Can the spouse of a convicted criminal possess weapons?
§ 5 Reliability
Who is reliable under the WaffG?
What is the effect of reliability under other legal norms?
Reliability under gun law is to be determined separately from other areas of law, so that any unreliability under commercial or banking law does not stand in the way of reliability under gun law. There is one exception, however: the hunting and weapons law reliability must coincide.
Who is “absolutely” unreliable?
According to the legislature, one is considered irrefutably unreliable for the use of a weapon if one has been convicted of a crime. Crimes are crimes that are punishable by at least one year imprisonment. These unreliable criminals also include convicted criminals who have been sentenced to at least one year imprisonment, even if the offense does not in itself constitute a crime. In both cases, this applies as long as ten years have passed since the judgment became final, i.e. since the point in time at which no further legal remedies could be lodged against the judgment. Due to the serious misconduct of the applicant, trust in his reliability is irrefutably disrupted. Even if a probation of at least one year has been pronounced, this does not make any difference in terms of gun law to the prison sentence that has been served, because the sentence is the same, only the execution of this sentence was suspended on probation. It is definitely debatable in this context that the criminal offenses leading to unreliability do not have to be related to the content of the handling of weapons. For example, tax offenses or traffic offenses can lead to the compulsory withdrawal of the weapon possession card. If the person concerned has been convicted of several criminal offenses in one judgment, the lawyer must check whether the sum of the individual penalties for the offenses relevant to weapons law also exceeds the penalty limit of one year. If this is not the case, there is a good chance that the authority will avoid the consequences of weapons law by using legal argumentation skills. Although this does not result directly from the law, it can be inferred from the intention of the legislature or the bill.
When is there a prognosis of absolute unreliability?
Another variant of the absolute unreliability standardizes § 5 Abs. 1 Nr. 2 WaffG, according to which a prognosis is to be made,
where facts justify the assumption that they (the applicants)
- a) weapons or ammunition will be improperly or carelessly used,
- b) Do not handle weapons or ammunition carefully or properly or do not store these items carefully,
- c) Weapons or ammunition are given to persons who are not authorized to exercise actual control over these objects.
This assumption must be based on facts, and one fact may be sufficient. These facts can be internal and external; in the case of inner facts, the boundary to personal suitability is blurred. If an internal fact concerns the suitability, it has to be disregarded in the reliability check. External facts can be violations of the law and statutes of all kinds, provided that they can be attributed to the weapon bearer or applicant. These facts must be proven by solid evidence such as documents, witnesses or judgments. The fact (s) must exceed the materiality threshold of the conduct described in paragraph two; furthermore, a single fact is usually not sufficient for an assessment in accordance with Section 5 (1) No. 2. If the person concerned “trivializes” their behavior, this represents the legitimate exercise of their defense as long as they do not signal that they want to act in the same way in the future.
What exactly constitutes misconduct under gun law is described in Section 5 (1) No. 2 of the Weapons Act. The interpretation of the indefinite legal terms can be found in the provisions of the WaffG and the AWaffV, so that it can be determined without any gaps which sanctioned behavior leads to unreliability. The terms abusive, reckless, cautious, appropriate and careful are to be interpreted by the authority in each specific case, which regularly poses problems for the authority's employees. If in doubt, refer to case law and literature. For example, when handing over a weapon within the meaning of Section 5 (1) No. 2 c) WaffG, it is sufficient that there is the possibility that the unauthorized third party can access the weapon independently and without the involvement of the authorized person.
In any case, legal advice is to be obtained before the first statement is made to the authority in order not to make yourself implausible through contradictions or a trivialization, because a court-initiated comparison with the authority is now common. In addition, a knowledgeable lawyer will reveal that the official justification for the unreliability is all too often limited to a simple repetition of the wording of the law. For example, a lawyer must check whether the authority has recognized that the convictions for crimes and criminal offenses of at least one year imprisonment under paragraph 1 number 1 set the standard for assessing the facts of paragraph 1 number 2. The authorities must in each individual case carry out a precise risk analysis and thereby arrive at your forecast. This means that there must be a high probability of damage to high legal interests such as life and limb from the established facts. The probability does not have to be a probability bordering on certainty and the probability and the amount of the damage must exist in each case and must not compensate for one another.
