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Provisions on counteracting drug addiction (the phrase “considerable amount”) P 20/10

The lack of specific information on the amount of narcotic drugs and psychotropic substances in the Act does not infringe the Constitution. The phrase “considerable amount” allows judges to provide the interpretation of law and to adequately apply it to cases under examination.

At the hearing on 14 February 2012 at 9 a.m., the Constitutional Tribunal considered a question of law, referred by the District Court for the District of Krowodrza in Kraków, concerning provisions on counteracting drug addiction (the phrase “considerable amount”).

The Constitutional Tribunal adjudicated that Article 62(2) and Article 56(3) of the Act of 29 July 2005 on counteracting drug addiction - insofar as they contain the phrase “considerable amount” with regard to narcotic drugs and psychotropic substances - were consistent with Article 42(1) in conjunction with Article 2 of the Constitution. The Tribunal discontinued the proceedings as to the remainder.

There was one dissenting opinion, submitted by Judge Adam Jamróz.

The Constitutional Tribunal confirmed the constitutionality of the phrase “considerable amount” with regard to narcotic drugs and psychotropic substances, as contained in the provisions penalising possession and trafficking in drugs, which had been challenged by the court referring the question. The Tribunal did not share the view of the said court that the lack of specific information on the amount of those drugs and substances in the Act infringed the principle of specificity of law and the principle of proportionality.

The Tribunal stated that the legislator had decided to maintain the phrase “considerable amount”, taking into account, inter alia, the fact that the said wording had been well-established in the legal system and that a certain policy adopted in that area by the state had been continued without delineating fixed boundaries of penalisation (the so-called border-line amount).

This allows to assume that such formulation of the challenged provisions was intended by the legislator as a tool for differentiating among the forms of the offence, and that it makes the provision more flexible by means of introducing an evaluative phrase. The phrase “considerable amount” allows judges to provide the interpretation of law and to adequately apply it to cases under examination.

The Constitutional Tribunal drew attention to the fact that the constitutional requirement for the regulation of criminal law was that a statute should specify prohibited behaviour in such a way that the types of prohibited behaviour could be distinguished from the types that were not prohibited, and that the types of prohibited acts could be distinguished from each other. This way the addressee of a legal norm receives clear information as to what acts are prohibited and the commission of which of them results in criminal liability. In the case under examination, the state of social awareness corresponds to legal provisions, which eliminates the fear that an individual who is “a consumer” or who traffics in drugs may have some doubts as to whether s/he will at all be subject to criminal liability or will avoid it. The phrase “considerable amount”, with regard to which the court referring the question had doubts, has been introduced into the Act as a characteristic distinguishing a particular offence from an aggravated form of that offence: possession or trafficking with regard to “considerable amount” of drugs solely determines that a penalty will be harsher. However, regardless of how a court will interpret the challenged provisions, criminal liability in that context is unquestionable.

The hearing was presided over by Judge Maria Gintowt-Jankowicz, and the Judge Rapporteur was Judge Małgorzata Pyziak-Szafnicka.

The judgment is final and its operative part shall be published in the Journal of Laws.