The matter of arms law, as well as the other articulations of administrative law, is characterized by a strong jurisprudential imprint. Indeed, it is impossible to claim to have adequate knowledge of it by ignoring the most recent jurisprudential pronouncements on the point.
One of the most frequent questions that we are asked in the daily practice of arms law, for example, is the following: conviction for one of the crimes envisaged by art. 43 of the TULPS necessarily entails the ban on the carrying of weapons?
The answer to the aforementioned question can only come, given the above, from the examination of the most recent jurisprudence on the subject.
The Council of State reaffirms the absence of automatism between sentences for the crimes referred to in art. 43 TULPS and ban on carrying firearms
The answer to the above question is no.
In fact, this automatism is determined only in the case in which the sentence relating to one of the aforementioned crimes provides for the imprisonment of the offender. In the case of a mere fine, therefore, it is necessary for the public administration to specifically evaluate the application that has been submitted to it, since the rejection cannot therefore necessarily and automatically derive from the sentence that ascertains the criminal offence.
This was also recently reaffirmed by the Council of State, Section III, most recently with the sentence of 8 September 2022, n. 7812.
In the present case, a hunter had been denied the renewal of the license to carry a rifle for hunting use by the Police Headquarters for a previous sentence of 15 days' imprisonment, replaced with a fine, for the crime of aggravated theft.
Both in the first instance and in the appeal, however, the reasons of the interested party proved to be well founded.
Proceeding in order, as regards the reference regulatory framework, first of all, pursuant to art. 43 TULPS in force ratione temporis, “[…] a license to bear arms cannot be granted:
a) to those who have been sentenced to imprisonment for crimes committed with intent against people with violence, or for theft, robbery, extortion, kidnapping for the purpose of robbery or extortion;
b) to those who have been sentenced to restrictive personal freedom for violence or resistance to authority or for crimes against the personality of the State or against public order;
c) to anyone who has been sentenced for desertion in time of war, even if amnestied, or for illegal carrying of weapons.
The license can be refused to those convicted of crimes other than those mentioned above and to those who cannot prove their good conduct or cannot be trusted not to abuse weapons”.
Given this, the Council of State, in the aforementioned sentence, observed in this regard that “By virtue of this provision, therefore, the sentences of imprisonment reported for the aforementioned crimes automatically constitute a cause of impediment to the issue or renewal of the license to carry firearms.
The consolidated jurisprudence of this Section (ex multis, May 3, 2016, n. 1698), shared by this Board, has however specified that the aforesaid automatism ceases to apply if the criminal judge - as in the case now under examination - has ordered the sentence to payment of the fine instead of imprisonment, pursuant to articles 53 and 57 of law 689 of 1981, for one of the crimes identified by art. 43, paragraph 1, TULPS, being able in such cases the Administration to evaluate the relative circumstances for the purpose of exercising the discretionary power (provided for by paragraph 2 of article 43); this on the assumption that where the aforementioned art. 43 provides for the automatism in the presence of a so-called impediment crime, attributes importance not to the sentence as such but to the "sentence to imprisonment" (January 10, 2018, n. 92)".
It must therefore be concluded that only in the event of a conviction involving the imprisonment of the offender, therefore, the judicial assessment of one of the crimes referred to in art. 43 TULPS entails the automatic prohibition of carrying firearms, otherwise the proceeding administration having to concretely evaluate the reliability of the applicant in relation to the handling of firearms and adequately motivate the refusal provision if issued.
Photo: Carabinieri weapon