Application
to the European Court of Human Rights
The Registrar,
European Court of Human Rights, Council of Europe
F-67075 Strasbourg Cedex,
France
Applicant Dušan Dvořák the Czech Republic
Applicant Dušan Dvořák the Czech Republic
I.
Facts of the case
1)
The applicant was
charged by Czech courts in 2010 and found guilty in 2011 of committing the
crime of unlawful production and other disposal of narcotic drugs or psychotropic
substances or poisons in connection with the fact that he grew and processed cannabis
with a Tetrahydrocannabinol (dronabinol, hereinafter "THC") content
of over 0.3 % (see Annexes 2 and 4). The Supreme Court of the Czech Republic
and Constitutional Court of the Czech Republic reaffirmed the judgments of the
previous courts (see Annexes 6 and 8).
2)
The applicant is, by
profession, a psychotherapist, addictologist (graduated specialist in
prevention, treatment and rehabilitation of persons in danger of drug
addiction) and is the founder of "cannabis therapy". He has been
repeatedly lauded in the Czech Republic and abroad for his innovative social
services, standards of quality and research, and was also publicly awarded by
the Government of the Czech
Republic in 2009 for
educating the public on medical use of cannabis through the website www.konopijelek.cz
3)
The applicant
corroborated before Czech courts that he has been vainly applying to the Czech
Ministry of Health since 2000 for the forms and permits to study medical use of
cannabis, yet in the Czech
Republic there is no form of regulation, no
permit can be issued to grow cannabis and there is no methodology for treating
patients with cannabis. Any growing or trafficking of cannabis with a THC
content of over 0.3 % is forbidden in the Czech Republic and can be criminally
prosecuted regardless of whether the cannabis is used for scientific research,
medical treatment or educational ends, or for its narcotic effect and
endangering public health and safety.
4)
Since 2004 the applicant
has successfully treated his own chronic ailments with cannabis, which was
corroborated before the courts by physicians and testimony from the applicant's
wife.
5)
In 2008, supported by
experts and patients, the applicant decided to register the professional association
Konopí je lék, o.s. and started growing cannabis and providing it to the sick
while also educating the lay and professional public at the research farm of
medicinal cannabis genetics that he founded with his wife in the village of
Ospělov near Olomouc.
6)
Empirical
findings from the research conducted unequivocally confirm the palliative and
causal effect of cannabis, the safety and gentleness of the treatment through
appropriate synergies and proper processing of the substances contained in
cannabis on specific afflictions, and in some cases the results even surpass
those achieved through conventional methods[1],
or are in fact the only effective treatment[2].
7)
As part of his "Konopí
je lék" (Cannabis is medicine) research, the applicant sought out and
studied strains of cannabis suitable for treatment and the best forms of
processing and dosing for given illnesses, while also optimising treatment
(standards, indications) and trying to rehabilitate the cannabis plant, which
contains many curative substances, in view of the fact that among the hundreds
or possibly thousands of strains of cannabis there are completely different
synergies of cannabinoids and reactions (cannabis contains dozens of
cannabinoids, with the effect of cannabinoids CBD and THC currently being the
most thoroughly described).
8)
It must be added that
one of the most extensive receptor systems in mammals is the body's own
cannabinoid system, which was discovered at the start of the 1990s, and
Olomouc's Palacký University and its employees and graduates hold a number of
world firsts in discovering medicinal substances in cannabis. In the nineties
Spanish researchers first demonstrated the successful treatment of cancer
(apoptosis). The applicant, along with physician Irina Hubernáková, are likely
the first researchers in the world to have repeatedly demonstrated complete
curing of "diabetic foot" slotted for amputation using cannabis salve
(cannabis salve has no narcotic effects).
9)
As a result of his
activities the applicant is widely recognised by the Czech public, which shows
that the applicant's case is not one of drug dealing. The facts stated were in
no way called into doubt by Czech courts, but were found to be irrelevant from
the perspective of Czech criminal law.
10)
The courts were
repeatedly sent evidence of successful treatment of a number of illnesses
backed up by court expert assessments and physician statements accompanied by
photographic documentation and the documentary films also publicly available on
YouTube – Konopí je lék, Konopné pašije
and Rok konopí, which in the opinion
of the applicant shows that the official apathetic stance of the State or
society results in fatal damages to the life and health of thousands of
patients as well as to the State budget. For example, in the Slovak and Czech Republics
there are at least three thousand amputations performed annually on diabetics
who could be helped by cannabis salve.
11)
Since July 2012 the
applicant has suffered a Class 3 disability and has invested significant financial
means into the research of medicinal cannabis genetics, processing, therapy and
education, which have been repeatedly damaged by intervention from the Police
of the Czech Republic;
the applicant's family has suffered significant damages.
12)
The European Commission
has accepted as admissible the applicant's complaint on violation of EU rights
specified in part II of this application and since 22 February 2012 has been
investigating it under file number CHAP
(2012) 00282.
