Raid the stash

How to solve the prob­lem with weapons and why the state is stub­bornly un­will­ing to do so

The Ukrainian Week - - CONTENTS - Ro­man Malko

The first elec­tronic pe­ti­tion that landed on Pres­i­dent Poroshenko's desk in 2015, signed by 36,244 Ukraini­ans (out of a re­quired 25,000), was not about food, cheap ser­vices or the qual­ity of roads, but the right to self-de­fence. The sig­na­to­ries de­manded an ad­di­tion to the Con­sti­tu­tion that would give every cit­i­zen the right to freely possess firearms in or­der to pro­tect their lives, prop­erty and the ter­ri­to­rial in­tegrity of Ukraine, as well as the adop­tion of a cor­re­spond­ing law. No doubt about it – this de­mand was ig­nored. The Pres­i­dent de­flected at­ten­tion to­wards the Con­sti­tu­tional Com­mis­sion and Par­lia­ment, while a draft law writ­ten by the pub­lic, No. 1135-1 On Civil­ian Weapons and Am­mu­ni­tion,got lost some­where in the of­fices of par­lia­ment and that was that. The in­ge­nious tried and tested man­age­ment prin­ci­ple of "it will sort it­self out" came in handy this time too. But is it ap­pro­pri­ate to do so in the fifth year of the war, when cit­i­zens hold mil­lions of un­reg­is­tered weapons? That is doubt­ful.

WHAT'S UP WITH GUNS

It is ob­vi­ous why the au­thor­i­ties ig­nore the is­sue of le­gal­is­ing the cir­cu­la­tion of weapons in Ukraine un­der dif­fer­ent pre­texts. Shar­ing their mo­nop­oly on force would be no plea­sure. The re­ply to the so­cial de­mand for self-de­fence was the old scare story about the in­evitable in­crease in vi­o­lence and ban­ditry if the free cir­cu­la­tion of weapons is in­tro­duced.

How­ever, sta­tis­tics are a stub­born thing. By rough of­fi­cial es­ti­mates alone, there are at least 2 mil­lion un­reg­is­tered weapons in Ukraine. Swiss com­pany Small Arms Sur­vey, which spe­cialises in mon­i­tor­ing the move­ment of il­le­gal weapons around the world, claims that more than 5 mil­lion had fallen into the hands of Ukraini­ans by 2015-2016. Not only small arms, but also heav­ier weapons and am­mu­ni­tion, whose move­ment was poorly con­trolled dur­ing the first two years of the war. It is un­fair to ar­gue that all weapons held by the pop­u­la­tion have been hid­den for fu­ture crim­i­nal ac­tiv­ity. That is in­deed the case for a cer­tain per­cent­age. But for the most part, such ac­tions are pro­voked by un­cer­tainty about how the sit­u­a­tion in the coun­try will de­velop and the need to have re­sources for de­fence just in case. This is a key point. It is not nec­es­sary to nar­row every­thing down to crime alone, as is tra­di­tional in Ukraine. The fact that the first blow in the East was ab­sorbed by vol­un­teers, armed mainly by their own ef­forts and at their own ex­pense, very clearly demon­strates their true mo­ti­va­tion. An­other thing is that a truly crit­i­cal num­ber of arms are al­readyin pri­vate hands and the mea­sures that the au­thor­i­ties re­sort to are un­likely to have any real ef­fect.

"Due to the hos­til­i­ties in the Don­bas, civil­ians now have a very large num­ber of weapons," Kostyan­tyn Ro­manyuk, head of the Bakhmut crim­i­nal po­lice sec­tor for in­ves­ti­gat­ing prop­erty crime told The Ukrainian Week. "Pre­vi­ously, we of­ten con­fis­cated arte­facts from the Sec­ond World War, but now we see weapons from the cur­rent war. We con­stantly an­nounce monthly gun amnesties and use the lo­cal me­dia to con­vey the in­for­ma­tion that in such a case, a per­son is not held crim­i­nally re­spon­si­ble. Most of­ten dur­ing such events, lo­cals bring weapons that were ac­ci­den­tally found dur­ing field work or searches in the ter­ri­tory where fight­ing oc­curred. But op­er­a­tional and in­ves­tiga­tive ac­tions are the main source of con­fis­ca­tions. We con­fis­cate every­thing from car­tridges to mines and ma­chine guns. We look par­tic­u­larly care­fully at those who had con­tacts with il­le­gal armed for­ma­tions in 2014. There have al­ready been sev­eral cases in which en­tire ar­se­nals were buried in their towns wait­ing for the 'right' time."

