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Since the beginning of the full-scale invasion of Ukraine by the russian federation and the declaration of martial law in our country, the judiciary has been faced with new challenges related to the administration of justice in times of war.
In 2023, the Criminal Cassation Court within the Supreme Court formulated a number of legal positions on current issues of criminal law and criminal procedure, including those related to wartime criminal proceedings.
Along with the criminal offences traditionally considered by the judicial system of Ukraine, the courts began to consider criminal offences punishable under sections I "Crimes against the foundations of national security of Ukraine", XX "Criminal offences against peace, security of humanity and international law and order" of the Special Part of the Criminal Code of Ukraine. These include such criminal offences as encroachment on the territorial integrity and inviolability of Ukraine (Article 110 of the Criminal Code of Ukraine), high treason (Article 111 of the Criminal Code of Ukraine), justification, recognition as lawful, denial of the armed aggression of the russian federation against Ukraine, glorification of its participants (Article 436-2 of the Criminal Code of Ukraine). In its judgments, the Criminal Cassation Court of the Supreme Court paid considerable attention to the institution of release from serving a sentence on probation in these categories of cases.
In addition, the Joint Chamber of the Criminal Cassation Court of the Supreme Court formulated a number of conclusions on the qualification of criminal offences in the field of official activities and professional activities related to the provision of public services; on the conditions for imposing an additional penalty in the form of deprivation of the right to hold certain positions or engage in certain activities.
The Criminal Cassation Court of the Supreme Court also addressed the issues of qualification of criminal offences against public security.
In order to ensure uniformity of case law, and taking into account the decisions of the European Court of Human Rights, the Criminal Cassation Court of the Supreme Court has defined a uniform approach to the criteria for the presence/absence of signs of provocation to commit a crime.
In case no. 759/22254/19, the panel of judges of the Criminal Cassation Court of the Supreme Court upheld the decisions of the local and appellate courts which found a former deputy of the Verkhovna Rada of the Autonomous Republic of Crimea guilty of high treason (part 1 of Art. 111 of the Criminal Code of Ukraine), since he, while being a citizen of Ukraine, in violation of the Constitution and laws of Ukraine, knowing that the territory of the Autonomous Republic of Crimea is an integral part of Ukraine, took part in the sessions of the Verkhovna Rada of the Autonomous Republic of Crimea and voted for the adoption of illegal resolutions no. 1702-6/14 on the organization of the all-Crimean referendum, no. 1745-6/14 on the independence of Crimea, no. 1748-6/14 on the succession of the Republic of Crimea, took part in an extraordinary session of the illegally established parliament, thus ensuring its functioning, and voted for the adoption of an illegal decision - the so-called Constitution of the Republic of Crimea.
The Criminal Cassation Court of the Supreme Court stated that the deputy is obliged to abide by the Constitution of Ukraine, the Constitution of the Autonomous Republic of Crimea, the laws of Ukraine and the regulatory acts of the Verkhovna Rada of the Autonomous Republic of Crimea. Legislative acts adopted by the Verkhovna Rada of the Autonomous Republic of Crimea must be in accordance with the Constitution of Ukraine (part 2 of Article 135 of the Constitution of Ukraine, Article 28 of the Constitution of the Autonomous Republic of Crimea). The question of changing the territory of Ukraine may be the subject of an all-Ukrainian referendum in accordance with Article 73 of the Constitution of Ukraine, para. 3, part 1, Article 3 of the Law of Ukraine "On All-Ukrainian Referendum", and not a republican (local) referendum. Since the deputy of the Verkhovna Rada of the Autonomous Republic of Crimea took part in the voting for the adoption of obviously unconstitutional and illegal decisions on the holding of a general referendum in Crimea, the creation of an illegitimate state formation - the Republic of Crimea - and the incorporation of an integral part of the territory of Ukraine - the Autonomous Republic of Crimea and the city of Sevastopol - into the russian federation, he thereby assisted the russian federation and its representatives in conducting subversive activities against Ukraine, i.e. committed high treason.
The Resolution of the Criminal Cassation Court of the Supreme Court of 20 December 2023 in case no. 759/22254/19: https://reyestr.court.gov.ua/Review/115822485.
In case no. 759/4148/17, the panel of judges of the Criminal Cassation Court of the Supreme Court upheld the decisions of the local and appeal courts sentencing a former judge of the Commercial Court of the Autonomous Republic of Crimea to 12 years' imprisonment and confiscation of all her property under part 1 of article 111 of the Criminal Code of Ukraine.
