The provision criminalising negligent storage of firearm ammunition is compatible with the Constitution; the transitional provision of the amendments to the Criminal Law is not
On 19 February 2021, the Constitutional Court passed a judgment in Case No 2020-23-01 “On the compliance of Section 236(1) of the Criminal Law (in the wording that was in force until 31 March 2013) with Article 90 and Article 92 of the Constitution of the Republic of Latvia and the compliance of the transitional provision of the Law of 29 October 2015 “Amendments to the Criminal Law” with Article 1 and Article 92 of the Constitution of the Republic of Latvia”.
Contested Provisions
Section 236(1) of the Criminal Law in the wording that was in force from 18 June 2004 until 31 March 2013 (hereinafter – the contested provision of the Criminal Law):”For negligent storage, carrying, transportation or forwarding of a firearm or firearm ammunition or for negligent storage, transportation or forwarding of high-powered pneumatic weapons, explosives and explosive devices, in violation of the regulations that regulate circulation of weapons, if by this offence another person has been given the possibility to acquire this firearm, firearm ammunition, high-powered pneumatic weapons, explosives and explosive devices, the applicable punishment shall be deprivation of liberty of up to two years, or arrest, or a fine of up to fifteen minimum monthly salaries, with deprivation of the right to engage in certain business activities for a period of up to three years.”
The transitional provision of the law of 29 October 2015 “Amendments to the Criminal Law” (hereinafter – the contested transitional provision):“The provisions of this Law shall not be applicable to individuals who committed an offence before the date on which this Law comes into force.”
Provisions of Superior Legal Force
Article 1 of the Constitution (Satversme) of the Republic of Latvia (hereinafter – the Constitution):“Latvia is an independent democratic republic”.
Article 90 of the Constitution: “Everyone has the right to know about their rights.”
The second sentence of Article 92 of the Constitution: “Everyone shall be presumed innocent until their guilt has been established in accordance with law.”
Facts of the Case
The case was initiated in the Constitutional Court on the basis of an application by Pāvels Volkovs. The Applicant had been recognised as being guilty of committing an offence provided for in the contested provision of the Criminal Law. The Applicant held that the contested provision of the Criminal Law did not comply with Article 90 and Article 92 of the Constitution, as it had not been sufficiently clear at the time when the Applicant had performed the actions for which he was criminally prosecuted and punished. The Applicant also held that the contested transitional provision was incompatible with Article 1 and Article 92 of the Constitution, as it did not allow to apply retroactively a regulation that would be more favourable to the Applicant.
The Court’s Findings
On the compliance of the contested provision of the Criminal Law with Article 90 and the second sentence of Article 92 of the Constitution
Regarding termination of the legal proceedings
The body which had issued the contested act – the Saeima – requested that the legal proceedings in the case be terminated as the content of the application attested to the fact that the possible infringement of the applicant’s fundamental rights was caused by the interpretation of the contested provision of the Criminal Law rather than by the said provision itself. [9] The Constitutional Court notes that no grounds to terminate legal proceedings can be found in the case under consideration, as it is necessary to evaluate whether the contested provision of the Criminal Law can be regarded as sufficiently clear and foreseeable for an individual to be criminally prosecuted under it. [9]
On the scope of Article 90 and the second sentence of Article 92 of the Constitution
The Constitutional Court notes that the legislator must word criminal law provisions so that an individual is guaranteed against being arbitrarily accused, convicted, and punished. [11] If a legal provision allows its addressee to understand and foresee the obligation it imposes on them, and the law enforcer – to find out all the factual and legal circumstances in order to evaluate the incident and decide on making the individual criminally liable, this provision is to be considered as being sufficiently clear. [11]
Provisions setting out criminal liability can only be recognised as being law in the meaning of the second sentence of Article 92 of the Constitution if they comply with the quality criteria of legal provisions as enshrined in Article 90 of the Constitution. [11]
To evaluate whether the contested provision of the Criminal Law complies with Article 90 of the Constitution in conjunction with the second sentence of Article 92 of the Constitution, it is necessary to find out whether the said provision was adopted and proclaimed in the procedure set out in regulations, whether it is publicly available, and whether it is sufficiently clear and foreseeable to serve as grounds for making an individual criminally liable. [12]
On the procedure of adopting and proclaiming the contested provision of the Criminal Law, and on its public availability
