Montenegro

National and EU Regulation for Civilian Possession of Firearms (Comparative Legal Analysis)

Podgorica, Montenegro July 2007 Acknowledgements: Report prepared by: Mr Marko Ivkovic Mr. Ivkovic works as the Programme Coordinator and Legal Advisor in the Legal Aid Center in Podgorica. He graduated with a BA in Law from the University of Podgorica and holds a MA in Peace and Security Policy from the University of Hamburg. Translation by Ms. Azra Kosovac. This report was commissioned as part of the UNDPs EU Small Arms Control Project in Montenegro (EUSAC -MNE). Funding for this project was generously provided by the EU Small Arms and Light Weapons Third Pilot Project, the Western Balkans SALW Control Support Plan (EU3PP) The views expressed in this report are those of the authors and do not necessarily represent those of the European Union or the United Nations Development Programme.

Executive Summary Integration of Montenegro into European Union requires reform of the national legislation, i.e. its harmonization with the EU Acquis Communautaire a set of rights to be adopted, implemented and enforced by all EU members. European Council Directive on Control of Acquisition and Possession of Weapons of 18 June 1991 (EC Directive 91/477/EEC) represents a part of the EU Acquis Communautaire in respect of Small Arms and Light Weapons (SALW). This Directive lays down the minimum standards to be fulfilled in relation to the civilian possession and acquisition of firearms, as well as the transportation of civilian-owned firearms within the EU countries. This report is aimed at assisting the government of Montenegro in harmonizing the Law on Arms from 2004 with the EC Directive on Control of Acquisition and Possession of Weapons. In order to harmonize national regulations with the standards laid down in EU Directive 91/477/EEC it is necessary to carry out the following: 1. Include revisions and amendments to the Law on Arms in the part concerning the classification of weapon, i.e. all types of weapons should be classified under categories A, B, C and D in line with the standards of Directive 91/477/EEC. 2. Define the form and contents of the European Firearm Pass, a document stating that a person owns and uses weapons legally. 3. Set out the obligation of commercial companies and enterprises to keep a socalled register on possession and acquisition of firearms, as well as the obligation of state to carry out regular control over the observance of this regulation. 4. Provide for the obligation of state to exchange the information concerning transfer of weapons with other member states, as well as inclusion into already existing network for exchange of information which was established by the EU member states.

5. Set out the obligation of marking and tracing of firearms being transferred so as to identify firearms more easily, as well as the obligation that the firearms should be checked in accordance with the Convention of 1 July 1969 on the Reciprocal Recognition of Proofmarks on Small Arms. 6. In line with Directive, include more flexible rules concerning hunting and target shooting in order to avoid impeding the free movement of persons more that is necessary. 7. Include the capacity of state to conclude agreements about mutual recognition of national documents, which may establish more flexible rules for the movement of persons who are in possession of weapons.

8. State may set out more stringent rules for the possession and acquisition of weapons in relation to the provisions of Directive 91/477/EEC. Directive lays down only minimum standards to be fulfilled by each member country. The items above represent the basic recommendations for harmonization of the provisions contained in national legislation with the provisions of the Directive 91/477/EEC in terms of possession and acquisition of weapons. These items are result of legal analysis and comparison of the two acts. The text below contains the analysis of the Law on Arms of the Republic of Montenegro and Directive 91/477/EEC, comparison between the two acts, as well as the recommendations for amendments to national legislation. In order to gain insight into the key provisions of the two acts and recommendations for their harmonization, this report will comprise three tables.

1. Council Directive on Control of the Acquisition and Possession of Weapons (91/477/EEC) of 18 June 1991 The treaty on establishment of the European Economic Community envisages the establishment of an internal market without internal frontiers where free movement of goods, persons, services and capital is ensured. Total abolition of controls and customs formalities at intra-Community frontiers entails fulfilment of certain fundamental preconditions concerning safety and security. Each member state is bound to develop and implement effective mechanisms for the controls to be carried out on the acquisition and possession of firearms within the Member States and on their transfer to another Member State which resulted in abolition of systemic control at intra-Community frontiers and ensured easier movement of goods, persons, services and capital.

In order to establish mutual confidence between the member states in the field of the protection of the safety of persons a particular attention needs to be given to the partially harmonized weapons legislation, i.e. establishment of a standardized classification of weapons whose acquisition and possession by private persons are to be prohibited, or subject to authorization, or subject to declaration. The arrangements for the acquisition and possession of ammunition shall be the same as those for the possession of the firearms for which it is intended. For the purpose of this Directive, moving of persons in possession of firearms from one member state to another generally shall be prohibited. Deviation from the rules is allowed only in case of the applying the procedure which enables the member state to notify another member state that firearms will be carried into its territory. However more flexible rules should be applied to hunting and target shooting, so as not to impede free movement of persons more than it is necessary. Naturally, each member state is guaranteed the right to undertake certain measures in order to prevent illegal trade in weapons and this Directive does not interfere with those rights. The Directive does not apply to the acquisition or possession of weapons and ammunition by: The armed forces, the police or the public authorities; Collectors and bodies concerned with the cultural and historical aspects of weapons and recognized as such by the Member States in which they are established; Commercial transfers of weapons and ammunition of war.

2. Categorization of Firearms whose Acquisition and Possession by a Private Person are to be Prohibited or Subject to Authorization, or Declaration Since the categorization of firearms has been elaborated throughout the entire text of the Directive 91/477/EEC and since the provisions of this Directive are concerned with the categories of firearms, at the beginning it would be useful to analyze the firearms categories as laid down in Directive and to compare them with the provisions of the Law on Arms of Montenegro. Directive clearly distinguishes between the firearms, whose acquisition and possession by private person are to be prohibited, or subject to authorization, or subject to declaration. Therefore, the Annex 1 of Directive states: Annex 1 ANNEX I I. For the purpose of this Directive weapon means: any firearm as defined in section II of the Annex weapons other then firearms as defined in national legislation.

II.

For the purpose of this Directive firearm means:

A. Any object which falls into one of the following categories, unless it meets the definition but is excluded for on of the reasons listed in section III. Category A- Prohibited firearms Explosive military missiles and launchers Automatic firearms Firearms disguised as other objects Ammunition with penetrating, explosive or incendiary projectiles, and the projectiles for such ammunition. 5. Pistol and revolver ammunition with expending projectiles and the projectiles for such ammunition, except in the case of weapons for hunting or for target shooting, for person entitled to use them Category B- Firearms subject to authorization 1. Semi-automatic or repeating short firearms 2. Single-shot short firearms with centre-fire percussion 3. Single-shot short firearms with rimfire percussion whose overall length is less than 28 cm. 4. Semi-automatic long firearms whose magazine and chamber can together hold more than three-rounds. 5. Semi-automatic long firearms whose magazine and chamber cannot together hold more than three-rounds, where the loading device is removable or where it is not certain that weapon cannot be converted, with ordinary tools, into a weapon whose magazine and chamber can together hold more than three rounds. 6. Repeating and semi-automatic long firearms with smooth-bore barrels not exceeding 60 cm in length. 7. Semi-automatic firearms for civilian use which resemble weapons with automatic mechanism. 1. 2. 3. 4.

