Servises

A list of cases falling under Article 436-2 of the Criminal Code of Ukraine by attorney Dmytro Kasyanenko

16/08/2024

Today, Ukraine continues to face significant challenges related to the protection of its territorial integrity and sovereignty. Article 436-2 of the Criminal Code of Ukraine is one of the key provisions aimed at protecting the truth about the armed aggression of the Russian Federation against Ukraine that began in 2014. This article provides for liability for justifying, denying, or recognizing this aggression as legitimate, as well as for glorifying persons who participated in armed hostilities on the side of the aggressor.

Given the importance of this topic, I have prepared a compilation of case law and analytical materials that detail the application of this rule in court proceedings. The purpose of this list is to provide the legal community and stakeholders with tools for a deeper understanding of this criminal law provision and its application.

Today’s publication will help to understand the key aspects of this article, analyze specific court decisions and their impact on law enforcement in Ukraine. I believe that this information will be useful for both practicing lawyers and those interested in national security and justice issues.

Part 1 of Article 436-2 of the Criminal Code of Ukraine stipulates that justification, recognition as lawful, denial of the armed aggression of the Russian Federation against Ukraine, which began in 2014, including by presenting the armed aggression of the Russian Federation against Ukraine as an internal civil conflict, justification, recognition as lawful, denial of the temporary occupation of part of the territory of Ukraine, as well as glorification of persons who carried out the armed aggression of the Russian Federation against Ukraine, which began in 2014, representatives of the armed forces of the Russian Federation, irregular illegal armed groups, armed gangs and mercenary groups created, subordinated, controlled and financed by the Russian Federation, as well as representatives of the occupation administration of the Russian Federation, which consists of its state bodies and structures functionally responsible for the management of the temporarily occupied territories of Ukraine, and representatives of self-proclaimed bodies controlled by the Russian Federation that have usurped the exercise of power in the temporarily occupied territories of Ukraine shall be punishable by correctional labor for up to two years or probationary supervision for up to three years, or imprisonment for the same term.

Part 2 of Article 436-2 of the Criminal Code of Ukraine stipulates that the production and dissemination of materials containing justification, recognition as lawful, denial of the armed aggression of the Russian Federation against Ukraine, which began in 2014, including by presenting the armed aggression of the Russian Federation against Ukraine as an internal civil conflict, justification, recognition as lawful, denial of the temporary occupation of part of the territory of Ukraine, as well as glorification of persons who carried out the armed aggression of the Russian Federation against Ukraine, launched in 2014, representatives of the armed forces of the Russian Federation, irregular illegal armed groups, armed gangs and mercenary groups created, subordinated, controlled and financed by the Russian Federation, as well as representatives of the occupation administration of the Russian Federation, which consists of its state bodies and structures functionally responsible for the management of the temporarily occupied territories of Ukraine, and representatives of the self-proclaimed bodies controlled by the Russian Federation that have usurped the exercise of power in the temporarily occupied territories of Ukraine – shall be punished by restraint of liberty for a term of up to five years or imprisonment for the same term, with or without confiscation of property.

Part 3 of Article 436-2 of the Criminal Code of Ukraine provides that the actions envisaged by part one or two of this Article, committed by an official, or committed repeatedly, or by an organized group, or with the use of mass media, shall be punishable by imprisonment for a term of five to eight years with or without confiscation of property.

In the period of 2022-2024, the following rulings and verdicts were issued in cases involving the commission of a crime under Article 436-2 of the Criminal Code of Ukraine, which have practical application.

Cases involving plea bargaining.

During the oral conversations, the accused used statements justifying the armed aggression of the Russian Federation against Ukraine, which began in 2014, justifying the temporary occupation of part of the territory of Ukraine, and, in particular, used the following statements in Russian: “- They blew up their own Nova Kakhovka, flooded it, or what? ” – To the last Ukrainian” (translated from Russian), which justify the armed aggression of the Russian Federation against Ukraine, which began in 2014.

During the pre-trial investigation, the actions of the accused were qualified under Art. 436-2, Part 1 of the Criminal Code of Ukraine as intentional illegal actions, which were expressed in justifying the armed aggression of the Russian Federation against Ukraine, which began in 2014, justifying the temporary occupation of part of the territory of Ukraine, committing a criminal offense under Art. 436-2, Part 1 of the Criminal Code of Ukraine.

In the course of the investigation, a plea bargain was concluded, on the basis of which the court approved the agreement and imposed an agreed penalty in the form of a fine of 1000 tax-free minimum incomes, which is UAH 17,000.

In this case, the accused categorically denied the facts of bombing by the military of the armed forces of the Russian Federation of the civilian population of Ukraine, denied the abuse of civilians by the armed forces of the Russian Federation in the city of Bucha, Kyiv region, during its occupation by the Russian Federation, and also indicated that the Ukrainian authorities were guilty of a full-scale invasion of Ukraine, thus denying and justifying the armed aggression of the Russian Federation against Ukraine.

The pre-trial investigation body qualified the actions of the accused under Part 1 of Article 436-2 of the Criminal Code of Ukraine, denying and justifying the armed aggression of the Russian Federation against Ukraine, which began in 2014.

In the course of the investigation, a plea agreement was concluded on the basis that the accused unconditionally and fully admitted her guilt in committing a criminal offense under Part 1 of Article 436-2 of the Criminal Code of Ukraine and undertakes to unconditionally admit her guilt in court to the extent of the suspicion.

