Cannabis policy in the Czech Republic

The Czechs rank among the top cannabis users in Europe
28 September 2015
Article

The Czech drug-related legislation is quite extensive and includes laws as well as various by-laws. The most important feature of the Czech legislative system is that criminal law does not consider drug use to be a criminal offence. The new Czech Criminal Code introduced a brand-new sig­nificant feature into the Czech legal system – the differentiation between cannabis and other nar­cotic drugs and psychotropic substances.

The eastern European countries that used to be part of the former Soviet bloc inherited a legacy of heavy-handed drug policy aiming for the unrealistic goal of a “society without drugs” and the consequent harsh re­pression of drug-users. Although the Czech Republic was part of the Soviet sphere of influence for decades, it managed to escape this model.1. Nowadays, “Czech drug policy has been considered modern, pragmatic, rational and sometimes too liberal”..2 Czech drug policy is now focused on attain­able goals and evidence-based prevention, harm reduction, treatment and rehabilitation program­mes.3

Czech drug policy is conducted at three levels – national, regional and municipal, all of them co­or­dinated by the Government Council for Drug Policy Coordination (GCDPC).This Council also pre­pares and submits the two key documents concerning drug policy: the National Drug Policy Strategy and the Action Plan for the Implementation of the National Drug Policy Strategy. Moreover, the Council is in charge of the drug policy budget.

The current National Drug Policy Strategy encompasses the 2010-2018 time-framework with four long-term objectives:4 1) Reduction of experimental and occasional drug use (particularly among young people); 2) Reduction of intensive drug use; 3) Reduction of drug-related risks (to individuals as well to society); and 4) Reduction of availability of drugs (above all for young people).

The Action Plan for Implementation of the National Drug Policy Strategy is adopted only for three consecutive years, and its task is not only to define specific goals to attain the objectives of the above mentioned strategy but also to articulate the priorities within them. The current one was adopted in 2013 and the priorities are: 1) Lowering the scale of excessive alcohol consumption and cannabis consumption by young people; 2) Being more concerned with the high percentage of metham­phetamine usage; 3) Reform of the financing of drug policy; and 4) Integration of drug policy.

The Czech drug related legislation is quite extensive and includes laws as well as various by-laws. The most important feature of the Czech legislative system is that criminal law does not consider drug use to be a criminal offence.

The Czech Criminal Code (Act No. 40/2009) prohibits the unauthorised production and other han­dling of narcotic and psychotropic substances and poisons (§283), possession of narcotic and psychotropic substances and poisons (§284), unauthorised cultivation of plants containing narcotic and psychotropic substances and poisons (§286), spreading of drug addiction (§287) and production and other handling of substances with hormonal effect (§288). It is important to note, however, that if one possesses an amount not “greater than small” for personal use only, one is not liable for a criminal of­fence but only for a misdemeanour, which is punishable by a fine of up to 15,000 CZK (around 500 eu­ros).

What is meant by “greater than small” was not enacted in any law or by-law before 2010 and had to be decided case-by-case within the judicial system.5 This situation changed in 2009 when the government issued a directive specifying the amounts. This directive was abolished by a ruling of the Czech Constitutional Court in 2013 because it “asserted that only a law, not a government regulation, could define what a criminal offence is”.6 Consequently, due to significantly increased prevalence of use by young people and due to increased numbers of large-scale production facilities, the Czech Supreme court set stricter rules concerning non-criminal amounts. The court allowed 1.5 grams of metham­phetamine, 1.5 grams of heroin, 1 gram of cocaine, 10 grams of cannabis dry matter, 5 units of ecstasy and 5 grams of hashish.7

A recent survey of law enforcement professionals in the Czech Republic conducted by the In­stitute of Criminology and Social Prevention revealed that the number of convictions for drug-related offences in­creased after the changes in the new Czech Criminal Code.8 Police officers Interviewed stated that prosecution of such offences increased by 71 per cent; prosecutors noted a 66 per cent increase; while judges put the figure at 48 per cent. Since there is no distinction between offences for cannabis and other drugs, the unanswered question is whether the impact of the new legislation is more liberal with regard to cannabis drugs users.

