Commentary on Judgment No. 13326 of 2024: Confiscation of Weapons and Constitutional Principles

Judgment No. 13326 of January 12, 2024, by the Court of Cassation represents a significant step forward in the interpretation of regulations concerning the confiscation of weapons, particularly in light of the very recent judgment of the Constitutional Court No. 5 of 2023. This decision clarifies the conditions under which a confiscation can be ordered, even in the absence of a final conviction, and offers food for thought on the protection of defendants' rights within our legal system.

Regulatory and Jurisprudential Context

The confiscation of weapons is governed by Article 6 of Law No. 152 of 1975, which establishes the conditions for applying this measure. The Constitutional Court, with judgment No. 5 of 2023, highlighted that confiscation cannot be ordered unless the existence of the crime and its attribution to the defendant have been ascertained. This principle is crucial as it ensures that there is no unjustified deprivation of property without an adequate legal basis.

Implications of Judgment No. 13326 of 2024

Following this premise, the Court of Cassation has established that, in the event of an appeal by the public prosecutor, it is possible to order the confiscation of weapons without remanding the case to the lower court, provided that the prerequisites for such a measure have already been ascertained. This approach, while it may seem strict, is justified by the need to ensure public safety and the effectiveness of criminal proceedings.

• Confiscation can only occur if there has been an adversarial ascertainment with the defense.
• Remand to the lower court is considered superfluous if the documents already in the Court's possession demonstrate the existence of the requirements for confiscation.
• This judgment reiterates the principle of legality and respect for the fundamental rights of defendants.

Confiscation pursuant to art. 6 of Law No. 152 of 1975 - Judgment of the Constitutional Court No. 5 of 2023 - Cassation appeal by the public prosecutor - Possibility for the Court of Cassation to order confiscation - Existence - Consequences. In matters of weapons, even following the judgment of the Constitutional Court No. 5 of 2023 – which indicated as a constitutionally oriented interpretation of art. 6 of Law No. 152 of May 22, 1975, that the confiscation of weapons subject to the crime cannot be ordered following an acquittal unless the existence of the crime and its attribution to the defendant have been ascertained – the court of legitimacy, seized of the public prosecutor's appeal, is permitted to order the annulment without referral of the appealed judgment and the confiscation of the weapons if the factual ascertainment of the prerequisites for the confiscatory measure, in adversarial proceedings with the defense, emerges from the first instance judgment and the documents referred to therein, rendering the referral to the lower court judge pursuant to art. 620, paragraph 1, letter l), of the Code of Criminal Procedure superfluous.

Conclusions

Judgment No. 13326 of 2024 not only clarifies the regulatory boundaries of weapon confiscation but also highlights the importance of balancing the protection of public safety with individual rights. With the evolution of jurisprudence, it is essential for legal professionals to understand these developments to provide adequate and informed defense to their clients, thereby ensuring compliance with norms and constitutional principles.