The Constitutional Court found No. 68 / 1999 Coll.

Motion denied.

The appellant Ing. J. B. lodged on 10 April 1998 a constitutional complaint against the judgment of the Regional Court in Brno No 29 Ca 40 / 97-19 of 3 February 1998 rejecting an action against the decisions of the police authorities of the Czech Republic, which did not comply with his application for an arms licence, with reference to § 44 (1) (d) of Act No 288 / 1995 Coll., on firearms and ammunition (the Firearms Act), with the justification that the applicant was not impeccable because he was legally convicted of a criminal offence and had not yet expired for 10 years from the final conviction or imprisonment. At the same time as the constitutional complaint, the appellant made a motion to repeal Paragraph 44 (1) (d) of the Firearms Act. In his statement, he stated that he had applied for an arms licence, but his request was rejected by the competent authorities of the police with reference to that provision of the Firearms Act on the ground that it was not fair because it was recognised in 1991 by a guilty offence of abuse of the authority of a public official and sentenced to a cash penalty of CZK 2,000. In the appellant's view, both the legal and judicial interpretation of this provision of the Firearms Act, namely that it also covers money penalties which do not involve the execution of a custodial sentence, leads to extraordinary hardness and conflicts with the principle of the rule of law enshrined in Article 1 of the Constitution of the Czech Republic (hereinafter referred to as the Constitution), as it effectively allows for the introduction into the same plane of persons whose actions require only a cash penalty, with persons whose offences need to apply significantly more serious sanctions [Paragraph 44 (1) (a) and (b) of the Firearms Act]. The appellant feels discriminated against by this procedure when, moreover, he points out the contradiction between the fact that, according to the criminal law, the destruction of a conviction on the perpetrator is seen as not having committed a crime, but under another law (the Firearms Act), he is viewed as not having been destroyed.

In view of the above, the IV Chamber of the Constitutional Court dealt with the fulfilment of the conditions of § 74 of Act No. 182 / 1993 Coll., on the Constitutional Court, (hereinafter referred to as "the Law on the Constitutional Court ') and, having reached a positive conclusion, by Resolution No. IV of the ÚS 165 / 98-14 of 14 May 1998, the Constitutional Tribunal of the Constitutional Court of the Member States suspended the application for annulment of § 44 (1) (d) of the Law on firearms. The case was registered under sp. zn.

On 17 August 1998, the applicant, P. M., lodged a constitutional complaint against the judgment of the Regional Court in Ostrava No 22 Ca 431 / 97- 20 of 6 May 1998 rejecting an action against decisions of the police authorities of the Czech Republic which did not comply with his application for an armaments licence, with reference to § 44 (1) (d) and § 44 (2) of the Firearms Act, on the grounds that the applicant was not fair, because he was legally convicted of a criminal offence and that a conviction under a special law is not to be observed when assessing the integrity of the person. At the same time as the constitutional complaint, the appellant made a motion to repeal Paragraph 44 (2) of the Firearms Act. In his statement, he stated that the only reason why he had not been issued an armaments licence was that he was recognised in 1991 as guilty in accordance with § 277 (1) (b) and (2) (a) of the Criminal Act and was subject to a conditional sentence of 6 months with a probationary period of 1 year, with the following resolution of the Military District Court in Olomouc sp. zn. 2 T 109 / 91 of 25 June 1992, it was recognised that he had proved himself and was looked at under § 60 (4) of the Criminal Act as if he had not been convicted. On this basis, the Regional Court in Ostrava, as previously the authorities of the Police of the Czech Republic, concluded that it did not meet the condition of integrity laid down in § 44 (1) (d) of the Firearms Act. In the Court's view, the criminal consequences of a trial certificate are legally irrelevant because the administrative authority must consistently base its assessment of the integrity of the applicant on the legal definition of that concept and cannot take account of the criminal consequences arising from Paragraph 60 (4) of the Criminal Law. The Regional Court took the view that, according to Paragraph 44 (2) of the Firearms Act, not only must be taken into account for a conviction which was destroyed but also for a conviction with which there is a legitimate presumption of conviction. In the appellant's view, this interpretation is extensive and limits the applicant to his right to issue an arms licence. Moreover, the question is whether Article 44 (2) of the Firearms Act can be applied to this case, when the Institute of Extermination of Conviction is factually different from the Institute of Legal Conjections of Conjecture. The application of that provision has infringed the appellant's right of personal honour and reputation under Article 10 of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as "the Charter '), and there is also a contradiction with Article 40 (2) of the Charter where it is excluded that a person who is considered innocent, because his conviction cannot be taken into account, should be charged with committing a criminal offence.

