FIFTH SECTION   CASE OF KORBAN v. UKRAINE (Application no. 26744/16)             JUDGMENT  STRASBOURG 4 July 2019  FINAL 09/12/2019 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Korban v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Angelika Nußberger, President, Ganna Yudkivska, André Potocki, Síofra O’Leary, Mārtiņš Mits, Gabriele Kucsko-Stadlmayer, Lado Chanturia, judges,and Claudia Westerdiek, Section Registrar,Having deliberated in private on 28 May 2019,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 26744/16) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Gennadiy Olegovych Korban (“the applicant”), on 27 April 2016.2. The applicant was represented by Mr N.S. Kulchytskyy, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Ivan Lishchyna.3. On 21 November 2016 the President of the Section decided to grant priority treatment to the case at the applicant’s request under Rule 41 of the Rules of Court.4. The applicant complained, in particular, under Article 3 of the Convention, about the conditions in which he had been transported on 2 November 2015, his participation in court hearings on 26-28 December 2015 in spite of being weak after a coronary angioplasty, as well as his confinement in a metal cage during the court hearings of 13, 22 and 25 January 2016. He also complained of a violation of his rights under Article 5 §§ 1, 3, 4 and 5 of the Convention. Under Article 18 of the Convention taken in conjunction with Article 5 he complained that he had been deprived of his liberty for ulterior motives, namely for political reasons. Lastly, he complained that public statements made by high-ranking State officials in respect of the criminal proceedings against him had been in breach of his right to the presumption of innocence guaranteed by Article 6 § 2 of the Convention.5. On 5 March 2018 notice of the above complaints was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.THE FACTSI. THE CIRCUMSTANCES OF THE CASE6. The applicant was born in 1970 and lives in Dnipro (named Dnipropetrovsk prior to June 2016).A. The applicant’s involvement in Ukrainian politics7. From 19 March 2014 to 24 March 2015 the applicant was Deputy Head and Chief of Staff of the Dnipropetrovsk Regional State Administration (“the Regional Administration”). As he explained, following a deterioration of relationships between the President of Ukraine and the then Head of the Regional Administration, the latter resigned together with his political team, including the applicant.8. On 15 September 2014 the applicant was awarded an “Order for Courage” by the President of Ukraine “for his commitment, active civic stance and high professionalism in carrying out his official duties”.9. On 12 July 2015 the applicant became the leader of a new political party, the Ukrainian Union of Patriots (“UKROP” – Українське об’єднання патріотів — “УКРОП”), which sharply criticised those in power in general and President Poroshenko in particular.10. 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%).11. In the local elections of 25 October 2015 the UKROP party received 7.43% of votes nationwide and came fourth (the three leading parties were: “Bloc of Petro Poroshenko” (19.52%); “Batkivshchyna” (12.23%); and “Opposition Bloc” (10.54%)). The applicant ran for the post of Kyiv mayor and lost the election, having obtained 2.61% of the vote.B. Criminal proceedings against the applicant12. On 14 August 2014 the Head of the State Agency of Land Resources (“the Agency”), R., was held against his will in the applicant’s office. The applicant insisted that R. appoint a particular person to the post of head of the Agency’s regional department, having previously dismissed the holder of that post. R. complained about the incident to the police.13. On 15 August 2014 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). The relevant entry was made in the Unified register of pre-trial investigations (proceedings no. 12014040670002852, hereinafter referred to as “proceedings no. 52”).14. On 25 February 2015 further criminal proceedings were instituted against the applicant and another person. They were suspected of having organised the kidnapping, on that same day, of V., an official of the Dnipropetrovsk City Council, with a view to forcing the acting head of that authority, Ro., to resign.15. On 7 August 2015 another set of criminal proceedings was instituted against the applicant on suspicion of embezzlement of funds of a charity organisation set up in May 2014 with a view to collecting voluntary contributions to support Ukrainian soldiers fighting in the east of Ukraine.16. On 30 September 2015 the Head of the Dnipropetrovsk Regional Election Commission received telephone threats of violence from somebody who had 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 the work of an electoral officer.17. On 31 October 2015 an investigator from the Prosecutor General’s Office (“the PGO”) arrested the applicant and announced that he was suspected 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 taking a public official hostage) of the Criminal Code. It appears from the text of the relevant notification that all the charges against the applicant were joined to proceedings no. 52 (see paragraph 13 above).18. The circumstances of the applicant’s arrest were as follows. At 8.40 a.m. on 31 October 2015, the PGO investigator, accompanied by a special force unit, arrived at the applicant’s home in Dnipropetrovsk and demanded that he open the door, which the applicant refused to do. Having forced the entrance door, the police entered the applicant’s flat. The applicant, who was inside behind the door, protested against the officers’ conduct as failing to respect the privacy of his home. The police arrested the applicant and took him to Kyiv (the reasons for the decision to deal with the case in Kyiv are unknown).19. 