How does the practice deal with the facts of § 5 Abs. 1 Nr. 2 WaffG?
The courts tend to accept all too often facts which justify the assumption of improper or frivolous use of weapons or ammunition according to Section 5 (1) No. 2 a) WaffG. The Munich Administrative Court, for example, ruled on July 24, 2014 that membership in the Bandidos motorcycle club was absolutely unreliable. It is sufficient that the license holder regularly visits the “milieu” where criminal offenses are usually committed. Networks in organized crime are known, especially among such rocker groups. A sufficient probability of weapon abuse based on general life experience is sufficient, a residual risk is sufficient. There is no need to wait for a criminal act. In the future, there is a particular risk that this jurisprudence will be applied to any grouping, so that supporters of certain political parties or other organizations could also be affected.
Another case group of the factual prognosis is the assumption that the person concerned “does not handle weapons or ammunition carefully or appropriately, or does not store these items carefully”. Particularly in the area of legal custody obligations, some things have been tightened as a result of rampages, which will be discussed further below in a special chapter. For example, the Meiningen Administrative Court, in accordance with national case law, revoked a hunter's gun license because he placed his warrant on the passenger seat while driving in his hunting area on the way to hunting. Here, the court made it clear that car trips in the hunting grounds as part of a hunt do not count towards the pursuit of hunting within the meaning of Section 13 (6) WaffG and therefore hunting weapons must be properly stored in an appropriate container. The one-time violation already convinced the judge that further violations of this type were sufficiently likely in the future (VG Meiningen, 02.06.2014 Az.8E34 / 14Me). In another case, the main customs office found a loaded hunting rifle on the table of a hunter during a house search, whereupon the hunter lost his gun ownership card, his hunting license and his European firearms pass (VGH Bayern, 13.05.2014 Az. 21CS14.720).
A Bavarian hunter was so irritated by prospective buyers visiting his neighboring property that he shot his rifle several times in the air as a deterrent. Despite the discontinuation of the criminal proceedings and the positive professional psychological opinion in terms of his suitability, he will probably not regain his weapons law permits for several years (VGH Munich, decision of 15.209.2014, Az. 21ZB14.1305)!
After the breakdown of his marriage, a hayman had expressed his intention to commit suicide in a letter. When the weapons authorities found out about this, the court rightly withdrew their weapons possession card and hunting license due to a lack of reliability, since there was a risk of self-harm and danger to others through the misuse of weapons (VG Würzburg, decision of February 11, 2014 Az: W5S14.23). In another case, a hunter borrowed a car to go hunting, but forgot to take his gun out of the glove compartment when he returned the car to the owner. As fate would have it, a little later he got into a police check, who found the handgun in the glove compartment, ready to be fired and to hand. This had serious consequences for both of them, the hunter had to accept a ten-year hunting ban, although he had never owed anything before and there were three and a half years between the police check and the revocation of his hunting license; the driver had to pay a fine (VG Köln, January 22, 2014 Az.20 L 1552/13).
Incidentally, a violation of the storage obligations according to Section 5 (1) No. 2 b) WaffG is also if you leave the operating instructions with the manufacturer's combination of the lock on the gun cabinet without changing the manufacturer's combination (VG Münster 09.09.2014).
As you can see, a one-off brief 'momentary failure' is enough to induce the authorities and courts to withdraw their reliability under the law on weapons. In the event of a conviction within the meaning of Section 5 (1) No. 1 WaffG, action against the weapons authority is generally futile; in principle, the only option left is to take action against the criminal judgment in order to eliminate the requirements of Paragraph 1 No. 1. In the event of unreliability due to a prognosis, the chances of defense are much more optimistic. In individual cases, one can certainly spread doubts about the negative prognosis, even if the courts generally tend to negligent inattention to produce a 10-year negative prognosis allow.
Who is “generally unreliable” in the sense of Section 5 (2) of the Weapons Act?
In the second paragraph of Section 5 of the Weapons Act, facts are listed which, if present, can regularly be classified as unreliable. In contrast to absolute unreliability, the person concerned can, despite the undisputed existence of the facts, invalidate the classification as unreliable in his specific case by submitting opposing facts. Should this not succeed, however, the unreliable people are at least “only” threatened with a license ban of five years. These are mostly convictions that do not reach the threshold of absolute unreliability, but at least the limit of 60 daily rates or two small fines, which can happen quickly even in traffic. The classification as a member of an anti-constitutional association and the question of when a violation is “gross” according to Section 5 (2) No. 3 or 5 WaffG remain problematic.
