Constitutional complaint of Mr Miloslav Tetour, MCA, brought to the court
on August 7 2015 under file reference I.ÚS 2431/15 to Judge Rapporteur JUDr.
Ludvík David
Constitutional Court of the Czech Republic
Joštova 8
660 83 Brno 2
Constitutional complaint
ref. no. I. ÚS 2431/15
V češtině je ústavní stížnost uvedena ZDE
Request for annulment
of the ruling of the High Court in Prague of May 28 2015, ref.no. 11 To
33/2015
and the ruling of the Regional Court in České Budějovice of March 31 2015,
ref.no. 20 T 45/2011
joint with
Proposal for posing preliminary questions to the European Court of Justice
Complainant:
Miloslav Tetour, MCA
Prepared by:
Dušan Dvořák, MMCA
Parties to the Court:
1) High Court in Prague
2) Regional Court in České Budějovice
Supplements:
Warrant of attorney
Ruling of the High Court in Prague
Ruling of the Regional Court in České Budějovice
and as indicated in the text
I.
Specific violations of guaranteed rights
By the ruling of the Regional Court of České Budějovice of March 31 2015,
ref.no. 20 T 45/2011 and the ruling of the High Court in Prague of May 28 2015
ref.no. 11 To 33/2015, the motion of the complainant for reopening of the court
proceedings was turned down. The Complainant received the ruling of the High
Court in Prague on June 30 2015, the period for filing a constitutional
complaint by § 265a of the criminal procedure code and a cassation appeal to
the Supreme Court ends on August 30 2015.
Against the above mentioned rulings, on August 7 2015, the Complainant
fileswith the Constitutional Court the following
Constitutional complaint
in which he protests the violations of notably
· article 36 article 1 and
2 of the Charter of Fundamental Rights, by which everyone may assert, through
the prescribed procedure, her rights before an independent and impartial court
or, in specified cases, before another body and also that unless law provides
otherwise, a person who claims that their rights were curtailed by a decision
of a public administrative authority may turn to a court for review of the legality
of that decision. Judicial review of decisions affecting the fundamental rights
and freedoms listed in this Charter may not be removed from the jurisdiction of
courts.
· article 38 article 1 of
the Charter of Fundamental Right, which states that no one may be removed from
the jurisdiction of their lawful judge.
· Article 39 of the Charter
of Fundamental Rightswhich states that only law may designate which acts
constitute a crime.
II.
1) The Complainant participates in the international
legal, natural and economic research carried out by Cannabis is The Cure/Konopí je lék[1][1], headed by theBrazil based
Open Royal Academy association[2][2],
the EU headquarters of which are located in Germany. The association is
represented by an international collective of physical and legal persons called
Cannabis is The Cure, z.s.[3][3]and
based in Olomouc, Czech Republic as established by the founding charter of July
14, 2004. Olomouc also happens to be the place where international scientific
research of the medicinal effects of cannabis[4][4]
started in the aftermath of the Second World War[5][5].There
the Complainant was successfully developing fertilizer for medical
cannabisusing earthworm digestion to facilitate enzymatic decomposition of the
whole plant, including root.The productof that process was loose and liquefied,
highly concentrated natural fertilizer[6][6],
as documented in the police protocol from May 18, 2011 when police confiscated
property of the Complainant (following which the Complainant was arrested and
held in jail).Cannabis plants nourished by this natural fertilizer are strong,
healthy and resilient to disease.Included in documentation as proofs are photos
of the grown plants from the research farm facility in Ospělov[7][7]
taken during and before the third confiscation of material from the farm of the
Head of research and his wife from August 30, 2011[8][8],[9][9],[10][10].
It was at the research farm in Ospělov where the research organisation Konopí
je lék, o.s. was established on July 14, 2008 and subsequently registered in the
Czech Republic on August 7, 2008[11][11].
2) The Complainant was systematically and in
accordance with his guaranteed rights, including but not limited to rights to
health and scientific research, growing and processing cannabis plants[12][12],
in accordance with the rulingof the European Court of Justice (ref.no. C‑137/09
(Josemans, article 36)[13][13]
and the rulingof the Supreme Court of the Czech Republic of January 30, 2008,
ref.no. 3 T do 52/2008 (Collected rulings and court rulings no. 9/2008)
regarding the right to research and to cannabis treatment[14][14].
The Complainant was also acting in accordance with art. 29, article 5 the Act
167/1998 Coll, on Addictive substances (hereafterthe Addictive substances Act)
in its original form before it was amended on April 1, 2013 by act 50/2013
Coll. without notification. The complainant was not under obligation to seek
licence as his planted area was smaller than 100m2[15][15].The
obligation to annually announce growing of cannabis to the customs
administration does not arise until the planted area exceeds 100m2,
as per the amendment to art. 29 of the Addictive substances Act, which went
into effect on May 20, 2004 without being notified to the EU.
