Archiv für November 2012

Nov 2012 30

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Nov 2012 27

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Nov 2012 16

Legaler Waffenbesitz – Rechtstreue ist schön blöd, oder?


 Eine peinliche Entscheidung des Verwaltungsgerichts Hamburg macht deutlich, dass legale Waffenbesitzer erheblich schlechter dastehen als illegale – die nämlich können sich auf den verfassungsgemäßen Schutz der Wohnung berufen, rechtstreue Bürger aber nicht.

 Das Verwaltungsgericht Hamburg (4 K 724/12 vom 05.07.2012, nicht rechtskräftig) ist der Meinung, dass ein Waffenbesitzer, hier ein Jäger, der eine unangemeldete Kontrolle seines Waffenschranks in der Wohnung ablehnt und um eine Terminsvereinbarung bittet, so „gröblich“ gegen seine Mitwirkungspflichten nach dem Waffengesetz verstößt, dass ihm die Waffenbesitzkarte und der Jagdschein entzogen werden müssen (nicht etwa: können).

 Der Fall

 Ein Jäger bekommt Besuch von zwei zivil gekleideten Herren, die seinen ordnungsgemäß angemeldeten Waffenschrank kontrollieren wollen. Er lässt sie nicht in´s Haus – warum, ist streitig, der Jäger sagt dies, die Beamten das. Eins ist aber unstreitig: der Jäger hat sich auf sein durch das Grundgesetz geschütztes Wohnungsrecht berufen  und erklärt, die Herren könnten selbstverständlich, nach ordnungsgemäßer Anmeldung, wiederkommen und seinen Waffenschrank überprüfen. Die haben aber erläutert, der Gesetzgeber hätte gerade die unangemeldete Kontrolle angeordnet, und wäre er nicht willig, dann würde er ja mal sehen, was ihm passiert – Waffenerlaubnis und Jagdschein weg usw.

 Schließlich ziehen die Herren wieder ab, und die Behörde entzieht dem Jäger die Erlaubnisse. Die dagegen gerichtete Klage hatte bislang den zuvor geschilderten Erfolg. Einzelheiten würden den Rahmen eines Blogs sprengen, aber das Urteil ist rundherum lesenswert – zur Abschreckung, sozusagen.

 Aus den Urteilsgründen

 Die sind lang, insgesamt ca. 15 Seiten nur Rechtsausführungen. Das Gericht meint, kurzgefasst: Wer „gröblich“ gegen das Waffenrecht verstößt (§ 5 Abs. 2 Nr. 5 WaffG) ist „unzuverlässig“ und verliert Jagd- und Waffenerlaubnis (§ 45 Abs. 2 Satz 1 WaffG und BJagdG). Ein gröblicher Verstoß sei es aber, wenn man Kontrolleure nicht unangemeldet in die Wohnung lasse. Das Gericht bezieht sich dabei auf § 36 Abs. 3 Satz 2 WaffG.

 Dazu nur wenige, wie ich meine, „Sottisen“ aus dem Urteil:

 –           Das Gericht sagt zunächst: Die Unverletzlichkeit der Wohnung wird durch die Verfassung in Art. 13 GG geschützt. Die unangemeldete Kontrolle ist ein Eingriff in die Unverletzlichkeit der Wohnung.

 Na prima, denkt man bis hierhin.

 Aber das sollte man lieber nicht, denn das Gericht erfindet dann einen Denktrudel, der nicht nur den Juristen staunen lässt. Es meint nämlich:

 Das Grundrecht ist doch garnicht verletzt, weil der Wohnungsinhaber ja freiwillig zustimmt. Zwar hat er hier gerade nicht zugestimmt und könnte auch gesetzlich nicht zur Zustimmung gezwungen werden, aber dann hat er eben gewaltige Nachteile, mit denen er bedroht ist. Die sind aber kein Zwang, weil er ja (zu ergänzen ist: vor lauter berechtigter Angst vor Nachteilen) freiwillig zustimmen könnte. Mit den Worten des Urteils: er könnte sich zwar „faktisch gezwungen sehen“ zuzustimmen, aber das sei doch kein Zwang, weil er ja wählen könne, ob er zustimmt oder nicht. Wenn er dann vor lauter Angst zustimmt, ist das wohl, für dieses Gericht, schön freiwillig!