Interestingly, most respondents to the survey recognise that the number of drug of­fences remained the same. The increase in prosecutions might be explained by the fact that law enforcement officials do not share the lib­eral attitude of society to cannabis use, and show a more repressive and punitive approach, although they appreciate the fact that the new legislation distinguishes between cannabis and other drugs, and introduced the offence of the illegal cannabis cultivation. The law enforcement professionals also observed that juveniles are in­creasingly more in­volved in drug-re­lated crimes. Sta­tistics show that there are increasing num­bers of foreigners con­victed of drug of­fences in the Czech Republic, in particular Vietnamese whose numbers of convic­tions of drug-related offences increased almost ninefold from 2008 to 2013.9

Cannabis policy in the Czech Republic

According to the 2014 European Drug Report, the Czechs rank among the top cannabis users in Europe, with 4.4 per cent previous-month cannabis use prevalence, behind France with 9.8 per cent and Spain with 7 per cent.10 The Czech Republic, with 15 per cent, also ranks high regarding previous-month prevalence of cannabis by juveniles (15–16 years old), behind France (24 per cent).11 This explains the emphasis on lowering excessive alcohol and cannabis consumption by young people in the current Czech Action Plan. Looking at these high numbers, it may appear that cannabis is not illegal in the Czech Republic. But it is.

The new Czech Criminal Code, which came into force in January 2010, introduced a brand-new sig­nificant feature into the Czech legal system – the differentiation between cannabis and other nar­cotic drugs and psychotropic substances. As a consequence lower penalties were set for offences related to cannabis. Cultivation and distribution of cannabis is still a criminal offence punishable by one to eight years of imprisonment (depending on the quantity). The exception for amounts not “greater than small” applies to cannabis as well. Possession for personal use of such an amount is only a misdemeanour punishable by a fine but not by imprisonment. The Czech Supreme Court ruled that amount “greater than small” of herbal cannabis equals 10 grams of dry matter.

The number of plants that can be grown without facing the possibility of imprisonment still needs to be decided – the governmental directive that set this amount at up to 5 cannabis plants has been abol­ished by the Constitutional Court’s ruling, but the Court did not set the number of plants in making this binding decision. The situation for a user cultivating cannabis for personal use is very confusing. The user commits a crime under Section 285, for which there is a criminal penalty of between six months and five years imprisonment,12 but after harvesting the cannabis and during the process of drying it, the offender is “producing marijuana” under Section 283 for personal use and faces a penalty of between one and ten years imprisonment. If the plants have already been dried, the offence will be classified as possession for personal use under Section 284, and is punishable with a maximum penalty of for eight years impris­onment. Possible problems arising from assessing the relationships between the devel­opmental stages of these crimes are not mentioned. Cannabis users receive more lenient penalties only if they are ‘caught’ before or after drying the cultivated plants.

Speaking about cannabis-related legislation, we cannot neglect to mention the legalization of can­nabis for medical use which was achieved by the renewal of Acts No. 167/1998, 634/2004 and 378/2007 in 2013.13 Important details were specified in by-law No. 221/2013, which came into force in August 2013. This by-law sets the permitted amount of medical cannabis at 30 grams of dry matter per month. Furthermore, it enacts the prescription procedure of medical cannabis: only special elec­tronic prescription is allowed14 for patients diagnosed with one of the few explic­itly mentioned dis­eases and the prescription can only be issued by specific medical professionals (i.e. general practitioners cannot prescribe cannabis). Any company, that wants to grow or import medical cannabis, needs to obtain a state licence to do so. Self supply, even for medical purposes, remains legally forbidden.

