Judgement on the Case of “The Public Defender of Georgia vs. the Parliament of Georgia”
On 2 August 2019, the first board of the Constitutional Court of Georgia partially upheld the constitutional complaint N770 (the Public Defender of Georgia vs. the Parliament of Georgia) and declared unconstitutional the prison sentencing for the production, purchase, storage of drugs in the amount sufficient for single use only.
The complainant disputed the constitutionality of provisions of the Administrative Offences Code and the Criminal Code of Georgia that establishes administrative detention and imprisonment, respectively, for illegal production, purchase, storage and/or use without a doctor's prescription of a narcotic drug, its analogue or a precursor in small quantity.
The Public Defender of Georgia argued that actions punishable by the impugned norms did not pose a threat to the public, which would justify the application of a prison sentence. The complainant thereby considered the sanctions of administrative detention and imprisonment, as established by the disputed acts, were clearly disproportionate and unconstitutional with respect to article 9 of the Constitution of Georgia.
The respondent indicated the protection of public health, prevention of distribution of drugs and drug addiction as legitimate aims of the disputed law. Further, the respondent emphasised that the law in question prescribed alternative sanctions, which allowed a court of law and law enforcement bodies to interpret the law in each individual case and opt for the most adequate sanction on the case-by-case basis.
The Constitutional Court assessed separately, on the one hand, the punishment for the production, purchase, storage of a narcotic drug, its analogue or a precursor for a clearly personal use (quantity enough for a single use) and, on the other hand the production, purchase and storage thereof that exceeds the amount of a single-use.
The Constitutional Court noted that users of drugs create demand, which encourages illegal turnover of drugs. Accordingly, restriction on the use of drugs serves the purpose of protecting drug users, as well as public health. Nevertheless, the Constitutional Court stressed that the criminalisation of the use of drugs that do not cause fast addiction and/or aggressive behaviour in their user does not serve the protection of public order and security. Therefore, the ends of criminalising the use of narcotic substances are limited only to the protection of public health, whereas the production, purchase, storage of a narcotic drug for personal/single-use generates minimal, hypothetic risk of its distribution. For these reasons, the Constitutional Court concluded that the threat emanating from drugs that do not cause fast addiction and/or aggressive behaviour in their use is not proportionate to the level, which would justify a prison sentence.
The Constitutional Court separately addressed narcotic substances which cause fast addiction and/or aggressive behaviour in their user. The Court noted that even a single use of narcotics, as well as their production, purchase, storage for the purpose of personal use constitutes a threat to public order and security. It is therefore justified to apply imprisonment for the prevention of such threats.
Furthermore, the Constitutional Court found constitutional a prison sentence for the production, purchase, storage of drugs that exceed the amount of one-time use. The Constitutional Court indicated that, as a rule, in similar cases the risks of individual participation in illegal turnover and distribution of narcotic substances, and also of inflicting harm to other individuals’ health.
Consequently, the Constitutional Court of Georgia declared unconstitutional the normative content of the disputed provisions, which established administrative detention and criminal imprisonment for the production, purchase, storage of drugs, their analogue or a precursor sufficient solely for single use.