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Content updated: 15-06-2020 07:58

The provisions of the Law on the Control of Weapons and Ammunition consolidating the limitations on the right to acquire and possess weapons are unconstitutional

05-06-2020

By its ruling adopted today, the Constitutional Court has recognised that the provisions of the Law on the Control of Weapons and Ammunition (hereinafter referred to as the Law) imposing unlimited prohibition on the acquisition and possession of weapons of certain categories and their ammunition by persons convicted for certain crimes are in conflict with the constitutional principle of a state under the rule of law.

The following provisions of the previously effective Law and the current Law of the new wording have also been declared as being in conflict with the constitutional principle of a state under the rule of law:

– Items 1–4 of Paragraph 2 of Article 18 of the Law of the wording of 18 November 2010, insofar as the persons specified therein are not considered to be persons of good repute for an indefinite period of time and, under Item 2 of Paragraph 1 of Article 17 of this law, permanently forfeit the right to acquire and possess weapons classified in categories B and C and their ammunition;

– Items 1–4 of Paragraph 2 of Article 18 of the Law of the wording of 27 June 2019, insofar as the persons specified therein are not considered to be persons of good repute for an indefinite period of time and, under Item 2 of Paragraph 1 of Article 17 of this law, permanently forfeit the right to acquire and possess weapons classified in categories B and C and their ammunition indicated in Items 6–10 of Article 3 of this law.

As the Constitutional Court has held on more than one occasion, the constitutional principle of a state under the rule of law is especially broad and comprises a wide range of various interrelated imperatives. One of its elements is the principle of proportionality, which means that the measures provided for in legal acts must be in line with the legitimate objectives that are important to society; such measures must be necessary to reach the said objectives and must not restrict the rights and freedoms of a person clearly more than necessary in order to reach these objectives. The legislature has to establish such a legal regulation that would create the preconditions for the sufficient individualisation of the limitations on the rights and freedoms of a person: the legal regulation limiting the rights and freedoms of a person, as provided in a law, must be such that it would create the preconditions for assessing, to the extent possible, an individual position of each person and, in view of all important circumstances, for individualising as appropriate the specific measures that are applicable to and limit the rights of that person. This also applies to the right acquired under a law to acquire and possess certain weapons and ammunition.

The Constitutional Court noted that, under the Constitution, among others, the constitutional principle of a state under the rule of law, in implementing its duty to establish the conditions and procedure for issuing and withdrawing permits to acquire weapons and ammunition in order to create preconditions for ensuring public order and the security of society, to protect human rights and freedoms, the legislature may lay down such measures for limiting the right to acquire and possess weapons and ammunition under the conditions and in accordance with the procedure laid down by the law, whereby the persons convicted for commission of a criminal act would not be issued permits to acquire weapons and ammunition for a certain period of time specified by the legislature and the issued permits would be withdrawn. The Constitutional Court also noted that such a legal regulation must create an opportunity to assess as far as possible the individual situation of each person and, taking into account all the relevant circumstances, not to issue a permit for the acquisition of weapons and ammunition to a person who has committed a criminal act and who continues posing a threat to the security of society and public order even after the expiry of the time limit set by the legislature. Also such a legal regulation under which persons, who have committed certain particularly serious offences for which the most severe penalties are provided for, would never be issued permits to acquire certain weapons and ammunition would also meet the Constitution, among others, the constitutional principle of proportionality.

On the compliance of Item 1–4 of Paragraph 2 of Article 18 of the Law with the Constitution

The petitioner requested an investigation into the compliance of Items 1 and 4 of Paragraph 2 of Article 18 of the Law (wording of 18 November 2010) with the Constitution.

In Items 1 and 4 of Paragraph 2 of Article 18 of the Law, the legislature established the legal regulation under which a natural person who, by an effective court judgment, has been declared guilty of an intentional violent crime or a crime related to the possession of weapons, ammunition, explosives, explosive or radioactive materials, or military equipment, for whose commission the greatest punishment provided for by the Criminal Code (hereinafter referred to as the CC) exceeds 3 years of the deprivation of freedom is not considered to be a person of good repute for an indefinite period of time and, under Item 2 of Paragraph 1 of Article 17 of this law, permanently forfeit the right to acquire and possess weapons classified in categories B and C and their ammunition. Such consequences result from the commission of crimes of varying degrees of dangerousness.

Assessing whether, in seeking to ensure public order and the security of society, to protect human rights and freedoms and establishing, by means of a legal regulation, such an unlimited prohibition, the legislature regarded the principle of proportionality stemming from the constitutional principle of a state under the rule of law, the Constitutional Court noted that the requirement established in Item 2 of Paragraph 1 of Article 17 of the Law that weapons classified in categories B and C and their ammunition may not be acquired and possessed by a natural person who is not of good repute pursues the constitutionally justified objective of not issuing permits for the acquisition of weapons and ammunition to persons who pose a threat to the security of society and public order. However, the legal regulation established in Items 1 and 4 of Paragraph 2 of Article 18 of the Law does not create an possibilities to assess, after a certain period of time after the commission of the crime, whether, taking into account the individual situation of each person, the persons who have committed the crimes referred to in these items continue posing a threat to the security of society and public order. Therefore, such a legal regulation disregarded the requirement stemming from the constitutional principle of proportionality for the legislature to establish such a legal regulation governing the right acquired under a law to acquire and possess certain weapons and ammunition that would create preconditions, in view of all important circumstances, for the sufficient individualisation of the limitations on this right; therefore, also the constitutional principle of a state under the rule of law was disregarded.