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 had been arrested under Article 208 of the Code of Criminal Procedure (“the CCP”) (see paragraph 96 below) 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 scene of the events. The investigator underlined the second of the above‑mentioned options as the grounds for the applicant’s arrest. A space provided in the report template for indicating “specific facts and data” was left blank.20. 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 because the PGO had entrusted 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 that the applicant had friendly relations with officials of law-enforcement, judicial and other authorities. The investigator therefore considered that the applicant might use his connections in order to influence witnesses, victims or other suspects in the proceedings, or to hinder the investigation by destroying evidence, for example.21. On the same day the applicant was transported from Kyiv to Chernigiv (150 km) in a regular minibus. According to him, he was held in the vehicle from 9 a.m. to 5 p.m., during the journey and while waiting upon arrival at Chernigiv, without any water or food and without access to a toilet. According to the Government, who relied on the information from the PGO, “the applicant had been provided with water and access to sanitary facilities at his requests”.22. Later on 2 November 2015 the applicant complained to the Kyiv Pecherskyy District Court (“the Pecherskyy Court”, situated near the PGO headquarters) that his arrest had been arbitrary and unlawful. He observed, in particular, that the legal preconditions for arrest without a judicial warrant had not been met in his case.23. On the same date another set of criminal proceedings was instituted against the applicant, on suspicion of aggravated interference with the work of an electoral officer. 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”. Those proceedings were joined to proceedings no. 52 (see paragraphs 13 and 17 above).24. At 8.40 a.m. on 3 November 2015, the time-limit for arrest without a judicial decision (seventy-two hours) expired and the applicant was released in the hearing room of the Novozavodskyy Court. However, at 8.42 a.m., before he could even leave that room, he was immediately re-arrested, by a decision of the investigator, on suspicion of having committed a criminal offence under Article 157 § 3 of the Criminal Code (aggravated interference with the work of an electoral officer). The applicant was immediately taken to Kyiv and the investigator drew up a report on his arrest. As in the previous arrest report of 31 October 2015 (see paragraph 19 above), 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 grounds for the applicant’s re-arrest.25. On the same day the PGO decided that its own Main Investigation Department would take over the investigation from the Chernigiv Prosecutor’s Office.26. In addition to his complaint regarding his arrest (see paragraph 22 above), the applicant complained to the Pecherskyy Court that his re-arrest on 3 November 2015 had been unlawful too.27. On 4 November 2015 the PGO investigator applied to the investigating judge of the Pecherskyy Court for the applicant’s pre-trial detention as a preventive measure pending trial. This new application reproduced the text of the one submitted earlier, on 2 November 2015 (see paragraph 20 above), with an additional reference to the charge of interference with the work of an electoral officer (see paragraphs 23 and 24 above).28. On the same date 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 paragraph 20 above).29. On 5 November 2015 the Pecherskyy Court decided to examine jointly the investigator’s application and the applicant’s complaints of 2 and 3 November 2015 regarding the lawfulness of his arrest and re-arrest (see paragraphs 22, 26 and 27 above).30. On 6 November 2015 the investigating judge of the Pecherskyy Court allowed the investigator’s application of 4 November 2005 in part and ordered the applicant’s twenty-four-hour house arrest, with an obligation to wear an electronic tracking device, as a preventive measure for the initial period until 31 December 2015. She referred, in particular, to the gravity of the charges against the applicant and the 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 the leader of a political party and that he had received numerous awards, including the presidential “Order for Courage” on 15 September 2014. It was also observed that he had positive character references, and numerous members of parliament had offered their personal surety as a guarantee that he would comply with his procedural obligations.31. 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.32. In so far as the applicant had raised the same complaint in respect of his re-arrest on 3 November 2015, the judge held, without providing further details, that it had been in compliance with Article 208 of the CCP.33. Both the applicant and the prosecutor challenged the above ruling on appeal. The prosecutor insisted on the applicant’s pre-trial detention as the most appropriate preventive measure. The applicant’s lawyer argued that the investigating judge had not provided a single reason to justify such a restrictive preventive measure as twenty-four-hour house arrest.34. On 1 December 2015 the Kyiv City Court of Appeal rejected both appeals and upheld the ruling of 6 November 2015. It agreed with the investigating judge that there were no reasons for applying pre-trial detention in the circumstances of the applicant’s case and that house arrest was sufficient. At the same time, the appellate court held that there was material in the case file confirming the existence of