3) The Complainant grew, obtained, stored,
processed and distributedcannabisfor experimental and industrial purposes, for
which no licence was required in accordance with the Addictive substances Act
at the time and. even at present, two major amendments to art. 5 of the
Addictive substances Act later, a licence is not required for that.The changes
brought to the Addictive Substances Act by the amending Act 50/2013 Coll. went
into effect on April 1, 2013 without notification to the European Commissionand
its effects include the lowering of limits of THC content volume to 0.3 % and
the replacement of the phrase “…for experimental purposes…”, which the
Complainant unsuccessfully referred to in each of his Constitutional complaints[16][16],
by the phrase “…for gardening purposes…”. This technical regulation for
production of medical cannabis was not notified to the EU as required by the
Directive 98/34/EC until Act 273/2013 Coll. went into effect January 1, 2014.
4) The complainant specifically grew cannabis
varieties defined for the purposes of Criminal lawsince January 1, 2010 by art.
289, par. 3 of the Criminal Codeas per Act 455/2009 Coll. Supplement 1.A.1 as a
cannabis plant which after homogenization of the whole body of the plant including
root does not exceed the THC volume threshold stated by the law of 0.3% THC.The
Complainant was also acting in accordance with art 28 and 31 par. 1 of the
Criminal Code as amended on January 1, 2010, because cannabis for medical
purposes and research was not obtainable by other methods and his activities,
which are beneficial for the society, could not otherwise be pursued. As of
August 1, 2015, when the Health department announced its plan for putting the
novelization of regulation no. 221/2013 Coll. into effect, the monthly costs of
cannabis in pharmacies for citizens is over 50 000,- CZK (fifty thousand
Czech crowns)[17][17],
which is approximately 2 000 EUR (two thousand Euro). Cannabis is a de
facto weed, however it might also be one of the most useful plants in the
world.
5) We quote a report made out by the Ministry
of Labour and Social Affairs[18][18]:
“In the first half of 2014 the average retirement pension was 11 050 CZK.
The average for men was 2 200 CZK higher than for women. By the end of
June 2014, there were 2 866 146 pensioners in the register of Czech
social security administration, receiving retirement, disability or survivors’
pensions. Out of the total, 2 353 691 persons were receiving retirement
pension. That means that for each person receiving retirement pension, there
are 2.1 taxpayers. According to the social security administration data, the
ratio of taxpayers to pensioners was stable for the past 3 years, fluctuating
around the 2.1 mark. The average retirement pension by June 30, 2014 was
11 050 CZK, the average for men being 12 237 CZK and 10 028 CZK
for women (that is excluding situations when retirement pensions are combined
with concurrent survivor’s pensions). Disability pensions averaged 10 274
CZK for third degree disability, 6 678 CZK for second degree disability
and 5 964 CZK for first degree disability. Average for widow pension paid
out without any other concurrent pensions was 7 247 CZK, 6 284 CZK
for widower pension and 5 685 CZK for orphan pension.”
6) The cannabis sold in pharmacies had not,
in violation of the Act on Pharmaceuticals, undergone clinical trials[19][19],[20][20].
This significant fact was pointed out by the when the amendment to the Act on
Pharmaceuticals and the Addictive substances Act (Act. 50/2013 Coll.) was
proposed by the Chairman of the Committee for Healthcare, MUDr. Boris Šťastný[21][21],[22][22]
as well as by the Minister of Health, MUDr. LeošHeger[23][23],[24][24],[25][25],[26][26],[27][27],[28][28].
There was no further debate on the issue and the documented requests for a
legal resolution to the matter received no response either. The Open Royal
Academy association responded to request of the Minister of Health, LeošHeger,
and, following a meeting with him at the Ministry[29][29],
offered him a legal resolution to the matter. The proponents of the amendment
to the Act on Pharmaceutical included among others the President of the Chamber
of Deputies, MiroslavaNěmcová, a signatory of the petition Medical Cannabis
issued by the Department of Addictology of the Charles University[30][30],[31][31],[32][32],[33][33],[34][34].
This petition was the third healthcare petition since the January 30[35][35],
2008 rulingdecriminalised medical use of cannabis. The two preceding
petitions were initiated by the association Konopí je lék, o.s. and its Head of
research (2008, 2010). In his response to the interpellations concerning
preventing the putting of the Cannabis to Pharmacies act of March 21, 2013 into
effect, the Minister of Health, MUDr. LeošHeger, stated that since its
introduction he had been pointing out that it would only prove to be a highly
lucrative business for the winner of the tender, while the medical cannabis
would remain inaccessible to citizens[36][36].
As was proven to the Court in Constitutional complaints issued by the Head of
research as well as elsewhere[37][37],[38][38],[39][39]and[40][40],the
ratios of medically active substances in varieties of the cannabis plant can
vary by hundreds of percent, the different varieties have hundreds of different
levels of concentration of those substances, and consequently their
pharmacological effects and reactions in patients can vary accordingly. This
claim was documented and proven by analyses of experimental research to the
Court by the Head of the Institute of Forensic Medicine and Medical Law of the
University Hospital Olomouc and an expert witness to the Court, RNDr. Peter
OndraCSc. The discoveries resulting from 220 years of his research are posted
in the section “Documents and Studies” at http://www.konopijelek.cz
in a summary presentation of the Head of research for Medical Conference Prague
2015[41][41],
at http://konopijelek.blogspot.cz/
and on other servers[42][42].