LEG­ISLA­TIVE LOOP­HOLES

Many of those who are not very knowl­edge­able about the crux of the is­sue ei­ther de­mand a to­tal pro­hi­bi­tion of weapons or op­pose the le­gal­i­sa­tion of their free cir­cu­la­tion. How­ever, in fact, we can­not talk about free cir­cu­la­tion in prin­ci­ple, only about le­gal­i­sa­tion, i.e. the leg­isla­tive reg­u­la­tion of so­cial re­la­tions on the is­sue of arms cir­cu­la­tion and their use. "Free cir­cu­la­tion is pre­cisely when there are no pro­hi­bi­tions and re­stric­tions, i.e. there is no law on weapons, which is de jure the case to­day," says Vi­taliy Kolomi­ets, lawyer for the Ukrainian Gun Own­ers As­so­ci­a­tion.

Since 2007, there re­ally has been no law on the re­stric­tion of weapons cir­cu­la­tion in Ukraine. How this hap­pened is a sep­a­rate story. Af­ter the procla­ma­tion of in­de­pen­dence, this is­sue was

reg­u­lated by two doc­u­ments: the newly ap­proved prop­erty law and the old Civil Code of the Ukrainian SSR. They fore­saw that cer­tain things, such as type­faces, drugs, poi­sonous sub­stances, weapons, etc., could only be cir­cu­lated with a spe­cial per­mit de­ter­mined by the leg­is­la­tion of the Ukrainian SSR or the USSR. This leg­is­la­tion was made up of in­struc­tions. In Ukraine, this is the par­lia­men­tary res­o­lu­tion on the own­er­ship of cer­tain types of prop­erty adopted on 17 June 1992, which is still a key doc­u­ment. How­ever, the 1996 Con­sti­tu­tion clearly states that any re­stric­tions on rights and free­doms and the le­gal reg­u­la­tion of own­er­ship are to be de­ter­mined ex­clu­sively by law. Even with the adop­tion of the new Civil Code, the law on prop­erty (although it con­tra­dicts the Con­sti­tu­tion) did not for­mally lose its force be­cause it was not abol­ished, which made it pos­si­ble to es­tab­lish re­stric­tions on the cir­cu­la­tion of weapons through subor­di­nate acts: reg­u­la­tions and in­struc­tions from the Min­istry of In­ter­nal Af­fairs. In 2007, it was fi­nally abol­ished, but the tra­di­tion of prose­cut­ing peo­ple and the feel­ing that there is a ban has sur­vived to this day by in­er­tia. Vi­taliy Kolomi­ets says that th­ese nu­ances were dis­cov­ered in 2014. It was then that peo­ple, see­ing the re­al­ity of the sit­u­a­tion, be­gan to rapidly arm them­selves – 320,000 cor­re­spond­ing per­mits were is­sued in Ukraine (on av­er­age, 70,000 are is­sued per year) and de­mand grew five times over. Of course, the ques­tion arose as to which pun­ish­ment is pre­scribed by law for the il­le­gal pos­ses­sion of weapons. Le­gal ex­perts car­ried out anal­y­sis, went through the en­tire le­gal chain and re­alised there was no law that peo­ple could be held re­spon­si­ble of breach­ing.

This loop­hole is not the only blun­der in Ukrainian leg­is­la­tion. A pro­gres­sive and gen­er­ally good li­cens­ing law, adopted in 2015, pro­vides for the li­cens­ing of the pro­duc­tion, trade and re­pair of non-mil­i­tary weapons, but it does not men­tion mil­i­tary weapons. There­fore, if you read the Con­sti­tu­tion ex­plic­itly, where it is writ­ten that any ac­tiv­ity is free if it is not pro­hib­ited or there is no rel­e­vant li­cens­ing law, it turns out that the pro­duc­tion of mil­i­tary weapons is an ac­tiv­ity that does not re­quire a li­cence. Quite the mishap.

It is a rhetor­i­cal ques­tion why no­body is in a hurry to fill this leg­isla­tive hole, although there is a sound draft law that has been writ­ten by a wide cross-sec­tion of so­ci­ety. The lack of clear rules al­ways cre­ates sig­nif­i­cant room for cor­rup­tion and selec­tive en­force­ment. Hun­dreds of crim­i­nal cases were launche­don the ba­sis of a non-ex­is­tent law. A large pro­por­tion of them are against vol­un­teers and sol­diers. There is again a stale­mate, be­cause in­tel­li­gent judges do not want to com­mit ob­vi­ous of­fences. If a per­son does not recog­nise their guilt, does not want to agree to a sus­pended sen­tence and de­fends them­selves, the judge can­not hold them ac­count­able, be­cause they can ask "Which law have I vi­o­lated?" There is no an­swer. The prose­cu­tor starts to talk about In­struc­tion 622 and the par­lia­men­tary res­o­lu­tion in the in­dict­ment, but th­ese are not laws. The ar­ti­cle of the Crim­i­nal Pro­ce­dure Code clearly states that it must be a law.