The biggest issue concerning medical cannabis in the Czech Republic is its price. The fact that medical cannabis is not covered by common medical insurance is heavily criticized by the public, doctors and some politicians. The situation would most likely im­prove with enhanced competi­tion and also with granting licences for growing medical cannabis in the Czech Republic. Currently, the only supply of medical cannabis is through imports from the Netherlands. Importation from any other country (for example, the United States or Israel which have already explicitly expressed the desire to enter the Czech market) is not allowed be­cause the by-law only allows certain types of can­nabis, which are only offered by the Dutch company Bedrocan.15 The procedure for granting licences to grow canna­bis for medical purposes in the Czech Republic has also not been established yet. But even after these changes, it can’t be expected that the state-regulated system of medical cannabis supply (without its coverage by medical insurance) could provide the same price as the current illegal mar­ket. Another issue that is linked with the implementation of medical cannabis is the time it is taking. All the necessary organisational steps are taking far too long. The law legalizing cannabis for medical use came into force in August 2013 and the first patient was able to purchase it more than a year later – in November 2014.16

Czech police databases record that 43 per cent of all drug-related crimes prosecuted in the country in 2014 are related to cannabis.17 Although the possession and cultivation of cannabis (even in the amount not “greater than small”) is still de jure forbidden, the de facto situation is perceived differ­ently. The primary concern of Czech police officers is usually not the prosecution of individuals who are growing cannabis for their own needs in only small amounts.18 It remains true, however, that “as a result of cultivation crimes being moved from production into new paragraph of the criminal law after 2010, these actually increased from 2443 in 2009 to 2516 in 2010, and up to 3097 in 2011. The in­crease in prosecutions for cannabis cultivation  in the Czech Republic in 2010 and 2011 suggest that the de jure policy liberalisation has not translated into de facto changes in the policing of cannabis cultivation but, most likely, more people were arrested for cannabis cultivation after the legislative changes in 2010”.19 This is probably result of the clarification of the rules concerning cannabis. and the police now have greater clar­ity regarding what can be prosecuted under criminal law.20

The Czech police focus mainly on dismantling organized and large-scale grow houses, and on prosecuting the street and club dealers.21 Most of the cannabis cultivated in this manner is for the do­mestic market, but some of it is also heading into neighbouring states, Ukraine, Hungary, and Great Britain and to Scandinavia.22 Nowadays, most of the Czech grow houses are run by members of the Viet­namese community. This fact makes the efforts of the police more complex, because communities of this minority are usually linked tightly together and it is almost im­pos­sible to infiltrate them. Most of the grow houses are discovered due to high electricity consumption.23 People with Czech nation­ality are usually more involved in the distribution of the cannabis cultivated in large grow-houses.24

In November 2013, the Czech police targeted a number of grow shops and their own­ers. The raids were very controversial, because grow shops in the Czech Republic had been allowed for many years and their legality was not disputed at all. Their owners were treated as ordinary shop owners and paid their taxes, which indicates that their existence was de jure legal and not only con­doned. The action was followed by number of immediate protests – the biggest of them com­prised of two hundred people demonstrating in the centre of Prague.25 The officially declared goal of this so-called “pre-emptive action” was to “limit the negative impacts of the activities of the grow shops owners towards the whole society”.26 The po­lice justified their action to be in accordance to a Su­preme Court ruling following a decision of the court of lower instance, which sentenced the owner and salesperson of one particu­lar grow shop for spreading drug addiction. The Czech Supreme Court adjudi­cated that the combined sell­ing of cannabis seeds, fertilisers, flowerpots and guidelines (e.g. books, leaflets etc.) for cannabis cultivation fulfils the elements of the crime of spreading drug addiction under §287 of the Criminal Code.27

It is worth pointing out, that the Czech legal system belongs to the tradition of continental legal systems and judicial decisions are therefore binding only inter partes and do not serve as a legally binding prece­dents;28 therefore its executive (i.e.. police in this case) is bound by laws and not by the judicial decisions. It certainly is not usual for the police to engage in such extensive actions based on a single court decision. The police action was also vehemently criticized because on many points it did not distinguish between grow shops offering all of these goods and those offering only some of them (which cannot be considered as spreading drug addiction as stated in the aforementioned Supreme Court decision of). According to the ruling, selling only some of those supplies cannot be considered a crime – one spreads drug addiction only if one sells all the above mentioned supplies cumulatively. This indiscriminate approach caused major losses for the grow shop owners.

