Arms Use Act 1969
|Title:||Arms Use Act 1969|
|Long title:||Federal Act of March 27, 1969 on the Use of Arms by Bodies of the Federal Police and Municipal Guard (Arms Use Act 1969)|
|Scope:||Republic of Austria|
|Legal matter:||Special administrative law|
|Reference:||Federal Law Gazette No. 149/1969|
|Effective date:||1st September 1969|
|Last change:||BGBl. I No. 61/2016|
|Please note the note on the applicable legal version !|
The 1969 Firearms Use Act regulates the use of firearms in Austria within the framework of compulsory police powers ( § 1 ). It is divided into
- Section I: General Provisions
- Section II: Life-threatening use of weapons
- Section III: Final Provisions
In § 2 of the Act (Section I), is determined who is and in what cases ever authorized to use weapons with service weapons. These are the "organs of the federal police", whereby not only the members of the federal police guard ( executive staff) are to be understood, but also the members of the legally qualified service of the security authorities if these organs are authorized to exercise direct command and coercion . Executives are also considered organs of the Federal Police if, for example, they are assigned to the Ministry of the Interior, like members of the Cobra Task Force .
The authorized persons are entitled to use weapons
- in the case of just self-defense ;
- to overcome a resistance aimed at frustrating a lawful official act;
- to enforce lawful arrest;
- to prevent the escape of a legally detained person;
- to ward off an imminent danger from something (e.g. a wild cattle on a street).
The killing of an injured wild animal by a police officer, e.g. B. after a car accident ( grace shot ), is not covered by the law on the use of weapons or by any other legal regulation. Such animals are usually killed by those who are authorized to hunt, and killing by a veterinarian is also possible.
In the following section 3 it is defined what it is about service weapons. These include
- Truncheons and other batons ,
- Tear gas and other stimulants that only cause a short-term impairment of the state of health,
- Water cannons ,
- Firearms such as pistols , revolvers , military rifles , and carbines ; Machine guns , automatic and self-loading military rifles and submachine guns . Heavier military weapons such as cannons , howitzers , mortars , mine throwers , special cannons for aircraft , boltless or recoilless guns and flamethrowers may acc. § 3 cannot be used. This is a differentiation from the military arsenal. If necessary, the use of such weapons would be covered by Section 9. (For example armor-piercing weapons , hand grenades and also explosives to act on things).
The short rubber stick previously assigned to every officer in the law was replaced by pepper spray in practice. Only in the context of GSOD operations is the long rubber stick attached to the shield, also known as a push-off stick , occasionally used. The less dangerous weapon in these operations is the baton ( tonfa ). Both weapons fall under the term "other batons". The stun gun TASER X26 is not a firearm despite the gun-like appearance, but can best be described as charming triggering means are defined.
For example, the following are available as service weapons to the public security service:
Proportionality and expediency
In § 4 it is determined that the use of weapons per se is only permissible if non-dangerous or less dangerous measures, such as in particular the request to restore the lawful state, the threat of the use of weapons , the pursuit of a fugitive, the use of physical strength or available milder means such as handcuffs or technical locks in particular, seem unsuitable or have proven to be ineffective. This paragraph thus also forms the legal basis for putting on handcuffs. As a threat of the use of a weapon , for example, firing a blank shot to build up psychological pressure is also considered.
Section 5 stipulates that if several weapons are available, use may only be made of the least dangerous weapon that appears to be suitable for the particular situation.
Section 6 states that the purpose of using a weapon may only be to render one incapable of attack, resistance or flight. The damage to be expected from the use of weapons must not be obviously disproportionate to the intended success, except in cases of just self-defense. Furthermore, every weapon is to be used with the greatest possible protection against people and things. A weapon may only be used against people if the purpose of its use cannot be achieved through the effect of a weapon against property (example: shot on the tire of a bank robber's getaway vehicle and not the bank robber himself).
