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On the limitations on the acquisition of permits to hold and carry hunting weapons

Case No. 33/99

 

 

THE CONSTITUTIONAL COURT OF

THE REPUBLIC OF LITHUANIA

 

R U L I N G

On the compliance of Item 9 of Paragraph 8 of Article 19 of the Republic of Lithuania’s Law on Arms and Ammunition Control and Items 14.9 and 57.2 of the Rules on the Hunting Arms Circulation as approved by the Resolution of the Government of the Republic of Lithuania (No. 436) “On Approving the Rules on the Hunting Arms Circulation” of 10 April 1998 with the Constitution of the Republic of Lithuania

 

Vilnius, 12 April 2001

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Egidijus Jarašiūnas, Egidijus Kūris, Zigmas Levickis, Augustinas Normantas, Vladas Pavilonis, Jonas Prapiestis, Vytautas Sinkevičius, Stasys Stačiokas, and Teodora Staugaitienė

The court reporter—Daiva Pitrėnaitė

Vytas Rimkus, a senior commissioner of the Law Service of the Police Department under the Ministry of the Interior of the Republic of Lithuania, and Olegas Rimanas, a commissioner of the Operational Activities Service of the criminal police of the said department, acting as the representatives of the Government of the Republic of Lithuania, the party concerned

The Constitutional Court of the Republic of Lithuania, pursuant to Paragraph 1 of Article 102 of the Constitution of the Republic of Lithuania and Paragraph 1 of Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, on 5 April 2001, in its public hearing, considered case No. 33/99 subsequent to the petition submitted to the Constitutional Court by the Higher Administrative Court requesting an investigation into the compliance of Item 9 of Paragraph 8 of Article 19 of the Republic of Lithuania’s Law on Arms and Ammunition Control and Items 14.9 and 57.2 of the Rules on the Hunting Arms Circulation as approved by the Resolution of the Government of the Republic of Lithuania (No. 436) “On Approving the Rules on the Hunting Arms Circulation” of 10 April 1998 with Paragraph 1 of Article 29 and Paragraphs 1 and 6 of Article 31 of the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

I

The petitioner—the Higher Administrative Court—was considering an administrative case wherein it was requested that the Public Police Division of the Vilnius City Head Police Commissioner’s Office of the Ministry of the Interior of the Republic of Lithuania be obligated to renew a permit to keep and bear a hunting arm. By means its ruling of 18 November 1999, the said court suspended the consideration of the case and appealed to the Constitutional Court with a petition requesting an investigation into the compliance of Item 9 of Paragraph 8 of Article 19 of the Republic of Lithuania’s Law on Arms and Ammunition Control (Official Gazette Valstybės žinios, 1996, No. 69-1665; hereinafter also referred to as the Law) and Items 14.9 and 57.2 of the Rules on the Hunting Arms Circulation (Official Gazette Valstybės žinios, 1998, No. 37-974; hereinafter also referred to as the Rules) as approved by the Resolution of the Government of the Republic of Lithuania (No. 436) “On Approving the Rules on the Hunting Arms Circulation” of 10 April 1998 with Paragraph 1 of Article 29 and Paragraphs 1 and 6 of Article 31 of the Constitution.

II

The petition of the petitioner is based on these arguments.

Item 9 of Paragraph 8 of Article 19 of the Law provides that permits to acquire civil weapons shall not be issued to the persons who have been entered on police preventive or operational record files. Item 14.9 of the Rules also contains the prohibition against the issuance of permits to acquire hunting weapons to the persons who have been entered on police preventive or operational record files. Item 57.2 of the Rules provides that a police office may also not renew the permit to keep and bear a hunting weapon if provisions of Items 14.2–14.7, 14.9–14.12 of these rules may be applied to the person, thus, also in cases when the person has been entered on police preventive or operational record files. According to the petitioner, certain restrictions and limitations on their rights are thus applied against the persons who have been entered on operational record files without any establishment of their culpability, besides, due to their entering on operational record files their rights to defence become limited. The petitioner doubts whether Item 9 of Paragraph 8 of Article 19 of the Law and Items 14.9 and 57.2 of the Rules are in compliance with Paragraph 1 of Article 29 and Paragraphs 1 and 6 of Article 31 of the Constitution.

III

In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from the representative of the party concerned—the Seimas—R. Varslauskas, a senior consultant to the Law Department of the Office of the Seimas.

