Press release after the hearing concerning the possibility of seizing arms and ammunition as well as documents certifying the legal possession of arms from a person against whom criminal proceedings have been instituted P 43/12
Temporary seizure of arms from a person accused of committing a deliberate offence, or an indeliberate offence against life and health or against safety in traffic, while in a state of insobriety or under the influence of a narcotic drug, or who has fled from the scene of the event, is consistent with the Constitution.
At the hearing on 18 December 2013 at 9.00 a.m., the Constitutional Tribunal considered a question of law, referred by the Voivodeship Administrative Court in Poznań, concerning the possibility of seizing arms and ammunition as well as documents certifying the legal possession of arms from a person against whom criminal proceedings have been instituted.
The Constitutional Tribunal adjudicated that Article 19(1a) of the Act of 21 May 1999 on Arms and Ammunition ‑ insofar as it indicated grounds for the action of seizing arms and ammunition as well as documents certifying the legal possession of arms, carried out by the organs of administrative authority, from a person against whom criminal proceedings had been instituted with relation to offences specified in Article 15(1)(6) of the Act on Arms and Ammunition ‑ was consistent with the principle of appropriate legislation, arising from Article 2 of the Constitution, Article 32(1) as well as Article 64(2) and (3) in conjunction with Article 31(3) of the Constitution. Moreover, the Tribunal decided to discontinue proceedings as to the remainder on the grounds that issuing a judgment was inadmissible.
The Tribunal stated that despite certain legislative defects of the challenged provision – primarily related to its normative context (Article 19(1) as well as Article 18 of the Act) as well as reference to Article 15(1)(6) of the Act – administrative courts applied a consistent pro-constitutional interpretation of Article 19(1) as well as Article 19(1a) of the Act, which had been reviewed in that case. The Voivodeship Administrative Court in Poznań had inaptly alleged that the said provision had infringed the principle of specificity of law, arising from Article 2 of the Constitution.
The Tribunal indicated that pursuant to Article 20 of the Act, withdrawing a licence for arms, permitting possession of arms as well as invalidating a registration card for pneumatic guns took place by way of an administrative decision. For factual or procedural reasons, the issuance of such a decision might be delayed.
Until the end of proceedings on withdrawal of a licence for arms on the basis of Article 18 of the Act, a person convicted of an offence might actually still possess arms and ammunition. However, in the case where any delay in seizing the arms and ammunition from the convicted person posed a threat to the public, the legislator enabled the police (Article 19(1) of the Act) to seize arms, ammunition as well as the licence for the arms.
In spite of what the court referring the question claimed, the legislator did not treat persons convicted of offences specified in Article 15(1)(6) in a more lenient way than persons who were suspected/accused of such offences. In the case of convicting persons for such an offence, the licence for arms would always be withdrawn, and the arms and ammunition in their possession would be confiscated. the legal basis for such a decision was Article 18(1)(2) of the Act on Arms and Ammunition.
Putting a person on a charge of committing one of offences specified in Article 15(1)(6) only meant authorisation and not a requirement for the police or the military police to carry out the seizure of arms, ammunition as well as a licence for arms. In the challenged provision, the legislator had neither used evaluative wording or made reference to other provisions.
The Tribunal emphasised that the seizure of arms as conducted by the organs of administrative authority was not tantamount – as in the case of Article 19(1) of the Act ‑ to withdrawal of a licence for arms.
Accused persons that were acquitted by a legally effective ruling might acquire arms or recover arms that had been seized from them on the basis of Article 19(1a) of the Act. At the same time, one should stress that, in accordance with Article 19(2), arms as well as documents referred to in paragraphs 1 and 1a, were to be forthwith transferred to be placed in escrow by the police or the military police.
Also, the Tribunal held that it was groundless to allege that the challenged provision had infringed the constitutional principle of equality (the right to equal treatment). Indeed, the said allegation followed from an erroneous conclusion that the situation of persons convicted of offences specified in Article 15(1)(6) of the Act on Arms and Ammunition bore similarities to the situation of persons suspected/accused of committing such offences, whereas in reality those situations were very different.
The court had inaptly assumed that the legislator had provided for worse treatment for persons suspected/accused of one of the offences enumerated in Article 15(1)(6) than for persons convicted of such offences.
Making reference to the allegations put forward by the court referring the question which concerned the unconstitutional restriction of the right of ownership, the Tribunal stressed that Polish law – both the Constitution and the Act on Arms and Ammunition – did not guarantee the right to bear arms.
Pursuant to Article 2 of the Act, apart from cases set out in the Act, the acquisition, possession as well as sale of arms and ammunition were prohibited.
The possession of arms in Poland was restricted and admissible only under the condition that certain premisses had been fulfilled. In the case of legal possession of arms, one might speak of the exercise of the right of ownership; however, it was a limited right of ownership.
The Tribunal adjudicated that the challenged provision was a constitutionally proportionate interference in the right of ownership. The restriction of the right of ownership was justified by the necessity to protect the rights and freedoms of other persons. The restriction was adequate to the intended goal (the arms would remain in escrow until the completion of court proceedings or they might be disposed of by their previous owners) and was not disproportionate (the said persons – pursuant to Article 23(1)(1) of the Act on Arms and Ammunition – did not incur the costs of placing the arms in escrow, and after the completion of criminal proceedings, if they were not convicted, they could exercise their previous right to own arms).
The legislator had not granted the police freedom as regards the application of Article 19(1a) of the Act on Arms and Ammunition. The Tribunal stressed that the legislator’s use of the word ‘may’ was a clear indication for enforcement authorities that the said administrative action was admissible only where there was a risk that a person accused of committing an offence specified in Article 15(1)(6) of the Act on Arms and Ammunition would pose a threat to public security or public order or to the rights and freedoms of other persons.
The hearing was presided over by Judge Wojciech Hermeliński, and the Judge Rapporteur was the President of the Constitutional Tribunal, Judge Andrzej Rzepliński.
The judgment is final and its operative part shall be published in the Journal of Laws.