Since July 2023, the Ukrainian Bar Association has been implementing an initiative to monitor court hearings and analyze judicial decisions in war crimes cases, with a particular focus on proceedings under Article 438 of the Criminal Code of Ukraine. The project aims to document and study judicial practice, assess compliance with the rights of the accused, and identify challenges in the administration of justice in cases of this category.

As of 30 June 2025, the Unified State Register of Court Decisions contains information on 140 judgments delivered by Ukrainian courts under Article 438 of the Criminal Code of Ukraine (“Violation of the Laws and Customs of War” / “War Crimes”), of which 139 are convictions and one is an acquittal.

The content of the acquittal and its implications for the Ukrainian justice system were analyzed by Zoia Zahynei-Zabolotenko, Doctor of Law, Professor, and Head of the Department of Criminal Law, Criminology, and Judiciary Studies at the Koretsky Institute of State and Law of the National Academy of Sciences of Ukraine.

The acquittal was delivered by the Central District Court of Mykolaiv on 2 June 2025 in case No. 490/9491/23 (link to the decision).

According to the pre-trial investigation, the Ukrainian citizen was charged with the commission of crimes under Part 2 of Article 111, Part 2 of Article 15, Part 5 of Article 27, Part 2 of Article 28 in conjunction with Part 1 of Article 438 of the Criminal Code of Ukraine, namely: high treason committed under martial law, and an attempt to aid and abet a violation of the laws and customs of war, as provided by international treaties ratified by the Verkhovna Rada of Ukraine, committed by a group of persons acting in prior conspiracy.

Regarding the legal qualification of the second offence, the pre-trial investigation established that the Ukrainian citizen, acting on instructions from a representative of the Russian Federation, transmitted via the messaging app "Telegram" information about the location of Ukrainian Armed Forces personnel in a way that allowed their identification on the ground. The coordinates provided corresponded to a residential multi-apartment building, which was neither a military object nor used as one.

As a result, unidentified members of the Armed Forces of the Russian Federation, in violation of subparagraphs (a)(ii) and (a)(iii) of Article 57 (Precautions in Attack) of the Additional Protocol to the Geneva Conventions of 12 August 1949 relating to the Protection of Victims of International Armed Conflicts (Protocol I), dated 8 June 1977, may have failed to verify that the transmitted coordinates indeed referred to a civilian object, and failed to take all feasible precautions in the choice of means and methods of attack with a view to avoiding, or in any event minimizing, incidental loss of civilian life, injury to civilians, and damage to civilian objects. Consequently, a decision was made to conduct a missile strike using munitions in service with the aggressor state and intended for engagement of ground targets.

The trial court, having directly examined the evidence in the criminal proceedings, acquitted the Ukrainian citizen of the charges under Part 2 of Article 15, Part 5 of Article 27, Part 2 of Article 28 in conjunction with Part 1 of Article 438 of the Criminal Code of Ukraine, finding him guilty solely of the crime of high treason under Part 2 of Article 111 of the Criminal Code of Ukraine.

In reaching its decision to acquit the Ukrainian citizen, the trial court based its reasoning on the following key arguments:

• The accessory theory of criminal liability for accomplices, codified in Article 27 of the Criminal Code of Ukraine, provides that the qualification of the actions of an accessory, organizer, or instigator is directly dependent on the qualification of the principal perpetrator’s actions. As noted in the judgment, since the Ukrainian citizen was charged with an attempt to aid and abet a completed attempt to aid and abet a violation of the laws and customs of war committed by a group of persons acting in prior conspiracy, the subject of proof must include evidence that the offence under Part 1 of Article 438 of the Criminal Code of Ukraine was actually committed, as well as that the accused’s actions facilitated the commission of this offence by another accomplice.
• The act of the Ukrainian citizen sending a message containing military information to a representative of the Russian Federation cannot, in itself, serve as sole and irrefutable proof of the accused’s guilt under Part 2 of Article 15, Part 5 of Article 27, Part 2 of Article 28 in conjunction with Part 1 of Article 438 of the Criminal Code of Ukraine. During the trial, neither the prosecution nor the defence presented any additional evidence. While the prosecution did establish that the message was sent and that the coordinates provided corresponded to a multi-storey residential building, these facts alone were not deemed sufficient to find the individual guilty of an attempted aiding and abetting of a crime committed by another person.

• The pre-trial investigation failed to establish that the accused acted in close coordination with representatives of the Russian Federation, as the identities of all accomplices to the crime were not established, and no evidence was provided to the court demonstrating that they were united by a common criminal intent. A message in the correspondence stating that the recipient of the militarily significant information resided in Saint Petersburg and could transmit it to the military, while noteworthy, was not verified by the investigative body and was not corroborated by other admissible evidence in its entirety.

