East Timor Law Journal
Towards the rule of law in Timor-Leste
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Draft Law on Arms
NB: This unofficial English translation is based on the original texts of the
DEMOCRATIC REPUBLIC OF EAST TIMOR
IV GOVERNMENT
DRAFT LAW No. 9/II/2008
of the of
ARMS LAW
This document aims to criminalize conducts susceptible of endangering the life and physical integrity of the citizens, resulting from the use and possession of firearms, bladed weapons, projectiles, weapons for projecting toxic, noxious or corrosive substances, explosive or pyrotechnic substances or devices, as well as to criminalize the traffic of the referred arms.
This draft law, by legally defining the different types of arms, the carrying or possession of which is susceptible of being object of criminalization, intends to provide means to the police authorities to enable them to take appropriate action in situations of violation of Public Order.
It also defines certain objects and tools in order to specify the factual context in which they may be considered weapons and the factual context in which they may be considered as mere working tools, or as being used for other specified legitimate purposes, thus filling a legislative gap that prevented the apprehension of certain weapons used for committing crimes.
On the other hand, the cancellation of licences to hold, use and carry arms, namely for personal, functional or work, sporting or hunting purposes, is considered as security measure during the period this security measure is in place, so that the defendant must surrender the arms, licences and other documentation at the police station or unit of his residential area, thus aiming to have a more efficient control over this type of situations.
It should also be pointed out the possibility that the police officer or authorities will now have to apprehend arms, ammunition and the respective licences, in situations where the holder is under the influence of alcohol, drugs, psychotropic substances or others, as well as when there are indications that the suspect has committed the crime of ill-treatment of the spouse or de-facto partner, first degree descendant, children, minor or defenceless persons.
In these cases, besides the obligation to report the crime to the Public Prosecution or to the East Timor National Police (PNTL), it should also be reported to the public or private entity, owner of the arm, for the purpose of eventual disciplinary action.
The Government presents to the National Parliament, under paragraph c) of no. 1 of article 97 and paragraph a) of no. 2 of article 115 of the Constitution of the Republic, the following Draft Law:
Article 1
Concepts
For the purposes of the present law, the following terms shall have the following meanings:
a) Firearm: any portable device or mechanism, handmade or industrial, intended to cause the explosion of a propelling charge, generating a mass of gases the expansion of which expels one or more projectiles;
b) Bladed weapon: any portable object or tool having a blade or other cutting or penetrating surface with 10 cm or more of length or with a cutting-contusing part, as well as any object for the purpose of throwing blades, arrows or darts, irrespective of their size, which is not at the time of the crime connected to the practice of any hunting, commercial, agricultural, industrial, forestry, domestic or sporting activities;
c) Projectiles: any portable object, device or mechanism which, being capable of endangering the life or of causing harm to the physical integrity, only requires the impulse generated by manual force to be hurled;
d) Weapons for projecting toxic, noxious or corrosive substances: a device susceptible of releasing or causing contamination by means of microbiological agents or other biological agents, as well as toxins, whatever its origin or method of production, of the types and in quantities that are not for preventative protection purposes or other peaceful purposes and which prove to be harmful or lethal to life;
e) Pyrotechnics: products or artefacts using explosive or inflammatory matters or substances, of non-authorised craftsmanship.
f) Explosive: any chemical compound or mechanical mixture containing any oxidizing or combustible element in such ratios, quantities or volumes that, through ignition by means of fire, friction, concussion, percussion or detonation of any part of it, may and is normally intended to cause an explosion;
g) Ammunition: any object designed or intended to be shot through an arm;
h) Firearm ammunition: any object designed or intended to be used in a firearm as a projectile or that contains combustible matter designed or intended to cause a gas expansion in a firearm to expel a projectile.
