For almost four years now, we have been living under the conditions of war, where life dictates its own rules for each and every one of us. We understand that victory over the enemy requires a united society, bound by a single goal – resisting the aggressor. For this reason, matters of Ukraine’s internal life would seemingly recede into the background. Yet recently, we have once again witnessed loud corruption scandals, the threads of which lead all the way to the highest levels of power.

Between Public Outcry and the Rule of Law
Over the 34 years of Ukraine’s independence, our citizens have grown accustomed to living in constant information turbulence.

However, even under such circumstances, the publication in the media of fragments of materials from the Mindich case – a pre-trial investigation conducted by the National Anti-Corruption Bureau of Ukraine (NABU) under the procedural supervision of the Specialised Anti-Corruption Prosecutor’s Office (SAPO) – before any of the suspects had even been formally notified of suspicion, clearly went beyond what is usually acceptable. Information was disclosed that, as a rule, remains confidential until the completion of a full set of investigative actions and the official announcement of the end of the pre-trial investigation.

The Ukrainian public was informed that, as a result of covert wiretapping, a so-called “back office” had allegedly been uncovered, through which millions were purportedly laundered by individuals close to high-ranking officials. Most dangerously, among those allegedly involved in the crime, the names of the Minister of Justice, the Minister of Energy, a former Minister of Defence were mentioned, and even an implied connection to the Office of the President was suggested. Crucially, this information was presented as statements of fact rather than assumptions. Society did not hear phrases such as “according to our information, they may be involved”. Instead, the public heard: “organised”, “created”, “laundered”. In effect, a complete picture of an alleged crime was presented to the public, even though those concerned had not yet acquired any proper procedural status.

“Mindichgate” became so loud a scandal that it went far beyond Ukraine’s borders and had an extremely negative impact on the country’s international image.

How do professional lawyers assess such an information leak? In our view, this is not merely a communication failure. It is a serious problem lying at the intersection of criminal procedure, international law, and state reputation.

Most importantly, at a time when Ukraine is marking the 75th anniversary of the European Convention on Human Rights and declaring its commitment to a European course of development, any actions by state authorities that call this commitment into question are of particular significance. That is why the leak of materials in the Mindich case must be analysed not merely as a political or informational factor, but as a legal problem.

The Presumption of Innocence: A Core Principle That Must Operate in Practice, Not Only “on Paper”

The presumption of innocence, enshrined in Article 62 of the Constitution of Ukraine and Article 17 of the Criminal Procedure Code, is not a decorative provision. It is one of the fundamental guarantees of a fair trial and also stems from Article 6 of the European Convention on Human Rights. It has been interpreted repeatedly and from various perspectives in dozens of judgments of the European Court of Human Rights (ECtHR). Unfortunately, there are already numerous ECtHR judgments against Ukraine in which the public disclosure of pre-trial investigation materials, accompanied by a direct assessment of a specific person’s actions as criminal before a final court judgment, was found to violate the presumption of innocence.

The ECtHR Case of Shagin v. Ukraine: Why It Can Be Considered Canonical

In its judgment in Shagin v. Ukraine of 10 December 2009 (Application no. 20437/05), the Court found that public statements made by the Kyiv prosecutor’s office at a press conference during the pre-trial investigation were incompatible with the presumption of innocence. These statements asserted that Ihor Shagin was the organiser of murders and the leader of a criminal group. The ECtHR noted that it is sufficient for an official to create the impression that they regard a person as guilty for a violation of Article 6 §2 to occur.

Since then, the Court’s conclusion has become a classic principle: in the absence of a final conviction, an official must not speak as if a person’s guilt has already been established. Such statements encourage the public to believe in the suspect’s guilt and predetermine the assessment of facts by the competent judicial authority.

The Cases of Dovzhenko, Krivolapov and Korban v. Ukraine: The Contemporary Line of Case Law

In the case of Dovzhenko v. Ukraine (Application no. 36650/03, judgment of 12 January 2012), a violation was established because long before the final judgment investigators had publicly referred in the media to the person as being reasonably suspected of committing offences. The Court emphasised the importance of careful wording by officials when making public statements prior to a court’s finding of guilt.

The case of Krivolapov v. Ukraine (Application no. 5406/07, judgment of 2 October 2018) is known for the fact that, between 2005 and 2008, the investigator in charge of the case gave numerous interviews to television and print media, portraying the applicant and his co-accused as guilty, while openly naming them. Moreover, law enforcement officers personally participated in the creation of a documentary film portraying the applicant as a member of a criminal group, thereby shaping public opinion and persuading society of the person’s guilt before any court verdict.

