The Supreme Court explained which circumstances confirm intent in cases of transmitting information about the Armed Forces of Ukraine via Telegram

The Supreme Court, composed of a panel of judges of the Third Judicial Chamber of the Cassation Criminal Court, considered the cassation appeal of the defense counsel against the verdict and the appellate court ruling in the case concerning the dissemination of information about the movement and location of the Armed Forces of Ukraine through a Telegram chat-bot during martial law. The Court dismissed the cassation appeal, agreeing with the conclusions of the lower courts regarding the correct qualification of the convicted person's actions under Part 3 of Article 114-2 of the Criminal Code of Ukraine.

Essence of the case

The courts established that the accused joined the thematic Telegram group "Actually in Dnipro chat" no earlier than December 20, 2022.

No later than 7:42 AM on May 5, 2023, she received information from an unidentified source about the transportation of military equipment of the Armed Forces of Ukraine from the settlement of Cherkaske through the village of Orlivshchyna in Novomoskovsk district of Dnipropetrovsk region, which took place on the evening of May 4, 2023.

Acting under martial law, knowing about its introduction, and as established by the courts, intending to transmit the relevant information to representatives of the state conducting armed aggression against Ukraine, the woman sent a message via the Telegram chat-bot using her mobile phone about the movement of military equipment of the Armed Forces of Ukraine with the possibility of identifying it on the ground.

After that, the chat-bot operator informed her that the transmitted information was of significant importance and thanked her for the provided information.

Later, around 9:00 AM on June 14, 2023, the woman witnessed the unloading of military weapons near the church in the center of Orlivshchyna village and again sent information about the location of military equipment and weapons of the Armed Forces of Ukraine through the same chat-bot. In response, she also received a message of thanks.

According to information from the military unit of the Ministry of Defense of Ukraine, on the evening of May 4, 2023, tanks were indeed transported on saddle tractors through Orlivshchyna village, and on June 14, 2023, 82-mm "Vasylok" mortars were unloaded near the church.

Decisions of the courts of first and appellate instances

The Samara City District Court of Dnipropetrovsk region found the accused guilty of committing a criminal offense under Part 3 of Article 114-2 of the Criminal Code of Ukraine and sentenced her to eight years of imprisonment.

The Dnipro Appellate Court dismissed the defense's appeal and left the local court's verdict unchanged.

In the cassation appeal, the defense counsel argued that the appellate court violated the convicted person's right to defense by considering the case without her participation. Additionally, the defense insisted on incorrect qualification of actions, stating that there was no evidence of the convicted person's intent to transmit information to representatives of the aggressor state.

Legal conclusions of the Supreme Court

The Supreme Court in case No. 183/501/25 reminded that according to Articles 433 and 438 of the Criminal Procedure Code of Ukraine, the cassation court is a court of law, not fact. Its powers are limited to verifying the correct application of substantive and procedural law by the courts, while re-evaluation of evidence or establishing new factual circumstances is not within the competence of the cassation court.

The panel of judges noted that court decisions must comply with the requirements of Article 370 of the Criminal Procedure Code regarding legality, validity, and motivation, and the appellate court ruling must also meet the requirements of Articles 418 and 419 of the Criminal Procedure Code. After reviewing the case materials within the arguments of the cassation appeal, the Supreme Court concluded that these requirements were met by the courts.

Regarding the arguments about violation of the right to defense, the Supreme Court noted that according to Part 4 of Article 401 of the Criminal Procedure Code, the mandatory summons of the accused to the appellate court is carried out only in cases where the appeal raises the issue of worsening the accused's position, the court deems participation mandatory, or when the accused in custody files a corresponding motion.

In this case, the appeal was filed exclusively by the defense, the issue of worsening the convicted person's position was not raised. The Supreme Court found that she was duly notified of the date and time of the appellate hearing, which she confirmed during the cassation hearing, but did not file motions to participate in the session. The defense counsel also did not request to postpone the hearing or ensure the accused's participation, including via videoconference. Under these circumstances, the panel concluded that the appellate court did not violate the requirements of the Criminal Procedure Code regarding ensuring the accused's participation in the hearing.

The Supreme Court also rejected the arguments about incorrect qualification of actions under Part 3 of Article 114-2 of the Criminal Code. The Court agreed with the appellate court's conclusion that the publications and posts in the Telegram thematic group had a pronounced hostile, propagandistic, and pro-Russian character. Moreover, after each message, the convicted person received replies with thanks and notifications about the importance of the transmitted information.

Under these circumstances, the Supreme Court noted, she certainly could not have failed to understand that the repeatedly transmitted information via the chat-bot about the movement of weapons, as well as the movement and location of the Armed Forces of Ukraine and other military formations, would be used precisely by representatives of the state conducting armed aggression against Ukraine. Therefore, the qualification of her actions under Part 3 of Article 114-2 of the Criminal Code is correct.

The panel of judges also noted that the appellate court properly examined all arguments of the appeal, reasonably agreed with the local court's verdict, and provided sufficient grounds for leaving it unchanged. The Supreme Court did not find significant violations of criminal procedural law or incorrect application of Ukrainian criminal law that could be grounds for overturning the court decisions.

As a result, the cassation appeal of the defense counsel was dismissed, and the verdict of the Samara City District Court of Dnipropetrovsk region and the ruling of the Dnipro Appellate Court were left unchanged.

The Supreme Court's ruling takes legal effect from the moment of announcement, is final, and is not subject to appeal.

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