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The practice of application of Article 111 of the Criminal Code of Ukraine

22.12.2020
Yevgeniy Zakharov

The general review of the criminal proceedings under Article 111 of CC of Ukraine

Article 111 of the CC of Ukraine is investigated by SSU and punishes for an especially serious crime of the state treason:

Article 111. High treason

1. High treason, that is an act willfully committed by a citizen of Ukraine in the detriment of sovereignty, territorial integrity and inviolability, defense capability, and state, economic or information security of Ukraine: joining the enemy at the time of martial law or armed conflict, espionage, assistance in subversive activities against Ukraine provided to a foreign state, a foreign organization or their representatives, -

shall be punishable by imprisonment for a term of twelve to fifteen years with or without the confiscation of property.

2. A citizen of Ukraine shall be discharged from criminal liability where, he has not committed any acts requested by a foreign state, a foreign organization or their representatives and voluntarily reported his ties with them and the task given to government authorities.

The summarized data concerning the investigation of crimes qualified under Article 111 of the CC of Ukraine is taken from the site of the Prosecutor General’s Office, and as for the court decisions under that Article – from the Unified Register of the Court Decisions. They are compiled in the table below:

Article 111 of the CC of Ukraine

2014

2015

2016

2017

2018

2019

Разом

Criminal proceedings recorded

54

19

38

59

118

94

382

The notices of suspicion handed

30

11

16

25

31

31

144

The number of proceedings transmitted to court with the bill of indictment

8

4

5

8

12

11

48

The number of closed proceedings

2

6

4

6

4

7

29

The number of proceedings concerning which the decision to terminate or suspend the proceedings was not taken by the end of the year

26

8

24

41

83

63

 

The number of adopted court decisions

1

3

6

3

7

14

34

The number of handed notices of suspicion of the crime under Article 111 (144, 37.7% of the total number of recorded criminal proceedings) is not significantly different in relative terms from the number of handed notices of suspicion under Articles 109 (110, 39%) and 110 (413, 41.1%). It is noteworthy that the indictment was sent to court only in a third of the proceedings in which the notice of suspicion was handed. It is much smaller than the number under Article 109 (67.3% of the bills of indictment from the number of proceedings in which the notice of suspicion was handed) and Article 110 (73.6%). In our view, it indicates the weakness of the legal position of the prosecution and possible errors in the qualification of the crimes as high treason and unwillingness to admit this (because “the state bodies do not make mistakes”), and thus the investigations drag on for years, and the accused stay in SIZO. And when such case is transferred to a court for trial, the accusation turns out to be unfounded, however, according to the general tradition of Ukrainian jurisprudence, the courts rarely dare to acquit the accused. Let us provide the relevant examples of the military persons being accused of the high treason.

On 15 November 2017 Kuybyshev district court of Zaporizhya oblast declared in absentia the sentence for a serviceman, R., under pt. 2 of Article 409 and pt. 1 of Article 258-3 of CC of Ukraine and sentenced him to 9 years of imprisonment with the confiscation of all property belonging to him. The court acquitted R. under pt. 2 of Art. 111 “for the lack of the event of a crime”.

On 28 August 2014 R., a serviceman, was captured by the servicemen of RF while performing the combat missions, after which he was brought with other prisoners to the building of Snizhnyansk City Department of the MD of MIA of Ukraine in Donetsk oblast and handed over to the representatives of “DPR” terrorist organization, where he was subsequently detained. Around 17-18 October 2014 R. “deliberately, willfully joined the terrorist organization “DPR” and undertook to follow the rules of conduct established in the terrorist organization, and perform the functions given to him”. He incited other prisoners of war through persuasion and threats to join the terrorist organization “DPR” as well, and when they refused he beat one of them. In early April 2015 R. Joined the so-called “First Slavic Brigade” (“1st separate infantry brigade – military unit 08801”).

The court qualified R.’s actions under pt. 2 of Art. 409 of the Criminal Code of Ukraine as refusal to perform military service, as well as under pt. 1 of Art. 258-3 of the CC of Ukraine as involvement in a terrorist organization.