Following the finding that this proposal also fulfils the conditions laid down in Section 74 of the Law on the Constitutional Court, the Fourth Chamber of the Constitutional Court decided, pursuant to Section 78 (1) of the Law on the Constitutional Court, by order No IV of the ÚS 366 / 98 of 13 October 1998 on the suspension of proceedings on a constitutional complaint, and the motion for annulment of Section 44 (2) of the Firearms Act was referred to the plenary of the Constitutional Court. The case was registered under sp. zn Pl. ÚS 27 / 98.

The Committee of the Constitutional Court then decided, by Resolution Pl. ÚS 16 / 98 of 20 January 1999, to bring the two proposals together for joint discussion and decision, which will continue to be held under the Pl.

The Constitutional Court also submitted a proposal by P. K. to abolish § 40 (1) (e), § 44 (1) (d) and § 44 (2) of the Firearms Act, under point Pl. ÚS 1 / 99. The application for annulment of those provisions was made in the context of a constitutional complaint of 7 December 1998 against the judgment of the Regional Court in České Budějovice No 10 Ca 201 / 98-25 of 23 September 1998. By order No Pl. ÚS 1 / 99 of 28 January 1999, the Constitutional Court rejected this proposal pursuant to Paragraph 43 (1) (e) of the Constitutional Court Act, as amended, because it found that this proposal was inadmissible. According to Article 35 (2) of the Constitutional Court Act, the application is inadmissible if the Constitutional Court is already acting on the same issue. This condition was met in the proceedings on the application in question, as the same case is dealt with by the Constitutional Court in the proceedings brought under point Pl. ÚS 16 / 98. Therefore, the examination of the proposal under the sp. zn. However, the appellant had the right to participate in the negotiation of the earlier application as an intervener.

The Chamber of Deputies of the Parliament of the Czech Republic referred in its observations to the explanatory memorandum to Paragraph 44 (1) (b) of the Firearms Act, according to which the criterion of integrity is another challenging condition, which should make it impossible to issue weapons cards to persons who, given their past and current evidence of them, may be potential carriers of the risk of misuse of weapons. Paragraph 44 of the Firearms Act contains, in particular, selected most serious offences, which are graduated according to the degree of social hazard, which corresponds to the length of time for which an applicant for a firearms licence cannot be considered to be a perfect person. The aim of the contested provision is therefore, in the opinion of the Chamber of Deputies, primarily to protect society from potential misuse of arms. For this reason, it is irrelevant whether the perpetrator of such an offence has been sentenced to prison or to another sentence, or that the conviction for such an offence has already been destroyed for other purposes under specific laws. Nor can the inequality of the fact that, after the possible repeal of the provision in question, a gun licence could be issued to a person who has been convicted of a criminal offence by a power, but not to a person who, under Paragraph 45 of the Firearms Act, is only so-called unreliable, as it has been found to be guilty of a specified offence in the past 3 years. In that context, it is impossible to express the view that the legislature acted in the belief that the law adopted is in accordance with the Constitution, the Constitution and our rule of law, and it is up to the Constitutional Court to examine the proposal and to give the relevant decision.

In its further observations, the Chamber of Deputies also took a position on the proposal to repeal Paragraph 44 (2) of the Firearms Act. It follows from its observations that the right to issue an armaments licence is limited by Paragraph 44 (1) (d) of the Firearms Act and not by Paragraph 44 (2) of that Act, which merely excludes the taking into account the criminal consequences of the extermination of a conviction under a special law. It can be considered that the absence of Paragraph 44 (2) of the Firearms Act, despite the possible extermination of a conviction under criminal law, should not affect the length of the period for which the applicant for a gun licence is not considered to be fair. The same applies to the institute of so-called certification under Section 60 of the Criminal Act. At the same time, the fact that the destruction of the conviction is decided by the court at the request or by the motion of the authorised persons cannot be overlooked, which implies that an assessment of the integrity for the purposes of the Firearms Act would depend solely on whether such a complaint was lodged and decided upon if the death of the conviction was taken into account. Furthermore, the Chamber of Deputies stated that, while different institutes are involved in the extermination of convictions under Sections 69 and 70 of the Criminal Act and the certificate under Section 60 of the Criminal Act, their consequences are identical, i.e. they look at the perpetrators as if they were not convicted. It therefore considers that the distinction between these institutes with regard to the fulfilment of the conditions for the issue of an arms licence is irrelevant. The Chamber of Deputies also considers it irrelevant that footnote 13) to Paragraph 44 (2) of the Firearms Act contains only a reference to the provisions of the Criminal Law and the Criminal Code concerning the elimination of convictions, since the footnote is not part of the legislative text of the law and is therefore not of a normative nature. Here, too, the Chamber of Deputies has expressed the view that the legislature has acted in the belief that the law adopted is in line with the Constitution, the constitutional order and our rule of law.

