Resolution of the Supreme Court as for the Compliance of Part 1 of Article 263 of the Criminal Code of Ukraine with the Principle “Nullum Crimen Sine Lege” and as for the Voluntary Surrender of Weapons and Ammunition

The disposition of part 1 of Article 263 of the Criminal Code of Ukraine (unlawful handling of weapons, ammunition or explosives) may not be considered as blanket one, since it does not include references to other laws or regulatory acts as for the determination of prohibited actions, and such actions are noted in its text. Pursuant to this provision, “carrying, storing, purchasing, transferring or selling firearms (other than smoothbore hunting guns), ammunition, explosive substances or explosive devices” shall be prohibited. Such prohibition is the disposition of part 1 of Article 263 of the Criminal Code of Ukraine accompanied by sanctions determined in this very provision.

The reference to another “law” is not included in the disposition of this norm but in formulating the condition determining the situation, when its disposition may be applied: “without a permit required by law”. If there is no the permit, the condition is satisfied and the disposition of part 1 of Article 263 of the Criminal Code of Ukraine acts. Conversely, the presence of the relevant permit testifies the lack of a legally specified circumstance, under which the disposition of this provision may be applied.

The panel of judges of the First Judicial Chamber of the Criminal Cassation Court within the Supreme Court, having considered the cassation appeal of an individual’s advocate as for the sentence of local court confirmed by the ruling of appeal court, issued this opinion.

In the advocate’s opinion, the lack of a special law, regulating the legal regime of proprietary right to weapon, excludes the actus reus of offence, foreseen by part 1 of Article 263 of the Criminal Code of Ukraine, in the convict’s deed. Besides, he considers that since the individual informed about having prohibited subjects before starting the search, officials of the Security Service of Ukraine should have documented the fact of voluntary surrender of weapons.

The Supreme Court disagreed with the advocate’s arguments. As it is noted in the Resolution of judges of the Criminal Cassation Court within the Supreme Court, the disposition of part 1 of Article 263 of the Criminal Code of Ukraine is formulated with sufficient precision to let a convicted person foresee that the deed, he/she is convicted of, is criminal one, taking into account the present provision.

Besides, pursuant to part 3 of Article 263 of the Criminal Code of Ukraine the voluntary surrender of weapons means that a person has the possibility to continue its free keeping, but willingly (irrespectively on reasons and motives) surrenders the weapon to the relevant authorities. In this case, the circumstances established by the courts testify that officials of law-enforcement bodies had the information about the fact that the convicted person kept weapon and ammunition; due to this information they got the permit for the search of the homeownership, where they could be kept. Thus, the convicted acknowledged keeping the weapon and ammunition by him, when he did not have the possibility to continue their free keeping.

The Supreme Court confirmed the sentence of the local court and the ruling of the appeal court.

Follow the link http://reyestr.court.gov.ua/Review/78628039 to see the full text of the resolution.