The representative of the party concerned—the Seimas—maintains that the norms of Article 31 of the Constitution are designated to ensure implementation of the principles of justice in criminal legal procedure. The public relations regulated by the Law and the Rules are not identical with the relations in the area of criminal legal procedure. In the opinion of R. Varslauskas, the impugned provisions of the Law and the Rules do not prohibit persons from making use of their right to defence. Article 30 of the Constitution provides that any person whose constitutional rights or freedoms are violated shall have the right to appeal to court. Besides, the constitutional principle of the equality of persons in itself does not deny the fact that laws may establish different legal treatment with respect to certain categories of persons that are in different situations. The representative of the Seimas maintains that the impugned provisions of the Law and the Rules are in conformity with the Constitution.

IV

In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from the representatives of the party concerned—the Government—V. Rimkus and O. Rimanas.

In the opinion of the party concerned—the Government—Article 31 of the Constitution does not establish an abstract presumption of legal non-culpability but links it with commission of crime, i.e. legal penal relations. The representatives maintain that the Higher Administrative Court erroneously treats the entering of persons on the police preventive record file (along with the limitations arising therefrom) as a criminal punishment. By means of this, the court groundlessly categorises the entering of persons on the record file as having the status of a criminal charge. In the opinion of V. Rimkus and O. Rimanas, the right to keep a weapon (including a hunting one) is not a constitutional right, therefore, it is not necessary that it be protected in a judicial manner. In addition, they pointed out that Article 29 of the Constitution presupposes that the same requirements of laws are applied to all persons. The impugned provisions of the Law and the Rules do not provide any legal grounds to apply the said provisions in a different manner to one or another group of people. In the opinion of the representatives of the party concerned, Item 9 of Paragraph 8 of Article 19 of the Law and Items 14.9 and 57.2 of the Rules are in compliance with Paragraph 1 of Article 29 and Paragraphs 1 and 6 of Article 31 of the Constitution.

V

In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from the specialist Dr. K. Šimkus, Head of the Operational Tactics Department of the Police Faculty, the Law University of Lithuania.

VI

At the Constitutional Court hearing the representatives of the party concerned—the Government—V. Rimkus and O. Rimanas virtually reiterated the arguments set down in their written explanations.

The Constitutional Court

holds that:

I

1. On 2 July 1996, the Seimas adopted the Law on Arms and Ammunition Control. Item 9 of Paragraph 8 of Article 19 of the Law provides that permits to acquire civil weapons shall not be issued to the persons who “have been entered on police preventive or operational record files”.

By means of its Resolution (No. 436) “On Approving the Rules on the Hunting Arms Circulation” of 10 April 1998, the Government approved the Rules on the Hunting Arms Circulation Item 14.9 whereof provides that permits to acquire hunting weapons shall not be issued to the persons who “have been entered on police preventive or operational record files”.

Item 57.2 of the Rules provides that a police office may also not renew or it may abolish the permit for a natural person to keep and bear a hunting weapon prior to its expiry if “provisions of Items 14.2–14.7, 14.9–14.12 of these rules may be applied to the said person”.

2. The petitioner—the Higher Administrative Court—doubts whether the aforesaid provisions of the Law and the Rules are in compliance with Paragraph 1 of Article 29 and Paragraphs 1 and 6 of Article 31 of the Constitution. Even though in the reasoning of the petition the petitioner points out certain provisions of the Republic of Lithuania’s Law on Operational Activities and of the Republic of Lithuania’s Law on State Secrets and Their Protection, however, in the substantive provisions of the petition it does not request an investigation into their compliance with the Constitution, therefore, the provisions of the Law on Operational Activities regulating the entering of persons on police operational record files and the provisions of the Law on State Secrets and Their Protection establishing that information concerning actions of entities of operational activities shall also constitute a state secret are not a matter of consideration in this case.

The petitioner requests an investigation into the compliance of Item 57.2 of the Rules with the Constitution. It is pointed out in the said item that a police office may also not renew or it may abolish the permit for a natural person to keep and bear a hunting weapon prior to its expiry. It is clear from the petition that the petitioner has doubts as for the compliance of not whole Item 57.2 with the Constitution but only to the extent that it provides that the permit for a natural person to keep and bear a hunting weapon may not be renewed or it may be abolished prior to its expiry if provisions of Item 14.9 of the Rules may be applied to the said person.