The Constitutional Court has held that, if it finds the unconstitutionality of provisions whose compliance with the Constitution is not impugned by a petitioner but which are consolidated in the same legal act the constitutionality of whose other provisions is impugned by the petitioner, it must state that the said provisions that are not impugned by the petitioner are unconstitutional. The implementation of constitutional justice implies that a legal act (part thereof) that is in conflict with the Constitution must be removed from the legal system.

In the ruling, the Constitutional Court stated that the unlimited prohibition for the natural person to possess and acquire weapons classified in categories B and C and their ammunition was also applied in the case where the person has been declared guilty of committing a crime that he/she had committed under the influence of alcohol or being intoxicated with narcotic, psychotropic, or other psychoactive substances (Item 2 of Paragraph 2 of Article 18 of the Law) or a crime committed by using explosives, explosive materials, or firearms (Item 3 of Paragraph 2 of Article 18 of the Law) for whose commission the greatest punishment provided for by the CC exceeds 3 years of the deprivation of freedom. Thus, having held, in this ruling, that Items 1 and 4 of Paragraph 2 of Article 18 of the Law had been in conflict with the constitutional principle of a state under the rule of law, on the basis of the same arguments, the Constitutional Court also held that the above-mentioned Items 2 and 3 of Paragraph 2 of Article 18 of the Law were also in conflict with the constitutional principle of a state under the rule of law.

In the ruling, the Constitutional Court noted that the Law (wording of 18 November 2010) was set out in a new wording by Article 1 of the Law Amending the Law on the Control of Weapons and Ammunition, which was adopted by the Seimas on 27 June 2019. The legal regulation established in Items 1–4 of Paragraph 2 of Article 18 of the Law of this wording limits for an indefinite period of time the right to acquire and possess not only weapons classified in categories B and C and their ammunition but also certain semi-automatic firearms attributed to weapons of category A and firearms classified in category A, which have been converted into signal, gas or imitation weapons indicated in Items 6–10 of Article 3 of the Law (wording of 27 June 2019).

Therefore, as concerning Items 1–4 of Paragraph 2 of Article 18 of the Law of the former wording, the Constitutional Court, on the basis of the same arguments, also held that Items 1–4 of Paragraph 2 of Article ) 18 of the Law (wording of 27 June 2019), insofar as the persons specified therein are not considered to be persons of good repute for an indefinite period of time and, under Item 2 of Paragraph 1 of Article 17 of this law, permanently forfeit the right to acquire and possess weapons classified in categories B and C and their ammunition indicated in Items 6–10 of Article 3 of this law, are in conflict with the constitutional principle of a state under the rule of law.

On the official publication of the ruling of the Constitutional Court

Taking into account the specific circumstances of a particular case, the Constitutional Court may set a later date for the publication of its ruling by which a certain legal act (part thereof) is declared to be in conflict with the Constitution or laws.

The Constitutional Court emphasised that weapons and ammunition may be a danger to public order and the security of society, to human life and health; therefore, the legislature, when taking account of the necessity to ensure the security of society and public order and to protect human rights and freedoms, is empowered to establish the conditions and procedure for the entry of weapons and ammunition into civilian circulation, for holding and using them, as well as for issuing permits to acquire a weapon. The legislature needs a certain period of time if it would decide to establish a different legal regulation in compliance with the Constitution consolidated in Items 1–4 of Paragraph 2 of Article 18 of the Law. In particular, the legislature may provide that the persons convicted for the commission of a criminal act would not be issued permits to acquire weapons and ammunition for a certain period of time (longer than the period of conviction) set by the legislature and the issued permits would be withdrawn; the legislature may also provide for certain particularly dangerous crimes for which the persons who have committed them would never be issued permits to acquire weapons and ammunition. In view of this, this ruling of the Constitutional Court will be officially published in the Register of Legal Acts on 31 December 2020.

The Constitutional Court noted that if the legislature, until this ruling of the Constitutional Court comes into force, fails to establish a different legal regulation, in compliance with the Constitution, related to the issuance of permits to acquire, hold or carry weapons specified in Items 6–10 of Article 3 of the Law, weapons classified in categories B and C and their ammunition to the persons convicted for the crimes specified in Items 1–4 of Paragraph 2 of Article 18 of this Law, when deciding on the granting of such permits to these persons, police authorities will have to follow, among others, Item 5 of Paragraph 2 of Article 18 of the Law (wording of 27 June 2019), under which such permits are not issued to persons having a criminal record, and Item 10 of Paragraph 1 of Article 17 thereof, which provides for the possibility to assess the individual situation of each person, i.e. to take a decision on the issuance (or non-issuance thereof) of permits to acquire, hold or carry the above-mentioned weapons and their ammunition, taking into account, among others, the personality of the person who committed the crime and other significant circumstances, will have to assess the threat posed by this person to the security of society and public order as well as to human rights and freedoms.