Category C Firearms subject to declaration 1. Repeating long firearms other than those listed in category B, point 6. 2. Long firearms with single-shot rifled barrels 3. Semi-automatic long firearms other than those in category B, point 4 to 7 4. Single-shot short firearms with rimfire percussion whose overall length is not less than 28 cm. Category D- Other firearms Single-shot long firearms with smooth-bore barrels. B. Any essential component of such firearms:

The breach-closing mechanism, the chamber and the barrel of a firearm which, being separate objects, are included in the category of the firearms on which they are or are intended to be mounted. III. For the purposes of this Annex objects which corresponded to the definition of a firearm shall not be included in the definition if they:

a) have been rendered permanently unfit for use by the application of technical procedures which are guaranteed by an official body or recognized by such a body; b) are designed for alarm, signalling, life-saving, animal slaughter or harpoon fishing or for industrial or technical purposes provided that they can be used for the stated purpose only; c) are regarded as antique weapons or reproductions of such where these have not been included in the previous categories and are subject of national laws. Category A - Prohibited firearms - the Law on Arms meets the minimum standards of Directive as it contains all five types of firearms mentioned under category A whose acquisition, possession, production, repair, remaking, proliferation and transport are prohibited.1 The Law on Arms of Montenegro defines ten types of firearms falling under the category of prohibited firearms, including five types stated in Directive. The types of prohibited firearms which are listed in the Law in accordance with the Directive are not identically formulated neither are they listed in the same order as it is done in Directive. However, it can undoubtedly be established that it is the same type of firearms. 2 Article 12 provides for the possibility for the Ministry to promulgate the prohibition of acquisition, possession, carrying, production, repair, remaking, transport or proliferation in other weapon if that is required by special security reasons or protection of public order. Category B - Firearms subject to authorization The Law on Arms of the Republic of Montenegro, Chapter II, item 1. Acquisition of firearms regulates the firearms whose acquisition may be carried out solely on the basis of an approval granted by a competent authority in charge of the firearms affairs: firearms and crossbow with a power of over 45 (100 pounds) can be procured only on the basis of an approval.3 Article 16 of this Law further defines the firearms whose procurement may be approved: the procurement of firearms with a projectile filled with sedating substances, for use in temporary animal anesthetizing, can be approved to scientific institutions, governmental authorities and other legal persons and individuals for scientific research and collection of scientific data on animal species, animal protection as well as other justifiable cases when it is necessary for performance of regular activity.4
Article 12, Law on Arms, (Official Gazette of the Republic of Montenegro Nr.49/2004 from 27 July 2004) See attached table 1 3 Chapter II, Purchase, keeping, carrying arms and ammunition and arms collection, (Official Gazette of the Republic of Montenegro Nr.49/2004 from 27 July 2004)
2 1

Article 16, Procurement of firearms with sedating substances, (Official Gazette of the Republic of Montenegro Nr.49/2004 from 27 July 2004)

Article 24 states: Firearms ammunition may be obtained on basis of weapon certificate in case of individuals, whereas commercial companies and entrepreneurs can obtain it on the grounds of the permission for keeping arms, if it has not been determined otherwise.5 Article 32, paragraph 2 states that: for the procurement, keeping and collecting more than three pieces of old weapon permission for collecting old weapons 6is required. Article 32, paragraph 2 states that an individual who has been issued permission for old weapons collection can, apart from old weapons, collect bladed weapons, automatic and semiautomatic firearms that is no longer in use by the military or police, and has been permanently deactivated.7 Several articles of the Law define the procedure of permit issuing, collecting of documentation necessary when applying for permit issuing, the contents of the application for permit issuing, cases when permit issuance may be refused, etc, whereas the subject of procurement is defined by general terms as firearms and ammunition.8 Category C subject to declaration The Law on Arms does not specify any of the firearms falling under the category C to be subject to declaration. Several articles of the Law bind a physical person to inform the competent authority of the firearms in possession: The owner of weapon who is leaving his residence for more than three months, and is not taking with him weapons and ammunition kept by means of a weapon certificate shall hand them over for keeping to an individual entitled to hold or carry such weapons. The owner of weapons shall inform, in case set forth in paragraph 1 hereof the relevant authority about handing over the weapons and ammunition for keeping, within eight days from the day of delivery.9 The Law also envisages the obligation of the owner of weapon to denounce immediately a loss or theft of weapon10, as well as the obligation to report to the authorities in case of a loss

Article 24, Procurement of ammunition, Law on Arms, (Official Gazette of the Republic of Montenegro Nr.49/2004 from 27 July 2004)

Article 32, Collecting old weapons, Law on Arms, (Official Gazette of the Republic of Montenegro Nr.49/2004 from 27 July 2004) Article 33, Collection of automatic and semi-automatic weapons, Law on Arms, (Official Gazette of the Republic of Montenegro Nr.49/2004 from 27 July 2004)
8 Article 32, Old weapons collection, Law on Arms, (Official Gazette of the Republic of Montenegro Nr.49/2004 from 27 July 2004) 9 7

Article 42, Giving weapons for storage, Law on Arms, (Official Gazette of the Republic of Montenegro Nr.49/2004 from 27 July 2004)

10 Article 43, Loss and theft of weapon, Law on Arms, (Official Gazette of the Republic of Montenegro Nr.49/2004 from 27 July 2004)

and found weapons.11 If a person to whom a weapon document was issued changes his residence or seat, that person shall upon his arrival in the new residence present the weapon to the relevant authorities for registration.12 Summary and Recommendations As regards the category A, i.e. the prohibited firearms category, it may be concluded that that one part of the Law is harmonized with Directive 91/477/EEC. Not only does it meet the minimum standards laid down in this Directive, but it also defines another 5 types of firearms whose acquisition and possession shall be prohibited. The prohibited firearms in the Law are undoubtedly the same firearms which are listed under the category A of the Directive. It is recommended that the terms used for the firearms be harmonized with the Directive in order to avoid ambiguities or arbitrary interpretations. The conclusion drawn for the category A, does not apply to the categories B and C, i.e. categories subject to authorization and subject to declaration. As regards the firearms falling under the category B, the Law does not provide a detailed list of the firearms subject to authorization. Instead, the firearms falling under this category are mentioned by the legislator in several articles. On the basis of the Law on Arms, it is possible to create a list of firearms whose acquisition and possession would be prohibited. In that case the list would look as follows: firearms and crossbows with power over 45 kg (100 pounds) firearms with projectile filled with sedating substances (for use in animal anesthetizing and for scientific purposes) old weapons (in case of collecting more than three pieces of such weapon) bladed weapon, automatic and semi-automatic weapon no longer in possession of military forces or police and is permanently deactivated (if a person has a permit for the old weapon collection) firearms ammunition

Comparing the list of weapon subject to authorization given in the Law on Arms of Montenegro with the same types of weapon listed in Directive leads to the conclusion that the existing law does not meet the minimum standards laid down in Directive. It is recommended that the existing types of weapon subject to authorization be expanded with the weapon falling under this category. If this is done so, all types of weapon whose acquisition and possession is subject to authorization in accordance with national legislation will be listed in one place as required by the Directive. As regards the category C (firearms subject to declaration) the Law does not define a single type of weapon falling under this category. Instead, it defines situations when a person is obliged to inform competent authority of acquisition and possession of weapon and as well as
Article 44, Procedure with lost and found weapons, Law on Arms, (Official Gazette of the Republic of Montenegro Nr.49/2004 from 27 July 2004) Article 45, Change of residence or seat, Law on Arms, (Official Gazette of the Republic of Montenegro Nr.49/2004 from 27 July 2004)
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to report it to the competent authority. The subject of these acts is defined as weapon. Naturally, it is necessary to make a list of weapon subject to declaration in national legislation in compliance with Directive. By doing so, at least the minimum standards of directive concerning this category would be met. Directive stipulates that the member states shall provide for the compulsory declaration of all arms classified in category C at present held within their territories but not previously declared within one year of the entry into force of that national provisions transposing this Directive.13 The Law also does not include the category D (other firearms). Therefore, this category of weapon should also be incorporated into the national legislation in order for it to be in line with the Directive 91/477/EEC standards. European Firearms Pass Council Directive 91/477/EEC on Control of Acquisition and Possession of Weapons requires the introduction of the so-called European Firearms Pass as one of the standards to be fulfilled by the EU member states. European firearms pass is a document issued upon request by the authorities of a Member State to a person lawfully entering into possession of and using a firearm. The period of validity of the pass is maximum 5 years, but this period may be extended. If only firearms classified in category D appear on the pass, the maximum period of validity thereof shall be ten years. The European firearms pass is non-transferable document; the pass must always be in possession of the person using the firearm. Changes in the possession or characteristics of the firearm shall be indicated on the pass, as well as the loss or theft of the firearm.14 The European firearms pass must include the following sections:15 a) identity of the holder; b) identification of the weapon or firearm, including a reference to the category within the meaning of the Directive; c) period of validity of the pass; d) section for use by the Member State issuing the pass (type and references of authorization, etc.); e) section for entries by other Member States (authorization to enter their territory, etc.); f) the statements: The right to travel to another Member State with one or more of the firearms in categories B, C or D mentioned in the pass shall be the subject to one or more prior corresponding authorizations from the Member State visited. This or these authorizations may be recorded on the pass. The prior authorization referred to above is not in principle necessary in order to travel with a firearm in categories C or D with a view to engaging in hunting or with a firearm in categories
Article 8, Council Directive 91/477/EEC on Control of Acquisition and Possession of Weapons, 18 June 1991 14 Article 1, paragraph 4, Council Directive 91/477/EEC on Control of the Acquisition and Possession of Weapons, 18 June 1991 15 Annex II, Council Directive 91/477/EEC on Control of the Acquisition and Possession of Weapons, 18 June 1991
13

