One of the most frequent issues that arise in practice with regard to the issue of licenses for possession and possession of arms, referred to TULPS rd 18 June 1931, n. 773, concerns the relevance of a previous sentence of conviction or even of a pending criminal proceedings against the interested party.
Do both preclude the issue of the license or prevent it from being renewed?
The answer is no. Or rather, not always. Provided that it does not fall under the type of offense referred to in art. 43, paragraph 1, of the TULPS just mentioned, case in which the ban on release or renewal is automatically triggered.
In essence, much will depend on the nature of the offense (or worse yet established, perhaps with a final sentence). Only in cases where criminal conduct involving the use of weapons is involved, or that anyway denote violent behavior by the interested partyin fact, there will be a serious problem of compatibility between the facts with criminal relevance and the outcome of the procedure aimed at issuing the qualifications in question.
But we proceed with order.
Two large categories of hypotheses: constrained activity (obligatory ban) and discretionary (prohibition only possible) of the pa
The analysis of the question presupposes a synthetic classification of the subject and its discipline.
From reading the articles 11 and 43 of TULPS rd 18 June 1931, n. 773 emerges that the legislator has distinguished cases in which the administrative authority is the holder of strictly bound powers (Article 11, c.1 and 3, first part, and Article 43, c.1), which impose a ban for the issue of licenses for possession and possession of arms (or their withdrawal) in the presence of certain crimes, and cases in which the PA itself has discretionary powers (Article 11, C. 2 and 3, second part, and article 43, c.2), which allow a prognostic evaluation of the reliability of the applicant (for a summary note in this regard, see also in the jurisprudence the recent Cons. State, section I , 9 April 2018, No. 935).
It has in particular the art. 43, first paragraph, TULPS that "In addition to what is established by art. 11 can not be licensed to carry weapons: a) to those who have been sentenced to imprisonment for non-culpable offenses against persons committed with violence, or theft, robbery, extortion, kidnapping for the purpose of robbery or extortion; b) to those who have been sentenced to a restrictive sentence of personal liberty due to violence or resistance to authority or for crimes against the personality of the State or against public order; c) to those who have been condemned for desertion in wartime, even if amnestied, or for illegal port of arms".
Instead, it establishes the second paragraph of the same provision that "The license may be refused to those convicted for a crime other than those mentioned above and to those who can not prove their good behavior or do not rely on not to abuse the weapons".
In the first group of hypotheses, as mentioned, the sentence necessarily leads to the denial of the release (or renewal) of the license to hold or carry firearms. On this point, however, it should be noted that the automaticity of this negative outcome is now subject to the scrutiny of the Constitutional Court itself, before which a question of constitutional legitimacy in this regard, both from the Tuscany TAR, with the ordinance 16 January 2018, n. 56, both from the TAR Friuli Venezia Giulia, with the ordinance n. 190 / 2018.
In other cases, on the other hand (in the event that no one of the crimes referred to in the first paragraph of Article 43 TULPS is raised), the discretionary power of the public security authority comes into play.
Now the jurisprudence has repeatedly stressed the extent of this power. As reported by the other Tuscany TAR, sect. II, 27 May 2016, n. 905, "in the matter of preventive measures to the port and the detention of weapons, the Administration of ps, having to pursue the purpose of preventing the commission of offenses and / or facts harmful to public order, [ha, ed] wide discretion in assessing the reliability of the subject to make good use of weapons".
However, if this is true, it is also true that the aforesaid power can not be exercised by the PA in an arbitrary manner, but in respect of precise limits, among which are those to proceed to an adequate investigation, which takes into account all the relevant profiles, and to formulate a specific motivation, which allows the subject to be fully aware of the reasons for any refusal.
The jurisprudence, both constitutional and administrative, has repeatedly underlined this assumption, and has specified it over time.
Let's see how.
Constitutional jurisprudence
According to the sentence n. 331 / 1996 of the Constitutional Court no immediately impeding character, for the purpose of the issue or renewal of the public security licenses, can be attributed "to having reported one condemnation in criminal proceedings", Given the need"to proceed to a concrete prognosis that takes into account a series of circumstances, such as the age at which the disputed conduct goes up, the repeated renewals of the police title meanwhile intervened, the conduct subsequent to the crime and possibly symptomatic facts of topicality of social danger".
