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Criminal Law and White Collar Crime

03 August 2018

Vladyslav Hryshchenko, the counsel at Ario Law Firm, in his author’s column for LigaBusinessInform explains why Ukraine needs the Gun Law.ladyslav Hryshchenko, the counsel at Ario Law Firm, in his author’s column for LigaBusinessInform explains why Ukraine needs the Gun Law.

No law – no responsibility

The absence of the Gun Law increases crime rates and does not help law-abiding citizens to defend themselves.According to the recently published Small Arms Survey on Global Civilian-held Firearms Numbers, carried out by the Swiss Independent Center, Ukraine is in the top 25 countries of the world (out of 230) in circulation of legal and illegal weapons. According to the survey, about 4.4 million weapons were in the hands of civilians in Ukraine at the end of 2017. According to the report of the National Police, 663,126 firearm owners have been registered in Ukraine as of January 1, 2018, which have 736,918 units of hunting smooth-bore weapons and 145,859 units of hunting rifle weapon in personal use.

At that, according to the Ukrainian Gun Owners Association, at the beginning of this year, the population may have about 5 million unregistered light weapons in its hands. These, even approximate, numbers are impressive.For sure, it is impossible to calculate the exact number of illegal weapons among the Ukrainians. Firstly, for the fifth year in a row the growth of its quantity is affected by the military conflict in the East. Another factor is deterioration of the criminal situation in the country, both because of the lack of a normal reform of the law enforcement agencies, and because of a weak economy of the country.

These factors make it easy for the criminals to arm themselves, and, paradoxically, force law-abiding citizens to buy illegal “guns” for the sake of their safety. This topic can be discussed indefinitely, but the wisdom of life: “it’s better if two bring you to the court than four bring you to the grave” is true, it is an objective reality of the present, which pushes people, whose work carries the risk of being targeted by attackers, to illegal purchase of weapon.

Moreover, the cases of crimes involving both hand grenades and grenade guns are no longer sensational. Hence there is a question: should we prepare for the use by criminals of light armored vehicles and army mortars on the streets of peaceful cities?As for the legal weapons, today the Ukrainians are allowed to keep hunting smooth-bore weapons. Moreover, if earlier you had to be a member of the society of hunters for this, now you just need to be a sane person, take a special course and get appropriate certificates. The procedure for obtaining permission to purchase rifled hunting weapons is a bit more complicated. However, it is possible as well.As for the possession of traumatic weapons, it is allowed only to a certain category of the population: law enforcement officers, judges, journalists, participants in court proceedings and representatives of volunteer groups that protect public order.

The most problematic issue for citizens is the lack of the right to own short-barreled rifled weapons. Now the “legitimate” owners of such weapons can only be those who received it as a reward. Without questioning, the merits of many of those persons, which gave them the right to receive such a reward, heroic merits of some people from this list is not only doubtful, but even surprising.In addition, given the rather intense criminogenic situation, significant number of firearms in hands of the criminal elements and growing audacity of the crimes committed, the potential of “nonlethal pistol” can not even be compared with the injurious effects of a rifled short barreled gun.

By the way, the word “legitimate” above in the text is quoted not for nothing. This word should mean that there is a certain law that regulates the procedure for the weapon circulation. Howeve,r such a law does not exist in Ukraine at all. There are bylaws in the form of orders of the Ministry of Internal Affairs on the procedure for manufacturing, purchasing, storing, recording, transporting and using certain types of weapons by citizens, there are departmental documents regulating the procedure for handling and using weapons by the Armed Forces of Ukraine and law enforcement officers.

However, it is incorrect to equate such orders with the law.

No Law. Consequences

There is no doubt that illegal circulation of weapons is an evil, which, in turn, gives rise to other crimes that are committed with its use. However, the struggle of the state against one evil should not give rise to lawlessness, otherwise it will be impossible to break this circle. According to Article 263 of the Criminal Code of Ukraine, carrying, storing, purchasing, manufacturing, repairing, transferring or selling firearm (other than smooth-bore hunting weapon), military supplies, explosives or explosive devices without a statutory permit – is punishable by imprisonment for a term of two to five years. Carrying, manufacturing, repairing or selling daggers, Finnish knives, brass knuckles or other cold weapons without a statutory permit – is punishable by a fine in amount of up to fifty non-taxable minimum incomes of citizens or restriction of liberty for a term of two to five years, or imprisonment for up to three years. Thus, the disposition of the article provides for the existence of a procedure for possession of weapons established by the Law and criminal liability for its violation. Obviously, it is impossible to break a law that does not exist.