The Constitutional Court has found that the contested provision of the Criminal Law was adopted and proclaimed in the procedure set out in regulations and is publicly available to anyone. [13; 14]
On the reference to other regulations in the text of the contested provision of the Criminal Law
The Constitutional Court concludes that at the time when the Applicant performed the actions for which he was criminally prosecuted and punished, circulation of weapons was inter alia regulated by the Cabinet Regulation No 1001 of 27 December 2011 “Regulations regarding the acquisition, registration, record-keeping, storage, transportation, forwarding, carrying, sale of weapons and ammunition, and the storage of collections of weapons”. The fact that the contested provision of the Criminal Law inter alia criminalises violation of another regulation is not in itself a reason for recognising it as being unclear or unforeseeable. [15]
On the clarity and predictability of the contested provision of the Criminal Law
The Constitutional Court concludes that, for an individual to be made criminally liable, also the feature stipulated in the contested provision of the Criminal Law – the violation of regulations resulting in the possibility for another individual to acquire the artefacts or substances specified in the said provision – needs to be established as a fact, as it is an integral element of the respective legal provision’s legal content. The Court concludes that this feature does not rely on unclear conditions or criteria and complies with the requirements for clarity and predictability. [16.1]
Also, the Constitutional Court concludes that at the time when the Applicant performed the actions for which he was criminally prosecuted and punished, court rulings were passed in which the individuals were made criminally liable and punished under the contested provision of the Criminal Law both in the situations where the artefacts specified in that provision had been lost or stolen and in the situations where the fact of such artefacts coming into the possession of another individual had not been established. [16.2]
By the Amendments of 29 October 2015, the legislator changed Section 236(1) of the Criminal Law so that from then on it would only criminalise offences that result in the respective artefact or substance being lost or coming into the possession of another individual, which in itself, however, does not mean that this provision had previously not been clear enough to serve as a ground for criminal prosecution of an individual. [17]
In addition, the Constitutional Curt notes that it is reasonably expected that an individual who, in performing official duties, has the right to handle weapons, will know, better than other people, not only the provisions regulating circulation of weapons and ammunition, but also the criminal law risks associated with the violation of those provisions. [18]
Hence, the Constitutional Court concludes that the individual could find out for what actions they might be criminally prosecuted under the contested provision of the Criminal Law. The contested provision of the Criminal Law can be regarded as being sufficiently clear and foreseeable for an individual to be criminally prosecuted under it. Therefore, the Constitutional Court concludes that the contested provision of the Criminal Law is compatible with Article 90 and the second sentence of Article 92 of the Constitution. [19]
On the compliance of the contested transitional provision with Article 1 and the second sentence of Article 92 of the Constitution
Clarifying the claim
The contested transitional provision applies not only to the amendments to Section 236(1) of the Criminal Law, but also to the amendments to other sections of the Special Part of the Criminal Law. As part of the case under consideration, the Constitutional Court has only evaluated the compliance with Articles 1 and 92 of the Constitution of the contested transitional provision insofar as it does not provide for the retroactive application of the amendments to Section 236(1) of the Criminal Law to the offences that were committed before 3 December 2015 and are no longer to be regarded as being criminally punishable. [20]
On Article 1 of the Constitution in conjunction with the second sentence of Article 92 of the Constitution
The Constitutional Court notes that the general principles of law as derived from the basic norm of a democratic state governed by the rule of law, including the principle of the rule-of-law state, fall within the scope of Article 1 of the Constitution. [21.1]
According to the second sentence of Article 92 of the Constitution, an individual can only be found guilty, and a punishment can only be applied to an individual for an action which has been recognised as being punishable under law. [21.2]
The Constitutional Court notes that the main issue in the case under consideration is that the Applicant was punished for an offence which had already been recognised as not being criminally punishable at the time of the hearing of the criminal case. Therefore, the compliance of the contested transitional provision with the general legal principles enshrined in Article 1 of the Constitution has to be evaluated in conjunction with the second sentence of Article 92 of the Constitution. [21.3]
