 November 2015 the Pecherskyy Court decided to examine jointly the above-mentioned investigator’s application and the applicant’s complaints of 2 and 3 November 2015 regarding the lawfulness of his arrest and re-arrest.
On 6 November 2015 the investigating judge of the Pecherskyy Court allowed the investigator’s application in part and ordered the applicant’s twenty-four-hour house arrest as a preventive measure for the initial period till 31 December 2015. She referred, in particular, to the gravity of the charges against the applicant and seriousness of the potential sanctions. At the same time, it was noted in the ruling that the applicant had a permanent place of residence, elderly parents and three minor children. Furthermore, the judge took into account the fact that the applicant was a leader of a political party and that he had numerous awards including the presidential award “For courage” of 15 September 2014. It was also observed that he enjoyed positive character references, and numerous members of parliament had offered their personal surety as a guarantee of his compliance with his procedural obligations. As regards the applicant’s complaint about the alleged unlawfulness of his arrest of 31 October 2015, the investigating judge concluded that at the time of the impugned event the applicant had been outside the territorial jurisdiction of the Pecherskyy Court and that she therefore had no competence to rule on that issue. In so far as the applicant raised the same complaint in respect of his re-arrest on 3 November 2015, the judge held that it had been in compliance with Article 208 of the Code of Criminal Procedure, without further details.
Both the applicant and the prosecutor challenged the above ruling on appeal: the former claimed, in particular, that the chosen preventive measure was overly restrictive, while the latter insisted on the applicant’s pre-trial detention as the most appropriate measure.
On 1 December 2015 the Kyiv City Court of Appeal rejected both appeals and upheld the ruling of 6 November 2015.
On 25 December 2015 the Kyiv City Prosecutor’s Office, to which the PGO had entrusted the investigation, applied to the investigating judge of Kyiv Dniprovskyy District Court (“the Dniprovskyy Court”) for replacing the applicant’s house arrest by pre-trial detention. In addition to the reasons, which had been advanced in the initial application for that preventive measure on 2 November 2015, the investigator submitted that the applicant, while being under house arrest, had been evading various procedural measures by “abuse of his right to medical assistance ... and his continuous stay in private medical institutions”. The investigator observed that the applicant’s father was the founder of the hospital in Dnipropetrovsk, to which the applicant had been hospitalised following a deterioration of his health, and the doctors of which had issued a number of conclusions about the applicant’s inability to participate in investigative measures because of his health condition (see below). In the investigator’s opinion, the objectivity of any conclusions by that hospital’s staff members was questionable. The investigator further noted that the police had registered thirty-eight alerts from the applicant’s electronic tracking device, which could indicate his attempts to tamper with it. Furthermore, one of the witnesses stated that the applicant had been threatening him so that he would change his statements in the applicant’s favour.
On the same day, 25 December 2015, the applicant underwent coronary stent angioplasty in the Amosov National Institute of Cardiovascular Surgery (“the Amosov Institute”). On 26 December 2015 the chief doctor of the Amosov Institute and his two deputies informed the investigator, in reply to the latter’s enquiry, that the applicant’s health was satisfactory and that he could be moved without any danger to his life. At the same time, the doctors stated that they bore no responsibility for the health of their patients outside the Institute.
On 26, 27 and 28 December 2015 the Dniprovskyy Court examined the investigator’s application for the applicant’s detention. According to the applicant, the hearings were excessively long, while he was too weak and fainted several times. As submitted by the applicant and confirmed by various public sources, the hearing of 28 December 2015 lasted for twenty-three hours.
On 28 December 2015 the Dniprovskyy Court ordered the applicant’s pre-trial detention, at the investigator’s application, for the initial period till 25 February 2016.
The applicant appealed. He submitted that the above decision had been unlawful and arbitrary. The applicant also found it suspicious that, firstly, the case had been assigned to the Dniprovskyy Court, and, secondly, the same investigating judge of that court had dealt with, and had allowed, five procedural requests from the prosecution.
According to the applicant, he was held in a metal cage during the court hearings of 13, 22 and 25 January 2016.
