The Loss of the Cold Arms Entails Criminal Liability If a Military Serviceman Has Violated the Rules for Their Storage - SC

Having considered the cassation appeal of the convicted military serviceman's defence attorney, the Criminal Cassation Court within the Supreme Court cancelled the sentence of the local court and the ruling of the appellate court, and closed the criminal proceedings against the senior sergeant for loss of munitions (part 2 of Article 413 of the Criminal Code of Ukraine) since the act in question did not constitute a criminal offence.

According to the sentence upheld by the appellate court, while performing a combat mission in the anti-terrorist operation zone, the senior sergeant discovered the absence of a personal cold weapon - a knife, which was attached to his tactical belt. The courts found that he had violated the requirements of the statutes and had lost the weapon provided for official use in a state of special period other than martial law due to negligence to perform his official duties.

According to the Criminal Cassation Court within the Supreme Court, a prerequisite for criminal liability for the loss of munitions is the existence of a causal link between the loss and violation of safekeeping regulations. If the loss did not occur as a result of violation of these regulations, but for other reasons beyond the control of the person, the corpus delicti of such a criminal offence as loss of munitions is absent.

It follows from the wording of the disposition of Article 413 of the Criminal Code of Ukraine that it is blanket, therefore, during qualification, it is necessary to be guided by the requirements of the rules provided for by the relevant norms of military regulations, laws, orders, etc., designed to prevent the loss of munitions. In this regard, the courts are obliged to carefully clarify and indicate in their decisions the specific violations referred to in this article; what norms of safekeeping regulations of munitions are not observed; whether there is a causal link between these violations and the socially dangerous consequences provided by law.

Thus, the court of cassation, after examining the sentence, stated that in the wording of the charge, which the court had found to be proven, the court of first instance did not indicate or establish at all in what way the defendant had failed to act or which specific acts he had committed contrary to the requirements of the rules laid down in the relevant norms of military regulations, laws, orders, etc., intended to prevent the loss of munitions, and had failed to justify, that the military serviceman had lost the knife as a result of their violation.

In view of the factual circumstances of the criminal proceedings established by the court of first instance, which are laid down in the wording of the charge found proven by the court, the panel of judges concluded that the military serviceman's act did not constitute a criminal offence under Part 2 of Art. 413 of the Criminal Code of Ukraine, because the court sentence did not establish that the loss of the cold weapon occurred as a result of actions or omissions in the form of violation of the rules of safekeeping regulations of this item in a particular situation.

Resolution of the Criminal Cassation Court within the Supreme Court in case No. 225/1673/19 (proceedings No. 51-2137км21) – https://reyestr.court.gov.ua/Review/99556355