13)
The applicant faces
four charges up until 2012 for growing cannabis for his "Konopí je
lék" research and cannabis is regularly confiscated at harvest time by the
Czech Police at his research farm in Ospělov. After the applicant was not
successful at higher court instances with his argumentation related to the
violation of EU and human rights by the Czech Republic, the public prosecutor's
office is currently paradoxically not pushing for further convictions, but
rather proposing withdrawing the charges, alleging that the applicant was
mentally unsound during the time he was growing the cannabis up until 2012. The
applicant believes that in this way the Czech authorities hope to cover up
their own unlawful actions. This unfounded labelling of the applicant as
mentally unsound is a (further) wrongful interference with his human rights,
though it cannot yet be the subject of a complaint as all court instances have
not been exhausted.
II.
Violation of Article 6 of the Convention through irrational assessment
and insufficient (non-existent) substantiation, whereby Czech courts refused to
request a preliminary ruling from the EU Court of Justice
14)
The applicant accuses
the Czech Republic of violation of Article 6 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (hereinafter the
"Convention") which stipulates the right to a fair trial. The reason
is that the Czech courts refused, on the basis of an irrational assessment and
insufficient substantiation, in fact with regard to the applicant's specific
argument none whatsoever, to request a preliminary ruling from the EU
Court of Justice (hereinafter the "ECJ"), even though an
interpretation of EU law was crucial for resolving the case and at least the
Supreme Court of the Czech Republic was obliged to do so as the court of last
instance within the meaning of Article 267 (3) of the Treaty on the Functioning
of the European Union (hereinafter "TFEU").
15)
Considering the
"approximation" of the legal systems of the Convention and EU law on
the basis of the planned EU accession to the Convention, it is worth posing the
question of whether the slightest effect will be attributed to EU law in light of
the Convention or whether on the contrary national courts will be allowed to
wilfully violate obligations arising from EU law from the perspective of the
Convention.
a.
Perspective of EU law
16)
Before national courts
the applicant argued and corroborated in detail that the Czech Republic failed
to uphold its obligations to notify according to Directive 98/34/EC[3] in
the case of the Czech Act on Addictive Substances (hereinafter the "Act on
AS"), even though it was obliged to do so, in particular with amendment[4] of the
Act following the Czech Republic's accession to the EU[5].
17)
In light of the ECJ case-law
(since the judgment on case C-194/94 CIA,
point 54)[6],
the fact that the obligation to notify was not observed would mean that several
requirements of the Act on AS are unenforceable[7], in
particular the obligation to hold a permit for the handling of addictive
substances and the prohibition on growing cannabis with a THC content of
over 0.3 % (see Annex 9).
18)
On the basis of this
objection by the applicant, de jure it
is not possible to find in his case that the criminal offences related to
addictive substances were committed, as the perpetrator would have had to act
"without authorisation" (see Annex 9). (In other words, culpability
is not possible if the person in question holds a permit to traffic in
addictive substances, or for the legal reason of unenforceability of the
requirement to hold such an authorisation such person cannot be viewed as a
person who acted without authorisation.)
19)
This also means that
the applicant could not be found de jure guilty
of the criminal act, as he would be being sanctioned for the failure to observe
regulations that could not be enforced against him due to failure to observe
the notification procedure of Directive 98/34 (see ECJ judgment on the case C-20/05
Schwibbert, in particular points 14,
44 and 45, on criminal proceedings for counterfeiting CDs).
20)
Czech courts however
refused to do so on the basis of a single substantive legal argument,
specifically that the Act takes advantage of the exemption from the
obligation to notify as per the first bullet of Article 10 (1) of Directive
98/34/EC, because it is transposing EU
regulations, specifically a Regulation
(though not regulations related to addictive substances, but rather to their
precursors).
21)
EU law however
prohibits Regulations from being transposed into national law as this would
endanger the direct applicability of these standards as per Article 288 (2) of
the TFEU (see the ECJ judgment on case 34/73 Variola).
22)
Although even Regulations
can require, in exceptional cases, that the regulations necessary for effective
implementation of the Regulation in question be adopted
(see ECJ judgment on case 31/78 Bussone), the exemption under Article 10 (1) of Directive 98/34/EC applies a priori only to the transposition of Directives under Article 288 (3) of the TFEU which requires a Member State to transpose EU technical specifications.
(see ECJ judgment on case 31/78 Bussone), the exemption under Article 10 (1) of Directive 98/34/EC applies a priori only to the transposition of Directives under Article 288 (3) of the TFEU which requires a Member State to transpose EU technical specifications.
23)
Nevertheless, even the
applicant cannot rule out that there is an EU Regulation that would require
within the meaning of the Bussone case-law
the adoption of a technical specification within the meaning of Article 10 (1)
of Directive 98/34/EC. The Czech courts did not however refer to such a
hypothetical possibility in any way and with their blanket statement they must
allow that they committed the amateurish error of mixing up the general regime
for EU Regulations (prohibiting transposition) with the general regime for EU
Directives (requiring transposition).
