The mitigation of criminal repression against drug users by the New Czech Penal Code

The implementation of Penal Code no. 40/2009 Coll., which was adopted in 2009,is undoubtedly one of the most significant events in the field of Czech criminal lawin recent years. Among many other changes, it also modified the regulation of drugoffences. Czech drug legislation is greatly influenced by the obligations arising fromthe UN drug control treaties. The previous Penal Code No. 140/1961 Coll. originallyincluded three drug offences penalizing unauthorized handling with narcotic drugsand psychotropic substances (NDPS) and poisons and drug use promotion.After the fall of the Iron Curtain the drug issue has become a hot political topic.An apple of discord between the proponents of more repression on the one hand andthe pragmatics supporting a risk reduction model of the drug policy on the other hassince then become mainly a question of decriminalization of possession (of a smallamount) of drug for personal use. In July 1990 the possession of NDPS for personaluse was decriminalized. Several attempts were made to reinstate this criminal liability.Finally, on 1 January 1999, an amendment to the penal code introduced the newcriminal offence of unauthorised possession of NDPS and poisons for personal use. Thethree-year study, “An Impact Analysis Project of the New Drug Legislation in the CzechRepublic (PAD)” was to evaluate the practical impacts of this new drug legislation.Based on the study’s findings, the government required the revision of drug offencedefinitions and the related sanctions for the purpose of penal re-codification. Amongother things the government required the preparation of the legislative division of illegaldrugs into two or three categories according to their medical and social dangerousness.After the long preparations, the new Penal Code No. 40/2009 Coll. finally came intoeffect on 1 January 2010. It includes five drug offences (Sections 283-287). By the newlegislation, lawmakers declared the intention of toughening the penalties for offencesrelated to the drug supply on the one hand, while on the other intended to mitigatethe repression against drug users, as most of the changes related to the latter groupof offenders. Division of drugs into “soft” and “hard” was established. Based on thisclassification, punishments have been stipulated for unlawful possession of a drug forpersonal use in a quantity that is greater than small that differ for cannabis on the onehand and for other NDPS on the other. Unauthorised Cultivation of Plants containingNDPS is an entirely new offence. The purpose of this privileged offence was to mitigatethe punishments for users who are self-suppliers and differentiate between the supplyfor personal use and that for “commercial” cultivation.The severity of sentencing differs between the cultivation of cannabis and thecultivation of other plants containing NDPS. Already the previous legislation usedthe term “amount greater than small” to establish a threshold of criminal liability inregard to possession of drugs for personal use. However, no specific values were set for particular types of NDPS. In practice, this caused problems because of inconsistentinterpretations of legislation by law enforcement authorities. The new legislation wassupposed to harmonise the practice by authorising the government to establish theamounts of NDPS that are considered to be greater than small. These values were set inGovernment Decree No. 467/2009 Coll. The legislator also authorised the governmentto issue a decree stating which plants and mushrooms should be regarded as containingNDPS and specifying an amount which is greater than small. This issue is regulated byGovernment Decree No. 455/2009 Coll.The Institute for Criminology and Social Prevention (IKSP)’s research entitled“Detection and Prosecution of Drug Crime after Adoption of the New Penal Code” wasdesigned to evaluate the impact of the new legislation in practice. The research projectused various methods, including statistical analysis and expert questionnaire surveys.Regards the trends in the number of persons convicted of drug offences targeted atdrug users, involving Possession of Drugs for Personal Use according to the old andnew penal codes and Cultivation of Plants Containing NDPS, based on the statisticaldata of the Ministry of Justice, the number has been rising constantly since 2010, andby 2014 it almost tripled compared to 2008. Most offenders are convicted in connectionwith cannabis. The number of convicted cannabis users can be even higher dependingon when the offender was caught in the act. Even though mitigation of the punishmentwas declared by the legislator, according to the opinion issued by the CriminalDivision of the Supreme Court on 4 December 2014, cannabis users should receivemore lenient penalties only if they are “caught” before or after drying the cultivatedplants. Meanwhile after harvesting the cannabis and during the process of drying it,the offender is “manufacturing marihuana” for personal use and commits an offenceof unauthorised manufacture and other handling of NDPS targeted to drug trafficking.Nevertheless, the conviction does not mean that an offender will automatically end upin prison.For drug users, contact with the criminal justice system can create conditionsand an opportunity for treatment and resocialization measures. It seems, however,that this is not the case in the Czech Republic. Alternative penalties and treatmentmeasures are still imposed very rarely. Most commonly, the imprisonment sanction isconditionally suspended, while no special care is given to the offenders. In June 2013,the authorisation and a relevant part of Decree No. 467/2009 Coll. were revoked bya ruling of the Constitutional Court. The ensuing discussion of how the term “amountgreater than small” should be specified for the purposes of the penal code concentratedon the issue of the opinion of the Criminal Division of the Supreme Court. The SupremeCourt lowered the threshold for two drugs – methamphetamine and herbal cannabisform, while threshold quantities for other drugs remained the same as in the annulleddecree. Despite this change the new threshold quantities, in particular for cannabis,formally effect the mitigation of criminal repression and thus give also no explanationfor the rise in the number of convicted offenders. Another possible explanation isthat the rise in the number of convicted persons can be influenced by increases indrug use in the population. Nevertheless, according to the latest annual report of the National Monitoring Centre for Drugs and Addiction, drug use in the Czech Republichas recorded stable levels. Long-term trends suggest a decline in the level of currentcannabis use among the general population, particularly as far as younger age groupsare concerned. The legislative change in 2010 did not also affect the age of the onsetof cannabis use. The attitudes of the population to substance use have also remainedconsistent over the long term.Substantive laws and the wording of the penal code are not the only factors thatinfluence whether or not the offender will be convicted. It appears that proceduralinstitutes and the approach of law enforcement agencies that decide individual casesare of greater significance in this respect. This assumption is also confirmed by theresults of the expert opinion survey that was carried out as a part of the IKSP researchamong police officers, public prosecutors and judges. On the one hand, respondentsconsidered the new legislation to be more detailed and more precise. On the otherhand, they think that in some respect the mitigation of the legislation was not necessary. Respondents quite frequently called for an increase in penalties and the imposition ofheavier punishments. The prosecutors and judges considered it to be more importantto change the liberal attitude of society towards the problem of drugs.The transition to a formal concept of crime can also create an environment fora more repressive approach. Although the new penal code did not bring any essentialchanges to the focus or intensity of legal repression in the area of drug policy, somewhatmore lenient punishments for cannabis users can be considered a step forward toevidence based legislation. However, despite the declared legislative intention to mitigatecriminal repression against drug users, according to statistics the number of convictedusers–offenders is increasing. The results of IKSP research suggest that the attitudesof law enforcement representatives who are empowered to decide individual casesare of considerable importance. Respondents show repressive and punitive approachtoward drug use. A partial explanation of these punitive attitudes of respondents maybe due to the perceived liberal climate regarding drugs and their users in Czech society.Several mechanisms are applied in practice by law enforcement authorities to balancethis perceived inequity. All these could lead to a rising number of convicted persons,while no special emphasis is put on their treatment. It is therefore essential to put anemphasis on the dialogue between lawmakers and the law enforcement authoritiesabout adopting new legislations. If there is no consensus reached, then even very wellconstructed provisions on drug offences can have an adverse impact in practice.