The Grand Chamber of the Supreme Court defined the characteristics of the subject of the crime under Art. 437 of the Criminal Code of Ukraine "Planning, preparation, unleashing and waging an aggressive war"

The acts defined in Art. 437 of the Criminal Code of Ukraine may be committed by persons who, by virtue of their official authority or actual public position, are able to exercise effective control over or direct political or military actions, and/or significantly influence political, military, economic, financial, informational and other processes in their own country or abroad, and/or direct certain areas of political or military actions.

This conclusion was reached by the Grand Chamber of the Supreme Court, after considering criminal proceedings on cassation appeals of defence lawyers of two persons convicted of crimes under part 2 of Art. 437 of the Criminal Code of Ukraine (planning, preparation, unleashing and waging an aggressive war); part 1 of Art. 438 of the Criminal Code of Ukraine (violation of the laws and customs of war); part 3 of Art. 146 of the Criminal Code of Ukraine (illegal deprivation of liberty or abduction of a person); part 2 of Art. 260 of the Criminal Code of Ukraine (creation of paramilitary or armed groups not provided for by law) and part 1 of Art. 263 of the Criminal Code of Ukraine (illegal handling of weapons, ammunition or explosives).

As established by the courts of previous instances, these individuals and two others, whose court decisions were not appealed in cassation, participated in the armed aggression of the russian federation against Ukraine in 2014 as part of an armed formation not provided for by law, which was directly led and controlled by unidentified officials of the armed forces of the aggressor country. While acting in prior conspiracy with these persons and carrying out their clearly criminal orders, all the convicts, on the contact line between the enemy forces, used weapons, fired directly at the positions, destroyed manpower and military equipment of the Armed Forces of Ukraine, the National Guard of Ukraine, territorial defence units and other law enforcement agencies of Ukraine.

In addition, the convicts, as part of an organised criminal group, used weapons to kidnap six people, unlawfully deprived them of their liberty and used them for military work; violated the laws and customs of war established by international law; and illegally acquired, stored and carried firearms and ammunition.

After considering the cassation appeals, the Grand Chamber of the Supreme Court partially upheld them. Therefore, the persons concerned were convicted under part 1 of Art. 438 and part 2 of Art. 260 of the Criminal Code of Ukraine.

At the same time, the Grand Chamber of the Supreme Court cancelled the verdict of the court of first instance and the ruling of the court of appeal in part of the conviction of the said persons under part 2 of Art. 27, part 2 of Art. 28, part 2 of Art. 437 of the Criminal Code of Ukraine and, based on para. 2 of part 1 of Art. 284 of the Criminal Procedural Code of Ukraine, dismissed the criminal proceedings in this part due to the absence of a criminal offence under part 2 of Art. 27, part 2 of Art. 28, part 2 of Art. 437 of the Criminal Code of Ukraine.

In addition, the Grand Chamber of the Supreme Court excluded from the challenged decisions the qualification of the actions of the convicted persons under part 3 of Art. 146 and part 1 of Art. 263 of the Criminal Code of Ukraine as unnecessary.

The full text of the Resolution of the Supreme Court of 28 February 2024 in case no. 415/2182/20 (proceedings no. 13-15кс22) will be available in the Unified State Register of Court Decisions (USRCD) at https://reyestr.court.gov.ua/.