24)
The applicant's main
criticism in terms of the Convention is that if the Czech courts were
generally mixing up the regime for EU Regulations and the regime for EU
Directives, then they were at least also obliged to positively back up their
claims as the applicant repeatedly demanded, i.e. to specifically corroborate
which alleged Regulation provisions directly causally required the adoption
of the contentious requirements of the Act on AS. Only in such a case could
the requirements of the Act on AS take advantage of the exemption from the
obligation to notify on the basis of Article 10 (1) of Directive 98/34/EC as
stipulated by the ECJ case-law (see C-289/94 stated in more detail below).
25)
Although the applicant's objection was decisive for the resolution of
the case, Czech courts did not corroborate in any way that the conviction of
the applicant was a case of acte clair or éclairé according to the ECJ case-law
on 283/81 CILFIT.
26)
On the contrary, the applicant is of the
opinion that all facts indicate that it is a case of acte éclairé in his
favour, i.e. that the unenforceability of the requirements under the Act on AS
is clearly existent, whereupon the Czech courts could not find the applicant
guilty of the alleged crime. This stance is also confirmed by the position of
the Parliamentary Institute of the Chamber of Deputies of the Czech Republic,
which carried out an analysis of the currently planned amendment to the Act on
Pharmaceuticals, which introduces the "cannabis into pharmacies"
programme, to see if this programme was compatible with EU law, and recommends
notifying the European Commission of the draft act according to Directive
98/34/EC as a non-harmonised national provision with an impact on the free
movement of goods (see Annex 10).
27)
In the following text the applicant
corroborates in detail the fact that the Supreme Court in particular was
obliged in the given case to submit a request for a preliminary ruling. By
failing to do so it violated both Article 267 (32) of the TFEU and Article 6 of
the Convention. The Constitutional
Court also violated the right to a fair trial
under Article 6 of the Convention by finding the actions of the Supreme Court
adequate from the perspective of the right to a fair trial according to Article
36 of the Charter of Fundamental Rights and Freedoms.
b.
Handling
of applicant's objections by Czech courts
28)
After the first
instance court did not react at all in its ruling (see Annex 2) to the
applicant's objection of unenforceability (see Annex 1), the applicant, in his
appeal to the Regional Court, pointed out the fact that Regulations are not a priori an eligible instrument for
applying the exemption from the obligation to notify laid out by Article 10 (1)
of Directive 98/34/EC (see Annex 3).
29)
After the Regional
Court supported its ruling (see Annex 4) with this very argumentation without
stating which specific provisions of which Regulation are the basis for the contentious
provisions of the Act (which the applicant believes it could not have done, as
no such provision exists), the applicant explicitly raised the objection in its
appeal to the Supreme Court (see Annex 5, page 8) that the Regulations in
question deal with a separate area (that of precursors), that the transposition
of EU Regulations by national regulations is essentially not acceptable from
the viewpoint of EU law and that the Regional Court did not state which
specific provisions of the Regulations in question served as a basis for the
adoption of the contentious legal requirements, as well as that the given
Regulations did not contain provisions directly or indirectly requiring the
adoption of the contentious provisions in the Act on AS.
30)
The Supreme Court
however assumed the same extremely general and in the applicant's opinion
clearly mistaken argumentation as the Regional Court, adding only a list of the
EU Regulations and other EU rules that the Act was allegedly implementing
without stating, as with the Regional Court, which particular provisions of
which EU rules were the basis for transposition of the contentions requirements
in the Act (see Annex 6).
31)
For this reason the
applicant explicitly emphasised in his constitutional complaint that the ECJ
case-law requires that a direct link exist
between the EU (transposed) provision and the implementing national law
(see ECJ judgment on case C-289/94
Commission v Italy, points 36, 43 and
44). (see Annex 7, page 15)
32)
Unfortunately however
the Constitutional Court
also sided with the substantiation of the previous courts without taking into
account the detailed objections of the applicant or addressing them in any way
(see Annex 8).
c.
Evaluation of approach of Czech
courts from perspective of the Convention
1.
Manifestly irrational assessment
33)
With the blanket claim
that the Act on AS makes use of the exemption under Article 10 (1) of Directive
98/34/EC because it allegedly implements Regulations, Czech courts have
committed a manifestly irrational assessment[8] mixing
up the general regime for Regulations (forbidding transposition) and the
general regime for Directives (requiring transposition eligible to make use of
the exemption under Article 10 (1) of Directive 98/34/EC).
34)
While it cannot be
ruled out, as the applicant states in point 23 of this application, that in
particularly exceptional cases there could be a Regulation requiring
transposition within the meaning of Article 10 (1) of Directive 98/34, it must
be stated that the Czech courts did not address this extreme (theoretical)
possibility, which the applicant considers a grave error.
35)
The applicant
emphasises this point in order to show that it is not asking the Court for
Human Rights (hereinafter also as the "Court") to judge an EU legal
issue, which is the jurisdiction of the ECJ, but rather is pointing out, from
the perspective of the Convention, the degree to which it is clear that this
argument used by the Czech courts is incorrect.
2.
Failure to include substantiation addressing the applicant's specific
and decisive argument in the rulings
36)
As follows from points
16-32 of this application, from the viewpoint of Article 6 of the Convention,
Czech courts violated the right to a fair trial by not including in their
rulings any substantiation in response to the specific and decisive argument
brought up by the applicant (judgment of the Court Benderskiy 22750/02, points 45 and 46).