As the courts found in this criminal proceeding, a Ukrainian citizen, who was a judge of the Commercial Court of the Autonomous Republic of Crimea, committed high treason, namely, she intentionally, to the detriment of the sovereignty and territorial integrity of Ukraine, assisted the russian federation as a foreign state in conducting subversive activities against Ukraine. In particular, after the occupation of Crimea, the judge continued to administer justice under russian legislation, and in December 2014, she was appointed a judge of the arbitration court by a decree of the president of the russian federation.
In the cassation appeal, the defence lawyer pointed out, among other things, that Ukrainian legislation does not contain a clear definition of the term "subversive activity", that the prosecution had not proved that his client had committed acts that would harm the external security, sovereignty and territorial integrity of Ukraine and fall under the definition of "subversive activity", and that the Arbitration Court could not be considered a body carrying out subversive activities.
The panel of judges of the Criminal Cassation Court of the Supreme Court stated that assisting a foreign state, foreign organisation or their representatives in carrying out subversive activities against Ukraine means facilitating their possible or actual efforts to harm the national security of Ukraine. The types of subversive activities against Ukraine can be diverse. Assistance in carrying out such activities can also take different forms. It may be provided by organising or committing a specific crime, inducing others to commit treason, removing obstacles to the commission of certain acts, etc.
In its decision, the Criminal Cassation Court of the Supreme Court agreed with the courts of previous instances and stressed that the convicted person was not dismissed from the position of a judge under the legislation of Ukraine, and during March - November 2014, as a "judge" of the illegally established "Commercial Court of the Republic of Crimea of the Russian Federation", she administered "justice" in the occupied territory of Ukraine on behalf of a foreign state - the russian federation, guided by its substantive and procedural law, and with her appointment in December 2014 as a "judge of the Arbitration Court of the Republic of Crimea of the Russian Federation", she assumed the powers of a judge of another state - the russian federation, which occupied and illegally annexed this territory. Administration of "justice" on behalf of the russian federation under such conditions indicates that the convicted person violated the requirements of Article 65 of the Constitution of Ukraine and the oath of a judge, as she ensured the establishment and strengthening of the occupying authorities of the russian federation through the establishment and functioning of illegally created occupying bodies of the judiciary of the russian federation in the occupied territory of Ukraine, acting as a representative of the occupying judiciary of the russian federation in order to prevent the control of the Ukrainian authorities in the territory of the Autonomous Republic of Crimea, thus assisting the russian federation in carrying out subversive activities against Ukraine to the detriment of the sovereignty and territorial integrity of Ukraine.
The court also emphasised that the convicted person had a sufficient level of education, expertise and life experience to be aware of the facts of russia's active subversive activities against Ukraine through the occupation and subsequent annexation of Ukrainian territory in the Autonomous Republic of Crimea, and that the convicted person's actions were conscious and voluntary, as evidenced by their nature, sequence, duration and dynamics of development.
The panel of judges of the Criminal Cassation Court of the Supreme Court agreed with the position of the courts of first and appellate instances that the accused, although she enjoys civil rights, has the right not to support the political regime of the country in which she resides, to be employed in another country, etc., but she does not have the right to harm the sovereignty and territorial integrity of Ukraine or to provide any assistance to a foreign state in carrying out subversive activities against Ukraine to the detriment of these values, especially as a judge.
The Resolution of the Criminal Cassation Court of the Supreme Court of 22 August 2023 in case No. 759/4148/17: https://reyestr.court.gov.ua/Review/113065878.
In case no. 750/2292/22, the panel of judges of the Criminal Cassation Court of the Supreme Court addressed the issue of qualification and sentencing of a person who, being aware of the armed aggression and invasion of Ukraine on 24 February 2022 by the russian federation, sent messages to the mayor of Chernihiv, whom she knew, on his mobile phone, which were supposed to encourage him to take measures to stop resistance to the russian occupiers, surrender Chernihiv to the russian troops and actually transfer the city to the jurisdiction of the russian federation. The panel of judges of the Criminal Cassation Court of the Supreme Court concluded that such acts constitute a criminal offence under part 1 of Article 110 of the Criminal Code of Ukraine, as they were aimed at changing the territory and state borders of Ukraine in violation of the procedure established by the Constitution of Ukraine.
The convicted woman appealed the verdict against her on the grounds, inter alia, that the exact place and time of the alleged acts had not been established.
