Conviction and waffenrechtliche Zuverlässigkeit: what happens to the permit

§ 5 WaffG distinguishes two tiers.

§ 5 Abs. 1 Nr. 1 WaffG names the cases in which the required reliability is absent: where there is a final conviction for a Verbrechen, the more serious of the two categories of criminal offence in German law, for other intentional criminal offences to a prison sentence of at least one year, or for the offences against the state individually listed there to a prison sentence or a fine of at least 90 Tagessätze, in each case where ten years have not yet passed since the last conviction became final.

§ 5 Abs. 2 Nr. 1 WaffG names the cases in which reliability is as a rule absent. Covered are convictions for an intentional criminal offence, for a negligent criminal offence in connection with handling weapons, ammunition or explosive substances, for a negligent offence dangerous to the public, or for an offence under the Waffengesetz, the Gesetz über die Kontrolle von Kriegswaffen, the Sprengstoffgesetz or the Bundesjagdgesetz. The threshold: a prison sentence, a Jugendstrafe (the custodial sanction provided for young people), a fine of at least 60 Tagessätze or at least twice a lower fine; also covered are the cases in which the imposition of a Jugendstrafe has been suspended. The period: five years since the last conviction became final.

The wording "in der Regel" is not a side issue. By it the statute sets up a standard presumption and not something automatic without exception. Whether a set of facts departing from the standard case is present is examined by the Waffenbehörde, and in a dispute by the administrative courts. How that examination turns out is not something we predict here.

The practical point lies in § 40 StGB. Under its Absatz 1 a fine is imposed in Tagessätze (daily units), under Absatz 2 the amount of a Tagessatz is determined separately according to the personal and financial circumstances, and under Absatz 4 the number and the amount are stated in the decision. For § 5 Abs. 2 Nr. 1 WaffG only the number matters. Two fines with an identical total amount can therefore have entirely different effects under weapons law.

Not by chance. Under § 4 Abs. 3 WaffG the competent authority has to re examine holders of permits under weapons law at regular intervals, but at least after three years have passed, as to their reliability and personal suitability. Under § 5 Abs. 5 Nr. 1 WaffG it obtains for that purpose the unrestricted information from the Bundeszentralregister. That it receives this information follows from § 41 Abs. 1 Nr. 9 BZRG, which expressly names the authorities responsible for permits under weapons law and for the issuing of hunting licences. Under § 41 Abs. 3 BZRG the information is provided only on an express request and only for the stated purpose.

§ 51 Abs. 1 BZRG draws a limit: where the entry has been deleted or is due to be deleted, the offence and the conviction may no longer be held against the person in legal dealings and may not be used to their disadvantage. Under § 51 Abs. 2 BZRG, however, statutory legal consequences of the offence or of the conviction, as well as decisions already given, remain unaffected by this.

§ 45 Abs. 1 WaffG orders withdrawal where it becomes known afterwards that the permit should have been refused. § 45 Abs. 2 Satz 1 WaffG orders revocation where facts arise afterwards that would have had to lead to refusal. Both are framed as decisions the authority has no discretion over.

§ 46 WaffG follows on from this. Under Absatz 1, all copies of the permit document are to be returned without undue delay. Under Absatz 2 Satz 1 the authority orders that the previous holder must, within a reasonable period, permanently render the weapons or ammunition unusable or hand them over to a person entitled to hold them, and provide proof of this; once the period has passed without result, the objects are taken into official custody. Absatz 4 permits immediate custody in the cases named there, and Absatz 7 permits confiscation and realisation or destruction on the conditions named there.

These orders are to be complied with. Anyone who keeps a weapon for which there is no longer a permit is moving within the criminal provisions of § 52 WaffG, which in Absatz 3 Nr. 2 provides for imprisonment of up to three years or a fine for acquiring, possessing or carrying a firearm without the required permit, and a distinctly higher range for the cases named in Absatz 1.

Not every allegation under weapons law concerns firearms. § 42a Abs. 1 WaffG prohibits carrying imitation weapons, certain cutting and thrusting weapons, and knives with a blade that can be locked open with one hand as well as fixed blade knives with a blade length of more than 12 cm. § 42a Abs. 2 WaffG excepts from this, among other things, transport in a closed container; for the objects under Absatz 1 Nr. 2 und 3 the prohibition moreover does not apply where there is a legitimate interest. A breach of § 42a Abs. 1 WaffG is an Ordnungswidrigkeit, a regulatory offence punishable by an administrative fine, under § 53 Abs. 1 Nr. 21b WaffG, which under § 53 Abs. 2 WaffG can be sanctioned with an administrative fine of up to ten thousand euros. Alongside this, § 42 Abs. 1 WaffG prohibits carrying weapons at public events; under § 42 Abs. 4a WaffG this applies accordingly to carrying knives, with the exceptions listed there.

The hunting licence depends on the same standards. Under § 17 Abs. 1 Nr. 2 BJagdG it is to be refused to people in whose case facts justify the assumption that they lack the required reliability or physical suitability. Under § 17 Abs. 1 Satz 2 BJagdG the competent authority obtains information from the Waffenbehörde as to whether reliability and personal suitability within the meaning of §§ 5 und 6 WaffG are present.

Anyone who might be affected in their occupation or in their residence status must know this: that too is decided not by the criminal court but by the body competent in each case, in separate proceedings under its own provisions. A statement about how that body will decide does not belong in a guide of this kind.