B, C or D for the purpose of taking part in target shooting, on condition that the traveller is in possession of the firearm pass and can establish the reason for the journey.16 Where a Member State has informed the other Member States, in accordance with Article 8 (3) that the possession of certain firearms in categories B, C or D is prohibited or subject to authorization, one of the following statements shall be added: a journey to ..(State/s concerned) with the firearm../identification/ shall be prohibited journey to ..(State/s concerned) with the firearm../identification/ shall be subject to authorization

Summary and Recommendations European Firearms Pass is a document issued by the member state stating that the person holding that pass is lawfully entering into possession of and using firearms. When using weapons, the person to whom this pass has been issued must always be in possession of this document. This document cannot be transferred to another person. The person may travel to member states with this document, but the firearms transferred into another state must previously be subject to authorization of that state and such confirmation is to be registered in this document. European Firearms Pass represents one of the minimum standards to be fulfilled in terms of form and contents by all member states. This pass ensures facilitated travelling between member states. Somewhat different rules apply for hunting weapons and target shooting which was elaborated in the text above, so as not to impede the free movement of persons more than is necessary. In order to fulfil the minimum standards concerning provisions of the Directive, national legislation must provide for introduction of the European Firearms Pass whose form and contents will correspond with the standard laid down in the Directive. Since the European Firearms Pass is related to the categories of weapon for which it is issued, classification of weapon must first of all be done in accordance with Directive provisions. After that, the national legislation should define form of the pass itself.

Acquisition and Possession of Firearms by a Private Person

Directive 91/477/EEC states that the member state may allow acquisition and possession of firearms by persons classified in category B only who have good cause and who: a) are 18 years old or more, except for hunting or target shooting; b) are not likely to be a danger to themselves, to public order or to public safety It is also stated that the Member State shall allow the possession of firearms in category C and D only by persons satisfying the conditions in point (a), and that the permit for the possession of firearms may be revoked if any of the conditions in point (b) of the first paragraph is no longer satisfied.17
Ibid Article 5, Council Directive 91/477/EEC on Control of the Acquisition and Possession of Weapons, 18 June 1991
17 16

10

Montenegrin Law on Arms meets the minimum standards of Directive in terms of permit issuance to physical persons for acquisition of arms. The Law lays down a set of conditions to be satisfied in order for an individual to purchase and carry weapons. Articles 17, 18 and 19 of the Law on Arms may be summarized as follows: a person must be over 21 years of age, he must not been prosecuted in misdemeanour or criminal procedure and or convicted for offences, circumstances indicating misuse of weapon must not exist. The Law also provides for certain justified reasons for weapon procurement, certificate of physical fitness and certificate of training in arms handling. The Law stipulates that a weapon certificate shall be revoked by a competent authority if some of the abovementioned conditions are not satisfied. However, the Law does not clearly specify the categories of weapon for which a physical person is issued a permit for acquisition and possession. Article 20 states that the certificate of training in arms handling is necessary for three types of weapon, as follows: for hunting weapons certificate of completed hunting exam for sporting weapons certificate of active membership in sports marksmanship organization for short firearms certificate of aptitude for keeping and carrying and correct use of weapons issued by the Ministry

However, it cannot be concluded whether permit issuance to the physical person for acquisition of weapons applies solely to these three types of weapons or it refers to all other weapon whose acquisition and possession is not prohibited? Summary and Recommendations: The Law defines a set of conditions to be satisfied in order for the competent authority to issue permission for the acquisition of weapons. These conditions completely correspond with the minimum standards laid down in Directive and at some point even surpass them. However, the subject of procurement is generally related to weapons except in terms of conditions concerning training to handle weapons. In this case, it is clearly specified to what types of weapons this condition applies. The recommendation points at the need to establish an exact list of weapons for whose acquisition and possession permit may be issued to a physical person in order to avoid possible arbitrary interpretations of the Law provisions.

Acquisition and possession of firearms by dealer or seller

Directive stipulates the obligation of the member state to check the private and professional integrity of a dealer prior to issuing permit to him for performing activities concerning categories A and B. If the activity of dealer concerns weapon category B and C, this activity must at least be subject to declaration, unless state already does not require the obligation of authorization.

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According to Directive, dealer shall be required to keep a register in which information concerning all firearms classified in category A, B or C received or disposed of by him shall be recorded, including such particulars as enable the weapon to be identified, in particular the type, make, model, calibre and serial number thereof and the names and addresses of the supplier and the person acquiring the weapon. The member state shall on a regular basis check dealer` s compliance with the obligation. The dealer shall conserve the register for a period of five years, even after he ceased his activity. The Law on Arms states that commercial companies and entrepreneurs shall be issued a permit for weapons purchase in order for them to engage in their activities. The Law also provides for a form of permit for performing these activities, but it does not specify the categories of weapons for which this permit18 is issued. The purchase of ammunition may be approved on the basis of a weapon certificate.19 The authorized weapon dealer shall inform the relevant authority of the sale of weapons not later than 8 days from the day when the sale was effected.20 Summary and Recommendations It may therefore be concluded that the national legislation states that acquisition and possession of weapon by commercial companies and entrepreneurs is subject to authorization which meets the minimum standards laid down in the Directive. However, the exact category of weapon subject to authorization is not defined. The legislator also does not provide for the obligation to keep a register on firearms received or disposed by him. In relation to that, the legislator does not provide the obligation to mark the weapons (which would enable identification of weapons) and names, address of supplier and the person acquiring the weapon. For the purpose of approximation with the minimum standards laid down in Directive, it is necessary to define the obligation of the commercial company or entrepreneur to regularly keep the register on the firearms he acquires or possesses with such particulars which would enable easier identification of firearms in question, as well as particulars on supplier and the person acquiring the weapon. In line with the previous classification of firearms, it is necessary define to what types of firearms these obligations apply to. Transfer of Handing Over of a Firearm Council Directive 91/477/EEC on Control of Acquisition and Possession of Weapons particularly focuses the transfer and handing over of firearms between the member states, drawing a distinction as to whether the person acquiring or possessing firearms is or is not a resident of the state in question.