The panel of judges of the Criminal Cassation Court of the Supreme Court pointed out that the disposition of part 1 of Article 110 of the Criminal Code of Ukraine, for which the convicted person was found guilty, does not contain such mandatory features as the time and place of the crime. These objective features are outside the corpus delicti of this crime and do not affect the criminal law qualification of the offence. Thus, the Criminal Cassation Court of the Supreme Court found that the convicted person clearly understood the essence of the charges against her, and therefore the Court rejected the arguments of the cassation appeal to the contrary.
The Resolution of the Criminal Cassation Court of the Supreme Court of 5 December 2023 in case no. 750/2292/22: https://reyestr.court.gov.ua/Review/115508695.
In case no. 404/2081/22, the Joint Chamber of the Criminal Cassation Court of the Supreme Court dealt with the issue of imposing an additional punishment in the form of deprivation of the right to hold certain positions or engage in certain activities, regardless of whether the accused held a certain position or engaged in certain activities at the time of the commission of the criminal offence.
The Joint Chamber of the Criminal Cassation Court of the Supreme Court concluded on the application of Article 55 of the Criminal Code of Ukraine and stated that, according to the provisions of this article, if the sanction of the relevant part of the article of the Special Part of the Criminal Code of Ukraine provides for the possibility of imposing an additional punishment in the form of deprivation of the right to hold certain positions or engage in certain activities, then the court, upon finding a person guilty of committing the relevant criminal offence, has the right to impose such an additional punishment regardless of whether the accused held a certain position or engaged in certain activities at the time of the commission of the offence.
The Resolution of the Joint Chamber of the Criminal Cassation Court of the Supreme Court of 4 September 2023 in case no. 404/2081/22: https://reyestr.court.gov.ua/Review/113396688.
²². Legal Positions on the Qualification of Criminal Offences Against Peace, Human Security and International Law and Order
In case no. 127/18004/22, the panel of judges of the Criminal Cassation Court of the Supreme Court, justifying the impossibility of applying to the convicted person the institution of release from serving a sentence with probation, stated that the convicted person had committed a criminal offence, which, in accordance with Section XX of the Criminal Code of Ukraine, refers to criminal offences against peace, human security and international law and order, at a time when martial law was declared throughout Ukraine, which indicates an increased public danger of such offences.
The convicted person publicly expressed her positive reaction to the publication, which obviously contains glorification of personal and professional qualities, praise of the actions of the commander of the long-range aviation of the armed forces of the russian federation, lieutenant general, in the course of his military missions and glorification of him in the form of creating popularity for the said military official of the armed forces of the russian federation by focusing on the highest state awards, high-ranking positions and ranks of senior officers of the armed forces of the russian federation.
The panel of judges of the Criminal Cassation Court of the Supreme Court drew attention to the fact that the convicted person had committed a number of actions before expressing her positive reaction to the "commander of the russian long-range aviation", as access to the Odnoklassniki social network is possible only after installing additional applications on her mobile phone. After these consistent actions to gain access to the relevant network and search for pro-russian publications, the convicted person publicly expressed her position on the current military of the russian federation at a time when the armed aggression of this state against Ukraine was taking place and it is known from publicly available sources that the said general was in charge of the aerial bombardment of Mariupol.
The court considered the convicted person's recognition of the social danger of her actions and her sincere remorse when determining the amount and type of sentence. However, the court of appeal was right not to establish the grounds for exemption from serving the minimum sentence as defined by the Criminal Code of Ukraine, and the panel of judges of the cassation instance agreed with this.
The Resolution of the Criminal Cassation Court of the Supreme Court of 28 September 2023 in case no. 127/18004/22: https://reyestr.court.gov.ua/Review/113967455.
²²². Legal Positions on the Qualification of Public Security Offences
In case no. 760/6265/22, the panel of judges of the Criminal Cassation Court of the Supreme Court overturned the verdicts of the courts of first and appeal instances sentencing a person to real imprisonment for illegal handling of weapons and ammunition.
This verdict was issued by the panel of judges of the Criminal Cassation Court of the Supreme Court due to the fact that the courts of first instance and the courts of appeal did not verify and properly assess the accused's arguments that he worked as a volunteer in support of the territorial defence forces of the Armed Forces of Ukraine, received weapons and ammunition from the military in February-March 2022 in order to repel the armed aggression of the russian federation.
The panel of judges of the Criminal Cassation Court of the Supreme Court stressed that if such statements are confirmed, these actions of the person should be considered as an emergency, which, according to part 1 of Article 39 of the Criminal Code of Ukraine, is not a criminal offence.
The Resolution of the Criminal Cassation Court of the Supreme Court of 4 May 2023 in case no. 760/6265/22: https://reyestr.court.gov.ua/Review/110749408.