Section Documents and Studies also contains the unequivocal conclusion of a
leading authority in the field of cannabis research and the author of the
discovery of anandamide, the first known endogenous cannabinoid (1992), doc.
RNDr. LumírHanuš, DrSc. From Hebrew University[43][43],[44][44],[45][45],[46][46].
He states that because of the prohibition of research, we do not have
sufficient data to properly determine suitable composition and concentration of
the individual substances for treatment of diseases.Same would apply for
treatment of injuries (burns, injuries of the head, bone regrowth, etc.). The
proponents of the regulation no. 50/2013 Coll. without notification to the
European Commission themselves noted the necessity of standardization and that
the cannabis would not be intended for smoking, which they subsequently inexpertly
assigned as the only allowed method, contrary to the methods of targeted
transport of medical substances[47][47].
Pharmacies thus sell only the female flowers of highly narcotic cannabis with
minimum amounts of the cannabidiol (CBD), which is a significant healing agent
and which reduces the narcotic effects of the cannabinoid THC[48][48].
7) Let us add apart from this Complaint that
on planting areas exceeding 100 m2, only those varieties of cannabis
which are subsidized, have undergone an EU THC content volumetesting and are
registered in catalogue of varietiesby the EU are legally allowed to be grown.
Article 29 of the Addictive substances Act, which was not notified to the EU
contradicts a ruling of the European Court of Justice which ruled in C 59/11
Kokopelli Association v GrainesBaumaux SAS[49][49]
in favour of the right of European subjects to grow and trade not only plants
which are for grown profit and trade and which are subject to registration in
variety listings[50][50],
but also plants which contribute to landscape conservation, cultural diversity
and protection of cultural heritage. Who remembers today how tall apple tress
used to be, when apple orchards of today are but rows of bushes?
8) At the same time, the Complainant was not
under obligation to seek licencedue to legal facts ensuing from EU law and
judicature of the European Court of Justice. A number of articles of the
European Charter of Fundamental Rightsare being violated by unrestricted
prohibition, but that is not the matter of this Complaint, instead we will
focus on EU law. In violation of Directive 98/34/EC, Czech Republic did not
notify its amendments to the Addictive Substances Act regarding the production
of medical cannabis to the EU until May 21, 2012. Czech Republic also did not
notify the European Commission concerning Act 50/2013 Coll. Cannabis to Pharmacies,
with its crucial amendments to the Act on Pharmaceuticals and the Addictive
substances Act, despite repeated warnings given by the Head of research to the
Czech government[51][51],[52][52],[53][53],
both of the Houses of Parliament[54][54],[55][55],[56][56],[57][57],[58][58],[59][59],[60][60]
and to the President of the Czech Republic[61][61],[62][62],[63][63].
The notification to the EU was not given in spite of warnings which were sent
to the Parliamentary Institute[64][64].
The changes to sections 8 and 29 of the Addictive substances Act (in
conjunction with section 24 par 1 of the Addictive substances Act) are
technical regulations and as such, due to the fact that they were not notified,
they are not legally enforceable[65][65].
It was not and is not de iure possible to demand that the Complainant seek a
licence for his activities.Let us also note that in some countries, at the time
of their joining the EU, substances contained in cannabis were listed in their
pharmacopoeia and companies such as Bedrocan (NL) or GB Pharmaceuticals (UK)
were cannabis products for medical purposes (sprays, granules, herbs, resp.
female cannabis flower)A cannabis seed oil had already been legally registered
in the Czech pharmacopoeia at the European Commission and since April 2011,
they have been joined by Sativex, a compound of CBD and THC, two cannabinoids
with healing properties (for which a patient has to pay 25 thousand CZK, which
is approximately 1 thousand EUR, per month of therapy). In 2009 a synthetic THC
cannabinoid under the trade mark Dronabinol[66][66]was
introduced to the Czech pharmacopoeia by transcription from pharmacopoeia of
another country, but it is neither produced in the Czech Republic, nor imported
into it.
9) The only activity prohibited without a
licence, which however the Complainant did not practise, is the separation of
resins from cannabis plant, under art. 15 e) of the Addictive substances Act[67][67].
Even after the unnotified amendment to the Addictive substances Act with the
Cannabis to Pharmacies Act which has been in effect since April 1, 2013,
according to art. 15 e) of the Addictive substances Act, no authority can issue
a permission for production of cannabis based medical products such as cannabis
resina. The law does not even allow the extraction of the CBD cannabinoid from
non-narcotic cannabis, let alone the extraction of THC from narcotic cannabis.