On 10 February 2016 the Kyiv City Court of Appeal allowed the applicant’s appeal in part: it quashed the ruling of 28 December 2015 and delivered a new one, still replacing the applicant’s house arrest by pre-trial detention, but this time till 23 February 2016.
On 17 February 2016 the Dniprovskyy Court extended the applicant’s pre-trial detention till 15 April 2016. It was noted in the ruling that the investigation had not yet been completed, whereas the gravity of the charges against the applicant and the earlier established risks continued to justify his detention.
On 10 March 2016 the applicant signed a friendly settlement agreement with R. The applicant pleaded guilty of R.’s kidnapping on 14 August 2014 and expressed remorse. The parties considered justified the following penalty in respect of the applicant: three years’ restriction of liberty (that is detention in a semi-open prison near his place of residence) suspended for a probation period of one year and six months.
On 15 March 2016 the Dniprovskyy Court changed the preventive measure in respect of the applicant, at his request, from pre-trial detention to twenty-four-hour house arrest, without an electronic tracking device, till 15 April 2016.
On 21 March 2016 the Dnipropetrovsk Kirovskyy District Court approved the friendly settlement agreement between the applicant and R. As a result, it found the applicant guilty of R.’s kidnapping following a prior conspiracy and sentenced the applicant to three years’ restriction of liberty suspended for a probation period of one year and six months.
On 14 April 2016 the Dniprovskyy Court extended the applicant’s house arrest till 30 April 2016, in the framework of the other sets of criminal proceedings against him, which remained pending. On 29 April 2016 another such extension followed, this time till 27 June 2016.
On 7 June 2016 the Dniprovskyy Court replaced the applicant’s house arrest by an undertaking not to abscond, following the applicant’s request given that he envisaged medical treatment in Israel (see below). The new preventive measure was applicable till 27 June 2016. On the same day the investigating judge allowed the applicant’s request for leave to travel to Israel.
On 16 June 2016 the Dniprovskyy Court extended the applicant’s undertaking not to abscond till 10 August 2016.
On 11 August 2016 the Pecherskyy Court refused to further extend the above preventive measure at the PGO’s request.
On 11 September 2017 the criminal proceedings against the applicant were discontinued for the lack of evidence of his guilt. The applicant returned to Ukraine after the completion of his medical treatment in Israel.
3. Press statements by the prosecution and other public officials regarding the criminal proceedings against the applicant
The applicant’s arrest attracted considerable media attention. Both the defence and the prosecution made numerous press statements. The applicant cited the following statements of high-ranking officials.
On 1 November 2015 the assistant to the Prosecutor General stated at a press briefing:
“Through the fault of these organisers [pointing at the screen with the applicant’s photo] who created this criminal group, many people might end up under investigation or become suspects today and later stand trial. I am requesting all those who have made sense of what happened, please come to the Security Service or the Prosecutor General’s Office of Ukraine, share information with us and paragraph 2 of Article 255 of the Criminal Code will be applied (that is to say, those who report a crime, will be absolved of criminal liability).”
The applicant also cited another statement of the above-mentioned official:
“This must be stopped. Fake stamps, creation of virtually private armies, fund-raising on that basis, kidnappings, possessing a private surveillance vehicle by these volunteer...”
Furthermore, on 1 November 2015 the President of Ukraine stated during a TV interview:
“The position is as follows. Nobody will stop on Korban. Nobody is immune to the criminal liability for corruption-related offences. This concerns both the new team in power ... and the old team ... I underline that Ukraine will hear soon new names of those to face charges.”
On 2 November 2015 the Head of the Security Service of Ukraine noted in the course of a press statement:
“Why was that fund needed for the leaders of the organised criminal group, which included at the time, of course, Gennadiy Olegovych [the applicant], a respectful gentleman, together with [others]? This is very complicated, but there is a criminal group specialising in kidnappings ... As shown by the case-file material, private bodyguards of [K.] carried out the kidnappings and put pressure on those people following orders by the leaders.”
On 29 December 2015 the investigator stated at a briefing:
“Please show the following slide. This is [a plant bakery], which has also been illegally seized by the criminal group under the leadership of Korban Gennadiy Olegovych.”