The court ruled to approve the plea agreement in committing the criminal offense stipulated by Part 1 Article 436-2 of the Criminal Code of Ukraine, to impose the sentence of imprisonment for a term of 2 years agreed by the parties in the plea agreement and to release the convict from serving the sentence with probation, with the establishment of a probationary period of 1 year.

  • Plea agreement for repeatedly justifying the aggression of the Russian Federation against Ukraine in personal correspondence on Telegram. (Oktyabrsky District Court of Dnipropetrovs’k, case No. 201/3646/24 of April 29, 2024) https://reyestr.court.gov.ua/Review/118813024

The accused in this case, using an account in the Telegram messenger, repeatedly sent the latter messages in the course of correspondence with a citizen of the Russian Federation, which contained justifications, recognizing the legitimacy of the armed aggression of the Russian Federation against Ukraine, in particular, the following content: “Unfortunately, 2 people 🙁 The rest were brainwashed with the most propaganda. There are people in the city who understand what is happening, but there are fewer of them and they are afraid to say anything…”, “Most people I talk to think that the Russians are beasts who kill and rape…” (translated from Russian), etc.

Thus, the accused committed justification, recognition of the lawfulness of the armed aggression of the Russian Federation against Ukraine, including the repeated one, i.e. a criminal offense under Part 1 of Art. 436-2, Part 3 of Art. 436-2 of the Criminal Code of Ukraine.

During the pre-trial investigation, the accused unconditionally pleaded guilty to the criminal offenses charged, pledged to cooperate with law enforcement agencies and provide information on all the circumstances of the crime known to him.

At the court hearing, the prosecutor, the accused and his defense counsel asked the court to approve the plea agreement and sentence the accused to the punishment agreed by the parties.

Taking into account the above, the court approved the plea agreement, finally determining the punishment in the form of five years of imprisonment without confiscation of property and releasing the accused from serving the sentence with a 2-year probation period.

Bypassing the blocking of autonomous systems, which obliged providers to block millions of IP addresses in the Russian segment of the Internet, the accused, using the Odnoklassniki social network profile, distributed materials, videos, publications containing signs of justification, recognition of the legitimacy, denial of the armed aggression of the Russian Federation against Ukraine, which began in 2014, as well as glorification of persons who carried out the armed aggression of the Russian Federation against Ukraine, which began in 2014.

The prosecution charged him with committing a criminal offense under Part 2 of Article 436-2 of the Criminal Code of Ukraine (justification, recognition as lawful, denial of the armed aggression of the Russian Federation against Ukraine, glorification of its participants).

The accused fully and unconditionally admitted his guilt in committing the crime stipulated by Part 2 Art. 436-2 of the Criminal Code of Ukraine, sincerely repented, actively contributed to the disclosure of the crime, undertakes to unconditionally recognize the charges in the amount of suspicion in the trial and to assist the investigation of criminal proceedings in establishing the circumstances of identifying and stopping other similar criminal offenses known to him.

As a result of the court’s verdict, the defendant and the prosecutor entered into a plea agreement, sentenced him to three (3) years of imprisonment without confiscation of property and released him from serving the sentence with probation for one year.

The accused, who has an extremely negative attitude towards the state authorities, disseminated materials containing justifications and denials of the armed aggression of the Russian Federation against Ukraine, which began in 2014, using his own Facebook account, which is publicly available to an unlimited number of people. In particular, on his own page on the social network, the accused distributed a video lasting 23 min. 47 seconds long, titled “Repost!!! Satanists – started a war in Ukraine!!! Satanist – took off his mask!!!”, which contained numerous statements justifying and denying the armed aggression of the Russian Federation against Ukraine, which began in 2014.

The prosecution charged him with committing a criminal offense under Part 2 of Article 436-2 of the Criminal Code of Ukraine (justification, recognition as lawful, denial of the armed aggression of the Russian Federation against Ukraine, glorification of its participants).

During the trial, the defendant explained that he had indeed committed the crime charged under the circumstances set out in the indictment, and voluntarily entered into a plea agreement with the prosecutor, which agreed on a sentence of three years’ imprisonment without confiscation of property and with his release from serving a sentence of probation.

The court found the defendant guilty of committing a criminal offense under Part 2 Art. 436-2 of the Criminal Code of Ukraine, sentenced him to three years of imprisonment without confiscation of property and released him from serving the sentence on probation with a probationary period of one year.

Returning the prosecutor’s indictment.

The court found that the indictment in this case on charges of committing a crime under Part 2 of Art. 436-2 of the Criminal Code of Ukraine did not meet the requirements of Art. 291 of the CPC of Ukraine, since the prosecutor did not properly comply with these requirements of the law when formulating the charges. The indictment contains vague charges that cannot be eliminated during the consideration of criminal proceedings, which was also noted in the decision of the Vinnytsia Court of Appeal of 29.12.2022, which shows that the prosecutor did not comply with the requirements of Art. 291 of the CPC of Ukraine when formulating the charges.

Taking into account the above, the court considers that the motion of the defense counsel and the accused is justified, and the indictment on charges of committing a crime under Part 2 of Art. 436-2 of the Criminal Code of Ukraine is subject to return to the prosecutor to comply with the requirements of Art. 291 of the CPC of Ukraine.

The factual circumstances set forth in the indictment in this case do not comply with the disposition of Article 436-2, Part 2 of the Criminal Code of Ukraine, namely, the descriptive part of the indictment states that the suspect used a mobile phone to make a video in which he denied the fact of the armed aggression of the Russian Federation. In the operative part of the indictment, the person is accused of disseminating these materials, but the indictment does not specify the date of the criminal offense, does not specify the conditions under which the video was made, does not specify how the materials were disseminated, and where exactly they were disseminated.