According to scholars from the Charles University[68][68],
the rector of which, MUDr. Tomáš Zima was the expert backer of the Cannabis to
Pharmacies Act and whose Department of Addictology was the initiator of Act
50/2013 Coll., the legislators have appointed smoking as the only legal way of
ingesting the cannabis (moreover, only highly narcotic cannabis is allowed),
which constitutes one of the least efficient methods, although it may alleviate
symptoms of some illnesses for a number of people (a vaporizer is charged
separately). State Institute for Drug Control (hereafter SIDC) also published
on its website that the cannabis from pharmacies, which costs app. 300
CZK/gram, should be brewed as a tea. When the Head of research asked for an
explanation of the meaning of article 15 e) of the Addictive substances Act,
how exactly would a judge, a physician, a policeman, a pharmacist, but most
crucially, a common citizen would understand it, it became evident that there
is not a clear definition.The Complainant believes that the production of
cannabis based fertilizers for the purposes of production of medical cannabis
and the production of ointments and tinctures equals transformation and
dilution of the substances contained in cannabis rather than their isolation or
separation. All legal authorities, including the Court and governmental bodies
have answered that they do not have information concerning this interpretation,
specifically the Court provided no answer when asked under the 160/199 Coll.
Act[69][69].
The Complainant believes that the public body obliged to provide information is
the Ministry of Health as the sponsor and coordinator of the Addictive
substances Act, as well as any Court which does not disclose the reasoning of
their judgement.In spite of the fact that the Minister of Health, MUDr.
BohuslavNěmeček ordered on June 6, 2014 under ref.no. MZDR 27796/2014-2/PRO at
the request of the remonstrance committee that information concerning the
article in question, as well as other ambiguities within the Addictive
substances Act such as three completely different definitions of cannabis
regarding its content volume of active substances or certain unorthodox
interpretations of the Addictive substances Act be disclosed to a
nongovernmental organisation which was participating in related research[70][70]
and a cofounder of the Cannabis educational clinic[71][71],
even with multiple complaints to the Minister, deputy ministers, the internal
audit and inspection department and a direct order from the Minister of Health,
the officials have not disclosed the information yet[72][72].
10) For his above mentioned actions of providing medical aid to
himself and others, the Complainant was convicted as the perpetrator of
especially serious felony, unlicensed production and handling of psychotropic
substances according to art. 283 par. 1 and 3 c) of the Criminal Code in the
stage of attempt and he was put under arrest and subsequently sentenced tothree
years of imprisonment in a high security prison and under art. 70 par. 1 a), b)
and c) of the Criminal Code, his property was confiscated. The Complainant
refers the Court to the witness testimony given by MUDr. Jana Budařová[73][73]
in the trial and listed in the court’s file and adds that in 2010, she was the
chairperson of the expert society Konopí je lék, o.s.
11) The complaints lodged with the Minister of Justice by
dozens of citizens[74][74]
and nongovernmental organisations from the Open Royal Academy association[75][75]
for breach of law to the detriment of the Complainant[76][76]
and requests for his immediate release from custody and prison were all
declined without explanation[77][77],[78][78].
12) Is it known to the Constitutional Court that 50 years after
the conference Cannabis as cure held in Olomouc on the Human Rights Day on
December 10, 1954, the European Parliament adopted a set of recommendations
regarding EU drug strategy, which include the abolishing of the current
prohibitionist policies that lead to tragedies and are detrimental to citizens,
and that so far these recommendations have never been implemented into national
policies of the EU member states[79][79]?
Is it known to the Court that scientists and physicians from Europe and America
have passed a declaration stating that access to cannabis treatment is a human right[LS1] [LS1][80][80]?
Is it known to the Court that nongovernmental organisations from the whole
world, uniting patients who use medicinal cannabis, have in in Prague on March
8, 2015 signed a memorandum addressed to the United Nations, asking for the
abolition of the prohibition policies and that representatives of the UN have
issued a public apology, condemning the policy as scientifically and morally
untenable and spoke of recodification of cannabis at the March 2016 United
Nations conference in Vienna as a substance not subject to strict control,
because it is evident that these policies are not only scientifically
untenable, immoral and detrimental to the whole society, but more importantly
also in contradiction with the international agreements and laws on public
health[81][81]?
Is it known to the Constitutional Court that cannabis cures cancer and other
diseases[82][82]?
As the Head of research has repeatedly proven to the court, cannabis is one of
the safest medicaments in the world[83][83]
and its risks are trivial compared to the enormity of the benefits it provides[84][84],[85][85].
