At the beginning of the new year of our joint legal struggle for the right to armed protection, we would like to share the results and achievements of 2018.
The past year has brought us to a higher level, where not only the issue of the right to arms, but also the country we live in is being decided. Because the answer to our weapons question should show whether the highest authorities consider Ukraine a republic where the law reigns, or maybe our country is still a dictatorship for them, where illegal police instructions rule.
No law – no punishment
We remind that the goal of our case is to regulate the right to own weapons in Ukraine by law, which the parliament has not yet adopted. Instead, the circulation of weapons is currently regulated by an illegal police instruction.
At the same time, the Criminal Code contains Article 263, which provides for severe punishment (3 – 7 years) for handling weapons without a permit provided by the law. And although there is no law that defines the permit procedure for weapons circulation, the state continues to punish for its violation. Therefore, the main efforts of our legal struggle are focused on stopping this shameful tradition.
At the beginning of 2018, the first acquittal in a criminal case on illegal handling of weapons (Art. 263 of the Criminal Code) was delivered by the judge of the Pechersk Court of Kyiv Oleh Bilotserkivets. The verdict states that there can be no punishment for violation of the non-existent order, supporting this position with the practice of the European Court of Human Rights and the Supreme Court of Ukraine.
This verdict was the result of the use by the defense of the position that was developed in our legal struggle, in particular in the case of Denis Dubrovsky.
Today, we already have about a dozen acquittals issued by courts in different regions of Ukraine, based on the position that there can be no punishment for violating something that is not prohibited by law.
The acquittal by the jury is especially valuable, because the trial was made with the direct participation of the people. The jury decided to convict the defendant on several felonies, but acquit him of illegal handling of weapons due to the lack of law.
It is important that the Supreme Court judges recognized the existence of an exceptional legal problem, the solution of which is necessary to establish the principle of law that no one can be punished for violating something that is not prohibited by law.
Without exaggeration, the Supreme Court is facing a simple, but at the same time very complex issue. Because the fact that one cannot be punished for violating a non-existent law is clear even without legal education. But, what to do with tens of thousands of convictions for weapons without law? And what to do with the impunity of arms trafficking in a country where the war is ongoing? At least until the Parliament adopts the relevant law, which will be signed by the President and published.
Thus, the issue of weapons has put the Supreme Court on the twine, from which it is possible to get up only by adhering to the principle of law: Fiat justitia et pereat mundus. Because neglecting the principles of law enshrined in the Constitution for the sake of any expediency, even such a good one as the safety of citizens, can have disastrous consequences.
Also, 2018 showed that the problem of punishment for weapons is already officially recognized by prosecutors of the Prosecutor General’s Office. Because before, only Article 263 of the Criminal Code was enough to punish people for weapons.
A little bit of 2018 tickled our nerves at the end of May, when the Supreme Court wrote in its decision that the word “law” in Article 263 has an expanded interpretation, which includes not only laws, but also other normative acts. Although, the Supreme Court did not have the courage to directly call the police instruction the law. This position was obviously to prolong the life of the tradition of punishment without law.
However, already in November 2018, the chamber of the Supreme Court, which considers administrative cases, did not allow to humiliate the Constitution and us by equating laws with by-laws. The resolution of the Supreme Court concludes that: “The constitutional concept of “Law of Ukraine”, unlike the concept of “legislation of Ukraine”, is not subject to extended interpretation, it is a normative legal act adopted by the Verkhovna Rada of Ukraine”.
And at the end of 2018, as a gift from St. Nicholas, we received another court decision to return the indictment to the prosecutor under Article 263 of the Criminal Code due to the lack of reference to the law. This time our position was confirmed by the Hertsaiv court of Chernivtsi region, refusing to consider the charges against cyborg Bars.
MIA continues to live separately from the Constitution
Other equally important areas of legal struggle of the community are court proceedings to appeal against illegal acts, which are guided by the Ministry of Internal Affairs and force citizens to comply with them.
Thus, proceedings are ongoing in various instances
- Against the Ministry of Justice regarding the improper maintenance of the register of legal acts, in particular, the failure to exclude MIA Order 622 from it;
- Against the CMU for not bringing the Resolution No. 576 “On Approval of the Regulation on the Permit System” in line with the Constitution and various laws;
- Against the Verkhovna Rada on the Resolution “On the Right of Ownership of Certain Types of Property” of 1992, which lives separately from its law “On Property”, which expired in 2007;
- The Ministry of Internal Affairs and the Cabinet of Ministers, which have licensing conditions for enterprises, decided to license citizens who just decided to inspect weapons in the store.
In particular, the Court of Appeal obliged to amend the CMU Resolution No. 1000 and while the Supreme Court returned the case for a new consideration, we managed to oblige the Ministry of Internal Affairs and the CMU to comply with the decision of the Court of Appeal. And if there was an enterprise that was delayed or not issued a license, they could have challenged the need to obtain a “license permit” in these licensing conditions.
Globally – the whole struggle is to establish the authority of our Constitution and change the legal consciousness of both citizens and law enforcement agencies.
i:the former should understand that it is necessary to fight for the law, the latter should understand what they are protecting.
There is still a long way to go, but the movement became possible thanks to people who are ready to fight and people who finance this fight.
Recall that the main cases are:
- the case of Dubrovsky reenactor (illegal manufacture of muzzleloading models, Art. 263-1 of the Criminal Code);
- the case of the cyborg Bars (the possession of weapons was charged because of the shell casings in the car);
- Sudarikov’s case (the local permit office arbitrarily canceled the permit because Sudarikov refused to let them into the apartment at ten in the evening to check the safe).
Author: Mykola Orekhovsky
Attorneys at law “Orekhovskyi and Kolomiets”