As for the accusation by pre-trial investigation body of the high treason in the form of transition to the side of the enemy during the armed conflict, the court noted that “the so-called “Donetsk People’s Republic” is essentially a terrorist organization and does not have any features inherent in the state. Furthermore, said “formation” is not recognized as a state by either Ukraine or any other States or international organizations”. Thus, the statement that R. transitioned to the side of the enemy, which according to the wording of pt. 1 of Article. 111 can only be represented by another State or State formation, is erroneous. In the court’s view, the actual circumstances of illegal actions incriminated against R. under pt. 1 of Article. 111 of the CC of Ukraine coincide in their content and essence with the facts established under pt. 2 of Art. 409 of the CC of Ukraine, as well as pt. 1 of Art. 258-3 of the CC of Ukraine. The court reached the conclusion that R.’s actions do not contain the signs of the high treason and acquitted him under pt. 1 of Article 111 of the CC of Ukraine.

Another example of a court decision lies outside the period of examination (2014-2019), but it is indicative, therefore we would provide it. On 7 April 2020 року Shevchenkivsky district court of Kyiv city handed down a conviction to Bezyazykov Ivan Mykolayovych, a colonel of the Armed Forces of Ukraine, chief of intelligence of the 8th Army Corps, under pt. 1 of Art. 111, pt. 1 of Art.. 258-3 of the CC of Ukraine and sentenced him to 13 years of imprisonment.

The conviction states that on 16 August 2014 Colonel Bezyazykov received a mission from the Chief of Staff of Sector “D” to arrive to Stepanivka village of the Shakhtarsky district of Donetsk oblast, where he was to negotiate with the representatives of illegal armed formations of the terrorist organization “Donetsk People’s Republic” on the topic of the possible exchange of prisoners. The fact of reception of such mission was not properly verified. According to the Statutes of the Armed Forces, the mission has to be formulated in writing, however, the court did not examine the written document directly. Furthermore, it was not checked, whether the Chief of Staff of Sector “D” had the power to decide to authorize a person or a group of persons for the negotiations with terrorists.

Moreover, Bezyazykov I. M. had access to state secrets, as was stated in the court by the questioned chief of sector “D” who gave the mission, – Bezyazykov I.M. was a carrier of a classified information.

That said, for the entire time of Bezyazykov I.M. being a prisoner, between 16 August 2014 and 5 July 2016 , no information known by him was used by the militants. It is evidenced by the lack of reference to the relevant facts in the conviction.

While delivering the sentence the court does not take into account the Geneva Convention relative to the Treatment of Prisoners of War, despite the fact that it constantly points to the proved fact of him “being imprisoned in the territory of Donetsk city in Donetsk oblast uncontrolled by Ukrainian government”.

Thus, on one hand, the court establishes that Bezyazykov I.M. was imprisoned and does not deny that since 16 August 2014 he was kept in the building of SSU of Donetsk city with other prisoners, where he was questioned with the use of physical violence, since 25 August 2014 he was held in the cellar of the building that was located in the park area of Donetsk city and he was taken to the so-called “office” which was located in the building of the former private company on Schors street in Donetsk.

On 25 May 2015 Bezyazykov I.M. “was brought by unidentified persons first to the office building located at ADDRESS-7, where he was held imprisoned for near a month, subsequently he was transferred to the cellar, and then the basement of the institute of physical education in Donetsk, where he was held separately from other prisoners. In August 2015 the building in which he was held was captured by another armed formation, he was transferred to Donetsk television center, where he was held imprisoned before his release on 5 July 2016.

Based on the circumstances of Bezyazykov I.M. being imprisoned for almost 2 years, he was accused of high treason and involvement in a terrorist organization for only 9 months. It leads to a question, why a participant of a terrorist organization who, in the court’s view, performed certain tasks for the militants, was kept imprisoned for more than a year?

The witnesses’ testimonies on which the conviction was based do not corroborate the actions by Bezyazykov I.M. which could evidence the high treason or participation in the terrorist organization. Moreover, most of the testimonies are the testimonies from other people’s words which already have a certain interpretation with an accusatory bias.

The used materials of covert investigative actions taken from other criminal proceedings, the data from the “Stop Terror” resource, the positions provided in the sentence, official duties and the functions of the officials of the so-called investigation department of “DPR” referenced in the conviction, as well as the very structure of DPR, the presence of political and power block, the plan of criminal activity and clear distribution of functions of the participants for its performance, are clearly unacceptable pieces of evidence, because there are no evidence provided for by CCP which could justify their establishment by the court.

In general, the court reached the conclusions on the basis of the legislation which came into force after the events incriminated to Bezyazykov I.M. The court relied on the concept of the “armed conflict”, introduced in the Law of Ukraine “On the National Security” of 21 June 2018, whereas it should have applied the norms of legislation which were in force in 2014, namely: the laws of Ukraine “On the Defense of Ukraine” and “On Mobilization Training and Mobilization” and the Presidential Decree “On Partial Mobilization”.