a reasonable suspicion that the applicant had committed a number of serious criminal offences. It was also mentioned in the appellate court’s ruling that the issue of the lawfulness of the applicant’s arrest had been duly examined by the first-instance court.35. On 7 December 2015 an ambulance was called for the applicant and he was admitted to the “Family Medicine Clinic”, a private hospital in Dnipropetrovsk. He underwent inpatient treatment for a hypertensive crisis, acute coronary syndrome and unstable angina pectoris until 14 December 2015.36. On 8 December 2015 the Dnipropetrovsk Regional Police Department sent the PGO a report on the electronic tracking device which the applicant had been obliged to wear in the context of his house arrest. It was observed that there had been thirty-eight alerts from that device, thirty-five of which could be explained by “the technical imperfection of the device, the architectural particularities of the building, as well as the presence of a lift in the suspect’s flat”. As regards the remaining alerts, two of them were explained by the fact that the applicant had been transported for participation in court hearings and one – by his hospitalisation (see paragraph 35 above).37. 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 replacement of the applicant’s house arrest by pre-trial detention. In addition to the reasons advanced in the initial application on 2 November 2015 (see paragraph 20 above), the investigator submitted that while being under house arrest, the applicant had been evading various procedural measures by “abusing his right to medical assistance ... and continuously staying in private medical institutions”. The investigator observed that the applicant’s father was the founder of the “Family Medicine Clinic”. In the investigator’s opinion, the objectivity of any conclusions by that hospital’s staff members was therefore questionable. The police had registered thirty‑eight alerts from the applicant’s electronic tracking device, which could indicate that he had been trying to tamper with it. Furthermore, according to the investigator, one of the witnesses had stated that the applicant, through his lawyers, had been threatening him so that he would change his statements in the applicant’s favour.38. On 28 December 2015 the Dniprovskyy Court allowed the investigator’s application and ordered the applicant’s pre-trial detention for an initial period up to 25 February 2016 (for a detailed overview of the events from 25 December to 28 December 2015, see paragraphs 60-79 below). The text of the ruling was limited to the operative part and a statement that the investigating judge needed more time to prepare the reasoning.39. It appears from some documents in the case file that immediately after the hearing of 28 December 2015, the applicant was placed in detention in the pre-trial investigation unit of the Security Service of Ukraine. At the same time, some other documents suggest that the applicant was continuing his inpatient medical treatment in the Amosov Institute (see paragraph 60 below) until 15 January 2016.40. On 29 December 2015 the Dniprovskyy Court issued the full text of the ruling. In justifying the applicant’s remand in custody, the investigating judge reiterated the investigator’s arguments as regards the existence of a reasonable suspicion of the applicant’s involvement in a number of criminal offences, the gravity of those offences, as well as the applicant’s friendly relations with officials of law-enforcement, judicial and other authorities (see paragraph 20 above). The judge also held as follows:“... following the judicial examination [of the application], the investigating judge considers it established that the accused has not complied with the obligations [inherent in] house arrest, which was [previously] applied to him.The arguments of the prosecution that none of the more lenient preventive measures ... would be able to prevent the risks indicated in the application are well-founded.”41. The applicant appealed. He submitted that the above decision had been unlawful and arbitrary, and that no alternative, less intrusive, measures had been considered. He also complained that, although he was undergoing inpatient medical treatment following an operation and there had been no urgency to examine the investigator’s application, the judge had conducted excessively long hearings, including at weekends and during the night.42. The applicant was held in a metal cage during the court hearings of 13, 22 and 25 January 2016. Subsequently, that cage was replaced by a transparent box.43. 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 until 23 February 2016. The appellate court upheld the first-instance court’s findings and reasoning. It considered, however, that the starting point of the applicant’s detention was to be calculated from 26 December 2015 (see paragraph 66 below).44. On 17 February 2016 the Dniprovskyy Court extended the applicant’s pre-trial detention until 15 April 2016. It noted that the investigation had not yet been completed, whereas the gravity of the charges against the applicant and the risks already established continued to justify his detention.45. The applicant appealed. He submitted, in particular, that the investigating judge had not considered any alternative, less intrusive, preventive measures. Furthermore, the applicant observed that not a single investigative measure had been carried out since he had been placed in pre‑trial detention.46. On 10 March 2016 the criminal charges against the applicant were slightly changed: namely, the charge of aggravated car theft (see paragraph 13 above) was excluded from the indictment.47. On the same date the applicant signed a friendly settlement agreement with R. (see paragraphs 