In other words, the prosecutor refers to the only evidence as a video recording that has already been attached to another criminal proceeding on charges of a person under Article 111-1, part 1 of the Criminal Code of Ukraine, where the circumstances set forth actually duplicate the circumstances of the criminal offense to which the prosecutor refers in this indictment, and the same evidence is attached to the case file, on which the entire prosecution is based.

In view of this, the court considers it necessary to satisfy the motion of the defendant’s defense counsel and return the indictment to the prosecutor for the criminal offense under Part 2 of Article 436-2 of the Criminal Code of Ukraine.

During the preparatory court hearing, it was established that the parties to the criminal proceedings used the interpretation of an interpreter engaged during the pre-trial investigation.

However, in the court’s opinion, the notice of suspicion and the indictment should have been translated in writing without any requests from the defense, and this translation should have been immediately handed to the accused, as the interpreter provides the accused with communication with the defense counsel to develop the legal position of the defense. Interpretation increases the actual time for preparation for the defense and calls into question the effectiveness of the defense, including personal defense in such circumstances.

In view of this, the court considers it necessary to return the indictment to the prosecutor to fulfill the requirements of Article 29 of the CPC of Ukraine.

The defense counsel for the defendant in this case filed a motion to return the indictment to the prosecutor due to its non-compliance with the requirements of the CPC of Ukraine, in particular, he stated that this document contained an indication that the person was suspected of committing crimes, that is, had not acquired the status of an accused. In addition, he noted that the indictment did not contain the date of its preparation. These shortcomings prevent the case from being scheduled for consideration.

The court notes that the content of the indictment shows that the accused person is listed as a suspect and as an accused. In addition, in the wording of the indictment, when qualifying the actions of the person, the prosecutor indicated that the latter was suspected of committing crimes under Part 6 of Article 111-1, Part 3 of Article 436-2 of the Criminal Code of Ukraine. Such contradictions in the indictment, in the court’s opinion, may in the future become the basis for canceling any final decision made by the court, and therefore this indictment against the person does not meet the requirements of the law.

In addition, the indictment in section 9 does not specify the date of drawing up and approval of the indictment, which indicates that the indictment does not meet the requirements of paragraph 9 of part 2 of Article 291 of the CPC of Ukraine.

Taking into account that these facts are the grounds for returning the indictment to the prosecutor as one that does not meet the requirements of the CPC of Ukraine, the court concluded that the defense counsel’s motion should be granted, and the indictment should be returned to the prosecutor to eliminate the deficiencies.

When considering the prosecutor’s appeal against the above decision, the Kyiv Court of Appeal upheld the decision of the court of first instance that the content of the indictment shows that the accused person is listed as a suspect and as an accused. In addition, in the wording of the charge, when qualifying the actions of the accused, the prosecutor stated that the latter is suspected of committing crimes under Part 6 of Article 111-1, Part 3 of Article 436-2 of the Criminal Code of Ukraine. Thus, the panel of judges agrees with the conclusion of the court of first instance that the mentioned contradictions in the indictment may become the basis for the future cancellation of any final decision made by the court, and therefore the indictment does not comply with the requirements of the law.

The Court of Appeal also noted that the indictment did not specify the date of its drafting and signing, which indicates that the indictment does not comply with the requirement provided for in paragraph 9 of part 2 of Article 291 of the CPC of Ukraine.

The court found such violations of the requirements of the criminal procedural law to be significant, and therefore declared that there were no grounds to satisfy the prosecutor’s appeal.

  • Return of the indictment to the prosecutor as it does not contain the place of commission of the criminal offence. (Bila Tserkva City District Court of Kyiv Region, case No. 357/1084/23 of 09 February 2023)https://reyestr.court.gov.ua/Review/108948328

In this decision, the court notes that the charges brought against a person must be specific in content. In particular, it must contain information about the crime of which the person is accused, the time, place and other circumstances of its commission, as far as they are known to the investigator.

Having reviewed the content of the indictment, the court finds that the charge set out in it is non-specific, and the indictment, in this part, does not meet the requirements of paragraph 5 of part 2 of Article 291 of the CPC of Ukraine, since when setting out the actual circumstances of the criminal offence and formulating the charge, the pre-trial investigation body did not indicate the place of commission of the criminal offence.

In view of the above, the court concluded that it was necessary to return the indictment in the criminal proceedings on charges of committing a criminal offence under Part 2 of Article 436-2 of the Criminal Code of Ukraine to eliminate the above defect.

Release from serving a sentence with probation.

In a conversation with the audience, the accused justified, recognised as lawful, denied the armed aggression of the Russian Federation against Ukraine, which began in 2014, including by presenting the armed aggression of the Russian Federation against Ukraine as an internal civil conflict, and denied the temporary occupation of part of the territory of Ukraine, making, in particular, the following statements: “Ukraine as such has never existed, if you go deeper into history, it has never existed, the territory was not integral and Russia is taking what is its”, “NATO is trying to destroy the Russian state with the hands of Ukrainians and if you go further into the territory of Russia, capture them and destroy them as a state, Russia is defending itself as best it can”, “…before doing some terrible actions, such as firing missiles, he usually warns Ukrainians. He says, for example, don’t join NATO or don’t take arms support from NATO and then there will be no shelling”, “our people also bombed Donbas… well, our people bombed and bombed civilians, so why are you angry with Russia?”, etc.

