Why Did the HACC Appeals Chamber Return the Case of Oleksandr Onyshchenko to the Court of First Instance?

On May 20, 2025, the HACC Appeals Chamber overturned the verdict in the case against former MP Oleksandr Onyshchenko and Olena Pavlenko, and ordered a retrial in the court of first instance. 

The court of first instance (the HACC) had been hearing the case for nearly four and a half years. It then spent over two months in the deliberation room before issuing the verdict. As a result, Onyshchenko was convicted in absentia and sentenced to 15 years in prison with confiscation of assets. His financial director, Olena Pavlenko, was sentenced to 12 years in prison. The verdict also ordered special confiscation of several assets, including $7,369.91 held at AS PrivatBank (Republic of Latvia), assets of Ostexpert Limited, corporate rights in Fastilo Trading LTD, and non-residential premises with a total area of 535.00 square meters on Khreshchatyk in Kyiv.

The appeals chamber reviewed the verdict for a year. The complete text of the ruling was published on May 27. Below is an overview of the panel’s reasoning and a summary of the dissenting opinion.

When an appeals court may overturn a verdict and order a retrial

On May 20, 2025, the HACC Appeals Chamber announced the annulment of the verdict and ordered a retrial. This decision came as a major surprise, given that under general rules, an appellate court may only overturn a verdict and send the case back for retrial if there were serious procedural violations during the trial. 

Such violations may include: an improperly composed panel of judges, the absence of the defendant or their defense counsel when their presence was mandatory, failure to notify the victim of the hearing, the case being heard by an unauthorized court, or the absence of a technical recording of the proceedings. A retrial may also be ordered if the judge had a conflict of interest, or if the judgment was signed by someone other than the presiding judge.

Two members of the HACC Appeals Chamber panel — Danylo Chornenko and Serhii Bodnar — identified specific grounds in their decision that, in their view, justified the reversal of the HACC verdict.

1. Breach of deliberation room confidentiality and the principle of continuity in court proceedings

The Appeals Chamber’s reasoning begins with doubts as to whether the verdict issued by the court of first instance was based solely on the law, the evidence, and the judges’ inner conviction. These doubts stemmed from the fact that one of the judges on the panel met with students and went on vacation, another chaired a judges’ assembly, and all three participated in a training session, meaning that during those months, the judges were not continuously present in the deliberation room.  

 As stated by the Appeals Chamber: “Through their deliberate actions, the judges of the first instance created circumstances in which the defense was deprived of the opportunity to ensure that justice was being properly administered.”

The appellate judges emphasized the importance of the continuity of court proceedings and adherence to proper legal procedure, concluding that the overall conduct of the trial could not be considered fair.

Interestingly, one of the HACC appellate judges — Ihor Panaid — took a more moderate position in his dissenting opinion. He pointed out that a breach of deliberation room confidentiality is not listed among the material procedural violations that automatically require annulment of a judgment. He noted that while the judges did briefly leave the deliberation room during the decision-making process, this did not violate core court procedures or compromise the fairness of the verdict. In his view, these short interruptions were not serious enough to justify nullifying the court’s decision. 

Moreover, according to Supreme Court practice, even if judges working in deliberation on one case simultaneously handle other cases, this constitutes a breach of judicial secrecy. However, such a violation is grounds for overturning a verdict only when it demonstrably prevents judges from reaching a proper and fair decision or creates legitimate doubts about their impartiality. In other words, not every violation of deliberation room confidentiality automatically invalidates a verdict — only those that materially affect the fairness of the judgment.

It is also worth noting that in early 2025, Parliament abolished the concept of the deliberation room in civil, commercial, and administrative proceedings, replacing it with the concept of the “confidentiality of judicial decision-making.” One of the key arguments behind this reform was that the deliberation room had failed to achieve its original purpose, preventing interference and undue influence in the rendering of judicial decisions.

How exactly a judge’s participation in professional training, meetings with students, or a personal vacation affected the fairness of the verdict remains unclear from the Appeals Chamber’s ruling. Regrettably, this was the primary argument used to overturn the long-awaited verdict against Onyshchenko, and one to which the HACC Appeals judges devoted the bulk of their decision.

2. Incomplete trial due to refusal to consolidate cases

The Appeals Chamber stated that the court of first instance erred in refusing to consolidate two interrelated criminal proceedings. Both cases concerned the activities of the same criminal organization: in one case, two participants were prosecuted (including the alleged organizer), while the other case involved the remaining members of that same group.

The HACC appellate judges emphasized that, under the law, a criminal organization must consist of at least five individuals, yet only two were prosecuted in this case. To properly assess the role of each participant in the organization, the cases should have been heard together rather than separately. 

A dissenting opinion took the opposite view. The judge argued there was no incompleteness in the trial, noting that:

• the necessary individuals were questioned as witnesses, which allowed the court to establish the key facts 
• their questioning was done with their consent, so their rights were not violated 
• the court based its findings of guilt not solely on witness testimony but also on additional evidence, including investigative materials, documents, and contracts 
• the law permits courts not to consolidate cases if doing so does not impact the completeness of the trial.