Section 5 (2) WaffG is to be applied independently in addition to Section 5 (1) WaffG; in particular, Section 5 (1) No. 2 WaffG is not a catch-all provision for cases that cannot be classified under the unreliability of the rules; such a procedure would be contrary to the system.
Rule unreliability according to § 5 Abs. 2 Nr. 1 WaffG
As a rule, people who do not have the required reliability
- a) because of an intentional criminal offense,
- b) because of a negligent criminal offense in connection with the handling of weapons, ammunition or explosive substances or because of a negligent public offense,
- c) because of a criminal offense under the Weapons Act, the War Weapons Control Act, the Explosives Act or the Federal Hunting Act
have been legally sentenced to a custodial sentence, a youth penalty, a fine of at least 60 daily rates or at least twice to a lower fine or for whom the imposition of a youth penalty has been suspended if five years have not yet elapsed since the last conviction became final.
The rule unreliability due to an intentional criminal act does not require physical or armed violence, as already mentioned above, in practice it particularly affects tax evaders. In contrast to this, Section 5 (2) No. 1 b) WaffG establishes a connection to weapons, etc. according to the wording, so that in the case of a conviction for several offenses, only the individual sentences of the offenses relevant to weapons law need to be taken into account. In the case of acts according to No. 1 c), the laws named there must of course be used.
The standard presumption of a penalty of 60 daily rates or more is owed to court practice, which assumes a considerable injustice when judged from this magnitude, so that trivial offenses are not affected. In the case of two smaller convictions, this value does not have to be reached in total. The lock-up period of five years under gun law must be strictly separated from the lock-up period under hunting law, the length of which is not precisely quantified in the law. However, the hunting authority is not obliged to decide on a corresponding hunting application within the scope of the lock-up period under the law on weapons.
In addition, it is not necessary for the presumption of unreliability that the criminal offense that has been convicted is related to a criminal offense with weapons or violence. Rather, the Bavarian Administrative Court (Az. 21ZB14.1112) was also convicted of a 90-day fine for tax evasion in order to assume unreliability under Section 5 (2) No. 1 a) WaffG. Because according to § 5 Abs. 2 WaffG it only depends on the punishment, an appeal to the reparation of the damage and an impunity-free way of life as well as the passage of some time between the act and the judgment is not relevant in this context. Legal opportunities to combat such an assessment are, however, certainly given, if, for example, the misconduct appears in a particularly mild light as an exception. Administrative court practice is particularly tough, however, if the person concerned has merely accepted aiding and abetting a criminal offense and does not derive any personal financial benefit from the aiding and abetting. These aspects have already been taken into account in the assessment of the sentence and no longer need to be assessed in the weapons law procedure, especially since the WaffG does not differentiate between perpetration and participation.
Rule unreliability according to § 5 Abs. 2 Nr. 2 WaffG
As a rule, people who do not have the required reliability
- a) in an association that has been incontestably banned as an organization under the Associations Act or that is subject to an incontestable prohibition of activities under the Associations Act, or
- b) in a party whose unconstitutionality has been determined by the Federal Constitutional Court pursuant to Section 46 of the Federal Constitutional Court Act,
if ten years have not elapsed since membership was terminated.
Number two in a) refers to membership in associations that are finally forbidden according to the Association Act or at least are not allowed to operate as an association. The person concerned must have been a member at a time when the association was (already) illegal. These are organizations that violate criminal laws, the constitutional order or international understanding.
In section 2 b) of the second paragraph, everyone is declared unreliable who is or was a member of a party whose constitutionality the Federal Constitutional Court had already determined at the relevant time.
Both facts draw a ten-year lock-up period after leaving the association or party, which can be justified with the particular danger of the organized collective.
Rule unreliability according to § 5 Abs. 2 Nr. 3 WaffG
As a rule, people who do not have the required reliability
- pursue or support endeavors individually or as a member of an association or have pursued or supported endeavors in the past five years
- a) against the constitutional order or
- b) are directed against the idea of international understanding, in particular against the peaceful coexistence of peoples, or
- c) endanger foreign interests of the Federal Republic of Germany through the use of force or preparatory actions aimed at it.