One would hope that the appellation instance would rectify the violations and deliver a fair and lawful verdict. However, the appellation consideration is yet to take place, while 8 months passed already. Isn’t this because the first-instance sentence is to be quashed?

Let us return to the examination of the court decisions under pt.1 of Article 111 of CC of Ukraine in 2014-2019. Out of 34 delivered verdicts in 20 cases concerning 21 defendants the courts delivered the sentences of imprisonment for 12 to 15 years, four cases also involved the confiscation of property (12 years – 11 sentences, 13 years – 4 sentences, 14 years – 5 sentences, 15 years – 1 sentence).

In one case there was the acquittal. In three more cases the defendants were acquitted under Art. 111, but convicted under other articles of CC: In one case the sentence was three years of imprisonment with probation (see below the description of A.’s case), in another – 3 years and 6 months (the case of Ruslan Kotsaba, a journalist), in the third one – 9 years of imprisonment with the confiscation of property (the case of serviceman R.).

In 6 cases, the court approved a plea agreement with the prosecutor. In two of such cases the defendants were released in the courtroom because of the actual serving of the sentence, in the rest four cases the punishment was the imprisonment for 4 (two sentences), 6 and 9 years.

In 11 cases the court used Article 69 of the Criminal Code of Ukraine – the application of a more lenient punishment that the one prescribed by the law, including the 6 cases in which a plea agreement was signed. As a result, in 5 sentences the punishment was 4 years or smaller, in two sentences – 6 years of imprisonment, in three – 7, 8 and 9 years of imprisonment.

The sentences in 8 cases were delivered in the special court proceedings in absentia.

The Annex contains the short data on the sentences delivered (the date of the sentence, the name of the court, the data from the operative part of the sentence). These data can be downloaded here.

Since Article 111 of the Criminal Code of Ukraine is, in our opinion, the most problematic in the investigation of crimes against the foundations of the national defense of Ukraine, given the respect for human rights, a more detailed examination of the court decisions is necessary. Usually, the correct findings can be reached only on the basis of examination of the materials of the criminal proceedings as a whole, and not only one sentence, but the analysis of the decisions gives reasons for certain findings concerning the tendencies that could be seen.

Thus, we would examine the court decisions in more detail. They can be divided into the following groups:

– the decisions concerning the events connected to the annexation of Crimea (10 sentences);

– the decisions about the transfer to a foreign State of an information constituting a State secret or other kinds of secret provided by the law (12 sentences);

– The decisions concerning the actions directed at harming the sovereignty and territorial integrity of Ukraine (9 sentences)

– The decision about a prisoner of war who joined the illegal armed formations of the so-called “DPR” (1 sentence – concerning serviceman R., examined above);

ؘ– other decisions (2 sentences).

In another publication we will examine the criminal proceedings under Article 111 of the Criminal Code of Ukraine in which the journalists were accused in connection with their professional activity.

The court decisions concerning the consequences of the annexation of Crimea

There were 10 such decisions: 5 concerning the servicemen and 5 concerning civilians. We will start with the civilians.

4 sentences were delivered in the special court proceedings in absentia. Three of them concerned two judges from the Court of Appeal of ARC and a judge from Commercial Court of Appeal of Sevastopol who continued working as judges in the same courts, only renamed, under Russian legislation. The fourth sentence was delivered against a deputy of Verkhovna Rada or ARC who voted for accession of Crimea to Russia and remained the deputy of the “State Duma of Crimean Republic”. All cases were examined by the same Svyatoshinsky district court of Kyiv in the second half of 2019, they were very much alike and the position of the court was the same: the defendants committed a high treason, namely, deliberately, harming the sovereignty and territorial integrity of Ukraine, assisted Russia, as a foreign State, in carrying out subversive activities against Ukraine. The former judges (they were fired for violating the oath) received punishment in the form of imprisonment for 12 years, the deputy – 14 years of imprisonment).

The fifth sentence, delivered on 19 November 2018 by Dnipro district court of Kyiv in ordinary court proceedings in the presence of the defendant, was delivered to Vasyl Ganysh, born in 1957, a former Deputy Head of Feodosiya city council and a deputy of Verkhovna Rada of ARC, who on 11 April, as stated in the verdict, “took part in an extraordinary meeting of illegally created body “State Rada of Crimean Republic”… in which 88 former deputies of Verkhovna Rada of Autonomous Republic of Crimea unanimously adopted the so-called “Constitution of the Republic of Crimea”, as a subject of the Russian Federation.

