How to solve one of the country's most difficult problems and why the state is stubbornly unwilling to do so
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 already in 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."
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 launched on 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 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."
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.