The actions of the accused are classified under Part 1 of Article 436-2 of the Criminal Code of Ukraine as justification, recognition as lawful, denial of the armed aggression of the Russian Federation against Ukraine, which began in 2014, including by presenting the armed aggression of the Russian Federation against Ukraine as an internal civil conflict, denial of the temporary occupation of part of the territory of Ukraine.

The accused did not admit guilt to the crime. He testified that during the conversation he did not say any phrases justifying, recognising the legitimacy of or denying the armed aggression of the Russian Federation against Ukraine.

The court found that by his actions, the accused encroached on public relations ensuring the international legal order based on the principles of non-use of force, inviolability of borders and territorial integrity.

Taking into account the circumstances of the incident, the court found that the accused acted with direct intent, i.e. wished to impose his particular opinion on a certain circle of persons, which indicates the presence of a subjective side in his actions as an element of the crime under Part 1 of Article 436-2 of the Criminal Code of Ukraine.

The court found the accused guilty of committing a criminal offence under Part 1 Article 436-2 of the Criminal Code of Ukraine and sentenced him to probation for 2 years.

The accused repeatedly used her personal profile in the Telegram messenger and in the course of correspondence denied the armed aggression of the Russian Federation against Ukraine, which began in 2014, in particular in a fragment of the conversation: “Good morning! We tried to at least get to Russia. We failed. We were refused. We don’t know why. I am a Russian, with Russian roots, and I have lived in the Luhansk region almost all my life. I have never been against Russia, I have never written anything, and I try to never write or support anything. But… now, by the will of fate, I am in the Cherkasy region. I am considered an internally displaced person. There is a biased attitude towards such people in Ukraine, especially (those) from Donbas. ….”. In this fragment, there is a denial of the armed aggression of the Russian Federation against Ukraine, which began in 2014.

Thus, the accused committed a criminal offence under Part 1, 3 of Article 436-2 of the Criminal Code of Ukraine – denial of the armed aggression of the Russian Federation against Ukraine, which began in 2014, including repeated denial.

The accused, interrogated in court, pleaded guilty to the criminal offences under parts 1, 3 of Art. 436-2 of the Criminal Code of Ukraine in full under the circumstances specified in the indictment, sincerely repented of the crime and asked not to be punished severely, and gave detailed explanations of her accusation, which are fully consistent with the circumstances of the criminal offences set out in the indictment. In the court’s opinion, the defendant’s testimony is consistent and logical, consistent with the circumstances of the criminal proceedings, and therefore not in doubt.

In view of the above, the court found the defendant guilty of committing the criminal offences under Art. 436-2(1) and (3) of the Criminal Code of Ukraine, imposed a final sentence of 5 years’ imprisonment without confiscation of property and released the defendant from serving the sentence on probation for 3 years.

Using the ‘Yandex’ browser with an automatically configured specialised programme for bypassing blocking – ‘VPN’, the accused intentionally, pursuing anti-Ukrainian ideological motives, understanding the public communicative nature of the social network and the possibility of disseminating information therein, both among his friends and an indefinite number of people, constantly used his own page on the social network ‘Odnoklassniki’, including for the distribution of materials, favouriting propaganda publications and disseminating them among an indefinite number of persons, and thus posted on his account page anti-Ukrainian information content available for viewing by other users, which contains justification of the armed aggression of the Russian Federation against Ukraine, which began in 2014, including by recognising the legitimacy of the temporary occupation of part of the territory of Ukraine, as well as glorification of persons who carried out the armed aggression of the Russian Federation against Ukraine.

Based on the above, the prosecution charged the commission of a criminal offence under parts 2 and 3 of Article 436-2 of the Criminal Code of Ukraine (justification, recognition of the lawfulness, denial of the armed aggression of the Russian Federation against Ukraine, glorification of its participants).

The accused fully pleaded guilty, stated that he had acted wrongly, and sincerely repented of his actions. In this regard, the Court imposed a 5-year imprisonment without confiscation of property and released the defendant from serving the sentence with probation, setting a probationary period of 3 years.

  • The head of physical education at the Zhytomyr Vocational Lyceum was convicted for denying Russian aggression against Ukraine and spreading fakes about the war in Ukraine. (Bohunsky District Court of Zhytomyr, case No. 295/9908/24 of 05 August 2024)https://reyestr.court.gov.ua/Review/120805786

In telephone conversations, the head of physical education at the Zhytomyr Professional Lyceum repeatedly denied the armed aggression of the Russian Federation against Ukraine, which began in 2014, by euphemising (replacing with softening or masking words used instead of words that are perceived as unwanted, unacceptable in order to change the perception of unwanted information) of a number of words to describe the aggressive actions of the Russian Federation related to the armed seizure of the territory of Ukraine, the aggressive goal of a full-scale invasion, words to describe the military defence actions of Ukraine related to the defence of settlements and the liberation of territories. He claimed that the scenes of the liberation of Ukrainian cities from Russian occupation were fake and fake, and accused the Ukrainian side of committing war crimes on the territory of Ukraine, violating the rules of war, and claiming that Ukrainian soldiers were destroying civilian infrastructure. He justified the armed aggression of the Russian Federation against Ukraine, which began in 2014, as if it was directed against fascism (Nazism) as a politically and historically recognised, unquestionable evil, a socially dangerous phenomenon, claiming that fascist ideology prevails in Ukraine, calling Ukrainians Nazis.

The accused pleaded guilty to the criminal offence in full and testified that he had committed the criminal offences under the circumstances specified in the indictment. He sincerely repented of his actions and asked not to be punished severely.

