Collaborative activity: voluntarily taking up a position

Facts of the case: the defendant, a Ukrainian citizen in the temporarily occupied city of Mariupol, Donetsk Region, sought to assist representatives of the occupation authorities and military officials of the Russian armed forces in waging an aggressive war against Ukraine. Acting as a group by prior agreement with unidentified employees of law-enforcement, supervisory, judicial and unlawful authorities in Mariupol who had sided with the enemy, he voluntarily took up the position of “head of the administration of Mariupol, dnr”. The position involved organisational, managerial and administrative-economic functions in an unlawful authority established in temporarily occupied territory within the occupation administration of the aggressor state.

Positions of the trial and appellate courts: the lower courts found the defendant guilty and convicted him under Article 28(2) and Article 111-1(5) of the Criminal Code.

In the cassation appeal, defence counsel argued that essential elements of the offence had not been established: that the convicted person had taken up the position voluntarily and that the position involved organisational, managerial or administrative-economic functions.

Position of the Criminal Cassation Court: the appellate court’s ruling was upheld.

Reasoning of the Criminal Cassation Court: the panel stated that the lower courts had reasonably observed that the convicted person could not logically have taken up such a position without prior planning and agreement with representatives of the occupation authorities, given his appointment by a corresponding decree. His interview with the Russian television channel “Rossiya 24” indicated that the alleged acts were voluntary: it showed unforced behaviour and no coercion. Moreover, the case materials contained no information establishing that he had acted under physical or psychological coercion.

The courts were also correct to state that the office of head of Mariupol’s administration, an executive authority, inherently involved organisational, managerial and administrative-economic functions.

In addition, when examining the defence’s appellate arguments concerning the trial court’s assessment of evidence, the appellate court reached a reasoned conclusion that the evidence was admissible, including the records of inspections of online resources and the associated video recordings.

The Supreme Court, for its part, emphasised that the pre-trial investigation authority’s staff inspected media publications online, namely the order appointing the convicted person as head of Mariupol’s administration and his interview with “Rossiya 24”. To maintain the availability of open-source information, they preserved it digitally. Such preservation protects information over time, including its authenticity, availability, identity, persistence, rendering and intelligibility, in line with the standards set out in the Berkeley Protocols recognised by the UN Office.

The panel also noted the absence of information suggesting that the material supplied by the pre-trial investigation authority was inaccurate, in particular that it showed signs of fabrication or deliberate distortion.