On the basis of the petition of the petitioner, the Constitutional Court will investigate in this case whether Item 9 of Paragraph 8 of Article 19 of the Law and Item 14.9 of the Rules as well as Item 57.2 of the Rules to the extent that it provides that the permit for a natural person to keep and bear a hunting weapon may not be renewed or it may be abolished prior to its expiry if provisions of Item 14.9 of the Rules may be applied to the said person are in compliance with Paragraph 1 of Article 29 and Paragraphs 1 and 6 of Article 31 of the Constitution.

II

Under the Constitution, institutions of state authority and administration have a duty to ensure public safety and public order, to protect individuals from attempts against their lives or health, to protect human rights and freedoms.

It needs to be emphasised that arms and ammunition may be dangerous to public order and public safety, to people’s lives and health, therefore, the legislature, taking account of the necessity to ensure public safety and public order, to protect human rights and freedoms, is empowered to establish the conditions and procedure of arms and ammunitions getting into civil circulation, of their keeping, use and issuance of permits to acquire weapons.

III

On the compliance of Item 9 of Paragraph 8 of Article 19 of the Law on Arms and Ammunition Control and Items 14.9 and 57.2 of the Rules on the Hunting Arms Circulation as approved by the Government Resolution (No. 436) “On Approving the Rules on the Hunting Arms Circulation” of 10 April 1998 with Paragraph 1 of Article 31 of the Constitution.

1. The petitioner doubts whether the impugned provisions of the Law and the Rules are in compliance with Paragraph 1 of Article 31 of the Constitution.

2. Paragraph 1 of Article 31 of the Constitution stipulates that “every person shall be presumed innocent until proven guilty according to the procedure established by law and until declared guilty by an effective court judgment.”

The presumption of innocence is a fundamental principle of administration of justice in the procedure of criminal cases and one of the most important guarantees of human rights and freedoms.

3. The impugned provisions of the Law and the Rules regulate relations linked with the conditions and procedure of issuance of permits to acquire arms and ammunition. These provisions regulate different relations form those regulated in Paragraph 1 of Article 31 of the Constitution.

4. Taking account of the arguments set forth, the conclusion should be drawn that Item 9 of Paragraph 8 of Article 19 of the Law on Arms and Ammunition Control and Item 14.9 of the Rules on the Hunting Arms Circulation as approved by the Government Resolution (No. 436) “On Approving the Rules on the Hunting Arms Circulation” of 10 April 1998 as well as Item 57.2 of the said rules to the extent that it provides that the permit for a natural person to keep and bear a hunting weapon may not be renewed or it may be abolished prior to its expiry if provisions of Item 14.9 of these rules may be applied to the said person are in compliance with Paragraph 1 of Article 31 of the Constitution.

IV

On the compliance of Item 9 of Paragraph 8 of Article 19 of the Law on Arms and Ammunition Control and Items 14.9 and 57.2 of the Rules on the Hunting Arms Circulation as approved by the Government Resolution (No. 436) “On Approving the Rules on the Hunting Arms Circulation” of 10 April 1998 with Paragraph 6 of Article 31 of the Constitution.

1. The petitioner doubts whether the impugned provisions of the Law and the Rules are in compliance with Paragraph 6 of Article 31 of the Constitution.

2. Paragraph 6 of Article 31 of the Constitution provides: “From the moment of arrest or first interrogation, persons suspected or accused of a crime shall be guaranteed the right to defence and legal counsel.”

This constitutional provision establishes the right of an individual suspected of commission of crime and that of the accused to defence. It is one of the guarantees of protection of human rights and a necessary condition so that every person who committed a crime would be justly punished and that an innocent person would not be brought to criminal responsibility nor punished.

3. The impugned provisions of the Law and the Rules regulate relations linked with issuance of permits to acquire arms and ammunition. These provisions regulate different relations from those regulated in Paragraph 6 of Article 31 of the Constitution. The impugned provisions do not deny the right of an individual suspected of commission of crime nor that of the accused, from the moment of their arrest or first interrogation, to defence and legal counsel.

The Constitutional Court notes that a person must enjoy the right, on the basis of the Constitution, to defend his infringed rights and that an opportunity to defend the infringed rights, according to the Constitution, must be real. It needs to be noted that Item 19 of the Rules also provides that the police must inform the interested person in writing as regards the decision to issue the permit to acquire a weapon. The refusal to issue a weapon must be a reasoned one, while the person may appeal to court against such a decision (Item 20 of the Rules).