However, our judicial system in most cases closes its eyes to the absence of this Law and makes convictions under Article 263. That is why, although still rare, but already not single cases of acquittal judgments, motivated by the absence of this Law, are considered by the representatives of the legal environment to be positive.This indicates a real action of the principle “no law, no crime”.

The fact that during 27 years of the independence of Ukraine the legislator has not been able to adopt the relevant law, it is not the fault of citizens or judges, but the problem of the state legislation formation.I consider the reference to impossibility of applying this legal principle, which can paralyze the fight against the illegal circulation of weapons, to be an absolute manipulation. For a long time the society has a request for the Law to be the same for all.

That is, today the legislator must either acknowledge the inconsistency of the disposition of Article 263 of the Criminal Code and make amendments to it, which will leave resolution of issues of weapon circulation among citizens to the mercy of persons who will come to the position of the Minister of Internal Affairs and form departmental instructions based on their own vision or according to the conjuncture of the political moment or once for all, adopt the long-awaited Gun Law which settles the main issues of its circulation.Severe restrictions or liberal legislationThe topic of the Gun Law adoption is extremely unpopular among Ukrainian politicians because the very idea of adopting such a Law has many opponents.

A certain part of society believes that with adoption of appropriate legislation, the streets of Ukrainian cities will turn into firing ranges. Thus, the proposed legislative initiatives do not go beyond the Verkhovna Rada Committee.In my opinion, such points of view based on “another mentality” and “we are not ready” can be answered with a proposal to ban officially, for example, a fork because it leads to obesity, or cars – because people die in road accidents. The point is simple: guns don’t kill people, people do.Supporters of the Gun Law adoption are trying to ensure that citizens have more opportunities to defend themselves against an abuser or prevent a crime and, accordingly, to “discourage” the thief’s desire to move the trigger.

Therefore, today the struggle goes around two main things:1. Adoption of the law which will give a clear definition of individual types of weapons and establish the basic rules of its circulation.2. Ability for civilians to possess short-barreled firearms.It should be briefly explained: weapon is considered to be a combat weapon if it is on operational service with the intelligence services or the army. It has different characteristics depending on whether it is military or police. Military weapons have the most casualty-producing properties for conducting combat operations, while police weapons provide for use in conditions of a city, a small territory. So it goes about allowing of short-barreled weapons’ free carrying, let’s say, of a police type.

It scares many people but here’s some statistics to explain why this is necessary:

  • In 1996 the Australian government banned possession of many types of firearms. Over the next eight years of the law operation the number of armed robberies increased by 59%.
  • The British government banned possession of firearms in January 1997. However, later it also reported that from 1996 to 2003 the number of violent crimes increased by 88%; the number of armed robberies – by 101%; the number of rapes – by 105% and murders – by 24%.
  • In the hands of the citizens of Germany there are 10 million units of legal weapons. With a simultaneous increase in the number of legal weapons, the total number of crimes involving the use of weapons from 1971 to 1994 decreased by 60%.
  • University of Chicago in the United States conducted the research, which resulted in the fact that in states, where hidden weapons are allowed, the overall level of criminal manifestations is less by 22%, murders – by 33%, robberies – by 37%, serious bodily harm cases – by 14%.

What does this statistic mean? In my opinion, this is obvious. Those who aim to seize weapons with criminal motives, will seize them one way or another without obtaining permits, references from a psychiatrist, a narcologist, etc. – that is, without all the procedures that a law-abiding citizen must undergo in order to obtain his/her right to self-defense. Ordinary Ukrainians remain limited in their right to protect their own lives. Here we can provide a paradigmatic case of the Prohibition law introduction in the USA at the beginning of the 20th century, which led not to the reduction in alcohol consumption, but to the enrichment of bootleggers and unfaith law enforcement officials who protected them.Therefore, I think we should not entertain illusions that the prohibition of possession by citizens of short-barreled firearms is salvation.Unfortunately the criminals possessed, possess and will possess the weapons. Therefore the maximum reduction in the number of weapons in the illegal market is the only real consequence of the integrated struggle of law enforcement officers and society with illegal weapon circulation. I believe that we have to become realistic and not just in words declare the right of free citizens of the country to protect their lives and health, but to provide real mechanisms for this defined by the Law, and one of such rights is the right to possess short firearms. For sure, subject to conduction of appropriate checks of the candidates and proper state control over it.