Hungarian marijuana users came off badly because of a measuring error by customs officers
The Hungarian Customs and Finance Guard Office (today it is called National Tax and Customs) was mandated to test drug samples seized by custom officers at the border by a governmental decree in 2009. Before 2009 all seized drug samples were sent to the Hungarian Institute for Forensic Sciences (the Hungarian version of CSI) to be tested. The HIFS has a well-equipped laboratory and well-trained staff, actually among the bests in the world if you look at the results of international comparative assessments conducted by the UN. Why the government needed to set up another drug laboratory for approximately 10 million HUF (45.000 USD) in the times of budget cuts – we don’t know. But some people may have a malignant impression that this was an investment to feed some law enforcement lobbies.
Even if we put aside the question whether it was reasonable to invest so much money in a new laboratory, the decision still had long lasting consequences on some drug offenders. At a 2010 Drug Coordination Committee meeting the representative of the Customs' drug laboratory made a presentation. He said the average THC content of their cannabis samples was 6 percent – 6 times greater than the average THC content of the samples tested by the HIFS!
To explain this big gap between the results of the two institutions, we need to have a closer look at the Hungarian drug legislation. Our Criminal Code set up three quantitative limits of illicit drugs: small amount, base amount and significant amount. In case of cannabis, the upper limit of small amount was set as 1 gramm of pure THC, the main active ingredient of cannabis. If a drug user was arrested for the possession of cannabis, his drug was taken to the HIFS laboratory to be tested for pure THC, and the punishment was adjusted to the THC content of the substance. In case of small amount, he could avoid criminal sanctions, in case of significant amount (that is, more than 20 gramms of pure THC content) he was sent to prison. However, there are different methods how to measure THC contents.
When you store cannabis, its THC content is changing: the THC acid is transforming to pure THC with various speed, depending on environmental factors. Therefore in Germany for example the laboratories measure the total sum of THC acid and pure THC in cannabis samples to avoid measuring bias. In Hungary though, the Criminal Code set the limit in pure THC decades ago. The HIFS measured the pure THC content in line with the law – but not the Customs' laboratory. God knows why but they measured total THC, a more comprehensive method but still, not the one ordered by the law. So offenders who were so unlucky to have the customs' laboratory to test their cannabis got more severe punishments, including prison sentence.
After the HCLU learnt about this issue from its clients it sent an official freedom of information request to the Prosecutor General to ask in how many cannabis-related criminal cases the customs' laboratory provided an expert opinion in 2009 and 2010. Last week we got the answer: there were 85 cases. Unfortunately the prosecutors could not tell what were the legal consequences of the measuring error in individual cases. They said there is no data on this. But we can presume that at least in some cases offenders could get into prison instead of getting fines or community work. The HCLU offers free legal counceling and representation if they show up and claim a re-trial.
A year ago the customs' laboratory has been deprived of its authority in drug cases, probably partly due to their measuring errors. Only the HIFS can test cannabis samples now. What is more, an amendment to the Criminal Code came into effect from January 1, changing the upper limit of small amount from 1 gramm of pure THC to 6 gramms of total THC. Cold comfort for marijuana offenders who got stricter punishments…
Posted by Peter Sarosi