It follows from the report on the 36th meeting of the Chamber of Deputies of the Parliament of the Czech Republic on 31 October - 3 November 1995 that the Firearms Act was adopted at that meeting by the necessary majority of Members pursuant to Rule 39 (1) and (2) of the Constitution by a ratio of votes 65 to 27. The bill was discussed and adopted on the basis of Government proposal 1665 of 8 February 1995 and joint reports of the committees of the Chamber of Deputies (House Press 1665). The Act was published in 75 Collection of Laws of the Czech Republic on 13 December 1995 and became effective on 1 March 1996. It can therefore be considered that the law has been adopted and issued within the limits of the Constitution laid down by competence and in a constitutional manner (Section 68 (2) of the Constitutional Court Act).

The Ministry of the Interior also submitted its comments on the proposal to repeal those provisions of the Firearms Act. It follows from the statement that, by eliminating the conviction, Paragraph 44 (2) of the Firearms Act, all cases of the creation of a conviction are in mind. In the case of the opposite interpretation, in particular in the case of the offences referred to in Paragraph 44 (1) (d) of the Firearms Act, that is to say, crimes other than those referred to in points (a) and (b), if they have been committed intentionally and have not elapsed for at least 10 years from the final conviction or the end of the sentence in the event that the sentence has been imposed, the final conviction for the same offence could have different consequences for different persons in order to fulfil the conditions of integrity. This would in the opinion of the Ministry of Interior infringe the principle of equality in rights under Article 1 of the Charter. The Ministry of the Interior further stated that the use of more stringent considerations of integrity in the case of the Firearms Act is justified. The provisions of the law on integrity must be understood as restrictive measures designed to reduce the number of holders of firearms and thus also weapons, in particular by tightening the conditions for obtaining a weapon licence. Restrictive measures have also been taken in other countries and have been introduced in some EU countries. The Firearms Act was seen as a special law with special treatment of integrity and its assessment. After all, if, after the conditions laid down, this law provides for the right to obtain an arms licence for a natural person, it shall in no way be the fulfilment of any of the rights and freedoms established by the Constitution or by the Charter. Nor, in the opinion of the Ministry of the Interior, the use of Paragraph 44 (2) of the Firearms Act is likely to undermine the right to protect reputation under Article 10 (1) of the Charter. The examination of the conditions laid down by the law takes place in private proceedings before the institution of the Police of the Czech Republic and the reasons why the gun licence cannot be issued are communicated only to the applicant. The Ministry of the Interior therefore proposes the rejection of the proposal.

The substance of the proposal to repeal Article 44 (1) (d) of the Firearms Act is that this provision is contrary to the principle of the rule of law enshrined in Article 1 of the Constitution, as well as the principle of equality in dignity and rights enshrined in Article 1 of the Charter, since the withdrawal of the right to obtain a gun licence to persons who have been affected by a penalty is in fact discriminating against them. The substance of the proposal to abolish Paragraph 44 (2) of the Firearms Act is the claim that this provision is contrary to Article 10 (1) of the Charter, as the legal consequence of the extermination under Paragraph 70 (1) of the Criminal Act is not respected, according to which, if the condemnation was destroyed, the perpetrator is regarded as not being convicted.

The application for annulment of Articles 44 (1) (d) and 44 (2) of the Firearms Act is based on two arguments. The first is the absence of any distinction between different offences in the assessment of integrity in terms of sanctions, in which there is a violation of the rule of law under Article 1 of the Constitution; the second is the matter of the fundamental right arising from Article 10 (1) of the Charter, since the legal consequence of the destruction pursuant to Article 70 (1) of the penal law is not respected, according to which, if the conviction has been exterminated, the offender is regarded as not being convicted.