The court found the defendant guilty of committing criminal offences under Art. 436-2, Part 1, 436-2, Part 3 of the Criminal Code of Ukraine and sentenced him to 5 years’ imprisonment without confiscation of property and released him from serving the sentence if he does not commit a new criminal offence within the probationary period of 3 years.

The accused disseminated materials containing justification, recognition of the legitimacy of the armed aggression of the Russian Federation against Ukraine, which began in 2014, justification, recognition of the legitimacy of the temporary occupation of part of the territory of Ukraine, as well as glorification of persons who carried out the armed aggression of the Russian Federation against Ukraine, which began in 2014, among an unlimited number of people, since his account is open to viewing, as well as among 1,345 people who are his “friends” in the specified social network. These persons could freely view the “posts”, “pictures”, “topics”, “messages”, which the latter distributed on the page of the accused’s account.

During the trial, it was established that, pursuing a criminal intent, wishing for the negative consequences of the dissemination of the above information, the accused committed the above-mentioned illegal acts in the context of the ongoing armed aggression of the Russian Federation against Ukraine, which is deployed throughout its territory, and therefore took all actions in his power to the detriment of the information security of a person and citizen, society and the state, and brought his crime to an end.

The defendant unconditionally and unequivocally pleaded guilty to the criminal offence in full. In this regard, the court found the defendant guilty of committing a criminal offence under Part 2 of Art. 436-2 of the Criminal Code of Ukraine, sentenced him to two years’ imprisonment without confiscation of property and released him from serving a sentence of imprisonment with probation for a year.

The pre-trial investigation body established that accused, being in the territory of Zakarpattia region in a place not established by the pre-trial investigation, created a public profile on the social network Facebook where he registered with the aim of creating, disseminating and bringing to the attention of many people (an indefinite number of Internet users) his radical ideas and public calls for action aimed at seizing state power.

As an active user of the socially oriented Internet resource Facebook, the accused posted and distributed a number of materials with public calls for the seizure of state power in Ukraine, in particular, on his own Facebook account page, he posted a post beginning with the words: “In times of war, the authorities are not criticised,” the authorities said. During the war, traitors are hanged, the people answered” and ends with the words “free expression of will is guaranteed”, posted a publication that begins with the words: “MEMO to ZELENSKY!!!” and ending with the words “to the principles of direct democracy!!!”.

In addition, it was established that the accused, being a supporter of the militarised policy of the Russian Federation towards Ukraine and supporting the ideological basis of the so-called “Russian world”, using information resources, deliberately disseminates materials containing justification, recognition of the legitimacy, denial of the armed aggression of the Russian Federation against Ukraine.

The accused pleaded guilty to the criminal offences under Part 2 of Article 109, Part 2 of Article 436-2 of the Criminal Code of Ukraine, confirming the circumstances stated in the indictment.

Based on the above, the court found the defendant guilty of committing the criminal offences stipulated by Part 2 Article 109, Part 2 Article 436-2 of the Criminal Code of Ukraine, sentenced her to 4 years of imprisonment without confiscation of property and released her from serving the sentence with probation for 1 year 6 months. The physical evidence was returned to the accused.

The penalty fine.

The accused in this case used her account in the Viber messenger to post materials by publishing a message with the following text: “Hurray!!! Victory!!! Even if only in part of Donbass. It was quiet in the city at night and now it’s calm. The neighbours wrote that the Russian military had passed by, asking if there were any wounded, sick, or if they needed food”.

As a result of these actions, the accused, by sending the said publication to the user in the Viber messenger, expressed her sympathy (glorification) for the persons who carried out the armed aggression of the Russian Federation against Ukraine.

According to the conclusion of the forensic linguistic (semantic and textual) examination, the publication contains glorification (expression of favour) of the military of the Russian Federation, which, according to the situation at the time, is carrying out the armed aggression of the Russian Federation against Ukraine.

By its actions, which were expressed in the justification, recognition of the legitimacy, denial of the temporary occupation of part of the territory of Ukraine, as well as glorification of the persons who carried out the armed aggression of the Russian Federation against Ukraine, which began in 2014, representatives of the armed forces of the Russian Federation, irregular illegal armed groups, armed gangs and mercenary groups created, subordinated, controlled and financed by the Russian Federation, as well as representatives of the occupation administration of the Russian Federation, which consists of its state bodies and structures functionally responsible for the management of the temporarily occupied territories of Ukraine, and representatives of self-proclaimed bodies controlled by the Russian Federation that usurped the exercise of power in the temporarily occupied territories of Ukraine, the accused committed a criminal offence under Part 1 of Article 436-2 of the Criminal Code of Ukraine.

At the court hearing, the accused pleaded guilty to the charges of committing a criminal offence under Part 1 of Article 436-2 of the Criminal Code of Ukraine, and did not dispute the circumstances set out in the indictment.

In its ruling, the court concluded that the accused should be sentenced to a punishment that is not specified in the sanction of Part 1 Art. 436-2 of the Criminal Code of Ukraine, in the form of a fine in the amount of 1500 tax-free minimum incomes, which is 25500 UAH.

Refusal to approve a plea bargain.

The accused, after the prosecutor read out a summary of the indictment and the text of the plea agreement, stated that he did not admit his guilt under Part 2 of Article 436-2 of the Criminal Code of Ukraine, signed the agreement due to ignorance, and asked the court to consider his position as a refusal to approve the agreement.

The defendant’s defence counsel asked the court to refuse to approve the agreement, and relied on the court’s discretion to decide whether to return the indictment.

