The matter of arms law has always required a careful analysis of jurisprudential guidelines, often wavering. In this regard, we point out a very recent sentence of the TAR for Sardinia, the n. 496/2023, which directly concerned our firm. The ruling in question is essentially relevant because it excludes any automaticity in the event that restrictive measures in the field of weapons affect a cohabiting family member, excluding that this can in itself only determine the adoption of similar measures against the cohabitant.
The facts
With provisions of March 2022, the prefect and the Questura of Sassari had revoked the detention titles and firearms license of the applicant's partner.
About six months later, the same Administrations had therefore given rise to similar measures against our client, motivated only on the assumption of cohabitation with her partner, as said recipient of the above measures.
The reasoning of the sentence
The TAR for Sardinia, fully accepting our defense thesis, nevertheless considered that the aforementioned measures are completely illegitimateamong other things because:
- between the date of the measures issued against the comrade, dating back to March 2022, and the measures against the appellant, of September 2022, many months have passed, so as objected by the appellant, the Administration should have sent the interested party the notice pursuant to art. 7 of Law no. 241 of 1990, not recognizing profiles of urgency such as to justify the omission, given the long time that has passed;
- the weapons found as part of the police check carried out in February 2022 were duly reported and, in any case, after the initial seizure, the Sassari Freedom Court ordered their release by order (...), deeming the fumus committed delicti, having the suspects "the obligation of diligence in the custody of weapons has been sufficiently fulfilled, and that for this reason pregnant serious indications of guilt of the crime for which the proceeding is not emerging, it cannot be argued that the mere promiscuity of a certain number of weapons legitimately held, in a family environment made up of authorized subjects, inside numerous metal lockers, can be considered an element such as to be able to found the fumus of the crime in question";
- the violation of the due hearing in the present case is even more evident if one considers that the appellant is the founder and vice-President of the Amateur Sports Association (...), where she works as an instructor and head of the shooting lines, so that if involved in the proceedings she could have declared her willingness, in fact expressed in court, to keep, if necessary, the weapons and ammunition in her possession in the headquarters of the Association, i.e. in a different place from the one where she lives with her partner;
- moreover, from this point of view, the contested measures are also illegitimate due to violation of the principle of proportionality, since the Administration has to choose, among the most options able to satisfy the prevailing public interest, the one least prejudicial to the private sector, even more so in the case of measures that are based on behaviors attributable not to the addressee of the deed, but to third parties, as in the present case.
Therefore, having found all the aforesaid defects, the judge accepted the appeal and annulled all the contested acts.
Conclusions
Very useful principles of law can be drawn from the aforementioned sentence. In particular, it follows that:
- the fact in itself of cohabitation with the recipient of restrictive measures in the field of weapons is not in itself sufficient to justify the adoption of measures of the same tenor against the cohabitant, especially in the absence of reasons that specifically concern him;
- in the absence of urgency, the communication of the initiation of the procedure must also be given in the matter of procedures relating to weapons, in compliance with the participatory and adversarial principle;
- the Administration must always act according to the principle of proportionality, avoiding harming the private interests involved in its action to a greater extent than what is strictly necessary for the pursuit of the public interest: therefore, in terms of weapons, if the interested party demonstrates that he can keep them in another safe place, there is no reason why the seizure should proceed.
Photo: (partial) US Marine Corps
