Thinking of the stories of the Wild West? The Constitutional Court of Romania and the fundamental right of defendants to procure and use lethal firearms

Dragoș Călin[1]

  1. Decision No 78 of 14 February 2024

A recent solution of the Romanian Constitutional Court enabled defendants in criminal cases to procure and use lethal firearms, even if they are indicted, as these rights ‘are directly related to various fundamental values and rights regulated in the Constitution’.

Decision No 78 of 14 February 2024 was delivered on the occasion of ruling on certain objections of unconstitutionality raised in several case-files by the ordinary courts concerning challenges brought against the provision suspending the right to possess, carry and use lethal weapons issued by the police inspectorates, as a result of the plaintiffs acquiring the status of defendants in various criminal cases.

The authors of the exceptions argued, in essence, that the introduction, as a mandatory condition for obtaining authorisation to procure lethal weapons, of the requirement that the requesting person should not be charged in a criminal case penalises the accused person, although his guilt has not been legally established.

The Constitutional Court of Romania considered that the acquisition, carrying, use and operation of firearms are directly related to various values and fundamental rights regulated in the Constitution, meaning that the free development of the human personality (in the form of personal freedom of action), the right to life and physical integrity (self-defence), the right to an ecologically balanced environment (for maintaining, through hunting, a balanced ecosystem), the right to work (in respect of persons exercising protection and guard activities involving the use of firearms), the right to private property (on firearms) or economic freedom (marketing of firearms) were retained.

This is a series of incidental fundamental rights and freedoms, deriving from Article 1 paragraph (5) of the Romanian Constitution referring to the legal certainty of the person, a concept that is defined as a complex of guarantees of a nature or with constitutional valences inherent to the rule of law, in consideration of which the legislator has the constitutional obligation to ensure both a natural stability of the law and the optimal valorisation of fundamental rights and freedoms.

The Constitutional Court of Romania found that, on the one hand, the instability of the legal norms in the field of procurement, use and operation of firearms is obvious, the regulations alternating in short periods of time, and, on the other hand, the content of the legislation in force opens the question of assessing the optimal use of fundamental rights and freedoms directly related to the firearms regime. This second side of legal certainty encompasses the idea of protecting and ensuring the intactness of fundamental rights and freedoms within the system of national law, which presupposes the exclusion of legal uncertainty, excess of power, arbitrariness and subjectivism of the authorities exercising State power.

The restrictive regime governing firearms calls into question the legislature’s understanding of the content of fundamental rights and freedoms. Legal certainty is a dynamic and evolving concept, which does not have the role of agglutinating the various fundamental rights/liberties, but of imposing a benchmark of stability and rationality in the legislative work which, as a matter of principle, directly or indirectly concerns fundamental rights and freedoms, meaning that in order to assess the optimal nature of their exploitation by the legislator it is necessary to use the principle of proportionality, subsumed under the concept of est modus in rebus.

The Constitutional Court of Romania considered that the regulated measure does not appear to be proportionate to the legitimate aim pursued, from the perspective of the relationship between the premiss – the committing any criminal act with intent – , and the consequence established by law – the loss of the right to acquire and possess a weapon. Also, there is no legal individualization of the penalty, as a customisation operation whereby the punishment is adapted to the needs of defending the social values. Under the law, regardless of the nature of the act committed, its seriousness and social danger, the conduct of the defendant, it is presumed as a public danger to the security of the people around him/her.

Given the eminently preventive nature of the measure (the act for which the accused is under criminal investigation has not yet been proven to have been committed), if it is applied automatically, for any intentional act for which the person is accused, its excessive character clearly appears, which goes beyond both the purpose of regulation (protecting public order and citizens’ rights and freedoms) and the purpose of applying the sanction (removing the state of danger produced and preventing the committing of antisocial acts by means of weapons/ammunitions held).

