Formally, there is no illegal handling of rifled firearms in Ukraine. Or hunters with rifled weapons are illegal.
Nowadays, in connection with the war in the east of Ukraine, the situation with the storage of firearms is particularly urgent. People returning from the ATO zone do not always understand that on the territory of Ukraine, where there are no hostilities, it is necessary to have a permit provided by law. As a result, the number of convictions for illegal handling of weapons has significantly increased.
However, in the current situation with the legal regulation of arms circulation in Ukraine, the legality of convictions for illegal handling of firearms is questionable.
In order to punish someone for breaking a rule, the rule itself must first exist. This logic is beyond doubt. That is why the legislature exists in the state to establish rules that are binding for all. But no one can be held responsible for violating a law that does not exist.
For example, in 1995, the Ukrainian parliament decided that the free circulation of drugs is harmful to society and adopted the laws “On measures to combat illicit trafficking and abuse of narcotic drugs, psychotropic substances and precursors” and “On narcotic drugs, psychotropic substances and precursors”.
Also, the Parliament has provided in the articles of the Criminal Code punishment for the possession, sale of substances specified in the mentioned laws.
Everything is clear and understandable with drugs in Ukraine. If you are caught by law enforcement officers with a substance, the circulation of which is prohibited by law, you will obviously be punished for such actions in the Criminal Code.
In a similar way, the state restricts the circulation of alcohol, tobacco and other things defined by the LAWS.
And it cannot be otherwise, because Article 92 of the Constitution of Ukraine stipulates that only the laws of Ukraine determine the legal regime of property. That is, the procedure of possession, use and disposal of any things or other property should be determined exclusively by laws.
But it seems that the Ukrainian authorities (legislative and executive) do not include weapons to the things, the legal regime of use, possession and disposal of which should be determined exclusively by law. This conclusion is logical, because in Ukraine there is no law that defines the legal regime of ownership of weapons. Only the Criminal Code of Ukraine provides for punishment (3-7 years) for carrying, storing, acquiring, transferring or selling firearms without a permit (part 1 of Article 263 of the Criminal Code).
But the paradox is that there is no law that would provide permission to carry, store, purchase, transfer or sell firearms.
That is, there is a responsibility for carrying firearms without a permit provided by law, but there is no law that provides for the procedure for obtaining such a permit.
The legislator, formulating the definition of Article 263 of the Criminal Code, was confident that this norm will be applied only if there is a law that provides for the procedure for obtaining a permit for rifled firearms. After all, the article logically ties the responsibility for illegal handling of weapons to the law, which provides for a permit, in the presence of which such handling will be legal.
And only in the absence of a permit provided by law, a person possessing a firearm is criminally liable. And as long as there is no law that provides for permission, there is no responsibility.
Instead, judging by the judicial practice, law enforcement agencies are guided by the fact that it is necessary to comply with the prohibition, the violation of which threatens with imprisonment and wait until the Parliament adopts a law that will provide for a permit, which will allow to exercise the right to own, use and dispose of such things as firearms.
That is, you cannot because you do not have a permit, and the fact that there is no law that provides for a permit does not affect the prohibition to carry weapons.
However, the legality of the conviction for illegal handling of rifled firearms is questionable.
In the register of court decisions, there is not a single verdict where a person whose actions were qualified under Part 1 of Article 263 of the Criminal Code was actually punished. Almost all decisions on this article, adopted by the courts in 2015, approve the prosecutor’s agreements with the accused and the latter are released from punishment with probation.
The courts refer to the fact that the perpetrators were in possession of firearms without a legal permit, but no reference is made in any decision to the law that provides for such a permit.
What would have happened if the accused had stated: “Yes, I was detained with a weapon, yes, I did not have a permit, but I would definitely have it if there was a law that provides for the procedure for obtaining it”. For sure, it would be difficult for the court to make a lawful and reasonable decision.
However, in most cases, those accused of illegal handling of rifled firearms choose to be convicted but released from punishment. This way is easier than proving that there is no law in the state that establishes the procedure for obtaining a permit to use rifled firearms.
Let’s look at the situation from a formal legal point of view.
The Criminal Code establishes liability only for possession of rifled firearms without a permit provided by law.
Instead, there is no criminal liability for possession of weapons without an unauthorized permit.
That is, the actions of a person may be considered illegal, provided that there is a law that defines the procedure for obtaining a permit for weapons, but the person, without obtaining such a permit, kept or sold rifled firearms.
Because if we follow the current logic of law enforcement, it should be considered illegal to handle weapons by hunters who have permits issued by the Ministry of Internal Affairs of Ukraine for rifled firearms. After all, the Ministry of Internal Affairs issues permits for rifled hunting weapons on the basis of the Instruction (approved by the Order of the Ministry of Internal Affairs of Ukraine No. 622 of 21.08.98), which is NOT a law.
Formally, the actions of hunters, who have permits of the Ministry of Internal Affairs for rifled firearms, should be qualified under Part 1 of Article 263 of the Criminal Code, because their permits are not provided for by law.
Yes, hunters with permits of the Ministry of Internal Affairs, but without permits required by law, are not prosecuted.
It turns out that all others, who keep rifled firearms without the permission provided by law, also cannot be brought to justice, because Article 24 of the Constitution of Ukraine stipulates that citizens are equal before the law.
The legal order in Ukraine is based on the principles according to which no one can be forced to do what is not provided by law (Article 19 of the Constitution). Therefore, one cannot be forced to bear responsibility for the absence of a permit provided by law until there is no law that provides for it.
Links to the verdicts:
http://reyestr.court.gov.ua/Review/43753390
http://reyestr.court.gov.ua/Review/44198790
http://reyestr.court.gov.ua/Review/52535931
http://reyestr.court.gov.ua/Review/54605039
Author: Vitaliy Kolomiets
Attorneys at law “Orekhovskyi and Kolomiets”