Given that the accused does not admit his guilt and objects to the approval of the agreement, and the plea agreement was concluded during the pre-trial investigation, the court considers that the approval of the plea agreement should be refused, and the criminal proceedings should be returned to the prosecutor to continue the pre-trial investigation.

The person accused in this case pleaded guilty to the criminal offences charged and explained to the court that she was indeed registered on the social network Odnoklassniki under a publicly accessible account. She confirmed that she had indeed reacted positively by marking “thinks it’s cool” and distributing publications of photographs of a man in the uniform of a serviceman of the Russian occupation army with a St George’s (Guards) ribbon on his sleeve and a serviceman of the Russian occupation army, as she believed that the moment her father returned home, regardless of which army, was positive.

She now realises that she did wrong and promises not to do it again. She supports the military of the Armed Forces of Ukraine by sending appropriate funds for their needs.

In this regard, the defendant entered into a plea agreement with the prosecutor, with the participation of a defence lawyer. At the court hearing, she asked for its approval. However, she cannot indicate what actions she needs to take to fulfil her obligation to cooperate with the prosecution in exposing the criminal offences she committed under Part 1 of Article 161, Part 2.3 of Article 436-2 of the Criminal Code of Ukraine, and thinks that she cannot take similar actions in the future.

The defence counsel confirmed that he had participated in the conclusion of the plea agreement between the accused and the prosecutor.

However, given that the accused is not aware of the actions she must take to fulfil this obligation, and the court has not established the circumstances under which the latter can fulfil such an obligation, since the pre-trial investigation in the said criminal proceedings has been completed by sending an indictment to the court, the prosecutor has not proved that there are other criminal proceedings against the accused in which the pre-trial investigation is ongoing, and therefore it is obvious that the accused cannot fulfil the obligations assumed under the agreement, which is the basis for refusing to approve the agreement.

During the preparatory court hearing in this case, the court, having considered the indictment with the plea agreement, concluded that the latter did not meet the requirements of the current Criminal Procedure Code of Ukraine and the Law of Ukraine on Criminal Liability, based on the fact that the plea agreement and the indictment show that the person is accused of committing a minor crime under Part 2 of Article 436-2 of the Criminal Code of Ukraine, which is punishable by restraint of liberty for up to 5 years, or imprisonment for the same period. This crime is a crime against peace, human security and international law and order, i.e. it encroaches on the fundamental principles of society, and therefore, despite the amount of criminal punishment provided for by the sanction of the article, it is inherently more serious than any other crime for which the same punishment is provided in any other area of legal relations.

The court takes into account that the military aggression of the Russian Federation continues to this day. The imposition of a sentence agreed upon by the parties to the criminal proceedings without establishing all the circumstances of the criminal offence, a systematic analysis of the personality of the accused and the conditions that led to the commission of this crime, in such circumstances, clearly does not meet the interests of society.

In view of the above, the court concluded that it was impossible to approve the agreement and refused to approve the agreement.

Having examined the content of the plea agreement concluded between the prosecutor of the Second Division of the Department for Organisation and Procedural Management of Pre-trial Investigation and Support of Public Prosecution in Criminal Proceedings of the Security Forces of the Department for Supervision over the Observance of Laws by Security Forces of the Office of the Prosecutor General, the court found that the punishment agreed by the parties was superficial, formal and inconsistent with the general principles of sentencing set out in Article 65 of the Criminal Code of Ukraine.

Referring to the case law of the Supreme Court, the court noted that the unconditional plea of guilty by the accused person to the criminal offences under Part 2 of Art. 436-2, Part 3 of Art. 436-2 of the Criminal Code of Ukraine, as stated in the terms of the plea agreement, does not correspond to the actual circumstances of the case and the actual position of the accused regarding the charges against her, as the court was able to verify after hearing the testimony of the accused during the preparatory court hearing, given by her during the court’s clarification of the voluntariness, truth and sincerity of her position when concluding the plea agreement.

That is, taking into account the above, the court concludes that the approval of the plea agreement by the court will not only not meet the interests of society, but also contradict the objectives of criminal proceedings, and therefore the court refuses to approve the plea agreement for the commission of criminal offences under Part 2 of Art. 436-2, Part 3 of Art. 436-2 of the Criminal Code of Ukraine.

Cancellation of release from serving a sentence.

The accused person, using his own account on the Odnoklassniki social network, by marking “Like”, repeatedly disseminated publications containing justification and denial of the armed aggression of the Russian Federation against Ukraine, which began in 2014, denial of the temporary occupation of part of the territory of Ukraine, as well as glorification of persons who carried out the armed aggression of the Russian Federation against Ukraine, which began in 2014, namely representatives of the armed forces of the Russian Federation and irregular Based on the functionality of the Odnoklassniki social network, as a result of the distribution of these publications by the accused, they were visually perceived by an indefinite number of users of the Odnoklassniki social network, including her friends and followers.

Since the defendant admitted the factual circumstances of the criminal offences and her guilt in the court hearing, the Popilnyansky District Court of Zhytomyr Region released the defendant from serving a 5-year prison sentence without confiscation of property with a 2-year probation period.

However, the Zhytomyr Court of Appeal in its verdict noted that a prerequisite for the application of probation, which is within the discretionary powers of the court, is a set of circumstances that would sufficiently demonstrate the possibility of reforming a person without serving a sentence.