13) It is surprising that in its findings ref.no. P1 ÚS 13/12 from July 21, 2013, the Court did not declare art 289 par 3 of the Criminal Code to be in
contradiction to the art. 39 of the Charter of Fundamental Rights when they
declared paragraph 2 of the same to be so. The supplement 1.A.1 (amendment to
the order 455/2009 Coll.) to the purposefully amended order 3/2012 Coll. of the
Nečas and Pospíšiladministration, in effect from January 5, 2012, declared a
highly unorthodox legal norm defining cannabis sample taking for determination
of THC volume content for the purposes of Criminal law. This norm is in abject
contradiction not only to the EU norm for determining non-narcotic cannabis
with less than 0,2% THC volume, but also to all three definitions of cannabis according to art 3 d) of the Addictive
substances Act, including the most strict one.The strictest of the three
cannabis definitions from the Addictive substances Act is the flowering top,
which has the highest concentration of the medically active (prohibited)
substance, THC. This definition, same as the one focusing on the gynoecium,
should with regard to the principle of subsidiarity never be used for the
purposes of Criminal law. However, when police confiscates even hundreds of
kilograms of cannabis, samples of mere grams of unidentifiable segments of the
cannabis plant are used for analysis, without calculations accounting for the
weights of seeds, branches, stem and the root. It was the administration of Jan
Fischer and Daniela Kolářová, which on December 17, 2009 strengthened the
security of citizens provide by the judicature, keeping in mind the proximity
of coming into effect of the new Criminal Code prepared by the Topolánek and
Pospíšiladministration, which would for the first time in the history of this
country as of January 1, 2010 prohibit the growing of cannabis. That was the
reasoning behind why police was supposed to always measure THC volume content
from the whole body of the plant including its root according to order 455/2009
Coll. (supplement 1.A.1). However, that never happened. The police did not even
measure, nor does it in the present, the THC volume content from the whole
above-ground part of the plant including the flowering top, as prescribed in
the Addictive substances Act. The police did not even measure the THC volume
content of 60 30 cm high homogenised flowering tops of male and female plants
20 days before flowering and within 10 days of the onset of seed generation (a
period of 30 days), as prescribed by the highly detailed methodological
standard set by the EU[86][86],
which prohibits the measuring of THC content volume from the dry matter and
also prohibits the measuring during the specified month of the plants’
life cycle, because cannabis demonstrates significant deviations in the
content volume of the measured substances outside of these specific parameters,
the evidence of which was provided (to no effect) by the Head of research to
the Court in the fourth constitutional complaint with proof[87][87].
Police states that the limits have been exceededwithout weighing the cannabis
according to the legally defined procedure, as is documented below in the
interpellation to the Minister of Interior and supplements.
14) In reply to the interpellation of Martin Novotný[88][88],
a Member of the Parliament and the former mayor of Olomouc, the Minister of
Interior and the Regional Court in Brno[89][89]
stated to the request under Act 106/1999 Coll. that police bases their method
for measuring THC content volume from the UN norm. The police[90][90]
however claims that their method is based onthe Addictive Substances Act and
since January 5, 2012, they sometimes do and sometimes do not follow the
government order 3/2012 Coll[91][91].
The Supreme Court, on the other hand, claims in the judgement of May 20, 2015
ref.no. Tdo 181/2015 that the police method is based on the EU norm. None of
these claims regarding what the police method is based on is verifiable.
Verifiability is an essential attribute of Administrative law, let alone
Criminal law!
15) In the view of the Complainant, the curtailing of liberties
and guaranteed rights of citizens and confiscations of their properties based
on the unorthodox procedures smuggled into the law in the form of legislative
rule by government order 3/2012 Coll. supplement 1.A.1, in effect since January
5, 2012[92][92],
after rejecting the complaints[93][93]
of the Head of research by the Nečas and Pospíšil administration, is not only a
gross violation of art. 39 of the Charter of Fundamental Rights, but also a
violation of art. 401 of the Criminal Code and it also constitutes criminal
offences including, but not limited to endangering the safety of the public,
failure to provide assistance, misuse of power and scaremongering. The police
had likely been using this unorthodox method of measuring THC content volume in
cannabis before the Addictive Substances Act came into effect in 1998, because
as was stated by the police, they do not followlegislative changes in this
matter[94][94]
and the measuring of the whole above-ground part of the plant in accordance
with the Addictive Substances Act is being used at the request of police
higher-ups[95][95].Although
the director of the Criminology Institute states that the definition of
cannabis for Criminal Law ingovernment order 455/2013 Coll. is a legal rule and
as such irrelevant for the police, because the Addictive Substances Act takes
precedence over it, he conceals the current practice had been used long before
and that it was this police practice that was smuggled into the legal rule
3/2012 Coll. As is documented in the interpellation to the Minister of
Interior, police refuses to disclose when, by who, under what reference number
and with what wording of the method was this so-called recommended police
method for determining THC content volume in cannabis issued.
16) The Complainant believes that Court expert reports have
been legally unenforceableat least since May 20, 2004 when art. 29 of the
Addictive Substances Act made it legal to grow cannabis on up to 100m2
without reporting it to authorities.
17) It is surprising that the Regional court in České
Budějovice did not consider the provided and referenced proofs[96][96]
as new facts[97][97],
learning the expert statement of the court expert doc. RNDr. Peter Ondra, CSc.[98][98]
and the leading chemist doc. RNDr. LumírHanuš, DrSc.[99][99],
who have proven with evidencebeyond doubt that the police never measured THC
content volume in cannabis in accordance with the Addictive Substances Act,nor
with the EU norm. The UN norm is intended for international drug smugglers.
Among other facts, doc. Hanuš stated that there might be a difference in THC
content volume of up to 7 percent between individual vertical segments of the
same plant and that within a single strain of cannabis, one plant specimen can
contain up to 26 times the volume of active substances compared to another. The
deciding fact is not whether the laboratory quantitative analysis of THC
content volume in the sample is carried out according to the EU norm or the UN
one, the fundamental priority lies in the proper identification and
determination of a representative cannabis sample for measuring.