"There have been a lot of cases when the state recog­nised that there was no rea­son to try a per­son un­der trumped-up arms charges," says Kolomi­ets. "Re­cently, a de­ci­sion by Pech­ersk District judge Bilot­serkivets es­tab­lished that there is no law and it can­not be manda­tory for cit­i­zens to fol­low by-laws with­out a cor­re­spond­ing law. The judge did some­thing very in­ter­est­ing. Be­fore ac­quit­ting, he ex­am­ined what the weapons were be­ing bought for (the bay­o­net of a well-known col­lec­tor was in­volved). Be­cause they can be a tool and a means for com­mit­ting a crime. If some­one brings ten kilo­grams of ex­plo­sives into a city, it's im­por­tant to un­der­stand why. Prepa­ra­tion for a se­ri­ous crime, a ter­ror­ist act or a de­lib­er­ate mur­der is al­ready a crime in it­self. If it is pos­si­ble to work out some­one's in­tent, they should be pros­e­cuted not for pos­ses­sion, but for ac­qui­si­tion and fu­ture use. The Crim­i­nal Code pro­vides an op­por­tu­nity to deal with those who buy weapons not for self-de­fence, but for some other pur­pose, in an ap­pro­pri­ate man­ner. But no­body wants to work with it, be­cause it is eas­ier to find weapons, carry out an ex­pert ex­am­i­na­tion, col­lect in­for­ma­tion and put pres­sure on a per­son so they agree to take the sus­pended sen­tence and move on. Of course, many judges sim­ply re­turn the in­dict­ment, be­cause the prose­cu­tor can­not ex­plain what the po­ten­tial ac­cused has vi­o­lated.”

In ad­di­tion to the le­gal as­pect of the prob­lem, there is also an eco­nomic one. Where there is de­mand, there will be sup­ply. In 2014, all vol­un­teers, and there were tens of thou­sands of them, ba­si­cally armed them­selves, buy­ing weapons, hel­mets and body ar­mour at their own ex­pense. And now they are re­quired to come and sim­ply give up th­ese weapons. It is nec­es­sary to fore­see a mech­a­nism for such peo­ple. Fol­low­ing an­other mass school shoot­ing, Australia de­cided to calm down the sit­u­a­tion some­what by re­strict­ing the cir­cu­la­tion of au­to­matic weapons and buy­ing them back from cit­i­zens. The mar­ket price was of­fered and an owner could hand in their weapon in ex­change for money. Or con­vert it into a semi-au­to­matic, which is also a good op­tion. In this way, around 600,000 weapons were bought back. By the way, this is much cheaper than keep­ing en­tire de­part­ments in the SBU and the Min­istry of In­ter­nal Af­fairs that look for il­le­gal weapons. The re­sult of their work, mea­sured in dozens, hun­dreds or even thou­sands of weapons, is tiny com­pared with the scale of the prob­lem. The ef­fect will be much more sig­nif­i­cant than monthly amnesties that are for show. There is an­other way: the creation of a ter­ri­to­rial de­fence sys­tem and some kind of re­serve struc­tures. If a per­son is a member of Ter­ri­to­rial De­fence forces, they will be reg­is­tered, un­dergo reg­u­lar train­ing, their weapons will be kept in guarded ar­mouries, they will be warned about their re­spon­si­bil­i­ties and their psy­cho­log­i­cal and crim­i­nal back­ground will be well-known.

DE­FEND YOUR­SELF IF YOU CAN

Ac­cord­ing to Ar­ti­cle 27 of the Con­sti­tu­tion, every Ukrainian has the right to de­fend their own lives and the lives of other peo­ple. This is an im­por­tant right, re­in­forced by the col­lec­tive re­spon­si­bil­ity of the state to pro­tect the lives of its cit­i­zens. But in re­al­ity, this is not the case. The state as a ser­vice provider is in prac­tice un­able to ful­fil its obli­ga­tions. There are many ex­am­ples of this. The as­sas­si­na­tion at­tempts and high-pro­file killings of well-known jour­nal­ists, pub­lic fig­ures and mil­i­tary lead­ers are just the tip of the ice­berg and un­der­score the sad ten­dency. It would seem that if the sit­u­a­tion is de­vel­op­ing in this way and the state is un­able to pro­tect its cit­i­zens, it should at least not pre­vent them from do­ing so on their own.