In reality, according to Mr. Ganysh, he did not took part in the voting on 11 April, since on 6 March, when the issue of holding a referendum on the accession to RF was voted on, he was the only one person present who voted against it, on the same day he relinquished his voting card and has not participated in the work of Verkhovna Rada of ARC since then. In the court Ganysh stated that “after graduation he moved to the Autonomous Republic of Crimea, where he worked, was elected a deputy of the city council of the majority lists, a deputy of Verkhovna Rada of ARC. Being a deputy, he founded the schools, was one of the founders of the Crimean Department of organization of Ukrainian intelligentsia and “Prosvita”. It was in the 90s. Being a deputy, he provided all kinds of help to Crimean Tatars through his actions. When in 2000s he headed the tax service in Feodosiya, one of his first steps was the translation of all documentation in Ukrainian, for which he was harshly criticized by the management of the Crimean and Ukrainian tax service, but subsequently everything settled down. For his entire life his activity was only pro-Ukrainian. In Verkhovna Rada of ARC he was the Deputy Head of the Culture Committee”.

The court decision – the imprisonment for 12 years – is appalling in its illogicality and cruelty given that Vasyl Ganysh is a 63-year-old man, he is a pensioner, he has a second-group disability with serious heart condition.

In the five sentences against the servicemen who served in the ARC, the prosecution has one legal position, that if they did not arrive to the designated locations in time designated by the armed formations and were not dismissed, they are considered the ones who left the military units, and they are accounted to the relevant officers. The relevant information concerning the search for them is provided to the law-enforcement bodies. They have committed criminal offences qualified under Article 408 of CC of Ukraine “Desertion”. If they started serving in the military units of RF in Crimea, it is corpus delicti under pt. 1 of Art. 111 of the CC of Ukraine.

In all five cases it was that accusation.

Thus, on 16 June 2016 Vinnitsya city court delivered the sentence under pt. 1 of Article 408 of the Criminal Code of Ukraine to А., who until 13 May 2014 served in Sevastopol in military unit А1656 as a senior radio operator, it sentenced her to 3 years of imprisonment. She was acquitted under Art. 111 pt. 2.

In the court A. explained that “ due to the need to pay credit obligations for purchased housing and legal registration of ownership, therefore the impossibility to leave Sevastopol, around 15 April 2014 she applied to the Head of the military unit – the commander of the military unit А1656, with a report on dismissal from military service from the ranks of the Armed Forces of Ukraine. That report was pending, and she was offered to continue serving in the ranks of the Armed Forces of RF, which she categorically refused and did not took the oath of RF… The prosecution also accused A. of failure to be transferred to military unit А2656 in Vinnitsya, but there was no transfer order, such order was not issued and she did not have to sign it, therefore, there was no legal regulation of the transfer to the new place of service… Therefore, in the period between April and December 2014 and subsequently until February 2015 she was not a serviceperson of either Armed Forces of Ukraine or Russia, but she did not have any documents of her dismissal during that time. Around 20 January 2015 she received a phone call and was notified that she was dismissed”. And she pleaded guilty of the crime under Article 408 of CC of Ukraine.

As noted in the sentence, in the court’s view, “None of the proper and acceptable pieces of evidence provided by the prosecution, which were examined in the court hearing, contains any information about the fact that the accused performed deliberate actions for assisting of the foreign country, foreign organization or their representatives in subversive activity against Ukraine, the prosecution does not define the nature of the actions, therefore their main sign – the intent – is not proven. Thus, the accused stated that in the middle of April 2014 she filed her report for dismissal from the ranks of the Armed Forces of Ukraine to the commander of the military unit, since at that time she already had years of service and she continued serving in the military unit over the age limit, she was offered to remain in the military unit for the continued service in the ranks of the Armed Forces of RF, but she refused and remained on the territory of Crimea, minding her business and awaiting dismissal, she was not serving anymore”.

The court believes that “during the court examination no doubtless evidence of the commission of a criminal offence provided for by pt. 1 of Art. 111 of the CC of Ukraine was obtained or provided, Because of that the prosecution should acquit A. for the lack of corpus delicti in her actions”.

The court found A. guilty under pt. 1 of Art. 408 of the Criminal Court of Ukraine and sentenced her to three years of imprisonment with the probation term of 1 year and 6 months. On 22 September 2016 Vinnitsya Regional Court of Appeal upheld the decision. On 1 June 2017 the Higher Specialized Court for Civil and Criminal Cases excluded one piece of evidence and upheld the rest of the sentence.

