The Supreme Court recognized the video recording of a prisoner of war's interview published on YouTube as inadmissible evidence in a treason case

The Supreme Court, composed of the judges of the First Judicial Panel of the Cassation Criminal Court, adopted a ruling on July 2, 2026, in case No. 591/3720/24, in which it considered the admissibility of using as evidence a video interview of a prisoner of war published on YouTube, as well as the limits of applying procedural guarantees when obtaining such information.

The ruling is of significant importance for criminal proceedings as it outlines the criteria for the admissibility of evidence obtained from prisoners of war, defines the relationship between the guarantees of the right to a fair trial and the norms of international humanitarian law, and draws attention to the necessity of proper evaluation of the defense's arguments about coercion and the correct criminal-legal qualification of the act.

Circumstances of the case

The court of first instance found a Ukrainian citizen guilty of treason under part 2 of Article 111 of the Criminal Code of Ukraine and sentenced him to 15 years imprisonment with confiscation of property.

According to the court's established facts, in September 2022, the accused, while in the city of Belgorod, Russian Federation, arrived at a military commissariat, was mobilized into the Russian Armed Forces, and subsequently carried out combat missions in the Luhansk region. In October 2022, he was captured by servicemen of the Armed Forces of Ukraine. The appellate court upheld the verdict.

One of the key pieces of evidence for the prosecution was a video recording of the interview posted on YouTube and the protocol of its review. This material recorded the convict's statements regarding his arrival at the Russian military commissariat, enlistment in the Russian Armed Forces, transfer to Luhansk, and subsequent capture.

In the cassation appeal, the defense argued that the video interview of the convict posted on YouTube was inadmissible evidence because it was effectively obtained without respecting the right to remain silent and the right to defense. Furthermore, the defense emphasized that the convict reported coercion and intimidation by representatives of the Russian Federation, but these claims were not properly examined by the courts.

Position of the Supreme Court

The court noted that the decisive evidence for proving guilt was precisely the video interview with the convict.

The Supreme Court indicated that a detailed analysis of the interrelation and content of the presented evidence points to the decisive importance of the video interview with the convict for the prosecution.

Documents from the State Migration Service and the State Border Guard Service only confirm the legal status of the person as a citizen of Ukraine but do not by themselves prove the commission of any crime. Letters from the Security Service of Ukraine and the Coordination Headquarters confirm the fact of the convict's departure to the Russian Federation and his captivity at the time of exchange but do not contain information about the circumstances, timing, or motives under which he joined the enemy's armed formations.

The court stated that the criminal case materials lack any other evidence of the crime event containing information about his joining the Russian Armed Forces (for example, Russian military documents or other evidence) or his capture on the battlefield. The entire factual account in the verdict is based solely on the convict's statements recorded on video.

The admissibility of evidence is determined not by the form of recording information by the investigator during the review of the internet resource but by the legality of the source and the circumstances under which the information reflected in the video was obtained.

The Supreme Court pointed out that at the time of the interview recording, the convict was under full, comprehensive, and exclusive control of Ukrainian authorities as a prisoner of war.

Any access by third parties with video recording equipment to a high-security isolated facility is impossible without direct permission and active assistance from the administration of the place of detention.

The court noted that the European Court of Human Rights has formulated the position that if a state uses third parties or creates special conditions for them in an isolated environment to extract self-incriminating statements from a detained person bypassing procedural guarantees, such actions constitute a "functional equivalent of interrogation" conducted without a lawyer and without informing the right to remain silent.

Under such circumstances, there arises a presumption that the private interlocutor acted as a de facto agent of the state.

The Supreme Court indicated that although there is no evidence in the case that the blogger acted under instructions from state authorities, this distinction does not change the nature of obtaining the evidence due to the presence of systemic protection from the state.

At the same time, the blogger's regular access to prisoners of war and obtaining information about the convict before the interview indicate systemic integration of his activities with the functioning system of prisoner of war detention facilities and informational support from state authorities.

The court noted that a person isolated in the hands of the enemy is subject to a strict coercive regime of the institution. In the absence of a defender, any questioning organized with the administration's assistance is reasonably perceived by the prisoner as a coercive measure or procedural element from which he cannot freely refuse.

Under such circumstances, the recorded on-camera voluntary consent to the interview cannot negate the coercive nature of the situation itself.

The Supreme Court also emphasized that according to Article 13 of the Third Geneva Convention, prisoners of war must not be exposed to public curiosity. The prohibition extends to the publication of photo and video materials, interrogation recordings, or private conversations, regardless of the method of dissemination, including the Internet.

State permission for the creation and publication of such an interview is a gross violation of international humanitarian law.

The Supreme Court stressed that the state cannot ensure the right to a fair trial and rely on the legality of evidence collection if the initial obtaining of information occurred as a result of its direct and gross violation of obligations under international humanitarian law.

The court noted that the video interview with the convict, obtained with systemic assistance and informational support from state authorities bypassing constitutional guarantees (Article 63 of the Constitution of Ukraine, Article 18 of the Criminal Procedure Code), is inadmissible evidence within the meaning of Article 87 of the Criminal Procedure Code of Ukraine.

Separately, the Supreme Court noted that even after recognizing the video recording as inadmissible evidence, this did not deprive the appellate court of the opportunity and authority to assess whether it contains grounds for reasonable doubt about the voluntariness as a subjective element of the crime.

The Supreme Court pointed out that the defense consistently emphasized that the convict repeatedly reported that the incriminated actions were committed under coercion and intimidation by representatives of the Russian Federation.

The presence of well-founded claims of coercion in the case materials places the burden on the prosecution to refute this version. The appellate court did not respond to this defense argument, thereby violating the requirements of Article 419 of the Criminal Procedure Code of Ukraine.

The court also noted that the appellate court overlooked the issue concerning the legal qualification of the act under criminal law. The prosecution charged the convict with switching to the enemy's side, which consisted of his enlistment in the Russian Armed Forces and subsequent activity within their ranks.

At the same time, the disposition of part 7 of Article 111-1 of the Criminal Code of Ukraine provides a special crime composition, namely: voluntary participation of a Ukrainian citizen in the armed formations of the aggressor state. Considering the principle of narrow interpretation of criminal law, the lower courts should have clarified the relationship between the general norm of part 2 of Article 111 and the special norm of part 7 of Article 111-1 of the Criminal Code.

The court repeatedly stated that acts fully covered by the crime composition indicated in Article 111-1 of the Criminal Code do not require qualification under Article 111 of the Criminal Code. The appealed decisions do not specify which actions of the convict were not covered by the disposition of part 7 of Article 111-1 and required qualification under part 2 of Article 111.

Thus, the Supreme Court concluded that recognizing the decisive evidence of the prosecution as inadmissible casts reasonable doubt on the correctness of the conclusions of the lower courts about the person's guilt beyond a reasonable doubt.

In this regard, the appellate court's ruling was overturned, and the case was sent for a new appellate review.

Subscribe to our Telegram channel t.me/sudua and to Google News SUD.UA, as well as to our VIBER and WhatsApp, page on Facebook and on Instagram to stay informed about the most important events.