12 and 13 above). The applicant pleaded guilty of R.’s kidnapping on 14 August 2014 and expressed remorse. The parties considered the following penalty in respect of the applicant to be justified: 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. That agreement would subsequently be approved by a court (see paragraph 51 below).48. Still on 10 March 2016 the charge concerning R.’s kidnapping was severed in a different set of proceedings. The other charges remained within proceedings no. 52 (see paragraphs 13, 17 and 23 above).49. On 15 March 2016 the Kyiv City Court of Appeal rejected the applicant’s appeal against the decision of 17 February 2016 extending his pre-trial detention (see paragraph 44 above). As stated in the appellate court’s ruling, the fact that the investigating judge had decided that pre-trial detention was the most appropriate preventive measure did not mean that no alternative measures had been considered. As regards the applicant’s submission that no investigative measures had been carried out for a long time, the Court of Appeal stated that that circumstance provided no grounds for quashing the decision of the investigating judge to extend the applicant’s detention. It was observed that it was open for the applicant to complain of any omissions by the prosecution if he wished to do so.50. On the same date the applicant applied to the Dniprovskyy Court for the preventive measure in respect of him to be changed from pre-trial detention to twenty-four-hour house arrest, on the grounds that his elderly mother was seriously ill and required permanent care. The investigating judge examined and allowed that request on the same day. He noted that that new argument had been considered neither in the earlier decision of 17 February 2016, nor in the appellate court’s ruling of 15 March 2016 (see paragraphs 44 and 49 above). Accordingly, the Dniprovskyy Court placed the applicant under twenty-four-hour house arrest, without an electronic tracking device, until 15 April 2016. That decision was upheld on appeal on 14 April 2016.51. On 21 March 2016 the Dnipropetrovsk Kirovskyy District Court approved the friendly settlement agreement between the applicant and R. (see paragraphs 12 and 13 above). As a result, it found the applicant guilty of R.’s kidnapping following a prior conspiracy and sentenced him to three years’ restriction of liberty suspended for a probation period of one year and six months.52. On 14 April 2016 the Dniprovskyy Court extended the applicant’s house arrest until 30 April 2016, in the framework of the criminal proceedings against him, which were still ongoing (see paragraph 48 above). It was noted in the ruling that there remained a considerable number of investigative measures yet to be carried out, and that the gravity of the charges against the applicant and the risks established earlier continued to justify his detention.53. On 29 April 2016 there was another such extension, this time until 27 June 2016.54. On 7 June 2016 the Dniprovskyy Court replaced the applicant’s house arrest by an undertaking not to abscond, following a request by the applicant for leave to undergo medical treatment in Israel. The new preventive measure was applicable until 27 June 2016. On the same day the investigating judge allowed the applicant’s request for leave to travel to Israel.55. On 16 June 2016 the Dniprovskyy Court extended the applicant’s undertaking not to abscond until 10 August 2016.56. On 5 August 2016 the criminal charges under Article 255 § 1 (creation of a criminal organisation), Article 349 (taking a public official hostage), Article 191 § 5 (embezzlement of funds of a charity organisation by an organised group) and Article 157 § 3 of the Criminal Code (aggravated interference with work of an electoral officer) were severed in a separate set of proceedings registered under no. 42016000000002043 in the Unified register of pre-trial investigations (hereinafter referred to as “no. 43”). No further information is available as regards the above‑mentioned procedural step. Nor is it clear what charges, if any, remained outstanding within proceedings no. 52 (see, in particular, paragraph 48 above and paragraph 59 below).57. On 11 August 2016 the Pecherskyy Court refused to further extend, at the PGO’s request, the preventive measure in respect of the applicant (the undertaking not to abscond). The investigating judge noted that the term of that measure had expired on 10 August 2016 and that it could not therefore be extended.58. On 11 September 2017 the PGO discontinued criminal proceedings no. 43 against the applicant (see paragraph 56 above) for lack of evidence of his guilt. Namely, the prosecution concluded that there was insufficient evidence to accuse the applicant of creating and managing a criminal organisation, taking the public official V. hostage, embezzlement of funds of a charity organisation by an organised group and aggravated interference with the work of an electoral officer.59. The Government indicated in their observations, without providing any details, that as of April 2018 criminal case no. 52, in which the applicant had “no procedural status”, was still ongoing. Without contesting that submission as such, the applicant pointed out that all the charges against him had been dropped.C. Events of 25 to 28 December 20151.  