In our opinion, A.’s actions lack the corpus delicti under Article 408, and she should be fully acquitted.

On 16 January 2017 Darnitsky district court of Kyiv delivered the verdict to S. under pt. 1 of Art. 408 and pt. 1 of Art. 111 of the CC of Ukraine with the application of Article 69 of the Criminal Code of Ukraine, in the form of imprisonment for 8 years. S., a Lieutenant Colonel of the medical service, born in 1977, the head of the medical service and the Deputy Head of the Center of Medical Rehabilitation, sanatorium treatment and special training “Sudak” was accused under Articles 408 and 111 of the fact that he did not arrive to Mykolaiv, as was intended, but remained working on the same position in an institution subordinated to the Russian Federation – “Sudak” was reorganized as The Center of the Sports Club of the Army”. S. pleaded not guilty, he refused to testify and answer the questions in the courtroom. In his last words he said that he did not commit the crimes he was charged with. He compiled the list of persons who wanted to move to continue serving, and he included himself in the list. On 18 April 2014 he filed the report of dismissal to the Head of the Center. On 29 April he left to Kyiv, to clarify the issue of dismissal, but could not get an appointment with the leadership of the Military Medical Department of the Ministry of Defense of Ukraine. He did not enter service of the Armed Forces of RF, did not carry out any agitation, never organized or carried out rehabilitation activities with the servicemen of RF. He was working as a doctor in the civil establishments.

The court found all evidence by the defense which corroborated S.’s statements unacceptable and concluded that “the guilt of the accused was proved “beyond reasonable doubt”during the court examination of the criminal proceedings”, although an attentive reader could see that the prosecutor did not provide proofs of the actions of S. Which are qualified as a high treason –similar to the case of A., provided above.

In two weeks Kyiv City Court of Appeal quashed that sentence for procedural reasons and returned the case for the fresh examination to Obolon district court. The jurisdiction to hear the cases under the Article 111 should be defined by the Court of Appeal, but the bill of indictment was directed to Darnitsky district court, bypassing the Court of Appeal, which is a procedural violation leading to quashing of the sentence. The examination of the case in Obolon District Court is ongoing for more than 3,5 years, which only confirms the questionable nature of the accusation. Later the preventive measure for S. was changed and he was released from SIZO.

The rest of the sentences of this group are also questionable, since the accused state that they did not serve in the Armed Forces of RF, and the convincing evidence of transition to the side of the enemy was not provided by the prosecution.

Court decisions on the transfer of information that constitutes a state secret or other secret provided by law to a foreign state

There were 12 such sentences, and the “foreign country” is represented by the Russian Federation in all cases. In each case there is a resident of who receives the secret information keeping the confidentiality of the source. In one case the accused was acquitted. In 8 cases the defendants pleaded guilty in full and repented.

In our opinion, in the cases of this category the essential issue is the following: does the information given to a representative of the foreign country constitute the state secret? Only in that case it could be stated that the high treason takes place in the form of spying. To answer that question it is necessary to state clearly to which point of the List of Information Constituting the State Secret (LICS) did the provided information belong. If the given information with the restricted access belongs to the category of official information, such offence should be qualified under Article 330 of the CC of Ukraine, and not as a state treason. Then such information should belong to the lists of the information constituting the official secret of the relevant state agency, enterprise or institution which owned it. There are no other options in the Laws “On the Information” and “On Access to Public Information”: the information which belongs to the state bodies can either be open, and then it can be disseminated freely, or it is official or secret (constituting the state secret).

Given this question, not all sentences of this group contain the data about appeal to an expert on state secrets who provides the conclusion on whether the information provided to a representative of the foreign country represents a state secret protected by a certain Article of LICS.

Thus, the, sentence delivered on 22 August 2019 by Golosiivsky District Court of Kyiv in a known case which was hotly debated by society, does not contain such reference. In this case the accused was the Deputy Chief of Protocol of the Prime Minister, Stanislav Yezhov, who at the same time also worked as an interpreter to the Prime Minister, Volodymyr Groysman.

Stanislav Yezhov was detained on 20 December 2017. On the next day the Deputy Head of the Main Investigative Department of SSU, Vitaliy Mayakov, reported that “the detained was informing Russian special services on the foreign trips and conversations of the Prime Minister, Volodymyr Groysman”. Mayakov explained that the criminal offence of which Yezhov is suspected, is somewhat different from the intelligence activity: “This form of the high treason, unlike spying, does not provide for the information given to the foreign special services to necessarily constitute a state secret”.