37)
This specific argument
must be taken into account particularly in the applicant's complaint before the
Supreme Court and Constitutional Court, when he asked these institutions to
substantiate which specific provisions of the Regulations in question required
the Czech Republic to adopt the contentious requirements of the Act on AS, as
the previous instances had clearly failed to distinguish between the regime for
Regulations and Directives and claimed that the Act on AS makes use of the
exemption from the obligation to notify on the grounds that it transposes
Regulations.
38)
Any future objection
of the Czech Republic that the Czech courts dealt with this argument by stating
that the Act on AS implements Regulations, the senselessness of which the
applicant has repeatedly pointed out as a Regulation cannot be a priori transposed, cannot be accepted –
nemo auditur propriam turpitudinem
allegans.
3.
Failure to state a rationale within the meaning of the case-law for Ullens de Schooten et Rezabek v Belgium
39)
The decisions of the
Czech courts furthermore fail to meet the requirements of the Court case-law in
the joined cases 3989/07 and 38353/07 Ullens de Schooten et Rezabek v Belgium, which relate to the
violation of the right to a fair trial in the specific issue of national
courts not referring questions to the ECJ for a preliminary ruling.
40)
Although in this
judgment the Court refused to review the merit of the substantiation national
courts use to refuse to request a preliminary ruling from the ECJ, it did
demand that a court decision include such a due substantiation (see point 61 "la tâche de la Cour consiste à
s’assurer que la décision de refus critiquée devant elle est dûment assortie de
tels motifs").
41)
The aforementioned
requirement to include substantiation cannot, in the applicant's opinion, be
understood formalistically in the sense that national courts can absolve
themselves of the obligations of Article 6 (1) of the Convention in relation to
the obligations from Article 267 of the TFEU by stating just any and in fact an
a priori irrational rationale without
having to address the specific arguments that are decisive for resolving the
dispute.
42)
First of all, as
follows from point 67 of the aforementioned judgment, the Court examined the
scope of the individual substantiations and the overall procedure by which the
Belgian Court of Cassation refused to request a preliminary ruling from the
ECJ.
43)
Furthermore, as stated
in the second paragraph of point 66
in the aforementioned judgment, the objection that the
principle of contradiction had been violated in relation to the question of the
scope of the ECJ case-law on the given matter was rejected by the Court due to
the fact that the deadline under Article 35 of the Convention had passed; it
follows that otherwise the Court would have reviewed whether the decision of
the Belgian Court of Cassation included a substantiation in relation to this
objection.
44)
These facts show that
the Court – without substituting for the ECJ and interpreting EU law by itself
– reviews the substantiations of national courts from the perspective of
upholding the substantive requirements laid down by the Convention, i.e. just
as in other cases with a purely national legal element it demands that national
courts include rationales in their decisions addressing the specific and
decisive objections of the complainant (Court judgment Benderskiy 22750/02, points 45 and 46).
45)
In other words, the
case-law of Ullens de Schooten et Rezabek
v Belgium
is nothing more than the case-law of Benderskiy applied to the specific question
of requesting a preliminary ruling from the ECJ.
46)
As already stated in
point 37 of this application, this specific argument must be seen in the
applicant's objection that the a priori insufficient
claim of the previous instances, which said the Act on AS makes use of an
exemption from the obligation to notify because it implements Regulations, can
only stand if the courts substantiate which specific provisions of the
Regulations in question causally require adoption of the contentious
requirements in the Act on AS – see the aforementioned objection of the
applicant before the Constitutional Court, which explicitly refers to points
36, 43 and 44 of C-289/94 Commission v
Italy, where the ECJ demands that there be a direct link between the
national transpositional provisions and the EU rules.
47)
It must be reiterated
here that the Czech courts did not address this specific argument in the least.
48)
Furthermore the Czech
courts were constantly reminded of the senselessness of their blanket claim
that the Act on AS implements Regulations, which of course may not a priori be transposed. The courts were
also alerted to the fact that the EU Regulations in question primarily deal
with precursors and cannot provide a basis for the national legal treatment of
narcotic substances themselves. These arguments were also not addressed
whatsoever by the Czech courts.
49)
The applicant believes
these facts must be understood as indications attesting to the fact that the
Czech courts, having evidently run out of arguments, committed intentional
wilfulness.
50)
The applicant
understands that the Czech courts may have acted in this manner primarily on
the basis of their fear of "setting a precedent" for other cases
where drugs are being sold on the black market. As the applicant stated in
footnote 5 of this application however, only narcotic substances for medical
and scientific purposes enjoy legal protection in the EU. But even assuming
that a drug dealer were to take advantage of the unenforceability of the
requirements in the Act on AS, the legal error was made by the Czech Republic
when the Czech executive (Ministry of Health) failed to report the Act on AS in
accordance with Directive 98/34/EC. The arbitrary actions of Czech courts can
find no justification in the Convention.
