“Criminal” Only after Verdict: Reason Presumption of Innocence Exists

On October 31, 2023, the High Anti-Corruption Court found that NABU detective Stanislav Braverman violated the presumption of innocence in regard to ex-MP Maksym Mykytas by “saying too much” on a YouTube podcast. Mykytas himself filed the relevant motion so that his right to a fair trial and the principle of the presumption of innocence would not be violated.

Let’s consider this example to understand what this principle means, how the presumption functions, and what the fairness of the court has to do with it.

What is the point of the presumption of innocence? 

Until there is a guilty verdict, it is unknown whether the person is guilty or not. This does not prevent the bodies of pre-trial investigation or the prosecutor’s office from proving the guilt of a person before the court, but they cannot publicly declare a person guilty or form such an attitude towards them.

This requirement exists in order for the punishment and appropriate condemnation of society to occur after the verdict of the court, and not before or before the case goes to court. 

Therefore, law enforcement officers do not mention the first and last names of alleged criminals in public communication about their detention or exposure, and the photos blur their faces. Even if a person is quite easy to identify, and a video from journalists appeared on the Internet, it is forbidden to state they are guilty.

Funny enough, the SSU once blurred not only the detainees, but also the cat that got photographed by law enforcement officers.

Source: SSU

On October 13, 2023, in one of the episodes of the Radio NV podcast NABU’s Secrets, Detective Braverman, in the context of discussing the possible provision of a EUR 22 million bribe by Mykytas to the mayor of Dnipro Filatov, said the following:

“As witnesses explained, with this entrepreneur (Mykytas — ed.), the cooperation had been established several years before these events, they poorly performed their tasks, so nobody wanted to continue, but they began to try hard to meet with the mayor (mayor of Dnipro — ed.) and provided their proposals, which were provocative in nature. Therefore, this crime was recorded.

Regarding the amount of EUR 22 million (bribe to Filatov — ed.), the detective noted the following: “In the course of the conversations that we recorded, it was voiced that this amount would grow. He boasted that there were 500 million for other facilities, and he increased the sum to 2.5 billion. That is, he said that he had a lot of experience, and this amount may not be final, 220 million was the minimum that they had agreed upon, which was already recorded at that time in documents and contracts. Therefore, we incriminate these 22 million, but he planned that the amount would be higher.”

The court found that the NABU detective although did not mention specific names, but the context of the conversation and the categorical statements of the detective undoubtedly formed the impression among the viewers and listeners of this interview that Mykytas was guilty of committing a crime. 

Mykytas said that such statements of the NABU detective had a negative impact both on him and on the authority of the judiciary; the HACC agreed with him. The court instructed the NABU director not to allow such cases in the future.

Why should the presumption of innocence be respected?

First of all, it is a sign of the civilized nature of the state, as well as the fact that the guilt of a person is decided by the court, and not by the crowd. Of course, this does not deprive the public of the right to disseminate information about the activities of law enforcement officers, but determines the rules for submitting information. 

These rules are defined both in Art. 17 of the CPC of Ukraine and in other legislative documents. This is also mentioned in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. 

The European Court of Human Rights emphasizes that the presumption of innocence is part of a person’s right to a fair trial, since a court cannot be biased in regard to a person’s guilt without examining the relevant evidence and opinions of the parties.

Unfortunately, the ECHR has repeatedly pointed to the violation of Ukraine’s obligations to respect the presumption of innocence. The fact that the HACC recognized the statements of the NABU detective regarding Mykytas as a violation is a significant shift that demonstrates the ability of the national legal system to correct mistakes without resorting to international courts.

What other cases were heard in the ECHR?

The European Court considers the presumption of innocence violated in the following cases.

• Officials and politicians make public conclusions about the guilt of a person before the court verdict. 

For example, in the case of Shagin v. Ukraine, the first deputy prosecutor of Kyiv stated that the suspect was “effectively the leader” of the group of killers and “his orders [to kill] were systematic.” Statements of a similar nature by the heads of the city department and the regional department of the Ministry of Internal Affairs were recognized by the ECHR as unlawful in the case of Dovzhenko v. Ukraine. 

• A court decision other than a verdict determines that the person is guilty. 

For example, in the case of Grubnyk v. Ukraine, the court in the ruling on the interim measure noted that the suspect “committed a particularly grave offense.” 

Therefore, the ECHR recommends that public officials weigh their words until the case reaches the court and a guilty verdict is passed regarding the person. 

The presumption of innocence was violated. What will it result in? 

First of all, a person has the right to compensation for the damage caused. And if there is a relevant court decision (national or international), the funds will be paid at the expense of the national budget. That is, instead of allocating funding for reconstruction projects or the needs of the Defense Forces, Ukrainians will sponsor someone’s reckless statements.

Other consequences are reputational. The international community will distrust the Ukrainian judicial system, will doubt its fairness. 

For example, one of the arguments for the refusal of the Serbian court to extradite former SSU General Andrii Naumov, convicted of money laundering, was the words of Zelenskyy: “Andrii Naumov is a traitor.”

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When Russian invaders or other national security saboteurs are tried, emotions can sometimes take over. But despite all the circumstances and the fierce war, we need to remain a state governed by the rule of law. It is this civilized nature that shows the striking difference between us and Russia, which shows no respect for human rights and the rule of law. 

In addition, international partners support us also because we share common values, and therefore Ukraine must continue to affirm them, including through effective anti-corruption measures.