Interestingly, the Supreme Court has also issued legal guidance on the matter of case consolidation during trial. These positions are consistent with what occurred at the HACC: “if the court does not identify objective grounds requiring consolidation of criminal proceedings, and provides a reasoned decision, this does not constitute a procedural violation.”

Nonetheless, the HACC appellate judges argued that in cases involving joint criminal offenses committed as part of a criminal organization, a proper assessment of each defendant’s role is only possible if the indictments are considered jointly and simultaneously. 

However, this approach raises additional concerns: what happens to members of a criminal organization who have reached plea agreements and committed to testifying against the organizers? Or in cases where some members of the organization have died and were never formally charged?

3. Improper assessment of the expert opinion on damages

This ground concerns how the court of first instance assessed the expert opinion on the damages caused by the crime. Commodity experts had determined the market value of natural gas in order to calculate the harm allegedly caused by the defendants.

The trial court found the expert opinion generally valid but noted certain deficiencies. In particular, the experts had factored in price offers from companies that were, in fact, controlled by the same criminal organization (Skela Tertium LLC and SE Itera Trade). The court decided to exclude these “questionable” prices and recalculate the gas value independently, relying only on “credible” offers from Naftogaz of Ukraine and other independent companies.

The HACC reasoned that such recalculations required only “simple arithmetic” and that expert knowledge was necessary solely for selecting the valuation method.

The Appeals Chamber strongly disagreed with this approach, stating that a court cannot substitute itself for an expert. If an expert opinion is flawed, the court must appoint a supplementary or repeat examination rather than attempt to fix it. Furthermore, the Appeals Chamber emphasized that determining the market value of natural gas is not a matter of basic math. It requires specialized knowledge in commodity valuation, including consideration of numerous variables: asset comparability, transport tariffs, gas distribution, VAT, payment terms, delivery volumes, and so on.

The appellate judges underscored that a court may not selectively accept parts of an expert’s opinion (such as the method) while rejecting others (such as the actual calculations), particularly when the defense explicitly requested a new expert examination.

In a dissenting opinion, one judge defended the trial court’s actions: 

• the court is entitled to assess evidence based on its own internal conviction 
• any disagreement with expert findings must be reasoned, and the court had done so 
• the court did not usurp the expert’s function but rather fulfilled its duty to assess the evidence 
• if the appellate court disagrees with the assessment, it may commission its own expert review. 

The final point is key here. The HACC has previously taken a similar approach in other cases. For example, in the Electrovazhmash verdict, the first-instance court also recalculated damages on its own. The defense objected and argued that the trial court should have ordered a new expert examination. But in that case, the very same HACC appellate judges (including some who ruled in Onyshchenko’s case) did not overturn the verdict for this reason alone, they simply appointed a new expert review themselves. 

Why the HACC Appeals Chamber failed to apply the same procedural solution in Onyshchenko’s case remains unclear.

What’s next?

The HACC Appeals Chamber’s decision to overturn the verdict and order a retrial in the court of first instance amounts to a kind of procedural “trick.” Such a decision cannot be appealed to the Supreme Court, allowing appellate judges to sidestep the responsibility of ruling on the substance of the case. This approach has drawn criticism from legal practitioners.

When an appellate court remands a case for retrial, it is prohibited from preemptively deciding on the defendant’s guilt or assessing the evidence—this must be done independently by the trial court. However, the appellate court’s findings regarding procedural violations are binding and must be taken into account during the retrial.

The Appeals Chamber instructed the first-instance court, in the course of the new proceedings, to transfer the case for consolidation with another criminal proceeding. If the charges are fully confirmed, the court must also satisfy the civil plaintiff’s claims. Should doubts arise concerning the expert opinion, the Appeals Chamber noted that the HACC must resolve the matter pursuant to Article 332 of the Criminal Procedure Code of Ukraine.

The case with which the Onyshchenko proceedings are to be consolidated has been pending for nearly eight years, and over five of those in the HACC itself. The Solomyanskyi District Court of Kyiv held the first hearing on June 9, 2017, and referred the case to the newly established HACC on September 17, 2019. The preparatory hearing in HACC was scheduled for October 7, 2019, with the trial itself commencing on February 17, 2021. This case involves 10 defendants, with PJSC Ukrgasvydobuvannya recognized as the victim.

The crime Onyshchenko is accused of was completed in January 2016. So even assuming he has deliberately evaded justice, the absolute statute of limitations is 15 years. This means the time limit expires in 2031, seemingly leaving enough time for a retrial. However, if the cases are consolidated and a new trial begins from scratch, the odds of concluding the case before the statute of limitations expires and without releasing the accused from criminal liability, are not so high.

The HACC Appeals Chamber’s ruling in this case reflects a deeper issue in Ukraine’s justice system: the prioritization of procedural “purity” over efficiency and outcomes. When formal violations, even those with no real impact on fairness, become grounds to nullify years of judicial work, it erodes public trust in the system as a whole.

The paradox is this: in striving to deliver “perfect” justice, the court risks failing to deliver any justice at all, simply by running out the clock.