In contrast to section 2, the focus is now on active, targeted, but not necessarily aggressive activity in or outside an association, which does not have to be legally prohibited.The interpretation of anti-constitutional efforts can be made easier with the help of the provisions of the Criminal Code and the Federal Constitutional Protection Act. Here too, due to the “unreliability of the rules”, the five-year embargo period leaves room for individual justice.
From a legal point of view, the VG Bremen and the VG Weimar have made remarkable decisions by simply linking an unreliability to the party affiliation of the NPD, since those affected, as functionaries of this right-wing extremist party, pursue or support efforts that are directed against the constitutional order (VG Bremen 08.08.2014). This is astonishing because not even the Federal Constitutional Court, and thus the highest German court, ultimately saw itself in a position to declare the NPD unconstitutional on the basis of the reports on the protection of the constitution. In the end, the authorities are apparently given all the freedom to evaluate other party people such as members of the left as generally unreliable when it comes to handling weapons. With regard to the separation of powers between the legislature, judiciary and executive in the constitutional state of Germany, this appears questionable.
Rule unreliability according to § 5 Abs. 2 Nr. 4 WaffG
As a rule, people who do not have the required reliability
- have been in preventive police custody with judicial authorization more than once in the past five years for violence.
This records non-political violent criminals, such as hooligans, who may not have appeared under criminal law, but who exceed the criminalistic minimum limit.
Rule unreliability according to § 5 Abs. 2 Nr. 5 WaffG
As a rule, people who do not have the required reliability
- have repeatedly or grossly violated the provisions of one of the laws mentioned in number 1 letter c.
Gross violations are to be understood as culpable, willful or negligent, objectively serious violations that indicate a certain not insignificant legal hostility on the part of the author. This is intended to cover criminal offenses and administrative offenses that do not fall under the categories listed above. However, the threshold of at least one administrative offense must be reached.
A repeated violation will only occur as an exception if there are only two violations, as Section 5 must also be measured against the severe consequences of the five-year license withdrawal. Therefore, the offenses that are more than five years before the next offense must be logically disregarded. Overall, this fact must be interpreted very narrowly so that it does not "degenerate" into a general clause of the authorities with the same five-year ban, which is by no means intended by the legislature. In individual cases, however, it is sufficient if a gun carrier continuously fails to comply with his obligations under gun law, etc., and thereby endangers effective official control of the gun owner.
The problem of the gross violation according to § 5 Abs. 2 Nr. 5 WaffG becomes clear in the case of a hunter who already put his hunting rifle in his vehicle parked in front of his house, but had to go back into the house due to diarrhea. Only after 80 minutes did his son get the long guns through the car window, which was open to a quarter, and the local police caught him. This was officially - and judicially confirmed - a gross violation within the meaning of § 5 Paragraph 2 No. 5 WaffG against the storage regulations of § 36 WaffG, so that a rule unreliability led to the withdrawal of the weapon possession card. The existence and the outcome of such criminal proceedings are not relevant for the assessment in terms of weapons law; what matters is whether the breach of duty of care weighs heavily with regard to the objective of the respective protective provision and is subjectively reproachable, at least in the sense of negligence. The 80-minute access to a live weapon by any passerby should be sufficient in this case (VG Regensburg 08/13/2014). However, why an absolute unreliability due to the breach of the safekeeping provisions according to paragraph 1 is not considered remains the secret of the authority, especially since this would have resulted in a ten-year blocking period instead of a five-year period.
However, if the criminal proceedings end with a suspension, this does not prevent the officials of the weapons authority from making a negative weapon law prognosis, because such a prognosis is not excluded by the suspension of the prosecution of a criminal offense due to the different aims of the WaffG.
The listed facts of § 5 Abs. 2 WaffG are not subject to any hierarchy and are not necessarily exclusively applicable in relation to one another. The possibility of an exception to the rule is intended to avoid a blind schematic of the authority. Rather, the objective and subjective circumstances of the perpetrator's personality and behavior should be examined individually in each case in order to do justice to proportionality aspects.