 Im Ernst, Freunde – hat man so einen Blödsinn schon mal gelesen?

 –           Da staunt man dann schon nicht mehr darüber, dass das Gericht auch den § 36 WaffG falsch auslegt und falsch anwendet. Der sagt nämlich in Abs. 3 Satz 2 zunächst wörtlich:

 Besitzer von erlaubnispflichtigen Schusswaffen, Munition oder verbotenen Waffen haben außerdem der Behörde zur Überprüfung der Pflichten aus den Absätzen 1 und 2 Zutritt zu den Räumen zu gestatten, in denen die Waffen und die Munition aufbewahrt werden.

von „unangemeldet“ steht da freundlicherweise garnix! Aber das Gericht führt dann aus, warum das trotzdem gelten soll.

 Vor allem aber kommt dann im Gesetz ein Satz 3, der da lautet:

 Wohnräume dürfen gegen den Willen des Inhabers nur zur Verhütung dringender Gefahren für die öffentliche Sicherheit betreten werden;…

             Hallo?

 –           Und erst recht wundert man sich nicht mehr über die Methode, mit der in diesem Urteil gleich noch renommierte Juristen ihr Fett wegkriegen. Die Kammer „verkennt (nämlich) nicht, dass es in Rechtsprechung und Literatur durchaus umstritten ist, ob eine einmalige nicht nachvollziehbare (da hat die Kammer dann gleich mal den Art. 13 GG vergessen!) Weigerung der Kontrolle einen gröblichen Verstoß … begründen kann„, und zitiert auch schön.

 Und dann meint es fröhlich: wer sich auf die fundierte Meinung von Gerichten und anerkannten Jagdrechtlern stütze, habe eben Pech; er solle sich doch mal „fachkundigen“ Rat holen.

 Wir sagen nur:

 Ja, Freunde, da haben ein paar nichtjagende (vermute ich einfach so) Verwaltungsrichter uns qualifizierten Jagdrechtlern mal wieder so richtig gezeigt, wo der Hammer hängt!

 Immerhin haben sie die Berufung zugelassen, sozusagen wahrscheinlich „aus der Güte ihres Herzens“ (Arthur Schopenhauer). Da hat jetzt das OVG eine gute Gelegenheit, das wegzuputzen, was das VG unter sich gemacht hat.

 Die Hoffnung stirbt zuletzt.

 

2 Anmerkungen:

 1.         Ein vernünftiges Protokoll für Waffenkontrollen finden Sie unter www.ljv-hamburg.de, dort unter „Formulare“. Und

2.         eines ist doch klar: Bei einem, der illegale Waffen hat, darf ohne Verdacht und unangemeldet die Wohnung nicht aufgesucht werden – Art 13 GG. Da hat´s der Verbrecher echt mal besser als wir. Was unter anderem bedeutet: wenn man Waffen und Munition im Wäscheschrank oder unter der Matratze hat, dann ist das zwar ein gröblicher Verstoß gegen das Waffenrecht, aber das finden die Herrn in Zivil nicht. Denn die Wohnung durchsuchen dürfen sie niemals.

 Echt blöd, nicht?

 Mit Weidmannsheil

Ihr

Dr. Wolfgang Lipps

– Rechtsanwalt –

Geschäftsführer

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Nov 2012 15

His mates took so long to free him that


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Nov 2012 12

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Nov 2012 08

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Nov 2012 07

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Nov 2012 06

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Nov 2012 03

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Nov 2012 02

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