51)
The applicant takes
the liberty of remarking that if the Court of Human Rights were to "approve"
the approach of Czech courts in a case so clear[9] as
the one in question, it would absolve national courts of any real obligation to
provide substantiation in relation to Article 6 (1) of the Convention and
Article 267 of the TFEU, as it would allow national courts to state any
rationale, even an intentionally erroneous one. In other words, in such cases
the protection of Article 6 (1) in relation to the intent of Article 267 of
the TFEU would lose all impact (i.e. the effectiveness of protection of human
rights would cease in such a case).
52)
Conclusion of this
section of the application: The Czech courts,
and in particular the Constitutional Court and the Supreme Court, which was
obliged to request a preliminary ruling from the ECJ, acted in violation of
Article 6 (1) of the Convention as interpreted by the judgment of the Court for
Human Rights in the joined cases 3989/07 and 38353/07 Ullens de Schooten et Rezabek v Belgium, points 60 and following.
III.
Violation of the provisions of the Convention by not allowing
cultivation of cannabis for medical uses and provision to the ailing
53)
The applicant also
accuses the Czech Republic of violating several fundamental rights by finding
his actions criminal based on an absolute prohibition of growing cannabis with
a THC content of over 0.3 % (Section 24 of the Act on Addictive Substances); in
proceedings before national courts the applicant subsumed these under the Czech
constitutional law standards of Article 31 of the Czech Charter of Fundamental
Rights and Basic Freedoms (LZPS), according to which everyone has the right to
basic protection of their health, Article 15 (2) guaranteeing the freedom of
scholarly research and of artistic creation, and Article 1, according to which
people are free, have equal dignity and enjoy equality of rights (see Annex 8).
54)
Transferred
to the legal system laid down by the Convention, the applicant states that by
finding his actions criminal on the basis of an absolute prohibition of growing
cannabis (including growing for medical and scientific purposes) the Czech
Republic violated his right to privacy under Article 8 of the Convention,
freedom of expression of beliefs under Article 9 of the Convention and freedom
of assembly and association according to Article 11 of the Convention.
1.
On violation of Article 8 of the Convention
55)
In the
following section the applicant shall proceed in several steps. First the
applicant shall substantiate that the criminal prosecution for provision of
cannabis to the sick for medical purposes is an encroachment on the right to
respect for one's private life. Then he shall bring up both the EU and the
international context stipulated by the United Nations (hereinafter the
"UN"), and last of all he shall demonstrate the failure to uphold the
conditions of Article 8 (2), in particular in terms of the inappropriateness of
the Czech legal treatment stipulating absolute prohibition of cultivation of
cannabis with a THC content over 0.3 %.
a.
Encroachment on the right laid down under Article 8 of the Convention,
not only toward the patients, but also toward the applicant
56)
By way of
introduction it should be stated that, despite the fact that in the opinion of
the applicant, the State's prohibition of growing and handling cannabis, in
cases of serious illness, goes against Article 2 of the Convention laying down
the right to life and Article 3 of the Convention prohibiting inhuman or
degrading treatment, the applicant shall abide by the positive distinction made
by the Court on case 2346/02 Pretty v
United Kingdom. Should however the
Court find that Article 8 is subsidiary to Articles 2 and 3 of the Convention
in this case, the applicant requests that the following also apply to these
articles.
57)
If the
Court has already granted under Article 8 of the Convention the personal
autonomy of a person to decide to end their own life (Pretty judgment, points 61 and 67), it means a fortiori that this provision of the Convention essentially also
guarantees the free choice of each person as to what treatment (and potentially
palliative) means they choose.
58)
The
consumption of cannabis for medical purposes and thus also the cultivation of
cannabis by the sick to this end thus a
priori clearly falls under the right to respect for one's private life
according to Article 8 of the Convention.
59)
It is
important to realise that the prohibition of growing and handling cannabis not
only means that the sick are prohibited from consuming and growing cannabis for
their own treatment needs, but they are also unable to enter into a
relationship with persons like the applicant, who have expert knowledge in
terms of appropriate strains, dosage and manner of processing for treating the
given illness.
60)
The right
to respect for private life, which according to the formulations commonly used
by the Court includes the right to physical and moral integrity without
groundless interference from the State, is affected in the given case because
the absolute prohibition of growing and handling cannabis prevents the
applicant from entering into a relationship with other persons / patients (judgment
on Sentges 27677/02) and providing
cannabis (the proper strains, processing and amount with regard to the specific
illness) for treatment purposes.
61)
It can
thus be said that not only for the patients, but also for the applicant, who
decided of his own conscience to overstep the bounds of what is permitted or
criminal in the Czech legal system, the absolute prohibition of growing cannabis
for medical purposes and the legal impossibility of providing this cannabis to
patients represents an encroachment on the applicant's right to respect for
one's private life (especially in the situation where, on the basis of the
aforementioned prohibition, the State (intentionally) neglects its regulatory
role in terms of reliably and safely providing cannabis for medical purposes to
patients while also ensuring public safety and order – see below).
b.
State intervention in conflict with EU and international UN context
62)
The State's
prohibition of using and handling cannabis for medical purposes, as with the
State's prohibition of providing cannabis to the ailing as in the case of the
applicant, particularly in the absence of any effect State regulation, clashes
with EU law and the UN Single Convention of 30 March 1961 on Narcotic Drugs
in the sense that handling of narcotic substances is generally prohibited with
the exception of cases of use for medical and research purposes.