18

Article 21, Law on Arms, (Official Gazette of the Republic of Montenegro Nr.49/2004 from 27 July 2004) Article 24, Law on Arms, (Official Gazette of the Republic of Montenegro Nr.49/2004 from 27 July 2004) Article 25, Law on Arms, (Official Gazette of the Republic of Montenegro Nr.49/2004 from 27 July 2004)

19

20

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Montenegrin Law on Arms states that provisions of this Law also apply to foreigners who have been accepted as permanently or temporarily residents (minimum one year), if not regulated otherwise by an international agreement.21 National law does not include special provisions concerning transfer and handing over of firearms between member states, but it contains certain provisions which could be applied for these purposes, such as Chapter VIII of the Law on Arms regulating the transport of weapon and ammunition. Since the Law on Arms does not contain a set of provisions specifically referring to transposing or handing over of weapons within and between member states, the following section of this report will be focused on the analysis of these provisions which are laid down in the Directive. Directive defines a detailed procedure when transfer of firearms from one member country to another is carried out, i.e. the person concerned shall, before it is taken there, supply the following particulars to the Member State in which such firearm is situated: the names and addresses of the person selling and disposing of the firearm and of the person purchasing or acquiring it or, where appropriate, of the owner, the address of which the firearm is to be consigned or transported, the number of firearms to be consigned or transported, the particulars enabling the firearm to be identified and also an indication that the firearm has undergone a check in accordance with the Convention of 1 July 1969 on the Reciprocal Recognition of Proofmarks on Small Arms, the means of transfer the date of departure and estimated date of arrival.22

Member state shall also examine the conditions under which the transfer is to be carried out, in particular with regard to security. When the member state authorized such transfer, it shall issue the license incorporating all the above mentioned particulars. Such license shall accompany the firearm until it reaches its destination.23 The Law on Arms envisages the contents of the application for the issuance of the permit for transport of weapons and ammunition. It contains the following particulars: name and address of sender, recipient and manufacturer of weapon, type of weapon, trade mark, serial number, quantity and manner of weapon packaging, date and time of the beginning of the transport, means of transport, direction of movement and destination, the name of entry and exit border, the time when the weapons and ammunition will be transported across the border, security measures undertaken during the transport of weapons, but it is necessary to further harmonise it with the Directive provisions. 24 The Law stipulates that the authority responsible for the issuance of permit for the transport of weapon, may if necessary, order undertaking of special security measures during the transport of weapon (direction of movement, escort of the sender or shipping agent, police escort).25

21

Article 1, Law on Arms, (Official Gazette of the Republic of Montenegro Nr.49/2004 from 27 July 2004)

Article 11, paragraph 2, Council Directive 91/477/EEC on Control of the Acquisition and Possession of Weapons, 18 June 1991
23

22

Ibid

24 See Article 63, Contents of the application for issuance of permit for transport of weapons and ammunition, Law on Arms, (Official Gazzette of the Republic of Montenegro, Nr. 49-2004 from 27 July 2004) 25 Ibid

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In accordance with the Directive, member state shall supply the other member states with a list of firearms the transfer of which to its territory may not be authorized without its prior consent. If the procedure is not employed, the possession of a firearm during the journey through two or more member states shall not be permitted unless the person concerned has obtained the authorization of each of those member states. Member states may grant such authorization for one or more journeys for a maximum period of one year, subject to renewal. Such authorization shall be entered on the European firearms pass. Directive provides for certain derogations for hunters (in respect of categories C and D) and marksmen (in respect of categories B, C and D) where these persons may without prior authorization be in possession of one or more firearms classified in these categories during the journey through two or more member states with a view to engaging in their activities. They must be in possession of the European firearms pass listing such firearms and indicating they have reasons for that journey in particular by producing an invitation. However, this rule does not apply if the destination state prohibits the acquisition and possession of the firearm in question or makes it subject to authorisation. In that case a statement to that effect shall be entered into the European firearms pass.26 Other Provisions The Directive does not bind member states to conclude reciprocal agreements for the mutual recognition of national documentation which may provide more flexible arrangements for movement with firearms within their territories.27 Directive requires the exchange of all useful information concerning transfer of firearms of the member state, to the territory of which such a transfer has been effected.28 This information is to be exchanged not later than the time of the relevant transfer to the member state of destination or transit.29 Directive also provides for the establishment of the network for exchange of information30 and the obligation of the member states to provide information to the other member states and the Commission of the national authorities responsible for transmitting and receiving information, as well as for applying the formalities referred to in Article 11. As regards national law, the state shall adopt all relevant provisions prohibiting entry into their territory: of a firearm except in the cases defined in Articles 11 and 12 and provided the conditions laid down therein are met; of a weapon other then a firearm provided that the national provisions of the Member State in question so permit

26 Article 12, paragraph 2, Council Directive 91/477/EEC on Control of the Acquisition and Possession of Weapons, 18 June 1991 27 Article 12, paragraph 3, Council Directive 91/477/EEC on Control of the Acquisition and Possession of Weapons, 18 June 1991 28 Article 13, paragraph 1, Council Directive 91/477/EEC on Control of the Acquisition and Possession of Weapons, 18 June 1991 29 Article 12, paragraph 2, Council Directive 91/477/EEC on Control of the Acquisition and Possession of Weapons, 18 June 1991 30 Directive provides for that the final deadline for the establishemnt of the network for the exchange of information for the member states is 1 January 1991.

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The member states are to intensify controls on possession of weapons at external Community frontiers in order to ensure that the travellers from third countries comply with Article 12. The member state should inform the Commission of the manner in which the controls are carried out and Commission will pass on the information to the other member states. The member state shall inform the Commission of its national provisions, including changes related to the acquisition and possession of weapons where the national law is more stringent than the minimum standards they are required to adopt. The Commission shall pass on such information to the other member states.31 Directive does not specifically regulate the penalties for the breach of provisions adopted by law, but it emphasises that such penalties must be sufficient to promote compliance with such provisions.32 The Commission shall submit a report to the European Parliament and European Council about the situation arising from the application of this Directive and if appropriate with proposals within 5 years from the day of transposing of this Directive into national law.33 Conclusion European Union is an area without internal borders where free movement of persons, goods, services and capital is ensured. The member states were obliged to meet certain standards in terms of safety and security prior to abolishing customs formalities. One of the main conditions set up for Montenegro is the harmonization of national legislation with the EU regulations. Directive 91/477/EEC adopted on 18 June 1991 lays down the minimum standards in terms of control of acquisition and possession of weapons to be met by all EU member states as well as those aspiring to become one. In relation to that, Montenegro is to harmonize its national regulations (in particular its Law on Arms) with the Directive standards. Directive does not bind the members states to develop more stringent control of the acquisition and possession of weapons. Directive 91/477/EEC requires the classification of all firearms whose acquisition and possession are to be prohibited, subject to authorization or subject to declaration. These are the categories A, B and C, while the Directive also provides for category D other weapon. The Montenegrin Law on Arms provides for the category of prohibited weapon which is harmonized with the Directive, as it defines additional 5 types of weapon whose acquisition and possession shall be prohibited. However, the classification should be harmonised with the Directive so as to avoid different interpretations during the implementation of provisions. As regards the categories B and C, the list of weapons does not meet the Directive standards which is why it is necessary that the Law on Arms contain the exact list of what weapon is subject to authorisation or declaration. Such list is contained in category A- prohibited weapon. Making the exact classification of weapons entails the fulfilment of a set of other provisions of the Directive related to the abovementioned classification of weapons.
Article 15, paragraphs 1, 3 and 4, Council Directive 91/477/EEC on Control of the Acquisition and Possession of Weapons, 18 June 1991 32 Article 16, Council Directive 91/477/EEC on Control of the Acquisition and Possession of Weapons, 18 June 1991 33 Article 17, Council Directive 91/477/EEC on Control of the Acquisition and Possession of Weapons, 18 June 1991
31