In case no. 991/3966/20, the Joint Chamber of the Criminal Cassation Court of the Supreme Court addressed the issue of understanding the objective side of the corpus delicti of a criminal offence under Article 364 of the Criminal Code of Ukraine.
The Joint Chamber of the Criminal Cassation Court of the Supreme Court concluded that abuse of power is the unlawful use of powers, authority and opportunities derived from rights, duties, guarantees, as well as benefits and other privileges directly related to the exercise of the public official's functions.
As the courts found, for more than 1.5 years, a People's Deputy of Ukraine, who owned an apartment in Kyiv, was provided with hotel accommodation at the expense of budgetary funds allocated for the activities of the Verkhovna Rada of Ukraine. These actions had serious consequences in the form of irrecoverable loss of budget funds in the amount of almost 361 thousand UAH.
The Joint Chamber of the Criminal Cassation Court of the Supreme Court noted the following.
The state guarantees deputies the necessary conditions for exercising their parliamentary powers (part 4 of Article 1 of the Law of Ukraine "On the Status of the People's Deputy of Ukraine").
The right to reimbursement of the cost of renting or hiring a hotel room is vested exclusively in a People's Deputy of Ukraine, i.e. this right is a component of the legal status of a People's Deputy and a guarantee of parliamentary activity, which ensures unimpeded and effective participation of a People's Deputy in the performance of his/her functions.
The provisions of part 2, part 3 of Article 8 of the Law of Ukraine "On the Status of the People's Deputy of Ukraine" stipulate that it is unacceptable for a People's Deputy to use his/her parliamentary mandate contrary to generally accepted norms of morality, human and civil rights and freedoms, and the legitimate interests of society and the state. A People's Deputy must not use his/her parliamentary mandate for personal, including selfish, purposes.
As long as the conditions for obtaining a housing guarantee by people's deputies are clearly defined, and if they are met, the deputy submits a request to exercise the housing guarantee, then of course the information about the absence of housing needs should also be reported to the relevant department of the Verkhovna Rada.
Otherwise, the reimbursement of the cost of rent or lease of a hotel room in Kyiv to a People's Deputy of Ukraine will no longer fulfil its task of ensuring the performance of functions by the People's Deputy.
If the legislation defines an active procedure for obtaining certain guarantees, benefits, etc., by providing information on the availability of other housing, marital status, etc., which is decisive for the decision to obtain the relevant benefits, then this clearly corresponds to the obligation to inform the authorised bodies when the grounds for obtaining such benefits cease to exist.
The Joint Chamber of the Criminal Cassation Court of the Supreme Court believes that the unjustified acquisition by the government representative of the property right to stay in the hotel was directly related to the acquisition of the powers of the government representative and the exercise of his authority, with the exercise of the rights resulting from them.
In the present criminal proceedings, the right to stay in a hotel and the reimbursement of the relevant expenses are linked to the exercise of the official's functions, since they are intended to ensure normal conditions for the exercise of his powers.
Referring to this case, the Joint Chamber of the Criminal Cassation Court of the Supreme Court took into account the mechanism of using the housing guarantee, under which the People's Deputy did not personally receive funds for hotel accommodation, as they were immediately transferred to the hotel account.
Therefore, in the light of the foregoing, the content of the abuse of power is the unjustified use by a representative of the authorities of the guarantee provided by the State for the exercise of their powers, the unjustified use of property directly related to the exercise of power.
The criminal legal assessment of the unjustified receipt by a People's Deputy of such property benefit as hotel accommodation constitutes an abuse of power, and such an act should be qualified under the relevant part of Article 364 of the Criminal Code of Ukraine.
The Resolution of the Joint Chamber of the Criminal Cassation Court of the Supreme Court of 27 November 2023 in case no. 991/3966/20: https://reyestr.court.gov.ua/Review/115409272.
In case no. 991/5479/22 OP of the Joint Chamber of the Criminal Cassation Court, having considered criminal proceedings against a judge who, due to her religious beliefs, submitted a declaration to the National Agency for Corruption Prevention in a paper form not provided for by law (Article 366-3 of the Criminal Code of Ukraine), made the following conclusion. The fact that the declarant, for religious reasons and motives, submits the declaration of a person authorised to perform the functions of state or local self-government provided for by the Law of Ukraine "On Prevention of Corruption" in paper form rather than in electronic form by filling in the form specified by the National Agency for Corruption Prevention on its official website, does not indicate the absence of a direct intention of such person not to submit the said declaration.