63)
The EU and
international context can be illustrated best in the ECJ judgment on C-137/09 Josemans:
a.
The ECJ bases its
position on the fundamental distinction, that since the harmfulness of narcotic drugs,
including those derived from hemp, such as cannabis, is generally recognised,
there is a prohibition in all the Member States on marketing them[10] (point 36 of the judgment – emphasis and
footnote added).
b.
On the basis of this,
the ECJ comes to the conclusion that " in the course of
marketing narcotic drugs which are not distributed through channels strictly
controlled by the competent authorities with a view to use for medical
or scientific purposes, a coffee-shop proprietor may not rely on" the basic
freedoms of EU law to object to a national regulation that (completely)
restricts their activity (point 54 of the judgment – emphasis added).
c.
What follows from this
a contrario is that narcotic
substances such as cannabis that are used for medical purposes are marketable
goods within the meaning of the fundamental freedoms of the EU internal market
according to Articles 34, 35 and 56 of the TFEU.
d.
The ECJ then situates
the aforementioned basic distinction into the international context of the UN: "That legal position complies with
various international instruments [...], such as the United Nations Single
Convention on Narcotic Drugs, concluded at New York on 30 March 1961 [...]. In the
preamble to the Single Convention the parties declare themselves conscious of
their duty to prevent and combat addiction to narcotic drugs, whilst recognising
that the medical use of narcotic drugs continues to be indispensable
for the relief of pain and suffering and that adequate provision must be made
to ensure the availability of narcotic drugs for such purposes. Under Article 4
of that convention, the parties are to take all the measures necessary to limit
exclusively to medical and scientific purposes the production, manufacture,
export, import, distribution of, trade in, use and possession of drugs."
(points 37 and 38 of the judgment – emphasis added).
64)
On the
basis of the above it can be claimed that EU law and international UN law do
not lay down any prohibition of growing and handling cannabis for medical
purposes.
65)
On the contrary, the indispensability of cannabis use
for medical purposes is clearly acknowledged by EU law and the UN Single
Convention, and therefore by the parties to those two international
organisations.
66)
In the
case of the Single Convention, it can be inferred that the handling of cannabis
for medical and scientific purposes is acknowledged as indispensable by UN
international law.
67)
In the
case of EU law it can in fact be inferred that in the case of cannabis for
medical and scientific purposes, it is a marketable product recognised by EU
primary law on the EU internal market, which individuals can rely upon if a
State lays down unfounded cross-boundary barriers to trade.
c.
Rationale for prohibition of cannabis according to Article 8 (2) of the
Convention
68)
In terms
of the rationale for prohibiting the cultivation of cannabis for medical
purposes, it is undisputed that it is a measure laid down by the law, as
required under Article 8 (2) of the Convention.
69)
It can
also be allowed that this measure pursues the legitimate goal of preventing the
cultivation and trafficking of cannabis for its narcotic effects from the
perspective of public health and safety.
70)
Nevertheless,
the measure in question is disproportionate, as it is guided exclusively by the
effort to restrict the cultivation and trafficking of cannabis for its narcotic
effects, and in no way allows – even in the slightest form – for the handling
of cannabis for medical and scientific purposes.
71)
A more
appropriate measure would be if the State would embrace its regulatory powers and (in accordance with the public interest of
restricting abuse of cannabis for its narcotic effects) establish methods
(procedures) for supplying medical cannabis to patients reliably and safely.
Additional support for this argument is that patients would no longer be
stigmatised and criminalised and forced to turn to the black market with
cannabis that is inappropriate for medical use (containing chemicals from
fertilisers, sick or mouldy cannabis, too much THC, inappropriate cannabinoid
synergy for the given illness, etc.).
72)
If the
consumption of cannabis for medical and scientific purposes is categorically
prohibited by the State, as is the case in the Czech Republic, this measure is a
much more severe encroachment than is necessary to achieve the pursued end.
73)
The
disproportionality of this encroachment is all the more evident if the State
goes beyond the framework of what is required to fulfil EU and international
commitments and on the contrary infringes on (human) rights and international
relations that are intentionally not encroached upon by these commitments.
74)
In light
of the fact that the Court's case-law does not emerge from a "legal
vacuum", i.e. in the sense that the Court does in fact (as in the cases of
assisted suicide and euthanasia) take into account the state in
"surrounding" legislation[11],
it would be a legal paradox if this court negated a right recognised by the EU
legal code and the international code of the UN in terms of using (handling)
narcotic substances such as cannabis for medical and scientific purposes.
75)
In other
words, it would be a paradox if the Court allowed a party to categorically
encroach on an area where neither EU nor international UN law stipulate any categorical interference and
in fact deliberately exclude the given area from a regime of prohibition with
regard to its benefit for both individuals and society and for this reason
explicitly recognise the indispensability of maintaining it. If however the
Court were to allow such categorical encroachment (prohibition) by the State in
this area, it would be the Court itself that would negate the enforceability
of all human rights goals pursued by the EU and UN legal treatment in this area.