15

Introduction of the European firearms pass will be a new institute in the national legislation which must be provided for by either a new law or by amendments to the existing one. The minimum standards for the form and contents of this document are laid down in the Directive and are analysed in this report. As regards the acquisition and possession of firearms by physical persons, dealers and sellers the national law contains the minimum standards for the issuance of the permit or approval for the acquisition and possession of firearms. However, it does not clearly specify the categories of weapons to which that refers to. Instead, the subject of the acquisition is defined as weapon. The national law must clearly specify the categories of weapons and accordingly define other provisions applying to the acquisition and possession of firearms. The Law also does not require from commercial companies and entrepreneurs to regularly keep the register of the weapons they acquire or possess, nor does it contain the particulars about supplier and person acquiring the weapon. In line with the Directive standards, this obligation should be incorporated into the national law so as to enable access to the register and perform control over the weapons and persons engaged in these activities. The Montenegrin Law on Arms should also provide for a set of provisions related to the transfer and handling of a firearm within and between the EU member states which Montenegro aspires to join. In addition to these provisions, there are minimum standards to be met in relation to the exchange of the information about the control of acquisition and possession of the firearms, as well as the recommendations about the penalties for the breach of the provisions. The abovementioned provisions are elaborated in more detail in this report. Within 5 years from the day of transposing of this Directive into national law the state is obliged to inform the Commission which then presents to the European Parliament the report on compliance with the Directive. In such manner, the EU performs control over the implementation of the provisions by the member state and gains an insight into the results of their implementation.

16

Table 1.

COMPARATIVE APPROACH OF THE LEGAL FRAMEWORK

THEMA

PROVISIONS EU Directive 91/477/EEC

Prohibited Firearms (Category A)

1.Explosive military missiles and launchers 2.Automatic firearms 3.Firearms disguised as other objects 4.Ammunition with penetrating, explosive or incendiary projectiles, and the projectiles for such ammunition. 5.Pistol and revolver ammunition with expending projectiles and the projectiles for such ammunition, except in the case of weapons for hunting or for target shooting, for person entitled to use them

PROVISIONS of Law on Arms of the Republic Montenegro 1.all types of automatic weapons 2. other semiautomatic firearms with the magazine capacity of more than 5 bullets, except rifles with 22 LR calibers 3.all types of weapon with built-in silencer, silencers for use with weapons, and silencer components 4. telescopic sights with light ray, or an electronic light intensifier or infrared devices 5. weapons intended for ejection of explosive projectiles 6. weapons in the form of another object, so that from the exterior it is not recognizable as weapon 7. fragmenting weapons 8.ammunition, the main use of which is antiarmor, ammunition with

RECOMMENDATIONS

A part of the Law on Arms regulating category A, i.e. the prohibited firearms category is harmonized with Directive 91/477/EEC. Not only does it meet the minimum standards laid down in this Directive, but it also defines another 5 types of firearms whose acquisition and possession shall be prohibited. The prohibited firearms in the Law are undoubtedly the same firearms which are listed under the category A of the Directive. It is recommended that the terms used for the firearms be harmonized with the Directive in order to avoid ambiguities or arbitrary interpretations.

17

THEMA

PROVISIONS EU Directive 91/477/EEC

Authorized Firearms (Category B)

1.Semi-automatic or repeating short firearms 2.Single-shot short firearms with centre-fire percussion 3.Single-shot short firearms with rimfire percussion whose overall length is less than 28 cm 4. Semi-automatic long firearms whose magazine and chamber can together hold more than threerounds. 5.Semi-automatic long firearms whose magazine and chamber cannot together hold more than three-rounds, where the loading device is removable or where it is not certain that weapon cannot be converted, with ordinary tools, into a

PROVISIONS of Law on Arms of the Republic Montenegro explosive, inflammable or poisonous projectiles 9. ammunition for which no approval for circulation was obtained in accordance with special regulation provisions 10. switch blade knife, the blade of which is pressed by a spring, and which pops out by pressing a button or a lever; boxer or metal asterisks (suriken for throwing) 1.firearms and crossbows with the power over 45 kg (100 pounds) 2.firearms with a projectile filled with sedating substances (temporary animal anesthetizing or for scientific purposes) 3.old weapons (in case of collecting more than three pieces of such weapon) 4. bladed weapons, automatic and semi-automatic

RECOMMENDATIONS

The existing law does not meet the minimum standards laid down in Directive. The Montenegrin Law on Arms does not contain a clearly defined list of weapons subject to authorization. Instead, the provisions about weapon falling under this category are mentioned un several articles of national law. It is recommended that the list of existing types of weapon subject to authorization be expanded with the weapon falling under this category u in line with the Directive provisions. On the basis of that, it is

18

THEMA

PROVISIONS EU Directive 91/477/EEC

weapon whose magazine and chamber can together hold more than three rounds. 6.Repeating and semiautomatic long firearms with smooth-bore barrels not exceeding 60 cm in length. 7.Semi-automatic firearms for civilian use which resemble weapons with automatic mechanism. Declared Firearms (Category C) 1. Repeating long firearms other than those listed in category B, point 6. 2. Long firearms with single-shot rifled barrels 3. Semi-automatic long firearms other than those in category B, point 4 to 7 4. Single-shot short firearms with rimfire percussion whose overall length is not less than28cm.

PROVISIONS of Law on Arms of the Republic Montenegro firearms no longer in use by the military or police, that has been permanently deactivated (if a permission for the collection of old weapons has been issued already) 5. firearms ammunition 1. General term weapons and ammunition for whose acquisition and possession declaration is necessary

RECOMMENDATIONS

necessary to compile a single and clear list of weapon subject to authorisation, as it was done with the category A (prohibited firearms) of the national law.

Other Firearms (Category D)

1. Single-shot long firearms with smooth-bore barrels

The Law does not define a single type of weapon falling under this category. Instead, it defines situations when a person is obliged to inform competent authority of acquisition and possession of weapon and as well as to report it to the competent authority. The subject of these acts is defined as weapon. Naturally, it is necessary to make a list of weapon subject to declaration in national legislation in compliance with Directive. By doing so, at least the minimum standards of directive concerning this category would be met. The Law also does not include the category D (other firearms). Therefore, this category of weapon should be incorporated into the national legislation in order for it to be in line with the

19

THEMA

PROVISIONS EU Directive 91/477/EEC

PROVISIONS of Law on Arms of the Republic Montenegro

RECOMMENDATIONS

Acquisition and Possession of Firearms (private person)

Article 5, EU Directive: The member state may allow acquisition and possession of firearms by persons classified in category B only who have good cause and who: A)are 18 years old or more, except for hunting or target shooting; B)are not likely to be a danger to themselves, to public order or to public safety. It is also stated that the Member State shall allow the possession of firearms in category C and D only by persons satisfying the conditions in point (A), and that the permit for the possession of firearms may be revoked if any of the conditions in point (B) of the first paragraph is no longer satisfied

Articles 17, 18 and 19 of the Law on Arms may be summarized as follows: a person must be over 21 years of age, he must not been prosecuted in misdemeanour or criminal procedure and or convicted for offences, circumstances indicating misuse of weapon must not exist. The Law also provides for certain justified reasons for weapon procurement, certificate of physical fitness and certificate of training in arms handling. The Law stipulates that a weapon certificate shall be revoked by a competent authority if some of the abovementioned conditions are not satisfied. Article 20 states that the certificate of training in arms

Directive91/477/EEC standards The Law defines a set of conditions to be satisfied in order for the competent authority to issue permission for the acquisition of weapons. These conditions completely correspond with the minimum standards laid down in Directive and at some point even surpass them. However, the subject of procurement is generally related to weapons except in terms of conditions concerning training to handle weapons. In this case, it is clearly specified to what types of weapons this condition applies. However, it cannot be concluded whether permit issuance to the physical person for acquisition of weapons applies solely to these three types of weapons or it refers to all other weapon whose acquisition and possession is not prohibited? The recommendation points at the need to establish an exact list of weapons for whose acquisition and possession permit may be issued to a physical person, in line with the provisions given in the Directive, in order to avoid possible arbitrary