25 December 201560. The applicant was admitted to the Amosov National Institute of Cardiovascular Surgery (“the Amosov Institute”) for a medical examination.61. At about 2 p.m. the chief doctor of the Amosov Institute informed the mass media that the applicant’s examination would continue for about two hours. At about 3 p.m. a spokesperson for the UKROP party informed the public that an investigator was waiting for the applicant near the hospital ward with a view to serving him with a copy of the application for a change of preventive measure (pre-trial detention instead of house arrest – see paragraph 37 above).62. A panel of doctors examined the applicant and diagnosed him with ischemic heart disease, hypertensive crisis, acute coronary syndrome and unstable angina pectoris, and decided that an urgent coronary stent angioplasty (a percutaneous coronary operation to reopen clogged arteries, combined with the placement of a small wire-mesh tube called a stent to help prop the artery open) was required. The operation was carried out immediately, and two stents were placed in the applicant’s heart arteries.63. By about 9 p.m. the operation had been completed and the applicant was transferred to an intensive-care ward.64. At 10.15 p.m. the investigator tried to serve the applicant with a copy of his application for a change of preventive measure, once the latter had been transferred from the intensive-care to an ordinary ward. The applicant refused to accept it, referring to his weak health, the late hour and the absence of his lawyers.2.  26 December 201565. At 9.03 a.m. the investigating judge of the Dniprovskyy Court opened a hearing for the examination of the investigator’s application. The applicant’s lawyers informed the court that their client had undergone heart surgery and was receiving post-operative inpatient treatment in the Amosov Institute. They stated that that treatment would continue for about seven to ten days. The investigator, in turn, insisted that there was nothing to prevent the applicant from appearing before the court.66. At 11.47 a.m. the judge adjourned the hearing until 3 p.m. and ordered the applicant’s detention with a view to securing his compulsory attendance.67. At 3.07 p.m. the applicant was delivered to the court premises in a wheelchair and with a medication infusion device. He was placed next to a metal cage in the hearing room. Doctors of the Amosov Institute and the emergency medical service were present and monitored his condition. At 3.30 p.m. a doctor of the emergency medical service examined the applicant and reported that the latter had a rapid pulse rate and high blood pressure.68. At 5.21 p.m. the investigating judge allowed a request from the applicant’s lawyers for an immediate forensic medical examination of their client in order to establish his state of health and to decide whether he was fit to participate in court hearings. As a result, the hearing was adjourned until 8.30 p.m. and the applicant was taken back to the Amosov Institute.69. At 8.30 p.m. the investigating judge resumed the hearing in the applicant’s absence. According to his lawyers, he was in an ambulance at that time because his health had deteriorated. Referring to that fact, as well as to the lack of any evidence indicating that the court’s ruling on the applicant’s forensic medical examination had been implemented, the judge adjourned the hearing until 9.30 a.m. on 27 December 2015.70. On 26 December 2015 the chief doctor of the Amosov Institute wrote to the applicant’s lawyer, in reply to an enquiry from the latter, saying that the applicant required post-operative inpatient treatment and monitoring by a cardiologist. The doctor said that it was beyond his competence to answer the question whether the applicant was fit to participate in court hearings. On the same date, the chief doctor of the Amosov Institute and his two deputies replied to a similar enquiry from the investigator that the applicant’s health was satisfactory and that his transfer to the courtroom would not be “life-threatening”. At the same time, the doctors stated that they bore no responsibility for the health of their inpatients outside the Institute.3.  27 December (Sunday) and 28 December 201571. As reported in the mass media – journalists had been permanently present in the corridors of the Amosov Institute – at about 1.30 a.m. a group of prosecution officials tried to enter the applicant’s ward. As it was locked, they read aloud for the applicant the ruling on his forensic medical examination and his summons for the court hearing in the morning of 27 December 2015. Two hospital attendants were made to sign a report to that effect in the capacity of attesting witnesses.72. Early in the morning on 27 December 2015 the investigator once again went to the applicant’s ward. This time he read aloud the above‑mentioned documents to the applicant directly. The latter responded that he would prefer not to leave the hospital without having undergone a forensic medical examination.73. From about 8 to 9 a.m. on 27 December 2015 the investigator questioned three senior doctors of the Amosov Institute about the applicant’s health. The doctors replied in the affirmative to the investigator’s question whether the applicant could be moved in a wheelchair and accompanied by doctors without any risk to his life and health.74. At 9.38 a.m. on 27 December 2015 the judge resumed the hearing. The applicant was not present. The investigator referred to the questioning of the Amosov Institute doctors earlier that morning and requested that the applicant be brought to the court by force. The applicant’s lawyers objected, referring to the fact that their client had not undergone a forensic medical examination.75. At 12.34 p.m. the judge adjourned the hearing until 3 p.m. of the same day and ordered the applicant’s detention with a view to securing his compulsory attendance.76. Early in the afternoon on 27 December 2015 the applicant underwent a medical examination (for about half an hour) by two senior doctors of the Amosov Institute, with the participation of a forensic medical expert and in the presence of the investigator and the applicant’s lawyer. The doctors replied in the affirmative to the