Article 2
Object and scope
1. Any person who, not being duly authorised or licensed, in an act that is contrary to the prescriptions of the competent authority, or not performing professional, hunting, commercial, agricultural, industrial, forestry, domestic or sporting activities, possesses, brings with him or distributes, carries, imports, keeps, purchases, acquires for any purpose, by any means, or obtains by means of manufacture, transformation, import or export:
a) firearm;
b) bladed weapon;
c) projectile;
d) weapon for projecting any type of objects, projectiles, toxic, noxious or corrosive substances;
e) explosives or pyrotechnics;
f) normal ammunition or firearm ammunition;
shall be punished with a penalty of up to 1 year of imprisonment, provided a more serious penalty is not applicable by virtue of other legal provisions.
2. In the event any type of arms, substances or devices referred to in number 1 above are used, the offender shall be punished with up to 2 years imprisonment, provided a more serious penalty is not applicable by virtue of other legal provisions.
3. As long as they act within the course of their duties and in accordance with their policies and the orders given, the East Timor Defence Force (F-FDTL), the East Timor National Police (PNTL) and all the international military and police officers fulfilling their duties in East Timor, within the scope of the cooperation agreements signed by East Timor, shall be excluded from the application of this law.
Article 3
Aggravation of penalty
a) Where, from the facts foreseen in no. 1 of the previous article, someone else suffers:
a. A simple offence to the physical integrity, the offender shall be punished with up to two years imprisonment or a fine between five hundred and one thousand US dollars;
b. A serious offence to the physical integrity, the offender shall be punished with up to three years imprisonment or a fine between one thousand and ten thousand US dollars;
c. Death, the offender shall be punished with one to six years imprisonment.
b) Where, from the facts foreseen in no. 2 of the previous article, any person suffers:
a. A simple offence to the physical integrity, the offender shall be punished with up to three years imprisonment or a fine between one thousand and five thousand US dollars;
b. A serious offence to the physical integrity, the offender shall be punished with imprisonment from six months to four years;
c. Death, the offender shall be punished with two to seven years imprisonment.
Article 4
Licence to use and possess arms and ammunition
1. It is the East Timor National Police (PNTL) Commissar’s duty to grant the licences to use and carry arms and ammunition to persons over twenty-two years of age who meet all the following conditions:
a) Provide evidence that they require the licence for professional purposes or for self-defence;
b) Are in full exercise of their civil rights;
c) Are competent;
d) Present a medical certificate;
e) Have successfully passed a course on the use of firearms run by PNTL, under the terms to be defined in a ministerial order.
2. For the purpose of paragraph c) of the previous number, the fact that the applicant has been sentenced by court for committing a crime may establish his lack of competence.
3. Requests for concession of licence to use and possess firearm and ammunition are made by application stating the applicant’s full name, identity card number, date of birth, occupation, place of birth, nationality and residence, as well as the reason for obtaining the licence.
Article 5
Arms trafficking
1. Any person who, not being duly authorised, not fulfilling the legal conditions or contrary to the prescriptions of the competent authority, sells, transfers for any reason or by any means, distributes, mediates a transaction, or has intentions to transfer the possession, holding or property of arms, pyrotechnic or explosive objects, substances or devices foreseen in no. 1 of article 1 of the present Law, shall be punished with 2 to 10 years of imprisonment.
2. The penalty referred to in no. 1 shall be 4 to 12 years of imprisonment if:
a) The offender is a public servant; or
b) The offender is aware that the object of the traffic is intended for criminal groups, organizations or associations; or
c) The offender makes such trafficking his way of life.
3. The penalty may be specially reduced or not imposed at all, if the offender voluntarily abandons his activity, eliminates or considerably reduces the danger caused by it, prevents the occurrence of the result that the law wants to avoid or truly helps to gather decisive evidence to identify or arrest all the other responsible persons.
Article 6
Ban on holding, using and carrying arms
1. A person convicted of committing a crime foreseen in the present law or maliciously or negligently committing a crime, for the preparation or execution of which the use or availability of a weapon has been relevant, may be subject to a temporary ban on holding, using and carrying arms.
2. The ban period shall have the minimum limit of one year and the maximum equal to the highest limit applicable by law for the crime in question, not counting for this purpose the period of time during which the weapon or weapons, licences and other documents have been apprehended within the requirements of the proceedings or the convicted person has been subject to coercive measure or penalty.
