Facts
X. is a German citizen and a weapon collector. In the context of criminal proceedings, weapons, essential weapon components, and weapon accessories were seized from his vehicle and vacation home in 1998. On March 21, 2003, the Cantonal Police of Lucerne decided to dispose of the confiscated weapons and items in favor of the state and to destroy the prohibited objects. The Administrative Court of the Canton of Lucerne referred the matter back to the Cantonal Police to decide on any possible compensation for the confiscated items. The Federal Supreme Court confirmed this judgment regarding the confiscation on February 4, 2005.
On October 29, 2007, the Cantonal Police of Lucerne refused to dispose of the confiscated and seized items, the legal acquisition of which X. could not prove, in his favor. Only the 15 weapons or weapon components whose legal acquisition was "beyond doubt" could be disposed of in his favor according to the usual procedure. The Administrative Court of the Canton of Lucerne confirmed this decision on appeal on September 19, 2008.
The Federal Supreme Court upholds the appeal filed by X. against this in public law matters, sets aside the contested judgment, and refers the matter back to the Cantonal Police of Lucerne for a new decision in the sense of the considerations.
Considerations
The Federal Supreme Court states that the Weapons Act does not provide a legal basis for the confiscation of the net proceeds from the disposal of items confiscated or seized for safety reasons in favor of the state. If the item can no longer be returned or handed over to the owner, the disposal with the release of the proceeds to the entitled party - as a less far-reaching intervention in the guarantee of property than the gratuitous transfer, destruction, or disposal in favor of the state - should be examined.
The Federal Supreme Court notes that the distinction between…