Counteracting drug addiction; the right to decide about the protection of one’s life and health SK 55/13
The challenged provisions of the Act on Counteracting Drug Addiction, insofar as they concern hemp other than fibrous hemp, are consistent with the Constitution.
At the hearing on 4 November 2014 at 1 p.m., the Constitutional Tribunal considered a constitutional complaint submitted by Mr Ł. P. with regard to counteracting drug addiction and exercising the right to decide about the protection of one’s life and health.
The Constitutional Tribunal adjudicated that Article 62(1) and Article 63(1) of the Act of 29 July 2005 on Counteracting Drug Addiction – insofar as they concerned hemp other than fibrous hemp – were consistent with Article 47 in conjunction with Article 31(3) of the Constitution.
As to the remainder, the Tribunal discontinued the review proceedings.
The Constitutional Tribunal considered the issue of criminalising the possession of hemp other than fibrous hemp, taking account of the subject of the allegation (the application of Article 62(1) and Article 63(1) of the Act of 29 July 2005 on Counteracting Drug Addiction in the complainant’s case; hereinafter: the Act on Counteracting Drug Addiction) as well as the actual state of affairs that constituted the background of the constitutional complaint. The Tribunal’s assessment did not pertain to the instances “of lesser significance” (Article 62(3) of the said Act) or to the possibility of discontinuing proceedings in the case of possession of a small amount of narcotic drugs, meant to be used for a given person’s own needs”(Article 62a of the said Act), as the said provisions had not been applied in the complainant’s case.
The constitutional complaint comprised two basic allegations. The complainant challenged the right of the state to criminalise the possession and cultivation of hemp other than fibrous hemp, where the possession and cultivation of the said hemp was intended only for his own needs.
Consequently, the complainant claimed that it was inconsistent with the Constitution to reinforce a prohibition against the possession and cultivation of hemp with a criminal-law sanction, and in particular the penalty of the deprivation of liberty. In the complainant’s opinion, it was inadmissible to apply criminal law to a person who possessed and cultivated hemp for his/her own needs.
Thus, the constitutional issue that the Constitutional Tribunal was faced with in the case under discussion amounted to providing an answer to the fundamental question whether the legislator could introduce a criminal-law prohibition against possessing and cultivating hemp and reinforce that prohibition with the penalty of the deprivation of liberty. What fell outside the scope of the case under examination was a relation between criminal-law measures and administrative or medical measures. What also remained outside the scope of the review was the statutory model of penalisation and its effectiveness in the context of the purposes of criminal-law policy declared by the legislator.
The Constitutional Tribunal analysed the provisions on the basis of which the complainant had been sentences for possessing hemp other than fibrous hemp as well as for cultivating hemp plants. Pursuant to Article 62(1) of the said Act: “A person who, contrary to the provisions of this Act, possesses narcotic drugs or psychotropic substances shall be subject to deprivation of liberty for a period of up to 3 years”. A narcotic drug is an organic or synthetic substance that affects the central nervous system, specified in the list of narcotic drugs in Annex no. 1 to the said Act (a hemp plant, also referred to as cannabis, has been classified as a narcotic drug). By contrast, Article 63(1) of the said Act stipulates as follows: “A person who, contrary to the provisions of this Act, cultivates poppy, save for low-morphine poppy, or hemp, save for fibrous hemp, or a coca bush, shall be subject to deprivation of liberty for a period of up to 3 years”.
In the complainant’s opinion, legal norms that prohibited ‑ under the penalty of the deprivation of liberty – the cultivation of hemp (regardless of the surface area of crops) and the use of hemp (regardless of the purpose) imposed a disproportionate restriction on the individual’s discretion, and violated the individual’s right to make decisions about his/her personal life (Article 47 in conjunction with Article 31(3) of the Constitution).
The Constitutional Tribunal deemed that the restriction of the right to privacy, as a consequence of the criminalisation of acts specified in Article 62(1) and Article 63(1) of the said Act, was justified.
The protection of the right to privacy and of the right to make decisions about one’s personal life was not absolute in character and might be subject to restriction, if that was required by another constitutional norm, principle or value, and the extent of the constitutional restriction remained properly proportionate to the significance of the interest such a restriction was to serve. Values that justified the adoption of solutions provided for in Article 62(1) and Article 63(1) of the said Act comprised health and public order (values enumerated in Article 31(3) of the Constitution), where the protection of health might refer both to the protection of health in the context of entire society as well as with regard to particular individuals. According to the Constitutional Tribunal, the subject of protection in Article 62(1) and Article 63(1) of the said Act comprised public health in its both aspects.
A basic assumption underlying any actions taken to counteract drug addiction was to limit the use of narcotic drugs. What also served the achievement of that goal was criminal law. The possession of drugs preceded the consumption or distribution thereof, and thus criminalising the possession of drugs facilitated counteracting the further use of narcotic drugs. The Constitutional Tribunal also took account of the results of research confirming the detrimental effects of marijuana on the health of persons using the drug.
In addition, the Tribunal noted that the dynamics of the phenomenon of drug addiction and systematic actions taken against it required the constant monitoring of the implemented anti-drug policy and the adjustment thereof to requirements related to the necessity of the protection of health, as well as changes in the perception of the problem of drug addiction. Thus, the Constitutional Tribunal deemed that, in principle, the legislator had considerable discretion as regards evaluation within the scope and the application of legal means that were justified by that evaluation. However, the Constitution required that the legislator should respect the basic principles of the constitutional system, as well as the individual’s constitutional rights and freedoms.
In the view of the Constitutional Tribunal, the solutions adopted in Article 62(1) and Article 63(1) of the said Act, insofar as they concerned hemp other than fibrous hemp, fall within the scope of the discretion of the legislator. However, the Tribunal does not rule out that it is admissible for the legislator to adopt other solutions that would provide for different premisses concerning the scope ratione personae and ratione materiae when it came to penalising the possession (cultivation) of hemp other than fibrous hemp, which might even result in the decriminalisation of those acts. The legislator’s decisions should be based on multi-faceted scientific research, the assessment of the effectiveness of current solutions, the analysis of factors and data that are significant from the point of view an anti-drug policy, as well as the experience of other countries.
The hearing was presided over by Judge Marek Zubik, and the Judge Rapporteur was Judge Piotr Tuleja.