20

THEMA

PROVISIONS EU Directive 91/477/EEC

RECOMMENDATIONS PROVISIONS of Law on Arms of the Republic Montenegro handling is interpretations of the Law necessary for provisions. three types of weapon, as follows: 1.for hunting weapons certificate of completed hunting exam 2.for sporting weapons certificate of active membership in sports marksmanship organization 3.for short firearms certificate of aptitude for keeping and carrying and correct use of weapons issued by the Ministry Articles 21, 24 and 25, Law on Arms state that commercial companies and entrepreneurs shall be issued a permit for weapons purchase in order for them to engage in their activities. The Law also provides for a form of permit for performing these activities, but it does not

Acquisition and Possession of Firearms (Dealer)

Article 4, EU Directive, At least in respect of categories A and B, each Member States shall make the pursuit of the activity of dealer within its territory conditional upon authorization on the basis of at a least a check on the private and professional integrity of the dealer. In respect of categories C and D, each Member State which does not make the pursuit of the activity of dealer conditional upon authorization shall make such activity subject to

The national legislation states that acquisition and possession of weapon by commercial companies and entrepreneurs is subject to authorization which meets the minimum standards laid down in the Directive. However, the exact category of weapon subject to authorization is not defined. It is recommended that the authorization of acquisition and possession of weapons by a dealer is linked to

21

THEMA

PROVISIONS EU Directive 91/477/EEC

declaration

PROVISIONS of Law on Arms of the Republic Montenegro specify the categories of weapons for which this permit is issued. The purchase of ammunition may be approved on the basis of a weapon certificate. The authorized weapon dealer shall inform the relevant authority of the sale of weapons not later than 8 days from the day when the sale was effected.

RECOMMENDATIONS

the specific category of weapon to which that authorization applies. As in the abovementioned recommendations for the classification of weapon in national legislation, there is the initial premise and precondition for further fulfilment of the Directive standards. Once clear classification has been made in line with the minimum standards given in the Directive, harmonization of the national law provisions with the standards given in the Directive will be quite easier and simpler.

Withdrawal of authorization for possession

Article 5, EU Directive: The member state may allow acquisition and possession of firearms by persons classified in category B only who have good cause and who: A)are 18 years old or more, except for hunting or target shooting; B)are not likely to be a danger to themselves, to public order or to public safety. Paragraph 2. Member States shall allow possession of firearms classified in category C and D only by persons satisfying the conditions in point (A) of the first paragraph. Paragraph 3 Member States may

Articles 17, 18 and 19 of the Law on Arms may be summarized as follows: a person must be over 21 years of age, he must not been prosecuted in misdemeanour or criminal procedure and or convicted for offences, circumstances indicating misuse of weapon must not exist. The Law also provides for certain justified reasons for

The Law defines a set of conditions to be satisfied in order for the competent authority to issue permission for the acquisition of weapons. These conditions completely correspond with the minimum standards laid down in Directive and at some point even surpass them. However, the subject of procurement is generally related to weapons except in terms of conditions concerning training to handle weapons. In this case, it is clearly specified to what types of weapons this condition applies. The recommendation points at the need to

22

THEMA

PROVISIONS EU Directive 91/477/EEC

withdrawal authorization for possession of the firearm if any of the condition in point (B) of the first paragraph is no longer satisfied.

Transport of Firearm across border/ Firearm Pass

Article 1, paragraph 4: The European firearm pass is a document which is issued on request by the authorities of a Member State to a person lawfully entering into possession of and using a firearm. It shall be valid for a maximum period of five years. The period of validity may be extended The European firearm pass is non-transferable document, on which shall be entered the firearm or firearms possessed and used by the holder of the pass. The pass must always be in the possession of the person using the firearm. Changes in the possession

PROVISIONS of Law on Arms of the Republic Montenegro weapon procurement, certificate of physical fitness and certificate of training in arms handling. Clan 50, Reasons for confiscation of weapons, ammunition and weapon certificate: The relevant authority will confiscate weapons, ammunition and weapon documentation in case of difficulties set forth in Article 17, items 2 to 5 thereof.. The Law provides for issuance of the so-called weapons certificate for the possession and carrying of weapons: its form, period of validity, refusal of the application for the issuance of weapon certificate etc. The Law does not contain the provisions related to the transport of firearms between the EU member states,

RECOMMENDATIONS

establish an exact list of weapons for whose acquisition and possession permit may be issued to a physical person in order to avoid possible arbitrary interpretations of the Law provisions. Establishment of the list of weapons for which a permit may be issued to the physical person will also better regulate the process of withdrawal of authorization for possession of the firearm which will then be in line with the Directive.

European Firearms Pass represents one of the minimum standards to be fulfilled in terms of form and contents by all member states. This pass ensures facilitated travelling between member states. Somewhat different rules apply for hunting weapons and target shooting which was elaborated in the text above, so as not to impede the free movement of persons more than is necessary. In order to fulfil the minimum standards concerning provisions of the Directive, national

23

THEMA

PROVISIONS of Law on Arms of the Republic Montenegro nor does it or characteristics of the regulate the firearm shall be indicated form and on the pass, as well as the contents of the loss or theft of the firearm. firearm pass Annex II of the Directive: which serves for The pass must include the the transport of following sections: firearms 1.identity of the holder; 2.identification of the between the EU weapon or firearm, member states. including a reference to the category within the meaning of the Directive; 3.period of validity of the pass; 4.section for use by the Member State issuing the pass (type and references of authorization, etc.); 5.section for entries by other Member States (authorization to enter their territory, etc.); 6.the statements: The right to travel to another Member State with one or more of the firearms in categories B, C or D mentioned in the pass shall be the subject to one or more prior corresponding authorizations from the Member State visited. This or these authorizations may be recorded on the pass. The prior authorization referred to above is not in principle necessary in order to travel with a firearm in categories C or D with a view to engaging in hunting or with a firearm in categories B, C or D for the purpose of taking part in target shooting, on condition that the traveller is in possession of the

PROVISIONS EU Directive 91/477/EEC

RECOMMENDATIONS

legislation must provide for introduction of the European Firearms Pass whose form and contents will correspond with the standard laid down in the Directive. Since the European Firearms Pass is related to the categories of weapon for which it is issued, classification of weapon must first of all be done in accordance with Directive provisions. After that, the national legislation should define form of the pass itself.

24

THEMA

PROVISIONS EU Directive 91/477/EEC

PROVISIONS of Law on Arms of the Republic Montenegro

RECOMMENDATIONS

Transfer of Possession of firearm across border

firearm pass and can establish the reason for the journey. Where a Member State has informed the other Member States, in accordance with Article 8 (3) that the possession of certain firearms in categories B, C or D is prohibited or subject to authorization, one of the following statements shall be added: -a journey to ..(State/s concerned) with the firearm../identification/ shall be prohibited - b journey to ..(State/s concerned) with the firearm../identification/ shall be subject to authorization Article 11, paragraph 2 of the Directive: Where a firearm is to be transferred to another Member State, the person concerned shall, before it is taken there, supply the following particulars to the Member State in which such firearm is situated: 1.the names and addresses of the person selling and disposing of the firearm and of the person purchasing or acquiring it or, where appropriate, of the owner, 2.the address of which the firearm is to be consigned or transported, 3.the number of firearms to be consigned or transported, 4.the particulars enabling

The Law on Arms does not define the procedure for issuance of the permit for transfer of weapons between member states. However, Article 63 of the law provides for formalities to be contained in the application for issuance of permit for transport of weapons and ammunition, as follows: 1.name and address of

