Summary
The Civil Organisation Kharkiv Human Rights Protection Group (hereinafter – the KHPG) was approached by a Member of Parliament of Ukraine, Yuliia Volodymyrivna Tymoshenko (hereinafter – the Applicant), with a request to examine the materials of criminal proceedings No. 42025000000001123, registered on 27 November 2025 under the elements of the criminal offence provided for in Article 369, § 4 of the Criminal Code of Ukraine, as to compliance with the guarantees enshrined in the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter – the Convention), the established case-law of the European Court of Human Rights (hereinafter – the ECtHR), as well as the relevant international and national human-rights standards. She also requested that a corresponding legal opinion (amicus curiae) be provided.
The KHPG finds, in these criminal proceedings, a high risk of prosecution pursuing an illegitimate ulterior purpose within the meaning of Article 18 of the Convention and the established case-law of the ECtHR. Under the human-rights methodology, prosecution is classified as politically motivated where the actions of State authorities and their officials and officers are prompted by: (a) illegitimate considerations of a socio-political nature; or (b) the actions of the person concerned in defense of the rights, freedoms, and legitimate interests of citizens. The presence of both factors at once, supported by prima facie evidence, together with numerous violations of international and national human rights standards, raises serious concern that the Applicant is a victim of politically motivated prosecution. In view of this, the KHPG is actively monitoring the proceedings.
The Expert Opinion (amicus curiae), prepared by the KHPG with the participation of legal experts, is not intended to provide a legal assessment of the Applicant's guilt or innocence – that question falls within the court's exclusive competence. Rather, it focuses on assessing the procedural aspects of the proceedings through the prism of the Convention and the ECtHR's case law (which, pursuant to Article 9 C5 of the Criminal Procedure Code of Ukraine, takes priority), as well as the relevant legal positions of the Supreme Court. The preventive orientation of the Opinion takes on particular significance in view of the Applicant's status as the leader of an opposition parliamentary faction in the Verkhovna Rada of Ukraine, since, under ECtHR case law, the criminal prosecution of such persons is subject to a heightened standard of procedural rigor.
Following its examination, the KHPG identifies the following principal issues:
1. Violations in the authorization of the covert investigative (search) action (Article 8 of the Convention). The ruling of the investigating judge of the High Anti-Corruption Court (HACC) of 7 January 2026 authorising a covert investigative (search) action (hereinafter – CISA) in respect of the Applicant contains no individualised factual basis for a finding of reasonable suspicion: the only material purporting to serve as factual justification is the hearsay testimony of a Member of Parliament's assistant, obtained on the very same day on which he was given a "special task". The justification for the impossibility of obtaining the information by other means is confined to reproducing the statutory wording of Article 248 § 3 (1) of the Criminal Procedure Code of Ukraine. The defects identified directly reproduce the picture in which the ECtHR found a violation of Article 8 in Vykhor v. Ukraine (application no. 36618/14, judgment of 22 January 2026) – a judgment delivered under the very same procedural legislation. The risk of "artificial overcharging" within the meaning of the Supreme Court's ruling in case No. 164/1293/17 requires separate verification following full disclosure of the materials under Article 290 of the Criminal Procedure Code of Ukraine, since it was precisely the particularly serious classification that opened the procedural possibility of conducting audio surveillance of the person.
2. Failure to grant the defense access to the CISA materials (Article 6 §§ 1 and 3 (b) of the Convention). The defense was granted access solely to a partial derivative copy of the audio recording obtained as a result of the CISA conducted on 12 January 2026, without the possibility of examining the full content of the recording or the original material carrier No. 4794t. The question of the justification for non-disclosure was, in fact, decided by the prosecution unilaterally – without the effective, independent judicial scrutiny expressly required by Rowe and Davis v. the United Kingdom [GC] (§ 66). No procedural decision provides any justification as to why precisely the original material carrier should remain inaccessible to the defense (Yüksel Yalçınkaya v. Türkiye [GC], §§ 330-331). Given the role of the contested evidence as the central item of evidence for the prosecution, together with the existence of technical expert reports concerning possible tampering with the recording, the restriction of access to the original renders the right to a defence in respect of this evidence effectively illusory (Natunen v. Finland, §§ 42-43, 47; Yüksel Yalçınkaya [GC], §§ 311-312, 334).
3. Violations in the conduct of the search (Article 8 in conjunction with Article 11 of the Convention). On the night of 13–14 January 2026, NABU detectives carried out two searches without a prior ruling by an investigating judge, in accordance with Article 233 § 3 of the Criminal Procedure Code of Ukraine. They searched the premises used by the Applicant for parliamentary activity and a vehicle. The detective's application and the HACC investigating judge's ruling on post factum legalization of 19 January 2026 are confined to formulaic wording about a threat of destruction of property, without any individualized assessment of the specific circumstances of the case, which directly contravenes the standard set by the Joined Chamber of the Criminal Cassation Court of the Supreme Court in case No. 466/525/22. The retrospective judicial scrutiny was conducted in a closed hearing without the defense's participation; the ruling is not subject to appeal – a procedural model expressly criticized by the ECtHR in Korniyets and Others v. Ukraine (§§ 65-71). The nighttime character of the search and its duration received no separate justification whatsoever (Kučera v. Slovakia; Rachwalski and Ferenc v. Poland; Zubaľ v. Slovakia). Since the search was conducted on the premises used by the leader of an opposition parliamentary faction and concerned materials relating to her parliamentary and political activity, the defects identified carry additional weight in light of Article 11 of the Convention.