It should be noted that the Firearms Act, which entered into force on 1 March 1996, introduces a right for all citizens to obtain an arms licence, but after all the conditions laid down by law have been fulfilled. It is therefore (contrary to the past) a claim case (in the past this claim was not given and the possibility of obtaining an armaments pass was decided by the police administration). The Firearms Act in Part Six regulates the conditions for obtaining a weapons license. The latter (if the conditions are met) is issued by the District Directorate of the Police of the Czech Republic. In addition to reaching the prescribed age, legal capacity, medical fitness and professional competence, integrity and reliability are also required. Contrary to previous legislation, precise and clear conditions are thus laid down for compliance with which the gun licence can be issued, more precisely, to which it must be issued. In this context, it is appropriate to consider whether, in the present situation, the acquisition of a gun licence is difficult and difficult, in other words, whether the conditions laid down by the Firearms Act are too strict (also assessed in the context of the proposed proposal - i.e. also in terms of determining the extent of integrity as required by the Firearms Act). According to the Constitutional Court, the legislator's choice of solution can be considered acceptable and not disproportionate. Finally, the regulation thus chosen cannot be regarded as unconstitutional, even from the point of view of the appellant's point of view, having in mind, in particular, a contradiction with Article 1 of the Constitution, where exceptional hardness is raised, which goes against the principle of the rule of law, when it effectively allows the creation of a single level of persons whose crimes require only a financial penalty, with those whose offences need to be subject to more stringent sanctions. The Constitutional Court has interpreted in a number of its decisions the content of the constitutional principle of equality. It has been identified in them [in particular in the findings in cases referred to in sp. zn. But even here he can't go any further.... If the law determines the benefit of one group and thereby imposes disproportionate obligations on another, it may do so only by referring to public values. 'The Constitutional Court rejected the absolute understanding of the principle of equality, stating that "equality of citizens cannot be understood as an abstract category, but as a relative equality, as all modern institutions mean [Pl. ÚS 36 / 93 (ECR No 1, p. 179)]. The content of the principle of equality has thus shifted into the area of constitutional acceptance of the aspects of the distinction between entities and law. The first one, however, sees the elimination of the libel. The second is based on the legal opinion expressed in the judgment in the case at issue under the sp. zn. This is usually the case when the infringement of another fundamental right, such as the right to own property under Article 11 of the Charter, one of the political rights under Article 17 et seq. of the Charter, the rights of national and ethnic minorities under Article 24 et seq. of the Charter and the like [I-Pl. ÚS 5 / 95 (ECR 4, p. 217 - 18)]. Thus, the second point of view in assessing the unconstitutionality of a law or part of a law establishing inequality is a matter for one of the fundamental rights and freedoms. If the appellant contends that the legislator assesses unequal cases in the same way (in breach of Article 1 of the Constitution), it would only be possible to agree with it if it did so in any way or would interfere with the fundamental right or freedom. However, the definition of a range of persons under Section 44 (1) (d) of the Firearms Act is not arbitrary. It shall be given a sufficiently definite and comprehensible indication of the intentional commission of the offence and the information contained in the information on the moral competence of the applicant for the issue of an arms licence. Since the" right' to a firearm is not a fundamental right, the impeded inequality of the contested legal provision is without prejudice to any of the fundamental rights and freedoms and therefore no grounds for its annulment for violating the right of equality are given.

The restriction of fundamental rights or freedoms, even if their constitutional regulation does not foresee a restriction, may occur in the event of a collision. In such situations, it is necessary to lay down the conditions under which priority is given to one fundamental right or freedom and to which another. In this context, the maximum is that fundamental right or freedom can be restricted only in the interests of another fundamental right or freedom.

In the case under examination, the fundamental right arising from Article 10 (1) of the Charter (reflected, inter alia, in Sections 69 and 70 of the Criminal Act) and the fundamental right to life (Article 6 (1), (2) of the Charter), or other fundamental rights, which may be restricted by the use of firearms (Article 11 (1), Article 12 (1), Article 13 of the Charter and, indeed, others). When assessing the possibility of restricting the fundamental right or freedom in favour of another fundamental right or freedom, the following conditions may be laid down, with a priority being given to one fundamental right or freedom:

The first condition is to measure each other, the second is to investigate the substance and meaning of the restricted fundamental right or freedom (Article 4 (4) of the Charter). The interaction between the two fundamental rights and freedoms lies in the following criteria - the first is the criterion of suitability, the answer to the question whether an institute restricting a fundamental right allows the objective pursued - i.e. the protection of another fundamental right. In the present case, if it is argued that, in certain specific circumstances (in certain specific cases), these conditions appear to be strict (parties to the acquisition of firearms), they are merely and exclusively a matter of the legislator's consideration at a certain time and space. It should be recalled that the area of firearms (acquisition and possession) is the sphere of life of a society in which a prudent approach can be accepted, which must be carefully considered. The conditions set out can be described as stricter, but they are certainly not extremely strict or even extreme. Those provisions then allow the protection of fundamental human rights to be strengthened, as has been mentioned.

