Encroachment on Ukraine’s territorial integrity

Facts of the case: the defendants, as deputies of the State Duma of the Federal Assembly of the Russian Federation, acting as a group by prior agreement with other deputies and representatives of the Russian authorities and armed forces, sought to change Ukraine’s territorial boundaries and expand Russian influence. They attended State Duma sessions at which they supported a resolution appealing to the Russian president to consider recognition of the self-proclaimed Donetsk and Luhansk people’s republics as separate, sovereign and independent states. They also supported ratification of the Treaty of Friendship, Cooperation and Mutual Assistance between the Russian Federation and the so-called Donetsk and Luhansk people’s republics. Their actions caused grave consequences, including the deaths of people, among them children, bodily injuries of varying severity and material losses through the destruction of buildings, property and infrastructure.

Positions of the trial and appellate courts: the lower courts found all ten defendants guilty and convicted them under Article 110(3) of the Criminal Code.

In the cassation appeal, the defence argued that the convicted persons’ actions did not contain the elements of the criminal offence under Article 110(3) of the Criminal Code.

Position of the Criminal Cassation Court: the lower courts’ decisions were upheld.

Reasoning of the Criminal Cassation Court: the panel stated that the objective elements of the offence charged included active conduct intended to change the boundaries of Ukraine’s territory or state border in breach of the procedure established by the Constitution of Ukraine.

A change of territory encompasses any actions intended to transfer part of Ukraine’s territory to another state’s jurisdiction or reduce Ukraine’s territory by establishing another sovereign state on that territory. A change to Ukraine’s territory may be decided exclusively by an all-Ukrainian referendum, which only the Verkhovna Rada of Ukraine may call (Article 73 of the Constitution of Ukraine and Article 3(1)(3) of the Law on the All-Ukrainian Referendum).

Thus, the objective elements of this offence take a specific form: an action committed with the purpose of changing territorial boundaries or the state border in breach of the procedure established by the Constitution of Ukraine.

No special status is required of the perpetrator of this offence. Its subjective element is guilt in the form of direct intent.