On 22 January 2016 the assistant to the Prosecutor General stated to the press:
“... the criminal group under Korban’s leadership, which, according to the information already provided to you, was involved in a number of criminal activities, such as kidnappings, funds’ embezzlement, illegal arms handling and so on...”;
“While the entire country was consolidating forces in volunteer organisations and patriotic movements in order to help the Ukrainian military in the East ..., unfortunately, the criminal group, with Gennadiy Korban in the lead, was involved in most grievous crimes using as a cover patriotic or volunteering slogans”;
“In fact, this criminal group under the leadership of Gennadiy Korban was financed in parallel with certain political projects.”
B. Relevant domestic law and practice
Relevant provisions of the Code of Criminal Procedure 2012 read as follows:
Article 176. General provisions on preventive measures
“1. Preventive measures are:
(1) a personal undertaking;
(2) a personal warranty;
(3) bail;
(4) house arrest; and
(5) pre-trial detention.
2. Arrest of a person [without a court order] (затримання) is a provisional preventive measure which can be used on the grounds and under the procedure defined by this Code.
3. The investigating judge or the court shall reject an application for a preventive measure if the investigator or the prosecutor does not prove the existence of sufficient grounds to believe that none of the more lenient preventive measures would be sufficient for the prevention of the established risk or risks. The most lenient preventive measure is a personal undertaking and the most severe one is pre-trial detention.
4. Preventive measures shall be applied: during the investigation – by the investigating judge at the request of a prosecutor, or at the request of an investigator, approved by a prosecutor; and during the trial – by the court at the request of a prosecutor.
5. Preventive measures of a personal undertaking, a personal warranty, house arrest and bail may not be imposed on people who are suspected of or charged with the offences under Articles ... 258 ... of the Criminal Code of Ukraine.”
Article 177. Purpose and grounds for the application of preventive measures
“1. The purpose of a preventive measure is to ensure the compliance of a suspect or an accused with procedural obligations, as well as to prevent attempts to:
(1) abscond from the pre-trial investigation authorities and/or the court;
(2) destroy, conceal or spoil any of the objects or documents that are of essential importance for establishing the circumstances of the criminal offence;
(3) exert an unlawful influence on the victim, the witnesses, or on other suspects, accused, the expert or specialist...;
(4) obstruct the criminal proceedings in any other way;
(5) commit another criminal offence or continue the criminal offence of which he/she is suspected or accused.
2. A preventive measure shall be applied on the ground of a reasonable suspicion that the person has committed a criminal offence and provided there are risks giving sufficient grounds for the investigating judge or the court to believe that the suspect, the accused or the convicted person could commit actions specified in paragraph one of this Article...”
Article 208. Arrest by a competent official [without a court order]
“1. [In the absence of a court order a] competent official shall be entitled to arrest (затримати) a person suspected of having committed a crime for which imprisonment may be imposed, only in the following cases:
(1) if the person has been caught whilst committing a crime or attempting to commit one; or
(2) if immediately after a criminal offence the statements of an eye-witness, including the victim, or the totality of obvious signs on the body, clothes or at the scene of the event indicate that this person has just committed an offence...
4. A competent official, who has carried out the arrest, shall immediately inform the arrested person, in a language which he understands, of the grounds for the arrest and of what crime he/she is suspected. The official shall also explain to the arrested person his/her rights: to be legally represented; to be provided with medical assistance; to make statements or to remain silent; to inform [third] persons [...] of his arrest and whereabouts; to challenge the grounds for the arrest; as well as the other procedural rights set out in this Code.
5. A report shall be drawn up in respect of an individual’s arrest containing, [in particular,] the following information: the place, the date and the exact time (the hour and minute) of the arrest..; the grounds for the arrest; results of the search of the person; requests, statements or complaints of the arrested person, if any; and a comprehensive list of his/her procedural rights and duties. The arrest report shall be signed by the official who drew it up, and by the arrested person. A copy shall immediately be served on the arrested person after obtaining his/her signature...”