In addition, many grow shop owners and others also complained about the fact that the action was very different in different regions. In some cities police confiscated everything in the shops (also, for example, flower pots and other everyday goods) while in others they just listed the stock of the shop and left everything in place, which of course affected their business less. As a conse­quence, the effects of this police action on the businesses were uneven. The police action led to a num­ber of trials; most of which are still running. Those already decided (about a third of all trials linked with the police action) led mainly, according to the annual report of the Czech police, to conditional sen­tences of one year imprisonment and in some cases also to the forfeiture of properties connected to the businesses of grow shops.

Because Czech law enforcement is and has been focused mainly on large-scale cultivation, a high­ly competitive small-scale cultivation market developed. In the Czech Re­public there is a history of cannabis self-supply due to the historical evolution of the Czech drug market.29 In the communist era the drug market was not a significant threat to the gov­ernment because of the closed economy at the time. Cannabis users were left to a self-help system. Small and isolated groups cultivated and used cannabis together – they did not engage in commercial distribution. Even after the regime change and the opening of the Czech drug market (which quickly reached the western level), the cannabis market remained specific in this respect. Due to domestic production there was little need for the import of cannabis, although the Czech Republic became a transit country for can­nabis in the first decade of the post-communist era.30 This legacy is still visible today. According to a 2014 survey, 9 per cent of can­nabis users in the Czech Republic cultivated their own cannabis. A large pro­portion of cannabis users (44 per cent) declared that they got their cannabis for free.31  However, cannabis production is shifting from small and isolated groups towards large-scale production.32

Large-scale cannabis cultivation in the Czech Republic is increasingly dominated by Vietnamese groups, but the distribution is usually by Czech citizens. The high prevalence of cannabis in the Czech population indicates that it is not difficult to purchase it. Most cannabis users start by consuming with friends, and cannabis is often provided via networks of friends. Besides that, dealers can be found and contacted in clubs and during various cultural events such as music festivals, concerts etc.

Czech society can be described as tolerant towards cannabis. There is extensive public action ex­pressing support towards further liberalization of cannabis. The Million Marijuana March, sup­porting the full legalization of cannabis, has taken place in the Czech capital Prague every year since 1998.33 In 2003 the march was fully legal for the first time, i.e. reported to the authorities in advance and properly advertised. The numbers of participants increased from a few hundred in 1999 to 15,000 in 2009 and then decreased again to 5,000 in 2015. Another signifi­cant public action, which has taken place every year since 2009, is the Cannafest – an international fair, which offers not only the possi­bility to buy seeds, fertilisers and other necessary tools for canna­bis cultivation from various interna­tional sellers, but also provides the visitors with ex­tensive technical/scientific background such as various lectures about the medical use of cannabis given by leading authorities in their fields.

Many relevant political parties support a more liberal approach towards canna­bis. For example, the Green Party argues for the positive consequences of a state-regulated cannabis trade and is actively en­gaged at regional and local levels, promoting the full decriminalization of cannabis by pointing out that cannabis use has less severe consequences than the use of alcohol or tobacco, which are both legal and freely accessible. The Greens used to be represented in the Czech Parliament, but didn’t get the necessary votes in the 2010 or 2013elections. Some members of the political party Strana svobod­ných občanů (which is currently repre­sented in the European Parliament, but has never been part of the Czech Parliament) are promoting the full legalization of canna­bis – including its free trade. More importantly, the legalization of cannabis is also supported by the political party ANO 2011, which is cur­rently one of the three governmental parties. The problem is that this issue is not high up on their political agenda and the government coalition is di­vided on the issue; the Czech Social Democrats are against legalization of cannabis, and the Christian Democrats are against legalization of cannabis for other than medical purposes.34 It is highly unlikely that the current state of cannabis legislation will change during upcoming years. The strongest sup­porter of the legalization of cannabis is the Czech Pirate party (which is currently represented in some municipal councils but has never been part of the Czech Parliament), which also intends to open the first Czech Cannabis Social Club. However, after several postpone­ments it is still not functioning with no further deadline set.