The Law on Arms of Montenegro does not contain specific provisions for transfer of weapons within and between member states. Chapter VII of the law regulates the transport of weapons and ammunition and it also contains the formalities to be contained in the application for issuance of the permit for transport of weapons. These formalities mainly correspond with the minimum standards laid down in the Directive. It is recommended that national law contain the obligation for the weapon to undergo check in accordance with

25

THEMA

PROVISIONS of Law on Arms of the Republic Montenegro the firearm to be identified sender, and also an indication that 2.name and the firearm has undergone address of a check in accordance with recipient the Convention of 1 July 3.name and 1969 on the Reciprocal address of Recognition of Proofmarks manufacturer of on Small Arms, weapon, 5.the means of transfer 4. type of the date of departure and weapon, trade estimated date of arrival. mark, serial The information referred to number, quantity in the last two indents need and manner of to be supplied where the weapon transfer takes place packaging, between dealers. The 5.date and time Member State shall of the beginning examine the conditions of the transport, under which the transfer is means of to be carried out, in transport, particular with regard to direction of security. Where the movement and Member States authorizes destination, such transfer, it shall issue a 6. name of entry licence incorporating all the and exit border, particulars referred to in the the time when first subparagraph. Such the weapons and licence shall accompany ammunition will the firearm until it reaches be transported its destination; it shall be across the produced whenever so border, required by the authorities 7.security of the Member States. measures Article 12: 1.If the undertaken procedure provided for in during the Article 11 is not employed, transport of the possession of a firearm weapons. during a journey through The authority two or more Member States responsible for shall not be permitted the issuance of unless the person permit for the concerned has obtained transport of the authorization of each of weapon, may if those Member States. necessary, order Member States may grant undertaking of such authorization for one special security or more journeys for a measures during

PROVISIONS EU Directive 91/477/EEC

RECOMMENDATIONS

the Convention of 1 July 1969 on the Reciprocal Recognition of Proofmarks on Small Arms, prior to the issuance of permit for the transfer of weapons and ammunition.. It is also recommended that the state sets more flexible rules based on the Directive related to hunting and target shooting in order to avoid impeding the free movement of persons more that is necessary. These rules apply to hunters in respect of categories C and D, and marksman, in respect of category B, C and D, may without prior authorization be in possession of one or more firearms during the journey through two or more Member States with a view to engaging in their activities, provided that they are in possession of European firearm pass listing such firearm or firearms and provided that they are able to substantiate the reason for their journey, in particular by producing an invitation. The state may conclude agreements about mutual recognitions of national documents which will establish more flexible rules for the movement of persons who are in possession of

26

THEMA

PROVISIONS EU Directive 91/477/EEC

maximum period of one year, subject to renewal. Such authorization shall be entered on the European firearm pass, which the traveller must produce whenever so required by the authorities of the Member States. 2.Notwithstanding paragraph 1,hunters, in respect of categories C and D, and marksmen, in respect of category B, C and D, may without prior authorization be in possession of one or more firearms classified in these categories during a journey through two or more Member States with a view to engaging in their activities, provided that they are in possession of a European firearm pass listing such firearm of firearms and provided that they are able to substantiate the reasons for their journey, in particular by producing an invitation. However, this derogation shall not apply to journeys to a Member State which prohibits the acquisition and possession of the firearm or which, pursuant to Article 8 (3), makes it subject to authorization; in that case, an express statement to that effect shall be entered on the European firearm pass. 3. Under agreements for the mutual recognitions of national documents, two or more Member States

PROVISIONS of Law on Arms of the Republic Montenegro the transport of weapon (direction of movement, escort of the sender or shipping agent, police escort)

RECOMMENDATIONS

weapon.

27

THEMA

PROVISIONS EU Directive 91/477/EEC

PROVISIONS of Law on Arms of the Republic Montenegro

RECOMMENDATIONS

may provide for arrangements more flexible than those prescribed in this Article for movement with firearms within their territories.

Info exchange Articles 12 and 13 of Directive regulate the field of the exchange of information between member states in terms of weapons transfer. Directive requires the exchange of all useful information concerning transfer of firearms of the member state, to the territory of which such a transfer has been effected. This information is to be exchanged not later than the time of the relevant transfer to the member state of destination or transit. Directive also provides for the establishment of the network for exchange of information and the obligation of the member states to provide information to the other member states and the Commission of the national authorities responsible for transmitting and receiving information, as well as for applying the formalities. The Law on Arms of the Republic of Montenegro does not contain these obligations. National law needs to include mechanisms that will correspond with the minimum standards laid down in Directive in terms of information exchange between member states. It is crucial to include the obligation of the responsible ministry to exchange information related to the transfer of firearms with the state with which such a transfer has been effected, prior to the transfer to the member state of destination or transit. Directive provided for the establishment of the network for exchange of information until 1 January 1993, this network for exchange of information is already developed and it is vital for Montenegro to make its contribution to it in the future. At the beginning such contribution would include the establishment of national commission that will be in charge of communication between

28

THEMA

PROVISIONS EU Directive 91/477/EEC

PROVISIONS of Law on Arms of the Republic Montenegro

RECOMMENDATIONS

Marking and tracing

Article 11, paragraph 2 of the Directive: Where a firearm is to be transferred to another Member State, the person concerned shall, before it is taken there, supply the following particulars to the Member State in which such firearm is situated: 1.the names and addresses of the person selling and disposing of the firearm and of the person purchasing or acquiring it or, where appropriate, of the owner, 2.the address of which the firearm is to be consigned or transported, 3.the number of firearms to be consigned or transported, 4.the particulars enabling the firearm to be identified and also an indication that the firearm has undergone a check in accordance with the Convention of 1 July 1969 on the Reciprocal Recognition of Proofmarks on Small Arms, 5.the means of transfer the date of departure and estimated date of arrival. The information referred to in the last two indents need to be supplied where the transfer takes place between dealers. The Member State shall examine the conditions under which the transfer is to be carried out, in particular with regard to security. Where the Member

member states, i.e. for transfer and receipt of information related to the transfer of weapons. The part of the Law on Article 63, Law Arms regulating the on Arms: Contents of the application for the issuance of permit for application for transport of weapons and issuance of ammunition provides for permit for a range of formalities to transport of be fulfilled prior to the weapon and permit issuance. These ammunition: formalities considerably The contents of correspond with the the application minimum standards laid for the issuance of the permit for down in Directive, but additional harmonization transport of with its provisions is weapons and recommended, ammunition particularly in terms of envisages: details enabling the 1.name and firearm to be identified. address of The Law also needs to sender, include the obligation for 2.name and the weapons to undergo address of check in line with the recipient Convention of 1 July 1969 3.name and on the Reciprocal address of Recognition of manufacturer of Proofmarks n Small Arms. weapon, The Law also needs to 4. type of state that this weapon, trade documentation should mark, serial number, quantity accompany the transfer of weapons until the and manner of moment of it reaching its weapon destination. packaging, 5.date and time of the beginning of the transport, means of transport, direction of movement and destination, 6. name of entry

29

THEMA

PROVISIONS EU Directive 91/477/EEC

States authorizes such transfer, it shall issue a licence incorporating all the particulars referred to in the first subparagraph. Such licence shall accompany the firearm until it reaches its destination; it shall be produced whenever so required by the authorities of the Member States 3. In the case of transfer of the firearm, other than weapon of war, excluded from the scope of this Directive pursuant to Article 2 (2), each Member State may grant dealers the right to effect transfers of firearms from its territory to a dealer established in another Member State without the prior authorization referred to in paragraph 2. To that end it shall issue an authorization valid for no more than three years, which may at any time be suspended or cancelled by reason decision. A document referring to that authorization must accompany the firearm until it reaches its destination ;it must be produced whenever so required by the authorities of the Member States. Not later than the time of transfer, the dealer shall communicate to the authorities of the Member State from which the transfer is to be effected all the particulars listed in the first subparagraph of paragraph 2. 4. Each Member State shall