In Moldova, which was forced to re­solve a sim­i­lar prob­lem in 1994 (the con­flict in Transnis­tria), vi­o­lent crime fell by 50% in the few years fol­low­ing the adop­tion of the law on weapons. Peo­ple got the op­por­tu­nity to de­fend them­selves

Swiss com­pany Small Arms Sur­vey, which spe­cialises in mon­i­tor­ing the move­ment of il­le­gal weapons around the world, claims that more than

5 mil­lion had fallen into the hands of Ukraini­ans by 2015-2016

and the sense­less mug­gings and bur­glar­ies that were also epi­demic in 2016 Ukraine im­me­di­ately stopped.

Un­for­tu­nately, such reg­u­la­tions are still a com­plete pro­fa­na­tion in our coun­try. Weapons for self-de­fence (in the civilised world, a pis­tol that is stored in a safe near the bed and re­ceived af­ter train­ing, in­struc­tion and no­ti­fi­ca­tions about the re­spon­si­bil­ity they bring) are in fact in­ac­ces­si­ble to most Ukrainian cit­i­zens. The ex­cep­tion is peo­ple close to the au­thor­i­ties who are given guns as part of of­fi­cial awards, while mere mor­tals can only have hunt­ing or sports guns. But th­ese are com­pletely dif­fer­ent weapons that have an­other sphere of ap­pli­ca­tion.

"I think that com­mon sense will win and a law on weapons will be adopted," says Vi­taliy Kolomi­ets. "This will en­able peo­ple to have a means of self-de­fence, not just sports and hunt­ing weapons, un­der­stand in which con­di­tions they can be used and how they should be reg­is­tered. Any­one who owns such weapons will be well pre­pared, trained and re­spon­si­ble." In ad­di­tion, it will give an im­pe­tus to the de­vel­op­ment of an en­tire in­dus­try. In Ukraine, 70,000 per­mits are is­sued per year – most of them for the pur­chase of new weapons – so a care­ful ap­proach will sooner or later raise the is­sue of cre­at­ing spe­cial schools, clubs and shoot­ing ranges where a large num­ber of peo­ple can get tech­ni­cal train­ing. Then there will be some­where to em­ploy vet­er­ans with ex­pe­ri­ence and this will be­come an el­e­ment of re­ha­bil­i­ta­tion. Of course, a kind of cul­ture of han­dling weapons will emerge and, ac­cord­ingly, ad­di­tional steps to strengthen national se­cu­rity.

"Again, many lads re­paired weapons and worked on them dur­ing the war. Why can't they be given the op­por­tu­nity to do this un­der a li­cense so we can nur­ture our own Hugo Sch­meisser in Ukraine?" says Kolomi­ets. "This would be bet­ter than ar­rest­ing them and de­stroy­ing their work­shops or black­mail­ing them for bribes. For some rea­son, the state de­lib­er­ately wants to drive them into crime. But if they have th­ese skills, they should be able to work in the in­ter­ests of the state. Espe­cially since th­ese boys fought for us – many of them were in­jured and could not re­turn to ser­vice. They are young and are good with their hands, so the state should be in­ter­ested in their work. Mon­i­tor­ing and re­spon­si­bil­ity are all that is needed."

SIM­PLE STEPS

Not much is nec­es­sary to re­solve the sit­u­a­tion: clear and trans­par­ent rules, backed up by law. At first, adopt a ba­sic law on civil­ian weapons and am­mu­ni­tion. Set up an amnesty pe­riod so that peo­ple un­der­stand it is pos­si­ble to give up their ex­plo­sives, grenade launch­ers, gre­nades, ma­chine guns and the like. So that they can look at the law and read what is al­lowed and what is not. Then adopt a doc­u­ment on ter­ri­to­rial de­fence or re­serve armies based on it.

Af­ter all, they are quite ef­fec­tive. The Ukrainian Vol­un­teer Army is made up of peo­ple who or­gan­ised them­selves and paid for their own de­vel­op­ment. They need a le­gal sta­tus. The next stage is to re­move the po­lice mo­nop­oly on armed se­cu­rity when a cul­ture of han­dling weapons is es­tab­lished. This is worth tens of mil­lions of dol­lars. Give peo­ple the op­por­tu­nity to earn money from th­ese ser­vices. And five years later think about al­low­ing vet­er­ans to le­git­i­mately par­tic­i­pate in in­ter­na­tional mis­sions or com­mer­cial se­cu­rity struc­tures. We have many peo­ple who have fought that are good at it and like do­ing it. Why not let them work legally in this field? It is pos­si­ble that the le­gal­i­sa­tion of weapons will act as a vac­ci­na­tion against the crim­i­nal­i­sa­tion of vet­er­ans.

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