The Constitutional Court concludes that Article 1 of the Constitution in conjunction with the second sentence of Article 92 of the Constitution contain the criminal law principle of the retroactive effect of a provision favourable to the individual, which is also to be applied when the particular offence has been recognised as not being criminally punishable. [21]
To find out whether the contested transitional provision is compatible with Article 1 and the second sentence of Article 92 of the Constitution, the Constitutional Court needs to evaluate whether circumstances can be established which justify a derogation from the criminal law principle of the retroactive effect of a provision favourable to the individual in respect of the amendments to Section 236(1) of the Criminal Law. [23]
On the derogation from the principle of the retroactive effect of a provision favourable to the individual
The Constitutional Court notes that the contested transitional provision relates to a situation in which the legislator needs to evaluate the principle of legal security by weighing it up and balancing it in relation to other general legal principles operating in a democratic rule-of-law state – the principle of the retroactive effect of a provision favourable to the individual and the principle of justice. [24]
In criminal law, the principle of legal security inter alia places the obligation on the state to ensure that legal relationships are certain and stable. It requires that the substantive provision which was in force at the time of the offence is applied to the individual. Conversely, the criminal law principle of the retroactive effect of a provision favourable to the individual requires that the legislator provides for the retroactive effect of a provision which is more favourable to the offender, while the principle of justice – that the result of the criminal proceedings is, among other things, fair. [24]
The Constitutional Court notes that cases are possible when, considering the specific factual and legal circumstances, a derogation from applying the principle of the retroactive effect of the provision favourable to the individual is permissible in criminal law. However, a criminal punishment may not be applied for the sole reason that it was provided for in the Criminal Law at the time of the offence, if afterwards the legislator amended the respective provision of the Criminal Law, recognising this offence as not being criminally punishable. In this case, preference should be given to the criminal law principle of the retroactive effect of the regulation favourable to the individual. [24]
In the case in question, the Constitutional Court does not see any objective justification, as following from the principle of justice or other general principles of law, as to why an exception from the criminal law principle of the retroactive effect of the provision favourable to the individual would be applicable in respect of the amendments to Section 236(1) of the Criminal Law regarding the offences envisaged by that provision, which were committed before 3 December 2015 and are recognised as not being criminally punishable after this provision has been amended. [24]
Therefore, the Constitutional Court has recognised the contested transitional provision, insofar as it does not provide for the retroactive application of the amendments to Section 236(1) of the Criminal Law to the offences that were committed before 3 December 2015 and are no longer to be regarded as being criminally punishable, as being incompatible with Article 1 and the second sentence of Article 92 of the Constitution. [24]
On the moment when the contested transitional provision becomes void
The Constitutional Court has found that in respect of the individuals to whom the transitional provision, insofar as it does not provide for the retroactive effect of the amendments to Section 236(1) of the Criminal Law, has been applied or is to be applied in court, should be void as of the moment when the infringement of the fundamental rights occurred. [25]
The Constitutional Court has ruled:
To recognise Section 236(1) of the Criminal Law (in the wording that was in force until 31 March 2013) as being compatible with Article 90 and the second sentence of Article 92 of the Constitution of the Republic of Latvia.
To recognise the transitional provision of the law of 29 October 2015 “Amendments to the Criminal Law”, insofar as it does not provide for the retroactive application of the amendments to Section 236(1) of the Criminal Law to the offences that are no longer to be regarded as criminally punishable, as being incompatible with Article 1 and the second sentence of Article 92 of the Constitution of the Republic of Latvia and void in respect of the individuals to whom this transitional provision, insofar as it does not provide for the retroactive effect of the amendments to Section 236(1) of the Criminal Law, has been applied or is to be applied in court, as of the moment when the infringement of their fundamental rights occurred.
The judgment of the Constitutional Court is final and not subject to appeal; the judgment comes into force on the day it is published.
The text of the judgement [in Latvian] is available on the homepage of the Constitutional Court.
Press release in PDF available here.
Linked case: 2020-23-01