investigator’s question whether the applicant could participate in court hearings while being in a wheelchair and accompanied by doctors without any risk to his life and health. The forensic medical expert stated that he would abstain from answering that question. The details of the examination were recorded in “a medical examination report” drawn up by the investigator and signed by all the participants.77. At 4.23 p.m. on the same day the applicant was taken to the courtroom in a wheelchair. The investigating judge ordered several brief adjournments of the hearing so that the applicant could be provided with medical care.78. The courtroom was extremely crowded. At a certain point in the evening there were clashes in the public gallery. At about 9 p.m. on 27 December 2015 the judge decided to continue the hearing in camera.79. The hearing continued until 1.35 p.m. on 28 December 2015. It was reported by the mass media as the longest court hearing that had ever taken place in Ukraine (in total it had lasted for about thirty hours).D. Press statements on the criminal proceedings against the applicant80. The applicant’s arrest and criminal prosecution attracted considerable media attention. The defence and the prosecution, as well as a number of politicians and non-governmental organisations, made press statements in that regard.1. Press statements by the prosecution and other public officials81. The applicant cited the following statements made by high-ranking officials.82. 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)”.83. The applicant also cited another statement by 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 volunteers ...”84. Furthermore, on 1 November 2015 the President of Ukraine stated during a televised interview:“The position is as follows. Nobody will stop on Korban. Nobody is immune to criminal liability for corruption-related offences. This concerns both the new team in power ... and the old team ... I underline that Ukraine will soon hear new names of those to face charges.”85. On 2 November 2015 the Head of the Security Service of Ukraine said 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 was a criminal group specialising in kidnappings ...”86. On 29 December 2015 the investigator stated at a briefing:“Please show the following slide. This is [a bakery plant], which has also been illegally seized by the criminal group under the leadership of Korban Gennadiy Olegovych.”87. 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, has been involved in a number of criminal activities, such as kidnappings, the embezzlement of funds, 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 the 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.”2. Press statements by Ukrainian political parties88. On 31 October and 1 November 2015 three parliamentary political parties made public statements regarding the applicant’s arrest of 31 October 2015.89. The “Batkivshchyna” political party led by Yuliya Tymoshenko (which was in the ruling coalition until February 2016) stated as follows:The All-Ukrainian Association ‘Batkivshchyna’ is concerned about the arrest of Gennadiy Korban, the leader of the ‘UKROP’ party“‘Batkivshchyna’ is not a political ally of the ‘UKROP’ party. We do not share views on various matters. Moreover, we are strongly against combining business with politics.However, having regard to the fact that those who had been shooting the Maidan protesters and who had been involved in large-scale corruption in the time of Yanukovych have not been punished until now, the arrest of the leader of the ‘UKROP’ party, which has entered several regional councils as a result of the local elections, appears to be selective justice and political repression.We have information that searches are being carried out at [the offices of] members of parliament from the ‘UKROP’ party, which is inadmissible and against the law.Such actions against a political force raise many questions in society which remain unanswered.In this context, ‘Batkivshchyna’ demands that the Prosecutor General and the Head of the Security Service of Ukraine appear at the plenary session of the Verkhovna Rada of Ukraine on Tuesday. They must inform the members of parliament and society about the grounds for the arrest of the leader of the ‘UKROP’ party Gennadiy Korban and prove the absence of political impetus behind the actions of law-enforcement officials. ...”90. The “Samopomich” political party led by Andriy Sadovyy (which was in the ruling coalition at the material time and left it in February 2016) stated as follows:Reversion to political repression leads to collapse of the state – ‘Samopomich’“The ‘Samopomich Union’ political party believes that the searches in the office of the member of parliament Borys Filatov and the arrest of a fellow party member amount to an attempt to return Ukraine to the times of political repression of Viktor Yanukovych.While the enemies of Ukrainian statehood are still not brought to liability, law enforcement agencies continue arresting dozens of volunteers who are defending Ukraine in the war for independence.We strongly oppose selective justice. The facts pursuant to which Gennadiy Korban is being accused today have been known both to society and to the law-enforcement authorities for a long time. The activities for which it was necessary to punish [him] had been going unnoticed by the prosecutor’s office and remained unpunished in the eyes of the public. However, only now, when Gennadiy Korban has become a member of a political party which is harshly criticising the actions of the President, has his past become the reason for his arrest. Therefore, it is obvious that the real reason for his detention is political persecution.Everyone must be held accountable for their actions, but this must be done in a timely manner, not when it is politically beneficial for somebody. The policy of ‘friends are assisted, enemies – prosecuted’ led to the collapse of the ex-president. Attempting to continue this policy endangers Ukrainian statehood amidst the continuous war for its independence.