In particular, the Joint Chamber of the Criminal Cassation Court of the Supreme Court pointed out that a judge voluntarily accepts restrictions related to the performance of his or her professional duties and, therefore, holding a position related to the exercise of state functions provides not only guarantees for the protection of the rights of that person, but also additional legal burdens, which he or she accepts of his or her own free will by taking the judge's oath.
The Resolution of the Joint Chamber of the Criminal Cassation Court of the Supreme Court of 4 December 2023 in case no. 991/5479/22: https://reyestr.court.gov.ua/Review/115476543.
In case no. 1-459/12, the panel of judges of the Criminal Cassation Court of the Supreme Court issued a final decision on criminal prosecution for obtaining an unlawful benefit in a particularly large amount, namely USD 11 million .
In this criminal proceeding, the courts found that the First Vice President of the National Academy of Pedagogical Sciences of Ukraine, with the complicity of his son, a doctoral student at the Institute of Pedagogy of the National Academy of Pedagogical Sciences of Ukraine, received an unlawful benefit in the amount of UAH 800,000 and USD 250,000, which is a particularly large amount, and did not receive the remaining part of the unlawful benefit in the amount of USD 10 million 650,000, as he and his son were detained by law enforcement officers.
Both accomplices were found guilty of committing a crime under part 4 of Art. 368 of the Criminal Code of Ukraine and sentenced to eight years' imprisonment as the main sentence.
The defence argued that there had been significant violations of the requirements of the criminal procedure law, misapplication of Ukrainian law on criminal liability, inconsistency of the sentence with the gravity of the crime and the convicted person, and requested that the court of appeal's verdict be overturned and the case returned for a new appeal hearing.
The panel of judges of the Criminal Cassation Court of the Supreme Court disagreed with the defence's arguments about the absence of corpus delicti under part 4 of Article 368 of the Criminal Code of Ukraine, inadmissibility of a number of evidences, and the provocation of the crime.
The panel of judges of the Criminal Cassation Court of the Supreme Court also disagreed with the defence's arguments on the appropriateness of applying Articles 69 and 75 of the Criminal Code of Ukraine in this proceeding, namely the imposition of a lighter sentence than provided for in the criminal law and the application of the institution of exemption from criminal liability.
The Ruling of the Criminal Cassation Court of the Supreme Court of 30 May 2023 in case no. 1-459/12: https://reyestr.court.gov.ua/Review/111339392.
In case no. 391/729/15-ê, the panel of judges of the Criminal Cassation Court of the Supreme Court noted that in proceedings involving a possible provocation of a crime, it is necessary to take into account whether the relationship between the provider and the recipient of the unlawful benefit was unrelated to law enforcement agencies, whether there were issues in which the provider of the unlawful benefit was interested and which the recipient of the unlawful benefit could or did promise to resolve before law enforcement agencies became aware of these facts. Such information allows conclusions to be drawn about the influence of law enforcement agencies on the course of events and, consequently, about the presence or absence of signs of provocation to commit a crime.
In fact, provocation can be said to occur when law enforcement agencies artificially create a situation to induce a person to commit a crime. On the other hand, if law enforcement agencies only became involved in the recording and investigation at a certain stage of the development of events, in particular after a person had made a statement, this indicates their passive role, which only manifested itself in the proper recording of the crime committed.
The Criminal Cassation Court of the Supreme Court stated that the legal position of the ECHR implies that provocation to commit a crime exists if: there were active actions of law enforcement agencies; they encouraged the person to commit the crime (for example, taking the initiative to contact the person, repeated offers despite the initial refusal of the person, persistent reminders); the crime would not have been committed without the intervention of law enforcement agencies.
The influence of a law enforcement agency on the course of events through the use of covert investigative (detective) actions in the form of control over the commission of a crime, when this agency only participates in the illegal activity and does not initiate it, should not be considered as provocation, but as covert work that does not contain any signs of abuse with regard to the duty of law enforcement agencies to combat crime.
In the absence of evidence of consistent, deliberate inducement to commit a crime and information about the offender's independent preliminary preparation for committing the crime, the fact of the relevant offer alone does not provide sufficient grounds to conclude that the appeal of a particular person had a decisive influence on the formation of criminal intent and that the crime would not have been committed otherwise.
The Resolution of the Criminal Cassation Court of the Supreme Court of 28 March 2023 in case no. 391/729/15-ê: https://reyestr.court.gov.ua/Review/109963730.
Author's column: https://so.supreme.court.gov.ua/authors/312/kliuchovi-rishennia-kasatsiinoho-kryminalnoho-sudu-u-skladi-verkhovnoho-sudu-za-2023-rik-.
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