18) It is astounding that, even though the Regional Court in
České Budějovice accepted it as a new fact of significance that the amendments
to the Addictive Substances Act were not notified to the European Commission as
required by Directive 98/34/EC, the High Court in Prague did notaccount it
worthy of consideration, nor of posing the preliminary questions to the
European Court of Justice, even though the erroneous ruling of the Supreme
Court ref.no. 8 Tdo 1231/2011 of October 27, 2011 was proven invalid by the
notification of the amendment to the Addictive Substances Act with Act no. 273/2013
Coll., documented in the public database TRIS under ref.no. 2012/329/CZ. The
High Court in Prague referenced this technically and legally erroneous judgment
of the Supreme Court in order to avoid the obligation of posing the Preliminary
Questions to the European Court of Justice according to article 267 par. 3 of
the Treaty on the Functioning of the European Union and three separate court
rulings[100][100].
In these rulings, the Court stated that such action is in violation of the
right to lawful judge and to just process.
19) The notification of two amendments to the Addictive
Substances Act regarding the production of cannabis based products in art. 88
and art. 5 par. 5 of the Addictive Substances Act was carried out after the
Head of research had repeatedly and unsuccessfully defended himself against
them at the District Court, Regional Court, Supreme Court and the
Constitutional Court[101][101]
and on April 13, 2012 the Court rejected his initial complaint without
providing reasoning as unsubstantial with ref.no. II ÚS 664/12, and
subsequently kept referencing this ruling for the three following complaints.
Let us repeat that the amendment to art. 5 par. 5 concerning experimental
research and industrial production of cannabis products, which was from April
1, 2013 allowed by Act 50/2013 Coll. only for cannabis with up to 0.3 percent
THC volume content, was later notified to the Commission probably knowingly and
intentionally by Act 273/2013 Coll. with the words “experimental purposes”
replaced by the words “gardening purposes”. The new limit for manipulation with
cannabis with up to 0.3% THC volume content was
replaced in the notification of May 21, 2012 by the new amendment of the
Addictive Substances Act with Act 273/2013 Coll. which came into effect on
April 1, 2014. That was at the time when the Addictive Substances Act was being
substantially modified in the Parliament because of the Act. 50/2013 Coll.
Cannabis to Pharmacies, which was not notified to the European Commission.
20) The contested ruling (as well as the ruling of the Supreme Court
in the matter of the cassation appeal of the Head of Research of May 20, 2015
ref.no. Tdo 181/2015) erroneously declared the notification of the Addictive
Substances Act to the EU as unnecessary due to the application of the
Regulation (EC) No 273/2004 of the European Parliament and of the Council of 11
February 2004 on drug precursors to the Addictive Substances Act documented in
the referenced ruling of the Supreme Court of October 27, 2011 ref.no. 8 Tdo
1231/2011 and the ruling of the Court of April 13, 2012 ref.no. II. ÚS 664/12. Not only can EU regulations not be directly transposed into laws, but also
cannabis is not a precursor. At the same time the stances of Czech Office for
Standards[102][102]
and Ministry of Health have also been documented in the proceedings, which
prove that the Addictive Substances Act is a technical regulation in the sense
of Regulation 98/34/EC and is subject to notification to the European
Commission, which previously the Ministry of Health[103][103]
as well as the government of the Czech Republic and the Court refused to
accept.
III.
- Preliminary
questions for the European Court of Justice
I.
Does article 267 par. 3 of the Treaty on the Functioning of the European
Union have to be interpreted as preventing the Supreme Court from taking
action, which the Supreme Court cites as reason to refuse to grant permission
to pose preliminary questions to the European Court of Justice regarding the
unenforceability of legal provisions of the Act 167/1998 Coll. on Addictive
Substances (Zákon o návykovýchlátkách, henceforth Addictive Substances
Act), based the on the finding of the Czech Supreme Court (ref.no. 8 Tdo
1231/2011) that the Addictive Substances Act transposes a legal provision of
the European Community, specifically an EC directive, which however must not be
transposed.
II.
Given that following Act 362/2004 Coll. (CZ), which amends the Addictive
Substances Act, the legal regime of growing hemp for research (experimental)
and industrial purposes has shifted from regime under which growing hemp was
not allowed without prior notice to authorities to regime under which growing
hemp without prior notice to authorities is allowed up to a growing area of 100m2
per person, does § 29 of the Addictive Substances Act represent a technical
regulation in the sense of art. 1 par. 11 of the directive 98/34/EC and is it
thus, considering that this clause has not been notified to the European
Commission in accordance with art. 8 and 9 of the directive 98/34/EC,
unenforceable in terms of the European Court of Justice ruling concerning
C-194/94 CIA Security International, point 55?
III. Does the
European Commission regulation(EC)No. 1122/2009 for determining of narcotic and
non-narcotic hemp varieties following the “Community method for quantitative
determination of Δ9-tetrahydrocannabinol content in hemp varieties” (Annex
I of the regulation from November 30, 2009), have to be interpreted as
preventing other methods for determining Δ9-tetrahydrocannabinol content in
hemp varieties and their narcotic effects, than the method listed in the
regulation from being enacted?