PROVISIONS of Law on Arms of the Republic Montenegro and exit border, the time when the weapons and ammunition will be transported across the border, 7. security measures undertaken during the transport of weapons. The authority responsible for the issuance of permit for the transport of weapon, may if necessary, order undertaking of special security measures during the transport of weapon (direction of movement, escort of the sender or shipping agent, police escort)

RECOMMENDATIONS

30

THEMA

PROVISIONS EU Directive 91/477/EEC

PROVISIONS of Law on Arms of the Republic Montenegro

RECOMMENDATIONS

Record keeping

supply the other Member States with a list of firearms the transfer of which to its territory may not be authorized without its prior consent. Article 4, EU Directive: Each dealer shall be required to keep a register in which information concerning all firearms classified in category A,B or C received or disposed of by him shall be recorded, including such particulars as enable the weapon to be identified, in particular the type, make, model, calibre and serial number thereof and the names and addresses of the supplier and the person acquiring the weapon. The Member States shall regularly check dealers compliance with this obligation. The dealer shall conserve the register for a period of five years, even after he has ceased his activity. Article 4, EU Directive: Each dealer shall be required to keep a register in which information concerning all firearms classified in category A,B or C received or disposed of by him shall be recorded, including such particulars as enable the weapon to be identified, in particular the type, make, model, calibre and serial number thereof and the names and addresses of the supplier and the person acquiring

The Law on Arms does not provide for the obligation of dealer to keep the record of firearms that has been received or disposed by him. The Law does not contain the obligation to mark the weapons which would enable it to be identified, names and addresses of the

It is necessary to define the obligation of the commercial company or entrepreneur to regularly keep the register on the firearms he acquires or possesses with such particulars which would enable easier identification of firearms in question, as well as particulars on supplier and the person acquiring the weapon. In line with the previous classification of firearms, it is necessary define to what types of

31

THEMA

PROVISIONS EU Directive 91/477/EEC

the weapon. The Member States shall regularly check dealers compliance with this obligation. The dealer shall conserve the register for a period of five years, even after he has ceased his activity.

PROVISIONS of Law on Arms of the Republic Montenegro supplier and person acquiring the weapon.

RECOMMENDATIONS

firearms these obligations apply to.

32

Tab 2: Term

CATEGORISATION OF FIREARMS Provision of the Law on Arms, Republic of Montenegro 1. all types of automatic weapons 2. other semi-automatic firearms with the magazine capacity of more than 5 bullets, except rifles with 22 LR calibers 3.all types of weapon with built-in silencer, silencers for use with weapons, and silencer components 4. telescopic sights with light ray, or an electronic light intensifier or infrared devices 5. weapons intended for ejection of explosive projectiles 6. weapons in the form of another object, so that from the exterior it is not recognizable as weapon 7. fragmenting weapons 8.ammunition, the main use of which is anti-armor, ammunition with explosive, inflammable or poisonous projectiles 9. ammunition for which no approval for circulation was obtained in accordance with special regulation provisions 10. switch blade knife, the blade of which is pressed by a spring, and which pops out by pressing a button or a lever; boxer or metal asterisks (suriken for throwing) 1. firearms and crossbows with the power over 45 kg (100 pounds) 2. firearms with a projectile filled with sedating substances (temporary animal anesthetizing or for Council Directive 91/477/EEC

1. Prohibited Firearms

Category A- Prohibited firearms 1. Explosive military missiles and launchers 2. Automatic firearms 3. Firearms disguised as other objects 4. Ammunition with penetrating, explosive or incendiary projectiles, and the projectiles for such ammunition. 5. Pistol and revolver ammunition with expending projectiles and the projectiles for such ammunition, except in the case of weapons for hunting or for target shooting, for person entitled to use them

2. Firearms subject to authorization

Category B- Firearms subject to authorization 1. Semi-automatic or repeating short firearms 2. Single-shot short firearms with centre-fire percussion 3. Single-shot short firearms with rimfire

33

Term

Provision of the Law on Arms, Republic of Montenegro scientific purposes) 3. old weapons (in case of collecting more than three pieces of such weapon) 4. bladed weapons, automatic and semiautomatic firearms no longer in use by the military or police, that has been permanently deactivated (if a permission for the collection of old weapons has been issued already) 5. firearms ammunition

Council Directive 91/477/EEC

percussion whose overall length is less than 28 cm 4. Semi-automatic long firearms whose magazine and chamber can together hold more than three-rounds. 5. Semi-automatic long firearms whose magazine and chamber cannot together hold more than three-rounds, where the loading device is removable or where it is not certain that weapon cannot be converted, with ordinary tools, into a weapon whose magazine and chamber can together hold more than three rounds. 6. Repeating and semiautomatic long firearms with smooth-bore barrels not exceeding 60 cm in length. 7. Semi-automatic firearms for civilian use which resemble weapons with automatic mechanism. Category C Firearms subject to declaration 1. Repeating long firearms other than those listed in category B, point 6. 2. Long firearms with singleshot rifled barrels 3. Semi-automatic long firearms other than those in category B, point 4 to 7 4. Single-shot short firearms with rimfire percussion whose overall length is not less than 28 cm.

3. Firearms subject to declaration

1. General term weapons and ammunition for whose acquisition and possession declaration is necessary

34

Term

Provision of the Law on Arms, Republic of Montenegro

Council Directive 91/477/EEC

4. Other firearms

Category D- Other firearms 1. Single-shot long firearms with smooth-bore barrels

35

Tab. 3: Meaning of Terms34

Term

Short firearm

Long firearm

Automatic firearm

Semi-automatic firearm

Repeating firearm

Single-shot firearms

Ammunition with penetrating projectiles

Meanings of terms as given Meanings of terms as given in Directive 91/477/EEC in the Laws on Arms of the Republic of Montenegro Short firearm means a Short firearms with a barrel firearms with a barrel not not longer than 30 cm, and exceeding 30 centimeters or whose overall length does whose overall length does not exceed 60 cm not exceed 60 centimeters Any firearm other than a Long firearms with a barrel short firearm longer than 30 cm, and whose overall length does exceeds 60 cm A firearms which reloads Weapons out of which by automatically each time a pressing the trigger one or round is fired and can fire more bullets are fired more than one round with one pull on trigger A firearms which reloads Machines that after firing automatically each time a each individual bullet are round is fired and can fire again ready for fire by only one round with one pull pressing once the trigger and firing one bullet at a time of a trigger A firearm which after a round Weapons with repeating has been fired is designed to mechanism where bullet be reloaded from a magazine needs to be manually loaded or cylinder by means of into barrel after each firing manually operated action A firearms with no magazine Not defined by the Law which is loaded before each shot by the manual insertion of a round into chamber or a loading recess at the breech of the barrel Ammunition for military use Not defined by the Law where the projectile is jacketed and has a The Law contains the following definition: Firearms penetrating hard core ammunition a whole bullet incorporating a shell, cap, powder, charge and round or shot. A bullet without a

34

This table compares the terms used in Directive and Law on Arms of the Republic of Montenegro. Understanding and harmonization of these terms may be very important during transposing of the Directive provisions into national legislation.

36

Ammunition with explosive projectiles

Ammunition with incendiary projectiles

round, shell or shot is not considered to be such. Industrial devices charge or cattle slaughtering charge, or a bullet for gas munitions or pyrotechnics. Ammunition for military use Not defined by the Law where the projectile contains a charge which explodes on impact Ammunition for military use Not defined by the Law where the projectile contains a chemical mixture which bursts into flame on contact with the air or on impact

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