• To prove a violation of subparagraph (b) of paragraph 3 of Article 85 of Additional Protocol I, the following elements must be established: (1) an attack against civilians or civilian objects; (2) awareness that such an attack would cause excessive loss of life, injury to civilians, or damage to civilian objects; and (3) intent (i.e., the act was committed deliberately), along with consequences in the form of death or serious bodily injury or harm to health. As indicated by the Geneva Conventions of 12 August 1949 and Additional Protocol I of 8 June 1977, subparagraph (b) of paragraph 3 of Article 85 recognizes as a violation only the existence of a specific act, its consequences, and intent. In the present case, however, no attack on the residential building (a civilian object) occurred; civilian objects were not damaged; no deaths or serious bodily injuries among civilians were recorded; and the court was not presented with any evidence to the contrary.

We support the decision of the Central District Court of Mykolaiv of 2 June 2025 to acquit the Ukrainian citizen of the charges under Part 2 of Article 15, Part 5 of Article 27, Part 2 of Article 28 in conjunction with Part 1 of Article 438 of the Criminal Code of Ukraine.

In addition to the absence of evidence in the case file indicating that the accused committed a violation of the laws and customs of war, we draw attention to the fact that the accused effectively committed a single criminal act. Nevertheless, the pre-trial investigation authority classified his conduct as two separate offences: one — completed and committed individually (Part 2 of Article 111 of the Criminal Code of Ukraine), and the other — attempted and committed in complicity (Article 438 of the Criminal Code of Ukraine).

This constitutes a case of concurrence of the whole and the part, where the actions of the accused should be qualified as a completed offence committed individually, i.e., under Part 2 of Article 111 of the Criminal Code of Ukraine.

The inclusion of references to Part 2 of Article 15, Part 5 of Article 27, Part 2 of Article 28 in conjunction with Part 1 of Article 438 of the Criminal Code of Ukraine in the legal classification of the Ukrainian citizen’s actions, and the subsequent indictment for this offence, reflects a problematic practice in pre-trial investigations, whereby investigators qualify the suspect’s conduct “in excess,” thereby creating an artificial concurrence of crimes and leaving it to the court to restore justice by eliminating such concurrence.

It was evidently on these grounds that the Central District Court of Mykolaiv, on 2 June 2025, acquitted the Ukrainian citizen of the charge under Part 2 of Article 15, Part 5 of Article 27, Part 2 of Article 28, and Part 1 of Article 438 of the Criminal Code of Ukraine, finding him guilty solely of high treason under Part 2 of Article 111 of the Criminal Code of Ukraine.

The court’s chosen legal qualification aligns with the principles that must guide the assessment of an individual’s actions under the law — in particular, the principles of legality, precision, completeness, and the inadmissibility of double attribution of guilt.

Ms. Zoia additionally notes that, in this case, the provision of informational assistance to a representative of the aggressor state was rightly classified by the Central District Court of Mykolaiv on 2 June 2025 as high treason under Part 2 of Article 111 of the Criminal Code of Ukraine, rather than under Article 114-2 of the Code.

The expert recalls that, according to the legal position of the Criminal Cassation Court within the Supreme Court, expressed in its ruling of 11 March 2025 in case No. 521/9656/23, the transmission of information, data, or the commission of other acts that directly affect the sovereignty, territorial integrity and inviolability, defense capability, or state, economic, or informational security of Ukraine — in any of the forms defined in the wording of Article 111 of the Criminal Code of Ukraine — falls within the scope of high treason (ruling of the Criminal Cassation Court within the Supreme Court of 11 March 2025 in case No. 521/9656/23: https://reyestr.court.gov.ua/Review/125933377).

We emphasize that, to establish the offence of high treason, it is necessary to prove — through a set of relevant and admissible evidence — not only the fact that a Ukrainian citizen transmitted militarily significant information to a representative of the aggressor state, but also the existence of cooperation and coordination between them, which is manifested, in particular, through the receipt of an assignment aimed at harming the national interests of Ukraine.

Thus, the acquittal of the Ukrainian citizen of the offence under Part 2 of Article 15, Part 5 of Article 27, Part 2 of Article 28 in conjunction with Part 1 of Article 438 of the Criminal Code of Ukraine demonstrates that Ukrainian courts are prepared to render acquittals in cases concerning violations of the laws and customs of war / war crimes (Article 438 of the Criminal Code of Ukraine) where the pre-trial investigation has failed to establish and prove the constituent elements of the alleged offence.

In this particular case, the acquittal should not be seen as a verdict against the judiciary, but rather as evidence of the maturity of a judicial decision that is properly reasoned and well substantiated.

This publication was prepared by the Ukrainian Bar Association within the framework of a grant provided by the EU Project “Pravo-Justice.” Its content is the sole responsibility of the Ukrainian Bar Association and does not necessarily reflect the views of the European Union.

______

Since the end of March 2025, the monitoring of court hearings under Article 438 of the Criminal Code of Ukraine and the analysis of judicial decisions related to war crimes have continued with the support of the EU Project “Pravo-Justice,” implemented by Expertise France.

The initiative is supported by the Supreme Court of Ukraine and the Office of the Prosecutor General. Expert assistance is provided by the International Bar Association (IBA) and its Human Rights Institute (IBAHRI).