The Constitutional Court of Romania recalled the provisions of Article 6(1) of Directive (EU) 2021/555 of the European Parliament and of the Council of 24 March 2021 on control of the acquisition and possession of weapons, according to which ‘Member States shall allow the acquisition and possession of firearms only by persons who have good cause and who: are not likely to constitute a danger to themselves or to others, to public policy or to public security; the existence of a conviction for the intentional and violent commission of a criminal offence is deemed to indicate such danger’.

Objectives relating to the general interest of the State in ensuring the protection of public order and the rights and freedoms of citizens must be balanced with the interest of individuals in enjoying a right provided for by law. Following the proportionality test regarding the measure of restricting the exercise of the right to carry a weapon, as a result of bringing criminal proceedings against any person accused of having committed an intentional crime, does not meet the condition of proportionality, the measure being excessive in relation to the objective to be achieved, so that the provisions of Art. 14 par. (1) letter d of Law No. 295/2004 are unconstitutional.

  1. A few comments

Certainly, Decision No 78 of 14 February 2024 of the Constitutional Court of Romania can be considered, in essence, correct, but certain aspects cannot go unnoticed, given that in Romania, according to the Constitution, the right to procure or own a weapon is not a universal fundamental right and the legislator has established increased requirements to those persons who are allowed to use a weapon.

Moreover, it is not the first time that constitutional courts (or supreme courts with powers of constitutional review) rule on the right of defendants to firearms, which is not classified as a fundamental one, nor does it provide comprehensive protection for any category of defendants.

I.e., on 26 March 2008, the Constitutional Review Chamber of the Supreme Court of Estonia declared clause 43 (1) 2) of the Weapons Act to be unconstitutional and repealed it insofar as it does not allow a police prefecture to take into account the suspect or the accused personal data, the circumstances of the suspicion or charges when suspending the validity of the weapons acquisition permit or weapons permit of the suspect or the accused. In the event of a criminal procedure whose object is not a crime against life or health or where other circumstances posing a threat of weapon’s abuse do not exist, the suspension of a weapons acquisition permit or weapons permit using a compulsory procedure is not a proportional measure for the protection of the life and health of other persons.

For sure, to suspend the weapons permit or acquisition permit of a suspect or of an indicted person without taking into account the circumstances of a concrete case, including the personality of the holder of the weapons permit or acquisition permit and the circumstances serving as basis for the suspicion or the charges (degree and nature of criminal offence, etc.) is not proportional to the aim of protecting the health and lives of other persons.

Therefore, what needs to be evaluated is the probability of harming the constitutional rights (such as the life and health of other persons) and this depends on both the characteristics of a weapon, the purpose of using the weapon, as well as the personality of the person who uses the weapon.

It is obvious that neither in Romania the provision does not take into account the gravity of the possible criminal offence committed by the suspect or by the accused, nor the danger of the act to the general interests of the society. But it is not the guilt of a person that serves as a basis for suspension of a weapons permit or acquisition permit, instead it is the danger the person constitutes on the basis of the acts he/she has allegedly committed.

Pursuant to the EU Directive invoked by the Constitutional Court of Romania, the member states must ensure that weapon licenses cannot be held by persons who are likely to be a danger to themselves or others, to public order or to public safety.

The Directive also refers to the existence of a conviction for the intentional and violent committing of a criminal offence is deemed to indicate such danger, but this does not mean that any other distinct hypothesis is excluded. Thus, it would have been necessary for the Constitutional Court of Romania to clarify the reasoning.

Moreover, it would have been necessary for the Constitutional Court of Romania to make a request for a preliminary ruling to the Court of Justice of the European Union in order to ensure a uniform interpretation. Even if the reference to the Directive does not appear to be obiter dictum, but rather additional (additional) or complementary (to make up for the lack of domestic arguments), the effects of placing such an argument may differ from what has been suggested ab initio.

The insufficiently explained decisions and directives cited briefly are unconvincing. They lead, at least, the readers less familiar with the phenomenon to think more of the stories of the Wild Wild West.

[1] PhD Dragoș Călin is judge at the Bucharest Court of Appeal, co-president of the Romanian Judges’ Forum Association, associate researcher, Legal Research Institute of the Romanian Academy. Professional e-mail: dragos.calin@just.ro.

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