Life-threatening use of weapons
Section II, Section 7 defines the cases in which life-threatening use of weapons is permitted. Namely
- in the case of just self-defense in defense of a person;
- to suppress a rebellion or riot ;
- to enforce the arrest or prevention of the escape of a person who is referred to a criminal offense, which can only be committed intentionally and is threatened with a prison term of more than one year, or who is urgently suspected, alone or in connection with their behavior at the Arrest or escape identifies a person who is generally dangerous to the security of the state, person or property ;
- to enforce the arrest or prevent the escape of a mentally ill person who is generally dangerous to the safety of person or property.
A common pitfall is
- in the event of a dangerous attack or
- as soon as three or more people combine with the intention of continuing to commit criminal offenses (criminal association).
Generally dangerous with regard to the life-threatening use of weapons:
- the deed on its own
- several intentional acts against the same legal interest
- arbitrary choice of victims
A dangerous attack is the threat to a legal asset through the unlawful realization of the offense of a judicially punishable act, which is committed willfully and not just prosecuted at the request of a party, provided it is a criminal offense
- according to the Criminal Code , with the exception of the facts according to , and StGB, or
- according to the Prohibition Act or
- according to the Aliens Police Act 2005 or
- according to the drug law ,
unless the acquisition or possession of an addictive substance for personal use. A dangerous attack is also behavior that aims and is suitable to prepare for such a threat, provided that this behavior is set in close temporal connection with the intended realization of the facts.
Basically, it can be assumed that the use of a firearm is always associated with a risk to life. Separate provisions regarding a final rescue shot as in Germany do not exist in Austria; all provisions of the WaffGebrG must be observed in such an emergency situation. A targeted killing of a person, taking into account the provisions of § 7, is permissible in extreme situations (hostage-taker threatens to kill a hostage imminently). Targeted killing to make someone incapable of resisting or to escape, or to end an escape, is out of the question.
Threat of life-threatening use of weapons
Section 8 stipulates that the life-endangering use of weapons against people must be threatened explicitly, immediately in advance and clearly perceptible. The threat can also be made by issuing a warning shot, which is triggered by the alarm gun in accordance with § 4 is to be distinguished. As a rule, a single threat is sufficient; at least two threats are only required for a crowd. The threat must be made in German; if necessary, threats through gestures or written characters can also be considered. Pulling the service weapon or bringing it into position does not constitute a threat to use a weapon.
Furthermore, it is stipulated that the life-threatening use of weapons is only permitted if it is unlikely to endanger bystanders, unless it seems unavoidable in order to deter a crowd of people from acts of violence that directly or indirectly endanger the safety of people (on Example of looting and lynching ). In the case of fair self-defense, the announcement and consideration for third parties may be omitted.
Service weapon replacement
Section 9 permits the use of weapons or objects other than service weapons if one that appears suitable is not available. If necessary, this also covers the use of heavier military weapons such as armor-piercing weapons, hand grenades and explosives to act on property.
The sharp use of a service dog against people is regulated in § 10 . It is permissible with analogous application of the provisions of Section 1, namely
- in the case of just self-defense;
- to overcome active violent resistance to state power ;
- to enforce the lawful arrest or to prevent the escape of a lawfully detained person who is referred or urgently suspected of criminal acts that can only be committed intentionally and are threatened with imprisonment of more than one year, or of a mentally ill person who is responsible for the safety of the person or of property is to be regarded as generally dangerous.
Use of weapons by closed units
The use of weapons in closed units is also regulated in Section 11 . A closed unit is to be understood as a formation under a uniform command with a common objective in a military order. Section 12 stipulates that the use of weapons by a closed unit is only permitted on the express instruction of the head of the responsible security authority or his representative to the commander of the closed unit. The instruction may only be given after hearing the commander and must also determine the type of weapon to be used. The commanding officer is responsible for issuing orders to the closed unit and executing the official order. However, this does not affect the right to self-defense of every individual member of the closed unit. If the official order cannot be issued in time and there is imminent danger, according to § 13 gives the commander the authority to make decisions. Finally, § 14 states that the use of weapons by a closed unit, except in the case of imminent danger, may only be ordered if all promising options for avoiding the use of weapons, in particular the repeated request to restore the legal status and the repeated threat of the use of weapons, are unsuccessful stayed. What is remarkable in this context is the fact that the use of weapons by closed units in the towns of Krems an der Donau and Waidhofen an der Ybbs can be ordered by the local mayor. That is because these are the only two municipalities for which neither a district authority nor a state police department are responsible as a security authority, where such decisions are made by civil servants.