The impossibility of applying to the accused person the institution of exemption from serving a sentence with probation is evidenced by the fact that the latter committed criminal offences, which, in accordance with Section XX of the Criminal Code of Ukraine, are criminal offences against peace, human security and international law and order, while in accordance with the Decree of the President of Ukraine No. 64\2022 of 24.02.2022 in connection with the military aggression of the Russian Federation against Ukraine, in accordance with paragraph 20 part 1 of Article 106 of the Constitution of Ukraine, the Law of Ukraine “On the Legal Regime of Martial Law”, martial law was introduced throughout Ukraine, which indicates the increased public danger of these crimes.

In view of the above, the Zhytomyr Court of Appeal cancelled the verdict of the court of first instance in terms of sentencing the defendant and imposed a new sentence of 5 years’ imprisonment without confiscation of property.

The verdict of the court of first instance finally sentenced the accused of repeatedly justifying the aggression of the Russian Federation against Ukraine, namely committing criminal offences under parts 2, 3 of Article 436-2 of the Criminal Code of Ukraine using the social network “Odnoklassniki” to 5 years’ imprisonment without confiscation of property and released him from serving his sentence with probation for a period of 3 years with certain obligations imposed on him.

The local court, when sentencing the convict, concluded that he could be reformed without isolation from society, but under conditions of control over his behaviour during the probationary period.

The appellate court, reviewing the prosecutor’s arguments in the appeal, found them to be capable of proving that the court had misapplied the exemption from serving the sentence and concluded that the actual serving of the sentence would be appropriate and would meet the purpose of its imposition.

In particular, the Court of Appeal noted that the court of first instance did not fully take into account the requirements of the law, which objectively affect the release from serving a sentence of probation.

At the same time, the Court of Appeal emphasised that the accused had justified armed aggression, glorified representatives of the armed forces of the Russian Federation during the period of martial law in Ukraine, which indicates pronounced ukrainophobic attitudes, a negative attitude towards the Ukrainian government and people, and support for Russian aggression against Ukraine.

Taking into account these circumstances, the Court of Appeal overturned the verdict of the court of first instance and imposed a new sentence without release from serving the sentence, which, in the court’s opinion, would help to reform the convict and prevent him from committing new crimes.

These conclusions of the court of appeal were upheld by the Criminal Court of Cassation of the Supreme Court.

According to the panel of judges, the sentence imposed is proportionate to the unlawful act, necessary and sufficient for his correction and prevention of committing new crimes, and cannot be considered manifestly unfair due to its severity or insufficient to achieve the purpose of punishment.

As a result, the convict was finally sentenced to 5 years’ imprisonment without confiscation of property.

During the consideration of the case on the dissemination of anti-Ukrainian materials on the Odnoklassniki social network, including those containing justifications, denials of the armed aggression of the Russian Federation against Ukraine, which began in 2014, as well as glorification of persons who carried out the armed aggression of the Russian Federation against Ukraine, which began in 2014, representatives of the armed forces of the Russian Federation, the court of first instance imposed a measure of restraint in the form of 5 years’ imprisonment with exemption from probation.

This verdict was upheld by the Vinnytsia Court of Appeal, the prosecutor’s appeal against the sentence of 5 years’ imprisonment without the right to be released on probation was dismissed, and the decision of the court of first instance was upheld.

However, when considering the prosecutor’s cassation appeal against the decisions of the court of first instance and the court of appeal, the panel of judges of the Criminal Court of Cassation of the Supreme Court draws attention to the fact that the accused, committing the above criminal offences during the armed aggression of the Russian Federation against Ukraine, not only demonstrated his anti-Ukrainian position, but also created the enemy’s imagination, that the citizens of Ukraine support the position of the Russian authorities, wish for the arrival of the “Russian world” in Ukrainian cities and villages, which in turn fuels their confidence in the success of their actions on the territory of Ukraine and encourages them to continue the war against Ukraine, since the Odnoklassniki network, which is banned in Ukraine, is popular in the Russian Federation.

The decision of the Criminal Court of Cassation of the Supreme Court upheld the prosecutor’s cassation appeal, cancelled the decision of the Vinnytsia Court of Appeal, and sent the case back to the court of appeal for reconsideration, which sentenced the defendant to a final sentence of 5 years’ imprisonment without confiscation of property.

Imprisonment for a specified period.

The accused repeatedly disseminated publications on the social network VK of other users, in particular, with the image of the Deputy Commander of the Black Sea Fleet of the Russian Federation, Captain 1st rank, and the following text: “The Deputy Commander of the Black Sea Fleet was killed in the battles for the liberation of Mariupol from the Nazis. The Senator from Sevastopol reported”, thereby disseminating materials containing glorification of persons who carried out the armed aggression of the Russian Federation against Ukraine – representatives of the armed formations of the Russian Federation and justification of the armed aggression of the Russian Federation against Ukraine.

The accused pleaded guilty in court to the criminal offences under Part 2 of Article 436-2 of the Criminal Code of Ukraine and Part 3 of Article 436-2 of the Criminal Code of Ukraine. She repented and explained that she had indeed disseminated information to justify the aggression of the Russian Federation, that she did not understand the wrongness of her actions and that she was breaking the law, but now understands the criminality of her actions.

The court takes into account a set of circumstances that mitigate the punishment and significantly reduce the gravity of the criminal offence. The court also takes into account the personality of the perpetrator, who has no previous convictions, has a positive character, has a permanent place of residence, and has a number of serious illnesses.

The court found the defendant guilty as charged in committing the criminal offences stipulated by Part 2 Article 436-2 of the Criminal Code of Ukraine, Part 3 Article 436-2 of the Criminal Code of Ukraine and sentenced her to a final sentence of one year and two months of imprisonment without confiscation of property.

