Poland’s Constitutional Court recently concluded, in a legally binding ruling, that the county’s drug law needs to be amended. Find out why!
The Constitutional Court is an independent constitutional institution of the State. The primary function of the institution is to ensure the hierarchical conformity of legal norms, i.e. adjudicating on the conformity of lower-ranked legal norms to those considered superior (especially the Constitution) and eliminating any norms inconsistent with the overall system of law. Due to the activity which the constitutional courts – including the Polish Constitutional Tribunal – undertake, they are sometimes referred to as the “negative legislators”, since they eliminate the provisions of unconstitutional statutes from the system of law.
Anyone whose constitutional freedoms have been infringed has the right to submit a constitutional complaint to the Court. A Polish citizen for example, in whose apartment police found cannabis plants under cultivation, together with dried marijuana, challenged the national drug law in the Court, and submitted a constitutional complaint.
The Polish Constitutional Court ruled that the articles of the Polish Act on Counteracting Drug Addiction, which prohibits the cultivation and possession of marijuana, are not unconstitutional. However, the Court agreed that there is no justification for the ban on marijuana possession, based on health factors. This is why the Constitutional Tribunal issued a decision calling for changes in the Polish drug law. This decision is binding on Polish legislators.
It worth noticing, that drug policy is a political issue in Poland, and we have to be aware that punishment for the cultivation or possession of marijuana is contrary to the articles of the Constitution guaranteeing the right to privacy, freedom, health and equality. Poland’s drug law also violates the principle of proportionality, which is the basis of legislation. There is a clear and significant disparity between the punishment and the prohibited deed, particularly in the case of victimless crime. This is unprecedented in Europe, but also in comparison with other Polish laws. The Drug Act also violates the constitutional right to equality under the law. Addicts are discriminated against because of the nature of their illness, which requires that they possess the illegal substance. Similarly, discrimination exists against people who wish to use marijuana as medicine – due to lack of access to it.
The Attorney General’s Office and Parliament did not agree with such arguments – they demanded an acknowledgment that existing legislation complies with the Constitution. – Undoubtedly, use of marijuana is an act which strikes at values such as public health. Drug addiction is not just a problem for the individual, but for the whole of society. Studies show that while consumption of alcohol is a process which can be controlled, drug use is not the same – a representative of the Attorney General argued at the hearing before the Constitutional Tribunal.
Nevertheless, the mere fact that the case was examined by the Constitutional Tribunal at all, should be regarded as a success. The second success lies in the Tribunal’s recognition of the medicinal properties of marijuana, and its demand that it should be legalised as a medicine. The positive effects of marijuana have been repeatedly confirmed in the treatment of multiple sclerosis, AIDS, cancer, and glaucoma, among other diseases, as well as in palliative therapy. Among the 2-3 million Poles who regularly smoke the forbidden herb, there is a large group of medical users. For them, marijuana is not a drug, but a medicine which alleviates the symptoms of a disease or arrests its development.
Unfortunately, despite the right to health guaranteed by the Constitution, patients are obliged to obtain the medicine illegally, and marijuana available on the black market is often of queationable quality. Moreover, the Polish Act on Counteracting Drugs stipulates that possession of any quantity of illegal drugs (even for medical purposes) is subject to imprisonment for up to 3 years.
Agnieszka Sieniawska – Polish Drug Policy Network