76)
If the State is now,
in conflict with EU and UN goals, to categorically prohibit any cultivation and
handling of cannabis, then it is encroaching upon the execution of the
right to respect for the private life of patients to use cannabis for medical
and scientific purposes in such a disproportionate manner that it does not
tolerate any room for consideration by the State.
77)
In this situation the
State cannot categorically penalise both consumption of cannabis for medical
purposes by patients and the path by which this cannabis finds its way to the
ailing – via third parties, in this case via the applicant – if it refuses to
use its regulatory powers to set up safe conditions for the goods and the
persons providing the goods to be reliable. It is a generally known fact that
cannabis is difficult to patent, which impedes financial support for research
and the interest of pharmaceutical companies and creates a vicious cycle for
education and public awareness on the basis of evidence and in particular
prevents the education of the professional public.
78)
The applicant has
repeatedly stated that the situation would naturally be different if the State
used its regulatory powers to make medical cannabis available to patients
reliably and safely for the public interest or otherwise made it available,
including for scientific research.
79)
If however
the handling of cannabis for medical and scientific purposes is, as in the case
of the Czech Republic,
categorically prohibited by the State, this measure represents an excessive and
unacceptable encroachment on the right to respect for one's private life using
cannabis for medical purposes and carrying out research in this area including
breeding medicinal strains of cannabis.
2.
Violation of Article 9 of the Convention
80)
By finding
the applicant guilty of unlawful handling and growing of cannabis for medical
and scientific purposes, the State violated the applicant's freedom to manifest
his beliefs according to Article 9 of the Convention.
81)
On the
basis of thousands of years of experience by humankind and scientific evidence
published since the 1950s, as well as on the basis of his own empirical
experiences with providing cannabis to patients for medical purposes, the
applicant has sufficient proof on the effectiveness of this method of
treatment, which can not only compete with conventional treatment methods for a
number of illnesses, but in some cases even surpasses conventional methods or is
in fact the only effective treatment, all without the devastating side effects
of many official medicaments[12].
It has been repeatedly shown that cannabis is one of the safest medicines; one
cannot overdose with it and there is no fatal dosage.
82)
As with
the case of the applicant's arguments above on the violation of Article 8 of
the Convention, which the applicant takes the liberty of applying in their full
scope to violation of Article 9 as well, the absolute prohibition of handling
of cannabis encroaches on the applicant's right to manifest his belief (and
conscience) in providing the sick with effective treatment and, in connection
with optimising this treatment, to carry out scientific research including
breeding and cultivating medicinal strains of cannabis.
83)
Although
this prohibition is prescribed by law and follows a legitimate goal or goals
listed under Article 9 (2) of the Convention, this encroachment is not
necessary (proportionate) in democratic society, particularly with regard to
its categoricality and the fact that it clashes with EU and UN law – see above.
3.
Violation of Article 11 of the
Convention
84)
It was corroborated to the
courts by non-governmental organisations duly registered in the Czech Republic
(Act on Associations of Citizens, Act No. 83/1990 Coll.) fulfilling their
missions and working on the research for "Konopí je lék" with
evidence (see Annex 3, 5 and 7) that State authorities repeatedly denied the
applicant his rights protected by the Convention under Article 11.
85)
The courts were provided
with evidence that the applicant and members of non-governmental organisations
could not protect the interests of their members and fulfil the mission
(recognised by the State) of the public benefit organisation.
86)
Non-governmental
organisations, via the applicant, submitted the requested evidence on the use
of medicinal cannabis to the Regional Court (see Annex 3, addendum – evidence)
and it was demonstrated that the non-governmental organisations working on the
research that the applicant was leading and which the family of the applicant
had long supported received a gift from Prague City Hall and a grant from the
Olga Havel Foundation's Committee of Good Will for research into treatment of
cancer and asthma (see Annex 5, page 4).
87)
State authorities were
repeatedly criticised for the criminalisation of the activities of the
non-governmental organisations, including for violation of the provisions of
the Public Health Care Act and the role of the public benefit organisations
stated in this act (see Annex 3, addendum, page 1 and Annex 5, page 6).
88)
The applicant's years of
requests for the cooperation of the police and the protection of the research
and non-governmental organisations by the police (see Annex 5, page 3) did not
lead the State authorities to protect the rights protected by the law and
Convention under Article 11.
89)
When the applicant and
non-governmental organisations involved in the research brought charges of
abuse of power by officials, damaging of foreign rights, etc., the public
prosecutor's office rejected them as groundless, even though the police
presidency asked to have them investigated (see Annex 5, page 3).
90)
These actions illustrate the
violation of Article 11 of the Convention by the Czech Republic.
IV.
Conclusion
91)
On the basis
of the above the applicant requests that the Court
a.
find this application admissible and
b.
find that the Czech Republic violated Articles 6,
8, 9 and 11 of the Convention toward the applicant.