The court decided to hear the case in the open hearing. On 22 August 2018 before the start of the court process Yezhov stated: “I am accused of working for the GRU of the General Staff of the Russian Federation, but all the testimonies of the witnesses and all case-file materials lack any evidence of not only working for the GRU of the General Staff, but even any evidence connected to Russia. Nothing was collected”. His lawyer, Valentyn Rybin, pointed out that the case lacked the documents constituting the state secret.

However, subsequently their position changed. Yezhov pleaded guilty and repented. He signed the plea agreement with the prosecutor which was approved by the court. On 3 July 2019 near the end of the process the court released the accused under the round-the-clock house arrest with the application of electronic control measure.

The court applied the article 69 of the CC of Ukraine and delivered the punishment in the form of imprisonment for 3 years and 28 days. Under Savchenko’s law the court included in the term of Yezhov’s sentence the term of his pre-trial detention between 20.12.2017 and 03.07.2019 including, calculating 1 day of pre-trial detention as 2 days of imprisonment, which constitutes 3 years and 28 days. The court replaced the round-the-clock house arrest with personal undertaking before the sentence came into force.

As stated in the sentence, the investigation found that in the period between 16 June and 20 December 2017 the accused was giving “the information in the area of economics, defense and foreign relations of Ukraine to the persons unidentified by the pre-trial investigations, the representatives of the Main Department of the General Staff of Armed Forces of the Russian Federation – the documents and information about the planning, preparation and realization of the foreign visits of the Prime Minister of Ukraine, his contacts with the foreign partners, including confidential ones, as well as other aspects of potential international, defense, economic and political cooperation of Ukraine with the relevant foreign countries, some of this information was not to be published and became known to him during the performance of his official duties on the position of the Deputy Head of the Protocol of the Prime-Minister of Ukraine, as well as during the performance of the functions of the interpreter from the foreign languages during the meetings of the Prime Minister of Ukraine with the officials of the foreign countries”. In such way, according to the investigation, he “assisted in carrying out the subversive activities against Ukraine, creating the conditions for the activity of the foreign intelligence bodies on the territory of Ukraine, and by choosing the candidates for “recruitment” among the government officials of Ukraine.

Let us note that such approach to the qualification of the high treason in the form of information transfer to a foreign state lacks the clear criteria of which information exactly assists the foreign state in carrying out the subversive activities against Ukraine. And this issue is decided by the investigators at their own discretion, not the law. In our view, such approach is arbitrary and thus unacceptable, it clearly does not meet the requirement of the European Court on the clarity and predictability of the law on which the restriction of the freedom of expression is based. Among the sentences of this group there are several more which qualify the transfer of information which, in the investigations’s, and later the court’s opinion, harms the defense but does not constitute the state secret, as a high treason.

For example, such is the sentence delivered on 15 October 2019 by Krukiv District Court of Kremenchuk city of Poltava district, in which the collection and transfer to the representatives of FSS of RF in 2014-2019 “of the information on the development of the social and political, social-economic and military situation in Poltava region and in Ukraine in general” was qualified as high treason. In particular, the accused transferred “to the representatives of the foreign special service the files «Звіт для ОМВК 2019.docx», «Моб.розп.; АТО (04 03 2019 г).docx»; «Список офіцеров запасу приписаних до інших військових комісаріатів.docx»; «Список офіцерів запасу приписаних до Кременчуцького ОМВК.DOCX; «Список солдат сержантів приписаних до Кременчуцького ОМВК.DOCX»; «Список солдат сержантів приписаних до інших військових комісаріатів.docx», which contained the information about the persons who worked at PAT «JT International Ukraine» and were on the military register at the military commissariats of Ukraine, including the participants of hostilities, as well as the list of reserve officers, soldiers and sergeants, who are on the military register in PAT «JT Ukraine» and have a mobilization order”. According toi the findings of the expert on state secrets, Deputy Head of the General Staff of the Armed Forces of Ukraine, “according to the set of data defined in the information notices, the information contained in the documents given to the representatives of the foreign special service constitutes the official information of the Armed Forces of Ukraine, falls in the sphere of action of paragraphs 3.2 and 3.37 of the List of information of the Armed Forces of Ukraine that constitutes official information, approved by the Order of the General Staff of the Armed Forces of Ukraine of 22.11.2017 No. 408”. Given “the nature and high level of social danger of the crime he committed against the foundations of the national security of Ukraine”, the panel of judges imposed a sentence of 12 years of imprisonment. Thus, for the five years of communication with the representatives of FSS, the details of which are not provided in the sentence, the accused transferred the documents defined as official information, he is not charged with anything else. In our view, the qualification of actions of the accused under Article 111 of the CC of Ukraine is erroneous.