The case of Korban v. Ukraine (Application no. 26744/16, judgment of 4 July 2019) concerned the criminal prosecution of a well-known political figure, Hennadii Korban. The Court analysed numerous interviews given in 2015–2016 by the Prosecutor General, the President, the Head of the Security Service of Ukraine, and other officials. On this basis, the ECtHR once again reaffirmed its established principle that Article 6 §2 prohibits public officials from declaring a person guilty before a court conviction.

Given the significant public resonance of Mr Korban’s case, the Court observed that officials may inform the public about criminal investigations – for example, about the service of suspicion notices, arrests, or confessions – provided they do so cautiously and with restraint. However, the choice of words is crucial.

The Court further assessed the broader political, informational and social context surrounding the suspect. At the same time, it reminded that the state must refrain from forming a judgment as to a person’s guilt prior to conviction.

Thus, the ECtHR judgments in these cases have built a clear framework:
the public sphere must not be used by state authorities for preliminary assessments of individuals’ actions as criminal where they have not yet acquired the status of the accused; the formation by officials of public opinion about a person’s guilt before a final court judgment constitutes a clear violation of the presumption of innocence.

NABU Recordings: When Operational Work Turns into a Public Accusation

• Disclosure of Pre-Trial Investigation Materials

As a rule, investigators seek to minimise information leaks during pre-trial investigations, as such leaks may seriously undermine both the investigation and the ability to hold those responsible criminally liable in accordance with the law. It is for this reason that Article 387 of the Criminal Code of Ukraine introduces criminal liability for the disclosure of data from operative-search activities and pre-trial investigations. From a professional legal perspective, it is always striking when the very bodies responsible for pre-trial investigations themselves publicise such materials at an early stage of proceedings.

Returning to “Mindichgate”, it can be stated with confidence that the NABU leak ran contrary to the fundamental principles of investigative secrecy:

• the materials were published before the completion of investigative actions;


• fragments of conversations were disclosed, potentially taken out of context;


• journalists were presented with statements, not assumptions;


• some individuals named on the recordings had no procedural status at all.

This created not only political, but also serious procedural risks: the disclosed materials may later be deemed inadmissible by a court, thereby jeopardising the entire case.

• The Danger of Assertive Language

When NABU detectives state that someone “created a back office”, “coordinated the scheme”, or “laundered millions”, they are no longer providing objective information on the course of an investigation – they are forming a public judgment of guilt. This directly contradicts the ECtHR’s settled case law.

Judges are not isolated from the information space. High-profile cases that receive extensive media coverage create social pressure which may influence judicial decisions even at the pre-trial stage – including decisions on remand, searches, or asset seizures. Moreover, this forms public expectations of “inevitable punishment” and creates an emotional climate incompatible with judicial independence. Under such pressure, it becomes exceptionally difficult for a court to deliver a lawful and fair judgment.

Ukraine’s International Image: Reputation Risks That Are Difficult to Measure

The loud statements by NABU in the Mindich case immediately became the subject of discussion in foreign media. This resulted in:

• the emergence of publications about “corruption at the highest levels of Ukrainian leadership”;


• speculation about “peace plans” and potential internal power struggles;


• an erosion of confidence in the institutional stability of the state.

At a time when Ukraine is striving for European Union integration, this new information wave caused a serious reputational shock, calling into question the state’s capacity to genuinely implement European standards. It not only provided external critics with additional arguments, but also jeopardised the assessment of Ukraine’s progress in strengthening the rule of law. Ultimately, the damage was done not only to individuals, but to the state as a subject of international law.

The Lawyer as a Voice of Legal Culture
As practising lawyers, we stress that this article is not an attempt to defend any of the figures involved in a specific case. It is about defending principles – the very principles for which Ukraine is paying an extremely high price. Lawyers have a duty to remind society that the presumption of innocence is not a legal formality, but a reliable safeguard against procedural abuse.

Law enforcement bodies, including those responsible for combating corruption, must operate not only effectively, but also in strict compliance with the law. For if today the rights of senior officials are violated in the media, tomorrow these standards may be destroyed in relation to anyone.

Conclusions

The NABU recordings have exposed a problem that has long required open discussion:
the fight against corruption cannot justify violations of human rights.

The ECtHR has repeatedly emphasised that the state has no right to form public beliefs about a person’s guilt prior to a final court judgment.

Ukraine cannot afford to ignore the standards of the European Convention on Human Rights, particularly now, when compliance with these standards is one of the key factors in its movement towards the European Union. The central question today is whether we are capable of building a state governed by the rule of law, where the presumption of innocence is not a declaration, but a fundamental standard unconditionally upheld by law enforcement and judicial authorities.

We are convinced that we are capable. But this requires calling things by their proper names and demanding from the state not only effective anti-corruption measures, but also unconditional respect for human rights.

the authors

 OLGA SHAPOVALOVA

OLEKSANDER MYKYTENKO