In paragraph three it is made clear that imprisonment periods are not included in the period that has elapsed since the final conviction, since the detainee cannot logically prove himself to be reliable in freedom.
If the criminal proceedings have not yet been concluded, the authority can suspend its decision in accordance with Section 5 (4) WaffG until the proceedings have been concluded.
The last paragraph 5 obliges the authorities to obtain relevant information from the federal central register and the public prosecutor's procedural register in order to determine the reliability in order to prevent incorrect assessments. The local police station should also provide a statement, but it is imperative to pay attention to the wording of the request: Only existing knowledge may be requested; the request must not trigger any police investigations in the personal or neighborly environment of the person concerned with regard to facts relating to unreliability. However, the list of research options is not exhaustive.
Incontestable decisions by the authority, such as the revocation or refusal of a weapon possession card, must be reported to the Federal Central Register.
What is the most effective defense strategy?
The most sensible strategy for avoiding an official withdrawal of weapons and hunting licenses is to start in the criminal proceedings and work there as a lawyer to achieve the least possible outcome so as not to create the conditions for absolute unreliability in the first place. Therefore, you should immediately tell your legal adviser that you are a passionate hunter, since a corresponding question from the lawyer is anything but natural given the negligibly small proportion of hunters in the total adult population. This would then probably work towards a termination of the proceedings instead of taking a risk in order to 'pull through' the proceedings up to the acquittal. Although there is no sanctioning measure under weapons law, even in the case of a criminal suspension, since a negative weapon law risk prognosis may still exist, the possibilities to defend oneself against a corresponding prognosis are eminently higher than in the case of a gun license withdrawal according to Section 5 (1) WaffG. If the criminal judgment or the setting is final, the public prosecutor will notify the competent weapons authority. The authority will then revoke the weapon possession card and withdraw the hunting license after a thorough examination if the requirements of § 5 WaffG are met. In any case, the authority is obliged to check the reliability of gun carriers at the latest every three years. The authority will first set a deadline for the supposedly “unreliable” person to comment on the allegations made, this is an expression of the principle of the right to be heard before state measures. However, the jurisprudence does not tend to be receptive to the argument that it is a non-weapon offense; in the end it all depends on the sentence. If the authority sticks to its plan, it will ask to hand over weapons and ammunition to an authorized third party or to make them unusable; furthermore, the weapon possession card must be presented and handed over to the authority for discharge. In individual cases, it may be advisable not to issue a notification in order to save money. However, one must be aware that in this case a judicial contestation of the decision is excluded. In any case, you should seek advice from a lawyer who is well versed in gun law, as the chances of success in gun law vary so widely. In addition, it must be borne in mind that an objection or a lawsuit against a decision by the authority does not invalidate the revocation and the request to render it unusable.
How can you go hunting despite the withdrawal of your gun license and hunting license?
If the judicial and extrajudicial rebellion against the official withdrawal remains in vain, there is still an alternative: the so-called "hunting license tourism". As long as you have the weapons law documents and permits to hand, you can relatively easily "get hold of" a foreign hunting license abroad. Often it is enough to present the local hunting license and the authorization certificate without requesting a certificate of good conduct. But even if the hunting license has already been withdrawn, one has legitimate ambitions to be allowed to hunt in the Austrian state of Salzburg, since the authorities there are usually satisfied with a hunting test that has been passed in Germany. If you want to indulge your hunting passion at home in Germany with this foreign hunting permit, the fate of this venture varies depending on the federal state. Some federal states are interested in the federal central register, while others allow foreign authorization in combination with the invitation of a hunter responsible in the area to be sufficient. But even if hunting is denied in this country, it remains an attractive alternative, at least for hunters resident near the border, to be allowed to hunt abroad.
What applies to criminal convictions abroad?
A conviction by a foreign criminal court has to be disregarded in questions of weapons law, since a referral would violate the principle of equal treatment due to the sometimes very different criminal law systems. In addition, in the case of German criminal judgments, the authorities are required not to evaluate the reasons for the verdict and the facts established by the court, especially since this would probably also overwhelm the weapons authorities in terms of time and content.
The hunting law firm
Dr. Heiko Granzin
Wandsbeker Zollstrasse 19
Telephone: 040 - 524 743 - 80
Fax: 040 - 524 743 - 899
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