The Supreme Court Shapes Practice During the War: New Approaches to Evidence, Collaboration, and War Crimes

Ensuring the unity of judicial practice is the main task of the Supreme Court, especially in categories of cases that directly affect Ukraine's defense capability and national security. The review of the practice of the Cassation Criminal Court for April 2026 demonstrates the approach to interpreting the norms of the Criminal Code of Ukraine under martial law conditions. Special attention is focused on three critically important issues: military offenses, crimes against national security, and corrupt acts.

The "Judicial and Legal Newspaper" will consider the issue of strengthening responsibility for acts that undermine national security. The Supreme Court not only clarifies the rules of qualification but also limits the possibilities for applying milder punishments, referring to the social danger of acts during wartime.

Case No. 334/4071/23: Forced Passportization as Treason

In this case, the Supreme Court examined the actions of a Ukrainian citizen who, during the occupation of the city of Enerhodar, took a position in an illegal passport center. The accused accepted documents for issuing Russian Federation passports, thereby assisting the occupying authorities in conducting forced passportization.

Courts of previous instances found the person guilty and sentenced the accused under Part 2 of Article 111 of the Criminal Code. In the cassation appeal, the defense lawyer, citing the courts' failure to consider international law norms, noted that due to the lack of evidence of intent and voluntariness of consent to cooperate with the occupying authorities under occupation conditions, the lower courts should have thoroughly examined the motives and circumstances that could have led to certain actions of the accused.

However, the Supreme Court left the decisions of the lower courts unchanged. The Court agreed that the accused's actions were conscious, voluntary, committed during martial law, after the start of Russia's large-scale aggression, in conditions where it was obvious to every official that activity in favor of the occupation administration was aimed at undermining Ukraine's sovereignty.

The fact of the accused committing the crime charged is confirmed by evidence of the accused's transition to the enemy side during martial law, expressed by joining the service in illegal bodies of the occupation authorities.

The Supreme Court ruled that such actions are qualified under Part 2 of Article 111 of the Criminal Code of Ukraine as treason. Switching to the enemy side and voluntarily taking positions in illegal authorities harms Ukraine's sovereignty and information security.

Case No. 529/1660/22: Admissibility of Voluntarily Provided Documents

The Cassation Criminal Court of the Supreme Court concluded that the voluntary transfer of documents and other materials that have evidentiary value in a criminal proceeding to an investigator is not obtaining evidence in an extrajudicial manner and cannot be grounds for declaring them inadmissible.

The court expressed this legal position during the review of a case concerning the accusation of a person in aiding the aggressor state. The defense insisted that a number of documents, including a "certificate," "letter of appreciation," employment contract, and extracts from orders, were attached to the case materials in violation of criminal procedural law and cannot be considered proper evidence.

During the case hearing, a witness who previously conducted a pre-trial investigation in the Security Service of Ukraine (SBU) reported that after the partial de-occupation of Kupiansk district, he was voluntarily handed a significant volume of documents, among which were materials that became the basis for entering information into the Unified Register of Pre-Trial Investigations and further investigation.

The panel of judges of the Cassation Criminal Court emphasized that if a person in possession of things, documents, or other materials voluntarily hands them over to an investigator, such evidence is not considered obtained outside the procedure established by law. Therefore, the voluntary surrender of documents itself does not affect their admissibility in criminal proceedings.

The Supreme Court agreed with the appellate court's conclusion about the groundlessness of the defense's arguments regarding the inadmissibility of written evidence. At the same time, the Cassation Criminal Court amended the appellate court's verdict by excluding certain formulations in the reasoning part about other actions of the accused that allegedly undermined Ukraine's national security, leaving the rest of the court's conclusions unchanged.

Case No. 642/1023/23: Mandatory Verification of Voluntariness in Collaboration

The decision is important for cases of cooperation with occupiers where the accused claim coercion. A former law enforcement officer was accused of voluntarily taking the position of an investigator in the "people's militia" of Izyum.

During the case consideration, courts examined the circumstances under which the accused began cooperating with the occupation authorities. The court of first instance concluded the voluntary nature of such cooperation, referring, in particular, to witness testimonies.

At the same time, the defense throughout the proceedings insisted that the decision to cooperate was made under coercion after physical and psychological violence was applied to the accused by representatives of the occupying forces.

In the court session, witnesses reported that after the occupation, the woman, who was connected to law enforcement, along with others, was illegally detained by representatives of the occupation authorities. According to witnesses, she returned home only after three to four days and said that she was held in a basement, pressured to work in the occupation police, taken to the forest, and shots were fired near her head to intimidate her. A doctor who examined the woman confirmed in court the presence of bodily injuries, including an ear injury. According to the medical professional, the patient was in a depressed psychological state, frightened, and avoided unnecessary conversations about the experienced events.

As the Supreme Court noted, voluntariness is a mandatory feature of collaboration activity (Part 7 of Article 111-1 of the Criminal Code). The prosecution must prove it beyond a reasonable doubt. Courts are obliged to conduct an effective investigation of claims of mistreatment, even if it was carried out by representatives of the occupying forces. In this case, the Supreme Court annulled the decisions of the lower courts due to improper verification of coercion facts.

Case No. 939/1435/22: War Crimes in Borodianka

The case concerns the responsibility of Russian military personnel for cruel treatment of civilians. A Russian military commander (combatant) ordered about 500 civilians to be locked in the Borodianka psychoneurological boarding school, confiscated their phones, and used the building to deploy "Grad" multiple rocket launcher systems. He also forced the director of the boarding school under threat of weapons to appear in a propaganda video.

Courts of previous instances found the accused guilty and sentenced him under Part 1 of Article 438 of the Criminal Code. In the cassation appeal, the defense argued that due to the absence of the accused at the court hearing, it was impossible to establish the direction of his intent or whether he acted voluntarily or under coercion and pressure from third parties. They claimed that the prosecution did not provide reliable information regarding the accused's sanity and personal characteristics.

However, the Supreme Court left the decisions of the lower courts unchanged. According to the provisions of the Convention on the Protection of Civilian Persons in Time of War and the Additional Protocol to the Geneva Conventions, persons who are members of the armed forces of a party to the conflict (except medical and spiritual personnel) are combatants, meaning they have the right to directly participate in hostilities. All combatants are obliged to comply with international law norms applicable during armed conflicts.

The Supreme Court emphasized that the accused at the time of the committed acts was a member of the Russian armed forces and had combatant status. Therefore, he cannot bear criminal responsibility solely for participating in an international armed conflict.

At the same time, combatant status does not exempt a person from the obligation to comply with international humanitarian law and the laws and customs of war. Persons participating in hostilities must act within the framework of international legal norms that ensure the protection of civilians and other persons not directly participating in the armed conflict.

The accused violated these requirements by committing cruel treatment of civilians protected by international humanitarian law. Moreover, he gave orders to commit such acts and other violations of the laws and customs of war.

The court stressed that criminal liability in this case arises not from belonging to the armed forces of the aggressor state but from specific actions qualified as violations of international humanitarian law and war crimes.

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