Notes

1. Csete, Joanne (2012). A Balancing Act: Policymaking on Illicit Drugs in the Czech Republic. Open Society Foundations. Available online: http://www.opensocietyfoundations.org/reports/balancing-act-policymaking-illicit-drugs-czech-republic, retrieved 15. 4. 2015.

2. Mravčík, Viktor (2015). (De)criminalisation of possession of drugs for personal use – A view from the Czech Republic, International Journal of Drug Policy. Available online: http://www.ijdp.org/article/S0955-3959%2815%2900067-5/abstract, retrieved 21. 4. 2015

3. Radimecký, Josef (2001). Česká protidrogová politika – pro a proti. Adiktologie – odborný časopis pro prevenci, léčbu a výzkum závislostí, Vol. 2, pp. 29 – 37

4. Strategies adopted previous to this one used to set only mid-term goals.

5. In 2010 the new Czech Criminal Code came into force. However the philosophy to criminalise only possession of “greater than small” amounts has been applied since 1999. See: Belckova, Vendula; Grund, Jean Paul; Maalsté, Nicole; Zabransky, Tomas (2015). “Should I Buy or Should I Grow?” How drug policy institutions and drug market transaction costs shape the decision to self-supply with cannabis in Netherlands and the Czech Republic, International Journal of Drug Policy, Vol. 26, pp. 296 – 310.

6. Mravčík (2015), op. cit.

7. Jiřička, Jan (9 April 2015). Nejvýš 10 gramů konopí: Soud nově stanovil větší než malé množství drog. Available online http://zpravy.idnes.cz/nejvyssi-soud-nove-stanovil-vetsi-nez-male-mnozstvi-drog-p3j-/domaci.aspx?c=A140409_102935_domaci_jav, retrieved 29. 4. 2015

8. Stefunkova, Michaela; Zeman, Petr (2015). Prosecution of drug crime in the Czech Republic, through the eyes of law en­forcement representatives. Institute of Criminology and Social Prevention.

9. However, the increase of Vietnamese offenders might be explained by the fact that there is increasing pressure by for­eign law enforcement institutions, in particular from Germany, to look into cases involving Vietnamese (personal communication).

10. European Monitoring Centre for Drugs and Drug Addiction (2015).European Drug Report 2014: Trends and develop­ments. Available online: http://www.emcdda.europa.eu/publications/edr/trends-developments/2014, retrieved 29 April 2015. See also: Last month prevalence of cannabis use - All adults (15-64). Available at: http://www.emcdda.europa.eu/data/2014#displayTable:GPS-15, retrieved 1. 7. 2015

11. Figures for Spain are not available. Prevalence of cannabis use among students 15–16 years (ESPAD). Available at http://www.emcdda.europa.eu/data/2014#displayTable:GPS-155, retrieved 1. 7. 2015

12. The numbers of months and years of imprisonment are depending on the particular amount (which is always “greater than small”, otherwise it would be only considered misdemeanour) of cannabis and also on various other factors such as recidivism, being part of an organized group etc.

13. The actual vote on this matter was quite convincing: out of 154 members of the Chamber of Deputies, 126 voted yes and only 7 voted no. The same applies to the vote in the Senate, out of 74 Senators 67 voted in favour of the renewal and only 2 were explicitly against it. See: Kopecký, Josef (30.1.2013). Marihuana bude nově k dostání na předpis. Stát ji uznal jako lék. Available online: http://zpravy.idnes.cz/senat-o-legalizaci-marihuany-pro-lekarske-ucely-ft0-/domaci.aspx?c=A130130_112242_domaci_kop, retrieved 6.5.2015; Česká televize (30 January 2013). K legalizaci konopí pro lékařské účely chybí už jen podpis prezidenta. Available online: http://www.ceskatelevize.cz/ct24/domaci/212998-k-legalizaci-konopi-pro-lekarske-ucely-chybi-uz-jen-podpis-prezidenta/, retrieved 16. 6. 2015

14. This kind of prescription (electronic) is a brand new within the Czech system. Its aim is not only to provide a direct link between doctors and pharmacies but also to control its usage and so to prevent its misuse.