In Olomouc, 10 October 2012
Dušan Dvořák, born 12 January
1962, Tylova 2, CZ 779 00 Olomouc
Annexes:
Annex 1 - Document containing the objections of
unenforceability as per 98/34 as part of the defence before the District Court
in Prostějov
Annex 2 - Judgment of the District Court in Prostějov
- 2 T 104/ 2010 of 27 October 2010
Annex 3 - Appeal to the Regional Court in Brno and addenda to appeal – list of evidence
Annex 4 - Judgment of the Regional Court in Brno - 3 To 25/2011 of 9 March 2011
Annex 5 - Appeal to the Supreme Court
Annex 6 - Resolution of the Supreme Court - 8 Tdo
1231/2011-55 of 27 October 2011
Annex 7 - Constitutional complaint
Annex 8 - Resolution of the Constitutional Court - II. ÚS 664/12 of
13 April 2012
Annex 9 - Document containing the relevant provisions
of Czech law (Sections 8 and 24 of the Act on Addictive Substances)
Annex 10 - Position of the Parliamentary Institute on amendment
to the Act on Pharmaceuticals introducing "cannabis into pharmacies"
as regards 98/34 EC ´
[1]
Diabetes and dual diagnoses associated with serious
illnesses; cannabis treatment has a causal effect on some forms of cancer;
successful treatment has also been recorded for Parkinson's, Crohn's and
Alzheimer's diseases, multiple sclerosis, depression and alcoholism, epilepsy,
burns, intense pain, migraines, nausea, high blood pressure, skin diseases,
asthma, arthritis of the joints, inflammatory diseases, etc.
[2] "Diabetic
foot" set to be amputated (sepsis), malignant forms of skin cancer, glaucoma,
phantom pain, chronic conditions and aging-associated diseases, "butterfly
disease", etc.
[3] Directive 98/34/EC of
the European Parliament and of the Council of 22 June 1998 laying down a
procedure for the provision of information in the field of technical standards
and regulations and of rules on Information Society services.
[4] Act No. 141/2009
Coll. of 28 April 2009 amending Act No. 167/1998 Coll., on addictive substances
[5] The following was
submitted by the applicant and was not called into question by the Czech courts.
a.
Cannabis for medical use
is, from the perspective of EU law (and UN Conventions), a marketable product
and falls within the scope of EU law (judgment on C-137/09 Josemans, point 36). A
contrario, cannabis and other narcotic substances used for
non-medical uses are not a marketable product and do not enjoy the protection
of EU law. This allows Czech courts to avoid the situation that drug
traffickers would successfully copy the applicant's argumentation before the
courts.
b. In light of
the fact that the amendment to the Act on AS, adopted after accession of the
Czech Republic to the EU (see footnote 4), significantly amended one of the contentious
technical regulations within the meaning of Directive 98/34 (the requirement to
hold a permit), the Czech Republic was obliged to notify the European
Commission of this act according to Directive 98/34/EC. The fact that the
amendment implemented a more liberal regime is irrelevant (see ECJ on case
C-273/94 Commission v Kingdom of the Netherlands, point
13)
c.
The contentious provisions
of the Act on AS are technical regulations within the meaning of Directive
98/34/EC, as they influence the marketing of the given product, yet do not
result from binding EC/EU regulations, i.e. in particular from Directives, and therefore
in order to avoid barriers to movement are subject to the notification
obligation as per Directive 98/34.
[6] In light of the
accessibility of ECJ judgments at www.curia.eu,
the applicant shall not include more extensive references to the case-law of
this court.
[7] A description of the
issue of Directive 98/34 can be found at the European Commission's site www.ec.europa.eu/enterprise/tris,
where it can also be verified that many Member States report national
legislation on addictive substances, which in the case of the Czech Republic
only took place on 21 May 2012 through notification 2012/329/CZ, by which the
Czech Republic implicitly affirms the applicant's position that the Act
on Addictive Substances was to be reported in accordance with Directive 98/43.
[8] Without exaggeration
the applicant takes the liberty of asserting here that any law student would be
thrown out of an exam on EU law if they mixed up the regimes for Regulations
and Directives. The applicant includes this fact in order to show that he is
not asking the Court for Human Rights to judge an EU legal issue, which is the
jurisdiction of the ECJ, but rather is pointing out the level of faultiness in
the argument of the Czech courts from the perspective of the Convention.
[9] The clarity of the
case must be seen in the fact that, in contrast to, for example, legal disputes
relating to violation of Article 34 of the TFEU on the free movement of goods
where the result of the dispute is unsure due to the fact that a state
restriction on import could be substantiated by the public interest and could
be commensurate, the legal result of the failure of the State to uphold the
obligation to notify according to Directive 98/34/EC is clear and automatic and
always results in the unenforceability of the regulation based on the case
history of the ECJ.
[10] For understanding it is
important to add that the sale of cannabis in the Netherlands by coffee shops for
its narcotic effects is not legalised, but merely tolerated.
[11] See the Court's position
on the case 2346/02 Pretty v United Kingdom, point 40, under
which the Court refers to the position of States in Recommendation 1418 (1999)
of the Parliamentary Assembly of the Council of Europe; likewise on the same
issue there is a reference in point 66 to a decision by the Supreme Court of
Canada on the case Rodriguex v the
Attorney General of Canada.