The qualification of the actions of the village school principal under Article 111 of the Criminal Code of Ukraine is questionable in the sentence delivered on 25 September 2014 by Khalanchak District Court of Kherson oblast. He was accused of telling his friend, an officer of the communications department of the headquarters of the Black Sea Fleet of the Russian Federation in a phone conversation in March 2014, the data “on location and relocation of military units and formations of the Armed Forces of Ukraine on the territory of Kherson oblast, the level of their battle readiness, the number of personnel, type and quantity of the weapons”. The accused pleaded not guilty, stating that “all his conversations with his friend had a domestic nature and the information that he told was known to everyone”. It is interesting that the court, while defining the punishment in the form of 12 years of imprisonment, released the accused from custody under personal undertaking before the sentence came into force.

The last case of this category which has to be mentioned is the one in which there was the only full acquittal. In the case it turned out that the person accused of collecting secret information and transferring it to FSS of RF committed all his actions under the control of the representatives of SSU, and that the information that was transferred was manipulative and misleading. However, it did not prevent other SSU employees who watched the accused from detaining him with the application of the special means and conducting the investigative actions at once without calling the lawyer. The accused spent almost two years in SIZO before verdict was delivered.

Court decisions concerning the actions directed at harming the sovereignty, territorial integrity and defense of Ukraine

9 court decisions of this category are diverse: they concern the support for separatist movements, self-proclaimed Donetsk and Luhansk “people’s republics” and the aggression of RF, protests against mobilization and other actions.

Thus, the leader of the Rusyn separatists, Petro Getsko, who was posing as the Prime Minister of a virtual country “Republic of Subcarpathian Russia” and the coordinator of the so-called “Network Rusyn Movement” and “Rusyn Front” received in absentia 12 years of imprisonment. The sentence, delivered on 30 September 2019 by Mukachevo interdistrict court of Transcarpathia oblast, states that Getsko appealed “on behalf of the Rusyn of Zakarpatya to the President of RF asking to carry out a peacekeeping operation, to restore and recognize the statehood of the Republic of Subcarpathian Russia». In a number of his speeches and interviews he spoke of a violent change of government in Transcarpathia.

Two residents of Ternopil were recruiting people to fill the ranks of illegal armed formations in the so-called “DPR” and “LPR”, offering a great reward, publishing fake news in social networks about the “atrocities of the fascists” and performing other actions. They were sentenced to 15 and 14 years of imprisonment.

Ruslan Kotsaba, a journalist from Ivano-Frankivsk, publicly protested against mobilization in January 2015. On 12 May 2016 Ivano-Frankivsk city court delivered the verdict in his case. Ruslan Kotsaba was accused of committing crimes provided for in pt.1 of Art. 111 of the CC of Ukraine (high treason) and pt.1 of Art. 114-1 “Obstruction of legal activity of the Armed Forces of Ukraine and other military formations”. The court found Kotsaba not guilty of high treason and acquitted him under Art. 111 of the CC of Ukraine for lack of corpus delicti. At the same time the court found his guilt under Article 114-1 proven and sentenced him to 3 years and 6 months of imprisonment. This case is examined in more detail in a separate publication.

One case is somewhat different from other cases of this category: the sentence states that the defendant, a Major, a military pilot, “was recruited by his close relative on behalf of the representatives of the secret service of the Russian Federation and was tasked by them to hijack the plane assigned to him, SU-24 МR”. That he tried to carry out his criminal intent during the reconnaissance flight near the border with RF, but did not finish it. “He notified the representatives of the special forces of the Russian Federation about the route of the flight which is a secret information, as well as about the impossibility of hijacking the plane”. The defendant pleaded not guilty. He explained that his wife and child were kidnapped and brought to RF, and he agreed to hijack the plane on the condition that they will be returned home, but he was not going to hijack the plane, deliberately imposing on the Russians the demands that could not be fulfilled. The court delivered the punishment in the form of 12 years of imprisonment. The validity of the sentence is questionable.

