Punishment for possession of drugs for personal use

Last week HFHR’s head office hosted a press conference entitled “Punishment of persons arrested for possession of drugs for personal use” The event was attended by HFHR’s lawyers, Dr. Piotr Kładoczny and Piotr Kubaszewski who co-authored their recent book, “The Act on Prevention of Drug Abuse. A commentary to selected penal provisions”. The Act, amended in 2011, grants the prosecution service and the courts the possibility to discontinue criminal proceedings against perpetrators in possession of small amounts of intoxicants or psychoactive drugs for their personal use (Article 62a).

According to data from the Ministry of Justice, however, the number of perpetrators sentenced for drug possession is constantly growing. In 2001 it was 1,412, in 2006 – 13,280, and in 2012 – 13,595 persons.

Over the recent days the media have reported further cases of persons arrested for possession of small amounts of drugs. The amendments to the Act were designed to facilitate discontinuation of criminal proceedings by prosecutors just after the person carrying a minor amount of drugs is detained. “In this respect, however, the Police have not changed their conduct as according to Article 62a of the Act it is the prosecutor and the court who may discontinue the proceedings, not the Police. A person carrying drugs is therefore detained and the premises where he/she lives are searched without warrant, i.e. just by the “flash of the badge”, said HFHR’s lawyer Piotr Kubaszewski during last week’s conference.

Such a search without warrant is subsequently pronounced legit by the prosecution service. “The idea alone of searching the perpetrator’s premises based on Article 62 of the Act on Prevention of Drug Abuse, justified as “the necessary inquiries” as defined by Article 308 of the Code of Criminal Procedure seems to be dubious”, Mr Kubaszewski added.

It is difficult to verify the practical application of Article 62a by the courts and the prosecution service. According to the data from the Ministry of Justice, article 62a was applied in 2,305 cases in 2012. “Quantitative data alone are not enough to conclude how many cases should have been discontinued following the application of Article 62a”, said Dr. Piotr Kładoczny, legal expert of the HFHR. “We will be able to draw conclusions only after an analysis of the relevant case files which we are going to carry out”, he added.

The data from the General Prosecutor’s Office for 2012 also show a wide variation in the application of the Article by the prosecution service. For example, in 2012 the Poznań region saw 496 cases discontinued based on article 62a, compared against 195 in the Warsaw region and only 11 in the Rzeszów region.

“In the light of this data we must consider whether the current shape of the Act is effective and appropriate and whether we should not contemplate introduction of a new Act which would comprehensively regulate the issues related to prevention of drug abuse”, says Dr. Adam Bodnar, HFHR’s vice president.