The case of Denys Dubrovsky, a master reconstructor of historical weapons from Nizhyn, exposed the problem of unregulated arms trafficking, which is very important for a country at war.
Denys Dubrovsky was detained by the SBU Office in Chernihiv region, his workshop was searched, and the sabers made for the reconstruction of medieval battles were seized.
Currently, the Investigation Department of the Main Directorate of the National Police in Chernihiv region is investigating criminal proceedings against Dubrovsky on the grounds of committing a crime under Part 1 of Article 263 of the Criminal Code of Ukraine. Denys was notified of being suspected of illegal handling of weapons, ie carrying, possession, purchase, transfer and sale of firearms without a permit. In particular, the repair of a “TT” pistol.
Although the investigator and the prosecutor wanted Dubrovsky to be in a pre-trial detention center during the investigation, the investigating judge of the Novozavodsk District Court of the city of Novozavodsk refused to allow him to be held. The Chernihiv court denied the request to impose a pre-trial restraint in the form of detention.
The prosecutor disagreed with this court decision and filed an appeal, proving the need to keep Dubrovsky in custody during the investigation. However, the Court of Appeal of Chernihiv region dismissed the prosecutor’s appeal.
Provided that the principle of the rule of law is recognized in Ukraine, neither Denys Dubrovsky nor other persons have the right to be prosecuted for illegal handling of weapons, i.e. under Article 263 of the Criminal Code of Ukraine. However, this does not apply to crimes related to military weapons, the punishment for which is provided for in a separate section of the Criminal Code of Ukraine.
Denys Dubrovsky is suspected of possession, transfer or sale of firearms without a legal permit.
In this regard, it should be noted that since June 2007 there is no law that would define the legal regime of ownership of weapons or establish the conditions for possession of such things as firearms on the basis of special permits.
The fact is that weapons are a thing, that is, an object of the material world. Accordingly, civil rights and obligations may arise in relation to the thing. A thing can be owned, used and disposed of. This is how the Civil Code of Ukraine defines it.
Objects of civil rights may be freely alienated or transferred from one person to another by way of succession or inheritance or otherwise, provided that they are not withdrawn from civil circulation, or are not restricted in circulation, or are not inalienable from a natural or legal person.
Types of objects of civil rights, which are not allowed to be in civil circulation (objects withdrawn from civil circulation), should be directly established in the law.
Types of objects of civil rights, which may belong only to certain participants of turnover or stay in civil turnover is allowed by special permission (objects of limited turnover), are established by law.
The conditions of negotiability, i.e. the ability to own, use or dispose of objects of civil rights, including things, are determined by the provisions of Article 178 of the Civil Code of Ukraine.
Thus, the negotiability of an item can be determined only by the relevant law. 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.
With such a thing as drugs in Ukraine everything is clear and understandable. 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, radioactive substances and other things defined by the LAWS.
Instead, the law that would define what firearms belong to has not been adopted yet. Or is it a thing that cannot be owned, used or disposed of at all – banned in circulation, like drugs? Or should the weapon be a thing that can belong only to certain participants of the turnover or staying in civilian circulation is allowed by special permission (limited circulation item)?
Moreover, the adoption of such a law is a requirement of Article 92 of the Constitution, which stipulates that only the law establishes the legal regime of property and defines certain obligations for citizens.
Without the law defining the procedure for possession, use and disposal of such a thing as weapons, their circulation in Ukraine can be considered free.
Previously, the circulation of weapons was regulated by the Civil Code of the Ukrainian SSR and the Law of the Ukrainian SSR “On Property”, on the basis of which in 1992 the Verkhovna Rada of Ukraine adopted a subordinate act – the Resolution “On the right of ownership of certain types of property” of 17.06.1992.
In turn, on the basis of this resolution, the Order of the Ministry of Internal Affairs of Ukraine No. 622 of 21.08.1998 approved the Instruction, which defines the procedure for civilian circulation of weapons by obtaining a permit for firearms.
However, already on June 20, 2007 the Law of the Ukrainian SSR “On Property” completely lost its force. Thus, there is no law that defines the legal regime of ownership of weapons and establishes a limited turnover of such things as weapons by their type, type or subject of ownership since 2007.
Instead, the police instruction №622 is not a law, and its legitimacy as a legal act is questionable. Accordingly, the Ministry of Justice of Ukraine is obliged to cancel the state registration of this normative act.
Article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms defines the principle: “no punishment without law”. Taking into account the case law of the European Court of Human Rights, this provision is also interpreted as obliging law enforcement agencies to formulate suspicions and charges clearly and understandably in accordance with the “letter of the law”.
It is important to understand that Article 263 of the Criminal Code of Ukraine does not prohibit anything, but determines the punishment for violation of the legal order of handling weapons, which should be determined by law, since this norm establishes criminal liability for handling weapons without the permission provided by law.
Therefore, in the absence of a legally defined procedure for handling weapons, there is no object of criminal legal protection, and therefore no object of criminal encroachment.
Accordingly, there is no object of the crime, which Denys Dubrovsky is accused of committing, and therefore – no grounds for criminal proceedings in general.
The problem of the absence of a law regulating the circulation of weapons could have remained out of the attention of the authorities for a long time, but thanks to the fact that the community of gunsmiths, reenactors and concerned citizens stood up to defend Denys Dubrovsky, it will no longer be ignored.
Every Member of the Parliament of Ukraine was informed in writing about the unregulated arms circulation and the illegality of punishment under Article 263 of the Criminal Code of Ukraine in the absence of a law providing for the permit for weapons.
For more than a year, the draft law “On Civilian Weapons and Ammunition” has been in the Parliament, designed not only to regulate the circulation of weapons, but also to become the basis for the formation of territorial defense forces. Now the ball is in the court of lawmakers.
Author: Mykola Orekhovsky
Attorneys at law “Orekhovskyi and Kolomiets”