What matters in short, in the opinion of the Consulta, is that the public safety authority proceeds to consider all relevant elements regarding the overall assessment of the applicant's reliability, and in particular if this has never given rise to symptomatic behaviors - in a prognostic key - of a tendency to abuse weapons, and more generally has never become the protagonist of gestures or conduct that reveal a violent or unbalanced nature.
The administrative jurisprudence
On this escort, in Cons. State, section V, 22 October 2013, n. 5129 highlights in this regard that "As noted by the constant case law of both first and second instance, the ratio at the base of the legislation governing police authorizations, as evidenced by the combined provisions of Articles 11 and 43 of the TULPS, except for the hypotheses in which the release is strictly excluded, it resides in the opportunities to prevent the authorization to carry weapons are issued to subjects who, due to their previous behavior, show poor reliability on their correct use, being able in the abstract to constitute a danger for safety and for public order ".
This being stated, in the same decision it is specified that "It is however necessary that the previous behavior of the applicant they are symptomatic, suitable therefore to highlight a violent personality, inclined to resolve situations of conflict even with recourse to arms, or, in hypothesis, able to attack the other patrimony with the use of weapons and in synthesis that, from the perspective of a ex ante prognosis, do not guarantee a correct use of weapons without disturbing the social order". And it is a good view of a more than consolidated orientation (in the same sense, in addition to the aforementioned TAR Emilia-Romagna - Parma, section I, 21 September 2015, No. 253, see ex multis, TAR Abruzzo, 15 January 2015, n. 28; TAR Sardinia, 26 June 2015, n. 888).
No relevance may therefore have for the purposes of the issue of the licenses in question a sentence or otherwise a criminal proceeding concerning crimes that do not involve the use of weapons or in any case that do not show that the behavior of the applicant has denoted a violent nature or aggressive (in this sense, TAR Toscana, 27 May 2016, No. 905, in which the question of financial crimes was made, and again see also TAR Emilia-Romagna - Parma Section I, 21 September 2015, No. 253. recalled the decision of the Council of State, however, the crime of extortion was involved).
Thus, in TAR Sardinia, sect. I, 26 June 2015, n. 888 states in this regard that "The prefectural provision prohibiting the possession of weapons and suspension of the rifle port license for hunting purposes is illegitimate. motivated with exclusive reference to a criminal trial against the owner and therefore without any specific assessment about the reasons for which it was considered that the person concerned is no longer suitable to hold arms and ammunition".
And again consider TAR Abruzzo, sect. I, 15 January 2015, n. 28, which involved a conviction for illicit drug trafficking. It was noted, in confirmation of the above, that "Even in the presence of criminal convictions (...) the Administration must examine on a case by case basis the personal situation of the subject interested in the issue or renewal of the license, making a concrete prognosis on its reliability that takes into account the series of circumstances just highlighted
This, of course, unless the sentence or the criminal proceedings in question does not constitute one of the multiple circumstances from which the proceeding authority does not consider justifiably to infer the defect of reliability of the applicant, in the sense and effects mentioned above .
In conclusion
Ultimately, it follows from the above full illegitimacy the provisions of the public security authority (by jurisdiction, the Prefecture, with reference to detention, and the Police Headquarters, with regard to the arms license) that deny the issue or renewal of the aforementioned licenses on the sole assumption of the reference to judgments of condemns or in any case to crimes that do not have the characteristics mentioned above. Especially, in case the facts or the decisions at stake are dated.
The remedies available
As for the remedies available, if it is believed that, according to what has been said, the refusal to issue (or renewal) the possession or possession of arms, of which we have been made recipients, is illegitimate, it will be necessary to propose an appeal to the territorially competent TAR within 60 days from the notification or in any case from the communication of the deed or, alternatively, to propose an extraordinary appeal to the President of the Republic, within 120 days starting from the same initial term.
It is possible, on closer inspection and even before, within 30 days from the same dies a quo, to propose a hierarchical appeal pursuant to and for the purposes of art. 1 of the 1199 / 1971 dprn, but the chances of success are frankly very poor, given that rarely the same public administration (albeit to the hierarchical degree superior to that originally appealed) is inclined to retrace their steps by canceling an act. And much less will you proceed in case of self-defense, in case it will not even be required to give any answer.
Given the length of time that the extraordinary appeal to the Head of State is now meeting, the instrument of protection that should certainly be preferred is the appeal to the competent Administrative Judge.
Any evaluation in this regard, however, is to be referred to the individual case study.
Avv. Francesco Fameli
expert in military administrative law and arms law
(photo: web / Arma dei Carabinieri)
