Greetings. As a lawyer with many years of experience, I have analyzed the Supreme Court decision you provided. Here is a concise analysis for your material:
1. **Subject of the dispute:** The subject of the cassation review was the issue of the lawfulness of the appellate court’s exclusion of an aggravating circumstance (commission of a crime by a group of persons by prior conspiracy) from the reasoning part of a judgment for charges of violating the laws and customs of war.
2. **Arguments of the Court:** The Supreme Court emphasized that the disposition of Article 438 of the Criminal Code of Ukraine does not contain the element of “commission of a crime by a group of persons by prior conspiracy,” therefore, a reference to Part 2 of Article 28 of the Criminal Code of Ukraine in the qualification formula is procedurally superfluous, but this does not negate the fact of the crime being committed by a group of persons as an aggravating circumstance. The Court clarified that qualification under Article 28 of the Criminal Code is not a mandatory part of the charge formula, as it does not alter the elements of the crime provided for by the Special Part of the Code. At the same time, the commission of a crime by a group of persons is an independent circumstance that aggravates punishment under Clause 2, Part 1, Article 67 of the Criminal Code of Ukraine, and it must be taken into account when sentencing. The appellate court erroneously equated the form of complicity with a qualifying element of the crime, which led to the groundless exclusion of the aggravating circumstance. The Supreme Court emphasized that reference to articles of the General Part of the Criminal Code (other than stages of a crime or roles of accomplices) in the qualification formula is redundant; however, this does not deprive the court of the right to consider aggravating circumstances provided for by Article 67 of the Criminal Code. The Court pointed out the necessity of maintaining consistency in law enforcement practice, referring to its previous positions (in particular, in cases No. 163/2670/21 and No. 459/176/23) regarding the inexpediency of including norms of the General Part concerning forms of complicity in the qualification formula, while simultaneously confirming the mandatory nature of considering aggravating circumstances when imposing a sentence.
3. **Court’s decision:** The Supreme Court satisfied the prosecutor’s cassation appeal, overturned the ruling of the appellate court, and ordered a new trial in the court of appellate instance.