Article 276 of the Code provides that when a person has been arrested, a formal notification of suspicion must be served on him or her. From that moment, the person acquires the procedural status of a suspect. The official serving the notification is required to explain the suspect’s procedural rights, including the right to remain silent and have legal assistance.
Article 278 of the Code provides that a person who has been arrested without a court order must be released unless a formal notification of suspicion is served on him or her within twenty-four hours of arrest.
COMPLAINTS
Relying on Article 2 of the Convention, the applicant complains, in particular, that he had to participate in excessively long court hearings on 26, 27 and 28 December 2015 (according to him, the hearing on the last‑mentioned date lasted for twenty-three hours), while being weak after the coronary stent angioplasty of 25 December 2015.
He also complains under Article 3 about the conditions of his transportation and detention on 2 November 2015 alleging that he was held in a detainees’ transportation vehicle from 9 a.m. to 5 p.m., without any water or food and without being allowed to use the toilet.
The applicant further complains under Article 3 of the Convention that he was held in a metal cage during the court hearings of 13, 22 and 25 January 2016.
He next complains under Article 5 § 1 that his arrest on 31 October 2015 and his re-arrest on 3 November 2015 were unlawful and arbitrary.
The applicant also complains that his pre-trial detention and house arrest were not been justified by “relevant and sufficient reasons”, as required by Article 5 § 3 of the Convention.
He further complains that his pre-trial detention and house arrest were not justified by “relevant and sufficient reasons”, as required by Article 5 § 3 of the Convention.
The applicant also complains under Article 5 § 4 that in her ruling of 6 November 2015 the investigating judge refused to examine his complaint about the unlawfulness of his arrest on 31 October 2015 under the pretext that the arrest had taken place outside the territory of her jurisdiction. As regards the applicant’s re-arrest on 3 November 2015, the judge merely stated that it was in compliance with Article 208 of the CCP, without answering a single argument of the defence.
The applicant further complaints under Article 5 § 5 that he has no enforceable right to compensation in respect of the breach of his rights under other paragraphs of Article 5 of the Convention.
Relying on Article 18 in conjunction with Article 5 of the Convention, the applicant also complains that his criminal prosecution was politically motivated.
Lastly, the applicant alleges that his right to the presumption of innocence under Article 6 § 2 of the Convention was not respected by the domestic authorities.
QUESTIONS TO THE PARTIES
1. Was there a breach of the applicant’s rights under Article 3 of the Convention on account of the court hearings conducted immediately after his coronary stent angioplasty of 25 December 2015 and the duration of those hearings? The Government are requested to specify the duration of each hearing of 26, 27 and 28 December 2015 and the measures, if any, demonstrating that the applicant’s medical condition was taken into account.
2. Was the applicant subjected to treatment in breach of Article 3 of the Convention, on account of the conditions of his transportation and detention on 2 November 2015? Your Government are requested to provide a detailed description of those conditions, including all the meals supplied to the applicant. Was he provided with water? Did he have access to toilet facilities?
3. Was the applicant subjected to treatment in breach of Article 3 of the Convention, on account of his confinement in a metal cage during the hearings (see Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, §§ 113-39, ECHR 2014 (extracts))?
4. Were the applicant’s arrest and re-arrest on 31 October and 3 November 2015, respectively, lawful and free of arbitrariness, as required by Article 5 § 1 of the Convention?
5. Was the applicant’s deprivation of liberty (pre-trial detention and house arrest) in compliance with the safeguards of Article 5 § 3 of the Convention?
6. Did the applicant have at his disposal an effective procedure by which he could challenge the lawfulness of his arrest on 31 October 2015 and his re-arrest on 3 November 2015, as required by Article 5 § 4 of the Convention?
7. Does the applicant have an effective and enforceable right to compensation for his detention in alleged contravention of Article 5 §§ 1, 3 and 4, as required by Article 5 § 5 of the Convention?
8. Was the applicant’s deprivation of liberty applied for a purpose other than those envisaged by Article 5, contrary to Article 18 of the Convention, given the applicant’s involvement in political life and his sharp criticism of those in power?
9. Was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case, given the public statements of high-ranking State officials in respect of the criminal proceedings against the applicant?
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