Under the Ukrainian Penal Code (“UPC”) burglary is viewed as appurtenant to the unauthorised entry of premises, including by police, administrative personnel and/or other public officers. The UPC also treats it as a circumstance that exacerbates a perpetrator’s criminal liability under the crime of theft.

 This means that a person who has legitimate rights of use of their own residential and/or business premises (the “Owner”) enjoys quite slim UPC protection if a burglar fails to rob the premises and/or fails to inflict physical damage on any person within the premises.

 On 26 April 2018, the Supreme Court issued a pioneering Resolution in case no. 342/538/14-к (the “Resolution”) with the clear intention of filling in the above gap. It decided to address the problem substantially by resorting to the concept of self-defence to the actions that an aggrieved Owner may take against a burglar.

 The Supreme Court clarified the application of UPC Article 36(5), which provides for the exemption from criminal liability of any person defending themselves against (i) an armed assault, (ii) an assault by a group of persons, or (iii) an act of illegal forcible invasion of one’s home or other premises. Article 36(5) of the UPC covers any damage inflicted upon an attacker regardless of its severity.

 Until now, Ukrainian courts have been reluctant to apply the above exemption to cases where a burglar was killed or injured on the invaded premises. Instead, the courts tended to hold an Owner criminally liable for the death or injury inflicted upon a burglar.

 The Supreme Court clarified in the Resolution that under the circumstances listed in Article 36(5) of the UPC no person shall be subject to criminal liability for inflicting any injury or even death upon a burglar. That interpretation shall apply to any actions of an Owner against a burglar. No qualifying circumstances (e.g. the excessive force doctrine) shall apply to a situation where self-defence is invoked by an Owner against a burglar.

 In practice, this means that the Supreme Court has now blessed the implementation of the renowned “Castle Doctrine” into the practice of the Ukrainian courts. As such, an Owner will now enjoy full legitimate rights to protect their premises by applying any degree of force against a burglar immediately upon the latter’s forcible invasion of the Owner’s residential and/or business premises.

 We expect Ukrainian courts to closely follow the above rule in future cases. For the public at large, this means that the owners/legitimate users of both residential and business premises have now been offered an effective penal-law tool to protect themselves against burglary.  

Authors:

Olexander Martinenko, Senior Partner, olexander.martinenko@cms-cmno.com  

Olga Shenk, Senior Associate, olga.shenk@cms-cmno.com

Vladyslav Kurylko, Associate, vladyslav.kurylko @cms-cmno.com