The criterion of necessity is to compare a legislative instrument restricting fundamental rights or freedom with other measures that enable the same objective to be achieved but which does not affect fundamental rights and freedoms. Nor can the State be accused of deviating from a reasonable framework in the area by setting those conditions, and it cannot be considered that, by establishing the integrity and thus by defining a certain degree of morality, it goes beyond the appropriate level of necessity. The third criterion is a comparison of the severity of both in the conflict of standing fundamental rights. In the case under consideration, one of them is the right to human dignity, personal honor, reputation and protection of its name, the other the right to life, or other fundamental rights, the restriction of which could be achieved by the use of a firearm (Articles 11, 12 (1), 13 of the Charter and others). A comparison of the gravity of the conflict of standing fundamental rights is also part of the consideration of the use of legal institutions minimising the arguments supported by intervention in one of them. In the present case, a number of arguments in favour of the legislature indicate the adjustments made or the conditions laid down by it do not go beyond the proportionality framework. Empirical argument (evidently year after year of increasing number of intentional crimes committed by a legally held firearm), systemic (increasing increase in violent and serious crimes), valuable (strong attacks on the lives and property of citizens). Any considerations about the right to self-defence must be rejected in the context - as well as the fact that the ability to obtain and hold a firearm will be more difficult. It is precisely the fact (Paragraph 44 (1) of the Firearms Act) that they committed an intentional crime that is a unifying element (for persons concerned with proof of integrity). Of course, this is a matter of moral or moral ethics. Therefore, it is not decisive to consider (even in terms of constitutional law) what kind of crime or what specific crime was or what penalty was imposed in one or the other. It is therefore not possible to blame the legislature for showing mistrust of these individuals, but it is precisely and only in connection with such a serious phenomenon as possession and possession of firearms. It is not possible to talk about the hypertrophy of the universality and need for differentiation to ensure the constitutional principle of equality. The contested provisions of the Firearms Act are sufficiently specific by setting out precisely all the clearly defined conditions under which a firearm can be acquired and held. From the point of view of this integrity, it is precisely the time (from the point of view of the extermination of convictions) defined in § 44 (1) (a) to (d) of the Firearms Act. This period is set precisely and definitely and also applies under precise conditions for all entities equally. The fundamental relationship with the Firearms Act is uniting even in the cases under point (d) of Article 44 (1) of the Firearms Act and is given an expression precisely in connection with the intentional commission of the offence of the subjects concerned, with reference to a significant and socially significant phenomenon such as the possession of a firearm and the consequences thereof.

Even considering that owning and holding a firearm is not a fundamental human right (and certainly not a right to owning property under Article 11 of the Charter), it is appropriate to state that the interest in the protection of fundamental rights, such as the right to life, health or protection of property, is evident and unmeasurable with the right to ownership and possession of a weapon. Self-defense options in the event of a firearm attack are becoming minimal. Therefore, it is appropriate to proceed with prudence and caution in terms of the possibility of obtaining a firearm. Regarding the consideration of the infringement of the contested provisions of the Firearms Act with Article 10 (1) of the Charter, reference must be made to what has already been said, perhaps with the addition that even when requiring a copy of the Register of Penalties, it is of course the duty of the administrative authorities of the police to respect the rights set out in Article 10 (1) of the Charter. The Charter itself is an essential source of the legislation on the protection of personal data and, together with other legislation such as the Civil Code, criminal law and the law on infringements, the law on advocacy and the law on the protection of personal data in information systems, constitutes sufficient protection and guarantee of fundamental human rights contained in Article 10 (1) of the Charter. Moreover, there is no reason to be concerned that the competent authority, when working with a copy of the Register of Penalties, would infringe those fundamental rights (state authorities are in contact with a copy of the Register of Penalties, such as in criminal proceedings - police, prosecutors, court), even at a time when criminal proceedings are still not final.

The contested provision of Paragraph 44 (2) of the Firearms Act can only be considered to explain, clarify and eliminate the doubts of the parties to the procedure in order to determine the integrity of the law. This is a legal regulation, which is special, with a special definition of the concept of integrity for reasons already mentioned. The expression that when assessing the integrity of a person is not taken into account for the destruction of a conviction under a special law (criminal law and criminal order) is not illegal, even less unconstitutional, but merely eliminating any doubts of a procedural nature. This fact does not justify the repeal of Paragraph 44 (2) of the Firearms Act.

In view of those conclusions, the Constitutional Court did not find any contradiction between paragraphs 44 (1) (d) and 44 (2) of the Firearms Act with the Constitution, constitutional laws or international treaties under Article 10 of the Constitution and therefore rejected the proposals for their abolition.