IV. Does
art. 5 par. 5 of the Addictive Substances Act represent a regulation in the
sense of art. 1 par. 11 of the Directive 98/34/EC since its amendment by
Act (CZ) 50/2013 Coll. establishes a new THC content threshold for
research (experimental) and industrial purposes, up to 0, 3 % THC content, and
is it thus, since the clause has not been notified to the European Commission
in accordance with art. 8 and 9 of the directive 98/34/EC, unenforceable in
terms of the European Court of Justice ruling concerning C-194/94 CIA Security
International, point 55?
V.
Does art. 5 par. 5 of the Addictive Substances Act represent a regulation in
the sense of art. 1 par. 11 of the Directive 98/34/EC since it changes
the legal regime of manipulation with addictive substances from regime under
which licences for manipulation with addictive substances could not applied for
to a regime under which licences for manipulation can be applied for in
accordance with Act No. 141/2009 Coll. (CZ), which amended the Addictive
Substances Act and is it thus, considering that this clause has not been
notified to the European Commission in accordance with art. 8 and 9 of the
directive 98/34/EC, unenforceable in terms of the European Court of Justice
ruling concerning C-194/94 CIA Security International, point 55?
VI. Does
art. 9 of the directive 98/34/EC have to be interpreted as preventing the
passing of a regulation without delay for urgent reasons according to art. 7 of
the directive for national regularization such as Decree No. 221/2013 Coll.
which states the conditions for prescription, preparation, dispensing and use
of individually prepared pharmaceutical agents (CZ), which states the
requirements for the properties of medicinal hemp?
VII. Does art. 24a of the
Addictive Substances Act represent a regulation in the sense of art. 1 par. 11
of the Directive 98/34/EC as it establishes the requirement of having a
licence for growing hemp and is it thus, since the clause has not been notified
to the European Commission in accordance with art. 8 and 9 of the directive
98/34/EC, unenforceable in terms of the European Court of Justice ruling
concerning C-194/94 CIA Security International, point 55?
VIII. Does art. 24b of the Addictive
Substances Act represent a regulation in the sense of art. 1 par. 11 of the
Directive 98/34/EC as it requires that all medicinal hemp be turned in
to the State Institute for Drug Control and is it thus, since the clause has
not been notified to the European Commission in accordance with art. 8 and 9 of
the directive 98/34/EC, unenforceable in terms of the European Court of Justice
ruling concerning C-194/94 CIA Security International, point 55?
IX. Does
article No. 34 of the Treaty on the Functioning of the European Union
have to be interpreted as estopping national regulation such as Act No.
378/2007 Coll. on pharmaceuticals (CZ), Addictive Substances Act and decree No.
221/2013 Coll. (CZ), since these regulations set the requirements for the
properties of medicinal hemp which de facto has to be imported from the
Netherlands where it is grown for use as a narcotic and which is demonstrably
less suitable for medicinal purposes than other (nationally produced or
imported) strains of hemp, including non-narcotic hemp strains and non-narcotic
methods of application of narcotic hemp, which are not allowed for medicinal
use?
X.
Considering the findings of the European Court of Justice in C-137/09 Josemans,
which explicitly state the admissibility of using narcotic substances such as
hemp for medical and research purposes, does article No. 34 of the Treaty on
the Functioning of the European Union have to be interpreted as estopping
national regulation which only allows the use of medically unsuitable hemp
(imported from the Netherlands), primarily intended for intoxication and under
legal sanctions prohibits all growing, research and use of other (nationally
produced or imported) hemp strains, which would be more suitable for medicinal
purposes?
XI. Does
art. 15 e) of the Addictive Substances Act represent a regulation in the sense
of art. 1 par. 11 of the Directive 98/34/EC as it changes the legal
regime of separation substances from hemp for research and medical purposes
from regime where this was not allowed to a regime when it may be allowed based
on Act No. 50/2013 Coll. (CZ) which amended the Addictive Substances Act and is
it thus, since the clause has not been notified to the European Commission in
accordance with art. 8 and 9 of the directive 98/34/EC, unenforceable in terms
of the European Court of Justice ruling concerning C-194/94 CIA Security
International, point 55?
IV.
In view of the above mentioned facts, the Complainant proposes that the
Constitutional Court issue the following
ruling:
Ruling of the Regional Court in České Budějovice of March 31, 2015 ref.no.
20 T 45/2011 and the ruling of High Court in Prague of May 28, 2015 ref.no. 11
To 33/2015 are hereby annulledas being in contradiction of constitutionally
guaranteed rights.
Constitutional Complaint
ref.no. I. ÚS 2431/15
supplements
Supplements:
Expert statement of the Faculty of Science of the Palacký University in
Olomouc
I.
On August 7, 2015 the Complainant filed a Constitutional Complaint against
the ruling of the Regional Court in České Budějovice of May 28, 2015, ref.no.