4. Taking account of the arguments set forth, the conclusion should be drawn that Item 9 of Paragraph 8 of Article 19 of the Law on Arms and Ammunition Control and Item 14.9 of the Rules on the Hunting Arms Circulation as approved by the Government Resolution (No. 436) “On Approving the Rules on the Hunting Arms Circulation” of 10 April 1998 as well as Item 57.2 of the said rules to the extent that it provides that the permit for a natural person to keep and bear a hunting weapon may not be renewed or it may be abolished prior to its expiry if provisions of Item 14.9 of these rules may be applied to the said person are in compliance with Paragraph 6 of Article 31 of the Constitution.

V

On the compliance of Item 9 of Paragraph 8 of Article 19 of the Law on Arms and Ammunition Control and Items 14.9 and 57.2 of the Rules on the Hunting Arms Circulation as approved by the Government Resolution (No. 436) “On Approving the Rules on the Hunting Arms Circulation” of 10 April 1998 with Paragraph 1 of Article 29 of the Constitution.

1. The petitioner doubts if the impugned provisions of the Law and the Rules are in compliance with Paragraph 1 of Article 29 of the Constitution.

2. Paragraph 1 of Article 29 of the Constitution provides:

All persons shall be equal before the law, the court, and other State institutions and officers.

A human being may not have his rights restricted in any way, or be granted any privileges, on the basis of his or her sex, race, nationality, language, origin, social status, religion, convictions, or opinions.”

In the norms of Article 29 of the Constitution the principle of the equality of all persons is established which means the innate human right to be treated equally with the others. This principle sets the formal equality of all persons, as well as the fact that persons may not be discriminated nor that they may be granted any privileges.

One must follow the constitutional principle of the equality of persons before the law, the court and other state institutions and officials in the course of passing laws, their application and the administration of justice. However, the said constitutional principle does not deny the fact that the law may establish different legal treatment concerning certain categories of persons who are in different situations (the Constitutional Court’s ruling of 28 February 1996).

3. As held in the present Ruling, the legislature, having a duty to ensure public safety and public order, to protect human rights and freedoms, may establish the conditions and procedure of arms and ammunitions getting into civil circulation, of their keeping, use and issuance of permits to acquire arms. Different conditions of issuance of permits to acquire arms may be established for certain categories of persons as much as it is necessary to ensure public safety and public order. The legal regulation by which permits to acquire hunting weapons shall not be issued to the persons who have been entered on police preventive or operational record files or that such permits may also be not renewed or that they may be abolished prior to their expiry in itself does not violate the constitutional principle of equality of all persons. It has been held in the present Ruling that the legal norms regulating the entering of persons on police operational record files are not a matter of consideration in this case.

4. Taking account of the arguments set forth, the conclusion should be drawn that Item 9 of Paragraph 8 of Article 19 of the Law on Arms and Ammunition Control and Item 14.9 of the Rules on the Hunting Arms Circulation as approved by the Government Resolution (No. 436) “On Approving the Rules on the Hunting Arms Circulation” of 10 April 1998 as well as Item 57.2 of the said rules to the extent that it provides that the permit for a natural person to keep and bear a hunting weapon may not be renewed or it may be abolished prior to its expiry if provisions of Item 14.9 of these rules may be applied to the said person are in compliance with Paragraph 1 of Article 29 of the Constitution.

Conforming to Article 102 of the Constitution of the Republic of Lithuania and Articles 53, 54, 55 and 56 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives the following

ruling:

To recognise that Item 9 of Paragraph 8 of Article 19 of the Republic of Lithuania’s Law on Arms and Ammunition Control and Item 14.9 of the Rules on the Hunting Arms Circulation as approved by the Resolution of the Government of the Republic of Lithuania (No. 436) “On Approving the Rules on the Hunting Arms Circulation” of 10 April 1998 as well as Item 57.2 of the said rules to the extent that it provides that the permit for a natural person to keep and bear a hunting weapon may not be renewed or it may be abolished prior to its expiry if provisions of Item 14.9 of these rules may be applied to the said person are in compliance with the Constitution of the Republic of Lithuania.

This ruling of the Constitutional Court is final and not subject to appeal.

The ruling is pronounced in the name of the Republic of Lithuania.

Justices of the Constitutional Court:

 

Egidijus Jarašiūnas     Egidijus Kūris      Zigmas Levickis

 

Augustinas Normantas      Vladas Pavilonis      Jonas Prapiestis

 

Vytautas Sinkevičius      Stasys Stačiokas      Teodora Staugaitienė