4. The procedural regime applied to the witness operating under a concealed identity (Article 6 §§ 1 and 3 (d) of the Convention). The person who, in fact, carried the audio-surveillance equipment during the CISA on 12 January 2026 appears in the case materials with altered personal data, under a concealed-identity (legend) regime. At the same time, the materials establish that this person is a sitting Member of Parliament of Ukraine – a public figure whose identification, given her status and the information available in the public domain, is not difficult. The materials provided contain no relevant and sufficient justification as to any real threat to the life, health, or property of this witness (Doorson v. the Netherlands, § 71; Van Mechelen and Others v. the Netherlands, § 61). The institution of witness protection has simultaneously been relied upon by the prosecution to justify its refusal to provide the defense with the full recording and the material carrier of the CISA – that is, it has in fact been used as an instrument for restricting other procedural rights of the defense, which is incompatible with the requirement of "strict necessity" (Van Mechelen, § 58). The questioning of this witness at the pre-trial investigation stage was conducted in the absence of the defence; under the criteria set out in Al-Khawaja and Tahery v. the United Kingdom [GC] (§ 119) and Schatschaschwili v. Germany [GC] (§§ 105-131), his testimony cannot form the basis of a conviction unless the defence is afforded a genuine opportunity to examine that witness during the trial.
5. Violation of the presumption of innocence (Article 6 § 2 of the Convention). Four distinct elements of public communication are identified: (a) the simultaneous official publication on the NABU website of the notice of suspicion and the release of a fragment of the CISA materials on the YouTube platform under a heading of a charging-and-accusatory character (14 January 2026); (b) the registration of the criminal proceedings in NABU's official records under a title that constitutes an assertion of an already committed act (Ismoilov and Others v. Russia, § 166; Garycki v. Poland, § 67); (c) the announcement of the completion of the investigation using the wording "the investigation has established", followed by a presentation of the incriminated acts as though factually proven; and (d) the public comment of the President of Ukraine referring to a specific factual detail of the case known publicly only from the communication of the pre-trial investigation body. Taken together, these elements reproduce the circumstances that the ECtHR found constituted a violation of Article 6 § 2 of the Convention in Sytnyk v. Ukraine (application no. 16497/20, final on 24 July 2025).
6. The question of possible entrapment (Article 6 § 1 of the Convention). The body of materials provided in the criminal proceedings is focused on actions taken in respect of the Applicant after 5 January 2026, whereas materials are absent for a significant period preceding that; accordingly, the question of who took the initiative in formulating the offer of an unlawful benefit remains open. The available materials do not make it possible to answer definitively the question of compliance with the "purely passive" standard of investigation within the meaning of Teixeira de Castro v. Portugal (§ 38) and Bannikova v. Russia (§ 38): there remain unclarified the nature of the actions of the pre-trial investigation body before the agent appeared in the proceedings, the circumstances in which the agent approached the investigation body and was engaged in conducting the CISA, and the scope and content of the instructions given to the agent. The allegation of possible entrapment in the circumstances of this case is not manifestly ill-founded within the meaning of Ramanauskas v. Lithuania [GC] (§ 70) and triggers the ECtHR's procedural test: the burden of proving the absence of entrapment is placed on the prosecution, and the national court is obliged to carry out a substantive, rather than formal, examination of the relevant complaint, with due reasoning in its decision (Ramanauskas [GC], § 64; Tchokhonelidze v. Georgia, § 51).
7. Indications of politically motivated prosecution (Article 18 of the Convention). The circumstances of the proceedings contain features that correlate with the indicators identified in the ECtHR's case-law under Article 18 of the Convention: (a) the chronological synchronisation between the Applicant's public position regarding the anti-corruption bodies (in particular, her support on 22 July 2025 for Bill No. 12414, aimed at restricting the powers of NABU and the SAPO) and the opening of criminal proceedings against her less than four months later; (b) the Applicant's status as an opposition political figure and leader of a parliamentary faction; (c) the simultaneous procedural pressure exerted on another member of the parliamentary faction of the All-Ukrainian Union "Batkivshchyna" – Member of Parliament Serhii Vlasenko, who, as Chair of a parliamentary temporary investigative commission, stands in a relationship of potential institutional conflict with NABU and the SAPO; (d) the configuration of public communication reproducing the pattern of Sytnyk v. Ukraine; and (e) the totality of procedural decisions analysed in the preceding sections of the Opinion, which is capable of forming a pattern of conduct within the meaning of Selahattin Demirtaş v. Türkiye (no. 2) [GC] (§ 428). None of these circumstances is, taken in isolation, sufficient to establish a violation of Article 18 of the Convention. However, taken together, they provide grounds for enhanced monitoring: should these circumstances be confirmed in the further course of the case, and in the absence of any substantive rebuttal of them by the pre-trial investigation body and the national courts, the question of the existence of an ulterior purpose of prosecution will acquire independent significance.
Failure to comply with the requirements of the Convention and the ECtHR's case-law in the course of the proceedings, in respect of any of the identified aspects, will constitute independent grounds for finding a violation of the corresponding Convention guarantees. The KHPG will continue to monitor the proceedings and to record their course publicly.
The full version of the Expert Opinion (amicus curiae), setting out in detail the issues of established and potential violations, with reference to national and Convention standards, as well as an analysis of the applicable case-law of the ECtHR and the Supreme Court, is published separately by the KHPG.
