RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE REPUBLIC OF BELARUS

of April 3, 2008 No. 1

About court practice on cases on the crimes connected with illegal actions concerning weapon, ammunition and explosives (the Art. of Art. 294-2952, 296, 297 Criminal codes of the Republic of Belarus)

Having discussed results of studying of court practice on cases on the crimes connected with illegal actions concerning weapon, ammunition and explosives (the Art. of Art. 294-295-2, 296, 297 Criminal codes of the Republic of Belarus (further - UK), for the purpose of the correct and uniform application of the legislation decide the Plenum of the Supreme Court of the Republic of Belarus:

1. Draw the attention of courts that the correct application of regulations about criminal liability for illegal actions concerning weapon, ammunition and explosives is important instrument for ensuring of protection of life and health of citizens, protection of property, public safety, prevention of illegal distribution of weapon and the prevention of such crimes, accomplishment of the international obligations of the Republic of Belarus on observance of the Protocol against illegal manufacture and turnover of the firearms, its components and components, and also ammunition to it supplementing the United Nations Convention Against Transnational Organized Crime.

2. Courts should mean that the relations arising in case of traffic in weapons in the territory of the Republic of Belarus are regulated by the Law of the Republic of Belarus of November 13, 2001 No. 61-Z "About weapon" (further - the Law), presidential decrees of the Republic of Belarus of August 30, 2002 No. 473 "About measures for enhancement of regulation of turnover of military, office, civil weapon and ammunition to it in the territory of the Republic of Belarus" and of April 4, 2003 No. 134 "About some questions of traffic in weapons in the territory of the Republic of Belarus", and also the regulatory legal acts of Council of Ministers of the Republic of Belarus adopted according to them, other representatives on that state bodies. Therefore the actions listed in dispositions of the relevant articles of the Criminal Code concerning weapon and ammunition are illegal when they are made intentionally in defiance of provisions of the corresponding regulatory legal acts.

3. Explain to courts that for the correct application of the terms "weapon" (fire, hunting, fire smooth-bore, cold, gas, pneumatic, throwing), "components and components of firearms", "ammunition" it is necessary to be guided by their determinations containing in the Law.

It is necessary to carry the chemicals and mixes having capability to explosion without oxygen access (gunpowder, dynamite, trotyl, etc.) to explosives.

As destructive devices it is necessary to recognize the products intended to explosion under certain conditions produced by industrial or self-made method combining explosive and the device for explosion initiation.

Question of whether are weapon, components or components to it, ammunition, explosives or destructive devices these or those objects, courts should permit taking into account the expert opinion.

4. Plunder of firearms, its components or components, ammunition, explosives or destructive devices is understood as intentional illegal non-paid occupancy by them or the right to them both at legal entities, and at the citizens owning them it is lawful or illegal by theft, robbery, robbery, racketing, fraud, abuse of office powers, assignment, waste or use of the computer equipment irrespective of availability or lack of the mercenary purpose (the note to Art. 294 of UK).

If the guilty person stole firearms, its components or components, ammunition, explosives or destructive devices, unsuitable to use, and at the same time was mistaken concerning their quality, considering that they are operational, the deeds should be qualified as attempted crime.

Plunder of components or components of firearms and the subsequent production of the missing details necessary for assembly of weapon, suitable for firing, should be qualified on cumulative offenses, the provided Art. of Art. 294 and 295 or the p. 2 of Art. 295-1 of UK.

5. Subjects of the crime provided by the p. 3 of Art. 294 of UK on the basis of making of plunder by the official with use of the office powers are the officials having rights according to the order the weapon, ammunition, explosives or destructive devices which are in their direct ownership or in ownership of persons subordinated to them and also authorized to exercise control of their turnover.

It is necessary to carry persons who received the specified objects personally and for a certain time for accomplishment of special obligations to persons to whom weapon, ammunition, explosives or destructive devices are issued for office use (sentries, the staff of law-enforcement bodies of the Republic of Belarus, porters, collectors, etc.), and also persons whose office functions are connected with their use, testing, repair, etc. (for example, demolition men, geologists, experts, weapon masters).

Plunder of the listed objects entrusted under protection takes place in cases of their withdrawal from warehouse or from other storage location person performing security and sentry functions or on whom responsibility for their safety is conferred.

6. Plunder of firearms, its components or components, ammunition, explosives or destructive devices can be committed only in the presence at guilty direct intention on occupancy by such objects. If person did not understand that it abducts the specified objects, then its actions do not form the actus reus provided by Art. 294 of UK. In this case the guilty person bears responsibility for plunder of property, and when leaving of the found weapon in the use and according to Art. 295 or 295-1 of UK.

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