‘Samopomich’ urges the President, the Prime Minister, [and] their colleagues in Parliament to immediately dismiss the Prosecutor General and to secure the appointment of an independent successor who will begin to administer justice to all corrupted officials and traitors in Ukraine.”91. The “Radical Party of Oleh Lyashko” (which had been in the ruling coalition until September 2015) posted the following statement on its website:Lozovyy: Korban’s arrest means the regime’s agony“The People’s Deputy of Ukraine, the deputy leader of the opposition faction of the ‘Radical Party of Oleh Lyashko’ Andriy Lozovyy informed by telephone the ‘112’ [television] channel about the continuation of political repression in Ukraine.‘Certainly, the arrest of Gennadiy Korban means the agony of the totalitarian regime of Poroshenko’, stated Lozovyy.The member of parliament has pointed out that criminal cases are being fabricated against patriots only .... That being so, nobody from [those from the previously ruling political party] implicated in robbing the country and murdering the Heaven’s Hundred [persons killed during the protests in 2013-14] has been arrested. ...”3. Other public statements and newspaper articles92. On 1 November 2015 the Kharkiv Human Rights Protection Group published an article on its website entitled “Ukrainian political party leader detained”. It stated, in particular:“There may well be valid grounds for bringing criminal charges against Gennady Korban and for bringing them specifically now. There is, however, a huge weight of distrust among Ukrainians following the politically motivated trials under Viktor Yanukovych, the failure thus far to properly investigate crimes committed during Euromaidan and to ensure that those who seriously compromised themselves are, at the very least, removed from responsible posts in the judiciary and law-enforcement bodies. Under such circumstances any prosecution will inevitably raise questions, and it is to be hoped that the authorities understand that an efficient and maximally transparent investigation will do more to restore trust than public assurances that there’s not a whiff of politics.”93. The applicant also referred to several articles in Ukrainian newspapers suggesting that his arrest had been politically motivated.II. RELEVANT DOMESTIC LAW AND PRACTICEA. Constitution of Ukraine 199694. Article 29, which is relevant to the case, reads as follows:“Every person has the right to freedom and personal inviolability.No one shall be arrested or held in custody other than pursuant to a reasoned court decision and only on the grounds of and in accordance with a procedure established by law.In the event of an urgent necessity to prevent or stop a crime, bodies authorised by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be verified by a court within seventy-two hours. The detained person shall be released immediately if he or she has not been provided, within seventy-two hours of detention, with a reasoned court decision in respect of their being held in custody. ...Everyone who has been detained has the right to challenge his or her detention in court at any time. ...”B. Criminal Code 200195. The relevant provisions can be summarised as follows:-  Article 157 § 3 provides that interference with work of an electoral officer coupled with coercion, violence or threats of violence, committed following a conspiracy by a group of persons or by a public official using his/her position is punishable by three to seven years’ imprisonment, with no right to hold certain posts or carry out certain activities for two to three years;-  Article 191 § 5 provides for seven to twelve years’ imprisonment, with confiscation of property and no right to hold certain posts or carry out certain activities for up to three years, as penalty for embezzlement involving particularly large amounts or committed by an organised group;-  Articles 255 § 1 provides for five to twelve years’ imprisonment as penalty for creation of a criminal organisation;-  under Article 289 § 2, car theft committed, in particular, following a conspiracy or coupled with violence or threats of violence, is punishable by imprisonment for five to eight years, with or without property confiscation;-  Article 349 penalises taking hostage a public official by eight to fifteen years’ imprisonment.C. Code of Criminal Procedure 201296. The relevant provisions provide: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 [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 has not proven that there are 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.”Article 177. Purpose and grounds for the application of preventive measures“1. The purpose of a preventive measure is to ensure that a suspect or an accused complies with his or her 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 essential 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 grounds 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 convict could commit actions specified in paragraph one of this Article ...”Article 181. House arrest“1. House arrest consists of prohibiting the suspect or the accused from leaving his or her place of residence twenty-four hours per day or during certain hours.2. House arrest may be applied to a person suspected or accused of having committed a criminal offence punishable by imprisonment....5. National police officers may visit the suspect or the accused under house arrest at his or her domicile, with a view to surveying his or her behaviour. They may demand verbal or written explanations as regards the compliance by the suspect or the accused with his or her obligations. Electronic tracking devices may be used.6. The validity period of a ruling of the investigating judge on placing a person under house arrest shall not exceed two months. If required, the duration of house arrest may be extended at the prosecutor’s request within the limits of the pre-trial investigation .... The total duration of house arrest may not exceed six months. Thereafter the ruling on the application of that preventive measure shall be deemed to have expired and the house arrest measure shall be considered lifted.”Article 208. Arrest by a competent official [without a court order]“1.  [In the absence of a court order a] competent official is entitled to arrest (затримати) a person suspected of having committed a crime for which a prison sentence 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 eyewitness, including the victim, or the totality of obvious signs on the body, or 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/she understands, of the grounds for the arrest and of what crime he/she is suspected of having committed. 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/her 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, date and exact time (the hour and minute) of the arrest ...; the grounds for the arrest; the 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 ...”97. 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 the right to legal assistance.98. 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 has been served on him or her within twenty-four hours of arrest.D. Compensation Act 199499. Under the Law of Ukraine on the Procedure for Compensating Damage caused to Citizens by the Unlawful Actions of Bodies in charge of Operational Enquiries, Pre-trial Investigation, Prosecutors or Courts (also referred to as “the Compensation Act”), a person is entitled to compensation for damage on account of, in particular, unlawful detention (section 1). The preconditions for entitlement to compensation include “a finding of ... unlawfulness of arrest and detention in a guilty verdict or other judicial decision” or termination of criminal proceedings for want of evidence of the person’s guilt (section 2).E. Civil Code 2003100. Article 1176 provides for the right to compensation for damage sustained as a result of unlawful decisions, actions or omissions by bodies of inquiry, pre-trial investigation authorities, prosecutor’s offices and courts. It specifies that damage caused to an individual, in particular, by unlawful criminal prosecution, unlawful application of a preventive measure, and/or unlawful arrest must be compensated in full, irrespective of the guilt of officials of bodies of inquiry, pre-trial investigation authorities, prosecutor’s offices and courts. The procedure for claiming compensation for damage as described above “shall be established by law”.THE LAWI. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION101. The applicant complained under Article 3 of the Convention about the conditions in which he had been transported from Kyiv to Chernigiv on 2 November 2015. He also complained that he had been obliged to participate in lengthy court hearings immediately after the coronary angioplasty of 25 December 2015. Lastly, he complained under the same provision that he had been confined in a metal cage during the court hearings of 13, 22 and 25 January 2016. Article 3 of the Convention relied on reads as follows:“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”A. Admissibility1. As regards the applicant’s transfer from Kyiv to Chernigiv on 2 November 2015102. The applicant complained under Article 3 of the Convention that on 2 November 2015, during his transfer from Kyiv to Chernigiv and thereafter, he had been kept in a minibus for about eight hours without any water, food or access to a toilet.103. The Government observed that the trip in question had not lasted long, given that the distance to cover was 150 km. They further submitted that the applicant had received water and had been allowed to use the toilet at his requests.104. The Court refers to its well-established case-law principles regarding the assessment of whether the treatment complained of attained the minimum level of severity to fall within the scope of Article 3 of the Convention (see paragraphs 118 and 119 below). The Court has found a violation of that provision where a detainee was kept in a police-station cell for twenty-two hours without food or drink or unrestricted access to a toilet (see Fedotov v. Russia, no. 5140/02, §§ 66-70, 25 October 2005). The Court has also found unacceptable the conditions of transport in cases where the applicants had remained confined in cramped prison vans or train carriages, without proper ventilation, water or catering, for long periods sometimes exceeding forty hours, and where they had had to undergo such trips on many occasions (see, for example, Yakovenko v. Ukraine, no. 15825/06, §§ 105-33, 25 October 2007; Koktysh v. Ukraine, no. 43707/07, §§ 106-08, 10 December 2009; and Konovalchuk v. Ukraine, no. 31928/15, §§ 66-70, 13 October 2016).105. Turning to the circumstances of the present case, the Court notes that the applicant was transported in a regular minibus, which he did not allege to have found uncomfortable (see paragraph 21 above). In the absence of any details from the Government as regards how long the applicant had had to wait in that vehicle upon arrival in Chernigiv or as regards any arrangements for catering, the Court considers plausible the applicant’s submission that he was made to stay in the minibus for eight hours without being provided with food.106.

Outcome for Article 5: violation