Also questionable is the sentence in the case in which the defendant agreed to kidnap a resident of RF and bring him to Russia to transfer him to FSS. However, he did not manage to carry out the plan, since he was detained by SSU. While the qualification of the actions of the defendant under Article 146 of the CC of Ukraine is correct, it is not clear why those actions are qualified as a “high treason”.

Another case seems simply fictional because of its overall weirdness. The sentence in this case was delivered on 27 January 2019 by Krasnoguardiysky district court of Dnipropetrovsk oblast. According to the plot of this case, an expert from Federal Information Center “Analytics and Security” in Moscow has developed “a long-term plan (algorithm) of successive actions, directed at harming the sovereignty and informational security of Ukraine, which was given the code name “Vector” in order to comply with the requirements of the conspiracy of the unlawful activity. By its nature and contents the plan was a clear sequential algorithm of actions of various groups of people which had specific criminal actions distributed among them and the duties of performing the relevant activities united by a single criminal intent to organize the subversive activity against Ukraine”. According to that plan, “at the infrastructure objects and in public places of the specified cities of the Russian Federation the specially involved residents of Ukraine from among the ATO members had to perform a predetermined set of measures under the guise of builders which by its nature must look like the preparation for performing the construction and repair works, however, with appropriate coverage and comments in the media would have signs of a preparation for committing a crime against the national and public security of the Russian Federation. In particular, the above-mentioned complex of activities provided that the involved residents of Ukraine under the guise of builders should visit the public places and objects of infrastructure (subway stations, railway stations, airports etc) of the Russian Federation, carry out their fixation with technical means (photographing, video recording), perform conversations with specific subscribers of phone services and perform other activities which under the guise of preparation for construction and repair work would bear the signs of preparation for performing an explosion. According to the defined criminal plan, subsequently, after the activity of those residents of Ukraine is found out by the law-enforcement bodies of the Russian Federation, it would be covered in the mass media of the Russian Federation as unlawful activity, as well as the one which is directed at causing grievous consequences in the form of death of people and causing material harm, it would serve as justification for the representatives of the Russian Federation to accuse Ukraine of the preparation of the terrorist acts or sabotage against the Russian Federation”.

The sentence subsequently describes an almost detective story of how this Russian expert recruited two Ukrainian nationals, a man and a woman, to carry out that plan, and they, in their turn, offered three former ATO members to go to Russia and work as builders for good payment. They agreed and left, but at the last moment they guessed the criminal intent and contacted the Ukrainian special service which prevented the planned crime. The recruited man and woman pleaded guilty, repented, signed plea agreement with a prosecutor and were released from custody in the courtroom, as a result their actual served sentence was 2 years, 4 months and 11 days od imprisonment.

Other cases

We included in this category two cases which were examined in absentia and about which much has been written. One sentence concerns Victor Yanukovych, a former President of Ukraine, the second sentence – Oleg Belaventsev, a Russian, Vice Admiral of the Navy of the RF Armed Forces in retirement, who called himself during the annexation of Crimea “The representative of the president of the Russian Federation in Crimea”. The latter raises questions, how a resident of RF can be brought to responsibility for Article 111 of the CC of Ukraine, when the Article clearly states that the high treason is an act willfully committed by a citizen of Ukraine?

Conclusions

The analysis of the criminal proceedings concerning the crimes, committed under Article 111 of the CC of Ukraine in 2014-2019 shows that they are investigated very slowly: the notice of suspicion is handed down only in 37.7% of the total number of recorded criminal proceedings, and the bill of indictment is directed to the court only in 33% of the proceedings in which the notice of suspicion was handed down. That said, only 7.6% of the proceedings are closed, and the number of proceedings concerning which the decision on closing or suspending them is not taken is 64.1%.

The first-instance courts delivered 34 sentences in six years. The analysis of those decisions shows that the qualification of the crimes as high treason was often questionable and even incorrect. The courts sometimes tried to rectify those errors of the pre-trial investigation. Thus, in four cases the accusation under Article 111 was found unproven and the defendants were acquitted under that Article.

The judicial practice has shown that the transfer of information to a foreign country or organization was also interpreted as assistance in subversive activities against Ukraine in the cases when the information did not contain a state secret. In our view, the qualification of the transfer of information as high treason is only possible in the case of transfer of secret information, since the discretion in the qualification of a crime for the information which is not a state secret is too wide.

Out of 8 sentences delivered in the special court proceedings in absentia, in our view, only one can be considered correct, 7 others are striking and unlikely to stand allegations of violations of the right to fair trial before the European Court for Human Rights if such allegations are well-founded.

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