3. The ban implies the prohibition to hold, use and carry arms, namely for personal, functional or work, sporting or hunting or other purposes, as well as the granting or renewal of a firearm licence or authorization to acquire a firearm during the ban period, whereby the convicted person must surrender the arms, licences and other documentation at the police station or unit of his residential area within 15 days from the date of the final sentence.
4. The ban shall be ordered regardless of the convicted person being exempted or excused from obtaining a licence or holding a special licence.
5. The decision of the ban shall be communicated to PNTL and, if applicable, to the public or private entity relevant to the process of assigning firearms or on whom the convicted person depends.
6. The convicted person who fails to surrender the weapon or weapons within the period of time referred to in number 3 shall be liable of the crime of qualified disobedience.
Article 7
Cancellation of licence
1. The security measure of cancellation of licence to hold, use or carry arms may be applied to a person who:
a) Was convicted for committing a crime foreseen in the present law, or a crime related to firearms or committed with violence against people or goods;
b) Was acquitted of committing the crimes referred to in the previous paragraph, solely due to lack of imputability, as long as the offender’s personality and the action committed bring fear that new crimes may be committed involving such arms or the offender is found to be unfit for to hold, use or carry those arms.
2. This measure shall have the minimum duration of 2 years and the maximum of 10 years.
3. The cancellation implies the forfeiture of the entitlement or entitlements, the prohibition of concession of a new licence or of authorization to acquire arms for the duration of this measure and also the prohibition to hold, use or carry arms, namely for personal, functional or work, sporting or hunting or other purposes during the same period, so that the defendant or the person responsible for him must surrender the arms, licences and other documentation at the police station or unit of his residential area, within 15 days from the date of the final sentence.
4. The provisions of paragraphs 4 to 6 of article 6 apply.
Article 8
Apprehension of weapons
1. Police authorities shall apprehend any type of arms and their respective licences and manifests, as well as objects, devices or substances foreseen in this document, under the terms of the Criminal Procedure Act in force and also specifically when:
a) The person holding, using or carrying them is under the influence of alcohol, drugs, psychotropic substances or similar effect products, or refuses to be tested to detect such substances.
b) There are indications that the suspect has ill-treated the spouse or de-facto partner, first degree descendant, children, minor or defenceless person due to age, incapacity, illness or pregnancy and who is under his care, guardianship or responsibility for guidance or education, and in the face of complaint, accusation or first-hand evidence, the possibility of the use of arms is verified.
2. The apprehension includes any firearm held under the exemption or excuse of obtaining a licence or holding a special licence, as well as any firearm that is property of a public or private entity.
3. Besides reporting the crime to the Public Prosecution or to the East Timor National Police (PNTL), in the event of countermand, the apprehension pursuant to the previous number is communicated to the respective public or private entity owner of the weapon, for the purposes of disciplinary action and/or return of the weapon, in general terms.
4. In case the drunkenness or intoxication with drugs or psychotropic substances of the person who holds, uses, possesses or carries a firearm is evident, the firearm shall be retained by police authorities.
Article 9
Forfeiture of arms
In general terms, any arms surrendered to the East Timor National Police (PNTL) because an accessory sentence or security measure was applied to the convicted person, shall be considered forfeited to the nation.
Article 10
Revocation procedure
All legal provisions contrary to what is set in this document are revoked.
Article 11
Hunting activity
The practice of hunting with firearm shall be the object of separate regulation.
Article 12
Coming into force
This law comes into force on the thirtieth day following its publication.
Approved by the Ministerial Council on the 2nd of April 2008.
The Prime Minister,
_[signature]_____________
¬Kay Rala Xanana Gusmão
The Defence and Security Minister
__[signature]__________________
¬Kay Rala Xanana Gusmão
The Justice Minister
_[signature]_____________
¬Lúcia M.B.F. Lobato
For an analysis of this draft legislation, see