15. Koubová, Michaela (16 December 2013). Léčivé konopí? V lékárnách není ani pět měsíců od legalizace. Available online: http://www.denik.cz/z_domova/lecive-konopi-v-lekarnach-neni-ani-pet-mesicu-od-legalizace-20131216.html, retrieved 6. 5. 2015

16. Česká televize (11 November 2014). První dvě lékárny nabízejí léčebné konopí, pojišťovny léčbu nehradí. Available online: http://www.ceskatelevize.cz/ct24/domaci/292023-prvni-dve-lekarny-nabizeji-lecebne-konopi-pojistovny-lecbu-nehradi/, retrieved 30. 4.2015

17. (personal communication)rring to in the note. Not clear.on offencesPolicie České republiky – Národní protidrogová centrála SKPV PČR. Výroční zpráva za rok 2014. Available online: http://www.policie.cz/clanek/celorepublikove-utvary-narodni-protidrogova-centrala-skpv-zpravodajstvi-vyrocni-zprava-za-rok-2014.aspx, retrieved 27. 5.2015

18. Vitalia.cz. (2009). Marihuana a zákony. Available online: http://www.vitalia.cz/specialy/marihuana/marihuana-a-zakony/, retrieved 6 May 2015

19. Belackova et al. (2015).

20. Belackova et al. (2015).

21. Vitalia.cz. (2009), op. cit.

22. Policie České republiky – Národní protidrogová centrála SKPV PČR.Výroční zprávazarok 2014, op. cit.

23. Dolejšová, Kristýna (2011). Současná podoba odhalených velkopěstíren konopí v České republice. Available online: https://is.cuni.cz/webapps/zzp/detail/102922/, retrieved 6. 5. 2015

24. Policie České republiky – Národní protidrogová centrála SKPV PČR.Výroční zprávazarok 2014, op. cit.

25. Lidovky CZ. Dvě stovky lidí v Praze protestovaly proti razii v growshopech. Available online: Dvě stovky lidí v Praze protestovaly proti razii v growshopech, retrieved 7. 7. 2015

26. Policie České republiky – Národní protidrogová centrála SKPV PČR. Výroční zpráva za rok 2014, op. cit.

27. Mazancová, Hana(11 November 2013). Roky se nic nedělo a najednou razie na growshopy, diví se právník obviněných. Available online: http://www.lidovky.cz/roky-se-nic-nedelo-a-najednou-prijde-razie-na-growshopy-divi-se-pravnik-1m0-/zpravy-domov.aspx?c=A131110_134745_ln_domov_hm, retrieved 7. 5. 2015

28. On the other hand legal scholars often speak about so called quasi-precedental character of the decisions of the Supreme Court - there is a little sense for the lower court instances to oppose the opinions of Supreme Court and that is why their decisions are mostly in accordance with Supreme Courts’ decisions.

29. Belackova et al. (2015), op. cit.

30. Pavelec, Jan (2014). Produkce kanabinoidů v České republice. Bachelor thesis Masarykova Univerzita. Available online: https://is.muni.cz/th/386187/fss_b/Produkce_kanabinoidu_v_CR_text.txt, retrieved 1. 6. 2015

31. Belackova et al. (2015), op. cit.

32. Pavelec (2014), op. cit.

33. However in 1998 it was not officially part of the global MMM movement.

34 Český rozhlas. Zjistěte, co si politické strany myslí o tématu, které Vás zajímá. Jste pro legalizaci marihuany? Available online: http://projekty.rozhlas.cz/volby2013/otazky/?tema=18, retrieved 15. 7. 2015