Finally, the final provisions ( §15 ) set out the date on which the law came into force and the expiry date of superseded legal provisions. A paragraph of the law of December 25, 1894, RGBl. No. 1/1895, concerning the gendarmerie of the kingdoms and countries represented in the Imperial Council , which had previously regulated the use of weapons by the gendarmerie, was suspended. It was not until 2005, when the police and gendarmerie were merged , that the remnants of this law were repealed. The Federal Minister of the Interior is entrusted with the implementation.
Judicature in Austria
When enforcing the Law on Use of Arms, Article 2 of the European Convention on Human Rights , the right to life of every human being, must be observed.
The use of physical strength is subject to the same basic restrictions as the use of weapons (OGH 14 Os 19/90) within the framework of executive compulsory powers (§ 1 WaffGebrG) . In the context of executive compulsory powers, the use of weapons - and thus also the less dangerous measure of the use of physical strength - is only permitted in the cases described in § 2 Z 1 to 5 WaffGebrG. The use of weapons outside of these conditions violates specific rights based on the WaffGebrG, namely the right of the state as well as those affected by the use of weapons and the less dangerous measure to comply with the norms restricting executive powers to protect the physical integrity of people (OGH 14 Os 19/90) .
If a person neither actively acts against police officers nor tries to thwart or hinder an official act, the use of armed force or lesser means according to Section 4 WaffGebrG already lacks the basic requirement of Section 2 of the aforementioned law, so that the use of weapons is not justified (OGH 12 Os 176/73) .
A use of physical strength that is not permitted under the WaffGebrG can violate Article 3 of the European Convention on Human Rights , the prohibition of degrading treatment, if the human dignity of the person concerned is grossly disregarded, for example through unnecessary use of physical strength through forceful grasping, grabbing at the pants, fast Pushing forward and violently pushing into a room; unjustified impacts against people who are on slippery terrain and are therefore inevitably at risk of falling, which are not covered by the WaffGebrG; the unjustified sharp use of a service dog as a means whose effect is equivalent to that of a weapon; the blow of a detective with intent to abuse the head with the radio and the like. (OGH 12 Os 56/79, VfGH of October 6, 1977, B 350/76, VfGH October 11, 1989 B 1172/87, VfGH February 26, 1987 B 270/85) .
The use of weapons in a life-threatening manner is only permitted under the strict conditions specified in § 7 Z 3 WaffGebrG (OGH 1 Ob 22/77) . It can only be assessed in each individual case whether the use of a weapon was justified or not (OGH 1 Ob 263 / 01k) . A life-endangering use of weapons is only permitted if measures to avoid it appear to be unsuitable from the outset within the meaning of Section 4 WaffGebrG (OGH 1 Ob 9/95) . The use of weapons within the scope of compulsory police powers is to be assessed exclusively according to the provisions of the WaffGebrG. Accordingly, the general provision of Section 3 StGB on self-defense is not to be used directly. Rather, it only provides the necessary legal definition for describing this legal term where the WaffGebrG expressly refers to “just self-defense” (§§ 2 Z 1 and 7 Z 1 WaffGebrG) (OGH 13 Os 117/86) .
Other authorizations to use weapons
Members of the judiciary are allowed to use their service weapons in accordance with the provisions of the Prison Act , those of the Federal Army in accordance with the Military Authorization Act . Even after the customs guard has been disbanded , customs authorities are authorized to use weapons in accordance with the provisions of the Customs Law Implementation Act. Further legal authorizations to carry and use weapons can be found in the Guns and Explosives Act and in all hunting laws of the federal states .
- Legal Information System of the Republic of Austria (ris.bka) ,
- "The service weapons of the Federal Police" - article on the BM.I website
- Article in the magazine "Public Security", issue 11-12 / 09, bet. "Weapon Usage Analysis Procedure" (PDF file; 403 kB)
- Article in the daily newspaper "Die Presse" on August 5, 2009; "Use of weapons by the police: Austria in the EU average"