11 To 33/2015.
The Complainant further amends this Constitutional Complaint with the
expert statement of the Faculty of Science of the Palacký University in Olomouc
ref.no. UPOL 489216-NEVě-UPOL-100329/3900S, issued on August 10, 2015 (that is,
issued after the Constitutional Complaint had been filed), from which it can be
indisputably concluded that:
a) Cannabis is not a precursor, from which it
follows that Directive 98/34/EC may not be applied into Czech law, as the High
Court claims in its ruling – besides, this notion has also been adopted by
probably all the courts dealing with the cannabis issue. This claim, which by
the way requires expert knowledge to be substantiated and cannot be reached
purely by the court’s deliberation, contradicts the reasoning for denying access
to the European Court of Justice by posing preliminary questions when it is
evident that no due notification of the regulation was made so far, which
substantially affects the legal situation of the Complainant, his right to a
fair trial, or rather of the principle that only law can determine what
constitutes a criminal offence.
b) If we use different segments of the
cannabis plant for determining its THC content volume, we will reach different
conclusions about the THC content volume in the plant as a whole, while it is
necessary that the authorities participating in prosecution base their
conclusions concerning the THC content volume on the same samples (segments) of
the plant.
The Complainant further amends this Constitutional Complaint with the
ruling of the Constitutional Court ref.no. SPR ÚS 578/15 and SPR ÚS 433/15 (see
also http://pravnistat.blogspot.com/)
as evidence that:
1) The by the High Court referenced ruling of
the Supreme Court ref.no. 8 Tdo 1231/2011, resp. II. ÚS 664/12 on the
obligation of obtaining a licence for growing cannabis as per art. 29 of
167/1998 Coll. if the planted area for growing does not exceed 100 m2
per person is not supported by any evidence because art. 29 of 167/1998 Coll.
as amended on May 20, 2004 states, while growing cannabis on planted area
exceeding 100 m2 per person must be notified to the Customs Office,
there is no designated authority which should be notified if the planted area
does not exceed 100 m2 per person.
2) There is no court practice for determining
proper cannabis samples for THC content volume measuring. In spite of the fact
that measured THC content volume using different samples, e.g. male or female
flower, gynoecium, the flowering top, the whole herb or its above-ground part
including root, will vary greatly and in spite of the fact that there is no
evidence proving that police ever measured the THC content volume according to
the sample and procedure set by the EU, as stated by the Supreme Court in
ref.no. 11 Tdo 181/2015; and that there is no proof documenting that the police
ever measured THC content volume according to any of the three definitions of
cannabis sample stated in Act 167/1998 Coll. The Complainant was growing
varieties of cannabis defined for Criminal law since January 1, 2010 in art.
289 par. 3 of the Criminal Code by Government Order 455/2009 Coll. supplement
1.A.1 as cannabis plant which after the homogenisation of the whole body of the
plant including root does not exceed the legally stated THC content threshold
of 0.3% THC. However, the police had never used a sample and plant definition
to measure THC volume content.
3) There is no court practice supporting the
erroneous statement that a Regulation of the EC can be applied directly into
law, which the Supreme Court stated in ref.no. 8 Tdo 1231/2011, resp. ref.no.
II ÚS 664/12 as grounds for refusing to pose preliminary questions to the
European Court of Justice.
Miloslav Tetour
i.s. advocate
[15][15]The UN requests that
limitations on growing area for poppy and cannabis be defined. Southern America
countries request that limitations for coca be invalidated for them as the
declare the plant a part of their cultural heritage.
[16][16]Ref.no. II. ÚS 664/12, IV.ÚS
4859/12, II. ÚS 1311/13 a II.ÚS 289/14
[17][17] The legal limit for purchase
of cannabis allowed by the Ministry of Health as of August 1, 2015 is 180 grams
[31][31] Quoting from the referenced
web:” August 16, 2011: a petition committee of 10 people, physicians,
researchers, representatives of patients and of the general public is
publishing petition http://www.lecebnekonopi.cz/,
which will pique the interest of the media and politicians alike. The first to
join the petition just a day after its publishing is the President of the
Chamber of Deputies, MiroslavaNěmcová.
[65][65]European Court of Justice:
ref.no.. C -194/ 94 and C-390/99. European Court of Justice applied the
consequences of violation of the obligation to notify according to Directive
98/34/EC also in trials ref.no. C‑267/03 and C-20/05.
[69][69] Request for the text of the
ruling ref.no. ÚS 433/15-2 of June 7, 2015
[92][92]see II. ÚS 664/12, IV.ÚS
4859/12, II. ÚS 1311/13 and II.ÚS 289/14
[97][97] The Supreme Court was equally
rejecting in its ruling of May 20, 2015, ref.no. 11 Tdo 181/2015 concerning the
cassation appeal of the Head of Research
[100][100]The findings of the
Constitutional Court of Czech Republic ref.no. II ÚS 1009/08 of January 8, 2009
concerning Pfizer, articles 22 and 30, alsoref.no. II. ÚS 1658/11 of November
29, 2011 a ref.no. II. ÚS 2504/10 of September 10, 2012
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