The Ukrainian Criminal Code may soon include articles on responsibility for falsification, illicit cancellation or change of firearms marking. The relevant amendments have already been worked out and submitted to the parliament. The question is, how come that similar actions are still not punishable in our country.

Variation in two readings

The President submitted the amendments on introduction of responsibility for falsification, illegal cancellation or change of firearms marking on January 11 of this year. The draft bill has been agreed with the Interior Ministry, Defense Ministry, Foreign Ministry, Finance Ministry, Justice Ministry, Economy Ministry, State Border Guard Service and State Export Control Service. It has also been considered by the relevant committee of the parliament and recommended for adoption as a basis.

The explanatory note to the draft bill, signed by the interior minister Vitaly Zakharchenko, says that the Ukrainian parliament simply needs to adopt changes to the Criminal Code. Nine years ago Ukraine joined the Protocol against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition. The Protocol supplements the United Nations Convention against Transnational Organized Crime, ratified on February 4, 2004. Moreover, though the current Criminal Code provides for criminal responsibility for illicit manufacturing, processing or repair of firearms, illicit manufacturing of ammunition, explosive agents and devices, such actions as falsification, illicit cancellation or change of firearms marking are not covered by the law.

At the same time, the Main scientific-and-expert department of the Verkhovna Rada does not see a necessity to adopt submitted amendments, as illicit manufacturing, processing and repair of forearms are already official crimes, while the term 'falsification' is not clear. "The first paragraph of the article #263-1 of the Criminal Code of Ukraine provides for criminal responsibility for illicit manufacturing, processing and repair of firearms. Marking of firearms is a part of manufacturing process, as without it the weapon cannot be issued. So, illicit cancellation or change of marking is covered by the term "illicit processing" of firearms. Consequently, responsibility for these illicit actions is already provided by the current legislation," head of the department Volodymyr Shamota says. "As for the term 'falsification...of marking', it is not clear what it means. If the matter concerns application of improper marking or replacement of one marking with another, then these actions are covered by the term 'change of marking'. Taking into account all this, the term 'falsification' does not make any sense," he adds. 

Black cat in a dark room

Human right activist Eduard Bagyrov believes that adoption of amendments to the Criminal Code can be advantageous for two parties: prosecutors and producers. The expert explained that falsification of firearms is manufacturing of so-called 'phantoms'. For example, a plant manufactures licensed firearms with certain serial numbers, and the same firearms with the same serial numbers are manufactured 'at home'. In such cases, it is difficult to establish authenticity without experts.

"Falsified firearms can be sold at inner market, to the criminal world for example, or at international market, to the third countries. Moreover, cancelling marking of a firearm, used in a shooting or a murder, offenders try to avoid responsibility. These amendments to the Criminal Code enable prosecutors to press more charges against an offender increasing his guilt. However, the given draft bill does not bring significant changes to the law. In all appearances, weapon producers are the most interested in the adoption of these amendments," Bagyrov says.

Chairman of the Association of weapon owners Georgiy Uchaikin agrees in large part with Bagyrov. He told ForUm that the given draft bill does not make much difference for weapon producers or owners. "These are just specifications. However, we also do not understand what they mean by 'falsification'."

As for the official position of the Association of weapon owners, it stands for legal turnover and registration of firearms. "We are not afraid of amendments to the Criminal Code. However, we have some questions about the draft bill. Why are these amendments set for consideration and adoption only after nine years since joining the UN Protocol? Last year the article #263 of the Criminal Code was amended and responsibility for illicit gun trafficking was toughened. Why weren't these amendments submitted and adopted back then. Ukraine does have a huge black market of weapons, and to restrain it the government must adopt a normal law regulating and controlling firearms and giving people the right for self-defense," the expert underlined.

In turn, deputy head of the parliamentary committee on combat against organized crime and corruption Vitaly Yarema says he does not see a necessity in adoption of the amendments-specifications. "The current version of the Criminal Code includes such notion as 'processing', which covers such actions and falsification, cancellation or change of marketing. There is no need to adopt more amendments to the law," he says.

Deputy head of the parliamentary committee on legal provision of law enforcement activity, MP of the Party of Regions Volodymyr Oliynyk has a different opinion. "We have ratified the UN Convention and they say to adopt our legislation to the norms. Thus, we supplement the article #263 with the clauses it did not have before, which is falsification, illegal cancellation or replacement of marking. What is falsification? Falsification is manufacturing of firearms from 'home-made' part and components. At the same time, I must say that these norms are not vital for Ukraine. Being a judge for years, I've never had cases on manufacturing firearms from falsified parts and components. Firearms are not available free in Ukraine, as well as parts and components. For countries, where you can go and buy a gun easily, this problem is pending and such norms are necessary, while in Ukraine maximum what people do is remaking gas guns into combat guns or home-manufacturing. Thus, as lawyers say, these norms will be 'dead' for Ukraine."

Summing up

The issue of firearm and its use is always interesting and important, including legal aspects. Even the shift of one comma can turn out significant. Besides, as Samuel Colt once said, guns don't kill people, people do. However, the adoption of the amendments does not depend on different readings of the term 'falsification', but on whether the Ukrainian parliament will finally start working.

Yulia Artamoshchenko


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