The accused, being registered in the Telegram messenger system, repeatedly provided textual information about the location of the Armed Forces of Ukraine with the possibility of their identification on the ground in private messages on Telegram to an account registered as Pravda 2022, in particular, he provided the following textual information “a tank unit in the Wojenwiedu area, a former flight school”, indicating the address, “a food warehouse of the Ukrainian Armed Forces on the territory of a fat factory in Bavaria”, etc. The accused also spread propaganda calls justifying and supporting the aggression of the Russian Federation against Ukraine.

Such an act is an unauthorised dissemination of information about the movement, relocation or deployment of the Armed Forces of Ukraine, other military formations formed in accordance with the laws of Ukraine, if it is possible to identify them on the ground, committed under martial law, the main interrelated features and motives of which are – a special anti-state motive – committing an act to the detriment of the interests of Ukraine; – purpose – causing damage to the national security of Ukraine; – providing unauthorised information via the Internet about the movement, relocation and deployment of military equipment, Ukrainian servicemen and other military formations formed in accordance with the laws of Ukraine under martial law, understanding that the information provided by him may be used in the future against the AFU, which repels the armed aggression of the Russian Federation against Ukraine. Also, the fact that the Ministry of Defence of Ukraine, the General Staff of the Armed Forces of Ukraine, or other authorised state bodies did not publish or disseminate this information is a criminal offence.

The court recognises that these actions were voluntary, committed of their own free will, without physical or mental coercion. Based on this, the prosecution charged the commission of a criminal offence under Part 2 of Article 114-2, Part 3 of Article 436-2 of the Criminal Code of Ukraine (including justification, recognition of lawfulness, denial of the armed aggression of the Russian Federation against Ukraine, glorification of its participants).

Considering the defendant’s sincere plea of guilty, the court found him guilty of committing the criminal offences stipulated by Part 2 Article 114-2, Part 3 Article 436-2 of the Criminal Code of Ukraine and sentenced him to 5 years’ imprisonment without confiscation of property. The property seized as material evidence was confiscated in favour of the state.

The accused committed the dissemination of material containing glorification of persons who carried out the armed aggression of the Russian Federation against Ukraine, which began in 2014, and representatives of self-proclaimed bodies controlled by the Russian Federation, committed repeatedly, under the following circumstances.

The defendant was previously found guilty of committing a criminal offence under Part 2 of Art. 436-2 of the Criminal Code of Ukraine (justification, recognition of the lawfulness, denial of the armed aggression of the Russian Federation against Ukraine, glorification of its participants), but the said verdict did not come into force at the time of the repeated offence.

In this regard, the defendant in this case was charged with committing a criminal offence under Part 3 of Article 436-2 of the Criminal Code of Ukraine (justification, recognition as lawful, denial of the armed aggression of the Russian Federation against Ukraine, glorification of its participants, committed repeatedly).

The court found the defendant guilty and sentenced him to 5 years’ imprisonment without confiscation of property. In addition, considering the earlier verdict, the sentence imposed on the accused under this verdict was partially joined to the sentence not served. The final sentence was imprisonment for 5 years and 3 months without confiscation of property.

For ideological reasons, a retired Russian man distributed a publication in the form of a creolised text in Russian containing an image of a map of Ukraine in black, yellow and white, i.e. the colours of the first officially approved flag of the Russian Empire in 1858, the inscription “MALOROSIA”, the state symbols of the Russian Empire of the late nineteenth and early twentieth centuries, and the following text: “Ukraine will cease to exist this year! The clumsiness of the leadership of the Armed Forces of Ukraine is bringing this project to an end. The friendly country of brothers, not traitors and scoundrels, will be restored again, it will be Malorossia! The project of Ukraine is recognised as aggressive, treacherous and unviable” (translation from Russian), meaning that he disseminated materials with public calls for intentional actions aimed at changing the borders of the territory of Ukraine, combined with incitement to national hatred. In addition, he disseminated textual publications with propaganda content, thereby disseminating materials justifying the armed aggression of the Russian Federation against Ukraine, which began in 2014, by portraying it as a war of liberation.

At the court hearing, the accused denied his guilt in committing the criminal offences charged against him, referring to the fact that he did not know how the publications could have appeared on his page and how he could have distributed them on social networks, and that even if they were distributed, they could only be seen by citizens of the Russian Federation, are far-fetched. Nevertheless, since the creation, storage, and dissemination of such publications can only be done at the initiative and at the request of the user of the social media page, his guilt in committing the crimes was confirmed during the trial.

In addition, the defendant showed a fundamental unwillingness to speak Ukrainian. In order to avoid violation of the defendant’s rights, as he claimed, the court provided him with a Ukrainian to Russian interpreter during the trial and examination of written evidence.

The court found the defendant guilty of committing criminal offences under Part 2 of Article 110, Part 1 of Article 161, Article 436, Part 2 of Article 436-1, Part 2 of Article 436-2, Part 3 of Article 436-2 of the Criminal Code of Ukraine and imposed a final sentence of 6 years’ imprisonment with confiscation of property and disqualification to hold public office for 3 years. It is noted that the sentence under which the accused was convicted under Part 1 of Art. 436-1 of the Criminal Code of Ukraine should be executed separately.

Dmytro Kasyanenko

Dmytro Kasyanenko

Lawyer, managing partner of the Law Firm "Kasyanenko & Partners". Since 2002, Dmytro Leonidovych has started his path in the legal field, moving from key positions in business structures to significant roles in the public sector. Thanks to his experience, he has become a known expert in the fields of criminal law, banking and financial law, commercial and tax law, and litigation.

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