Citizen of Georgia Beka Tsikarishvili v. the Parliament of Georgia
|Chamber/Plenum||I Chabmer - Konstantine Vardzelashvili, Ketevan Eremadze, Maia Kopaleishvili, Merab Turava,|
|Date||24 October 2015|
Composition of the Board
Konstantine Vardzelashvili – Chairman of the Hearing;
Ketevan Eremadze – Member, Judge Rapporteur;
Maia Kopaleishvili – Member;
Merab Turava – Member.
Secretary of the Hearing: Lili Skhirtladze
Title of the Case: Citizen of Georgia Beka Tsikarishvili v. the Parliament of Georgia
Subject of the Dispute: Constitutionality of normative content of the wording “is punished with imprisonment from 7 to 15 years” of section 2 of Article 260 of the Criminal Code of Georgia which sets punishment for purchase-possession of narcotic substance – dried marijuana indicated in 92th horizontal cell of the second appendix of the law of Georgia “On Narcotic Drugs, Psychotropic Substances And Precursors and Narcological Assistance” in large quantities with respect to paragraph 2 of article 17 of the Constitution of Georgia.
Participants of the Hearing: Representatives of the Claimant – Vakhtang Menabde and Guram Imnadze; Representative of the Respondent, the Parliament of Georgia – Tamar Meskhia and Zurab Macharadze; Witnesses – Consultant of the Ministry of Labour, Health and Social Affairs of Georgia, Expert-Narcologist ZaZa Shengelia, Chief Specialist of Branch of Legal Provision of Legal Department of Ministry of Labour, Health and Social Affairs of Georgia Aleksandre Toria; Deputy Head of Public International Law Department of Ministry of Justice of Georgia – Beka Dzamashvili, Deputy Head of Department of Prosecutorial Activities Supervision and Strategic Development of Prosecutor’s Office of Georgia – Shalva Saghirashvili, Pro-Rector of Academy of Ministry of Internal Affairs of Georgia – Sopho Kiladze; Professor of Law school of Academy of Ministry of Internal Affairs of Georgia – Jemal Janashia.
1. On May 5, 2014 a constitutional claim (registration N592) was lodged to the Constitutional Court of Georgia by the Citizen of Georgia Beka Tsikarishvili. On May 6, 2014 the Constitutional Claim was assigned to the First Board of the Constitutional Court of Georgia for ruling on admission of the case for consideration on merits.
2. Preliminary session of the First board of the Constitutional Court with oral hearing was held on February 12, 2015. Pursuant to the Recording Notice №1/1/592 of April 4, 2013 of the First Board of the Constitutional Court of Georgia the claim was admitted for consideration on merits in the part disputing Constitutionality of normative content of the wording “is punished with imprisonment from 7 to 15 years” of section 2 of Article 260 of the Criminal Code of Georgia which sets punishment for purchase-possession of large quantities of narcotic substance – dried marijuana indicated in 92th horizontal cell of the second appendix of the law of Georgia “On Narcotic Drugs, Psychotropic Substances And Precursors and Narcological Assistance” with respect to paragraph 2 of article 17 of the Constitution of Georgia. The oral hearing on merits was held on June 24 and 25, 2016.
3. The legal basis for submission of the Constitutional Claim is: paragraph 1 of article 42, subparagraph “f” of paragraph 1 of article 89 of the Constitution of Georgia, subparagraph “e” of paragraph 1 of article 19, subparagraph “a” of paragraph 1 of article 39 of the organic law of Georgia “On the Constitutional Court of Georgia”, articles 15 and 16 of the Law of Georgia “On Constitutional Legal Proceedings”.
4. According to the section 1 of article 260 of Criminal Code of Georgia illegal manufacturing, production, purchase, storage, transportation, transfer or distribution of drugs, their analogues or precursors is punishable by imprisonment for up to eleven years. Subparagraph “a” of the second section of the same article indicates that commission of the mentioned act in large quantities is punishable by imprisonment from seven to fourteen years.
5. The second section of article 17 of the Constitution of Georgia establishes that no one shall be subjected to torture, cruel, inhuman, or degrading treatment or punishment.
6. It is indicated in the constitutional claim that the claimant is accused in commission of the crime prescribed by subparagraph “a” of section 2 of Article 260 of the Criminal Code of Georgia, namely for purchase and possession of narcotic substance – dried marijuana in a large quantities.
7. The Claimant indicated that right to dignity constitutes absolute right protected by the Constitution. Interference in the right could not be justified by the state by any legitimate aim. Furthermore, he considers that limiting category of punishment violating human dignity only by lifetime imprisonment and physical punishments would unjustifiably narrow the scope of protection of the constitutional right.
8. Representative of the Claimant indicated that the aims of the punishment prescribed for the mentioned criminal act are restoration of justice, re-socialisation of an offender and prevention of risks of commission of new crime. According to his statement aim of restoration of justice is minimal with respect to drug-related crimes. It is hard to define its content even in a legal doctrine, especially with respect to soft drugs such as marijuana. With respect to the prevention function of the punishment, representative of the Claimant considers that it implies both general and individual prevention. He considers that the use of punishment only for the prevention function is unjustifiable, because in such cases the aims of punishment is not related to actual danger derived from the criminalised act and use of punishment only for the purpose to intimidate others has arbitrary character. According to the Claimant’s opinion the right to dignity places individual in the centre of the constitutional system and use of punishment only for prevention leads to instrumentalisation of the punished person. The Claimant indicates that in the mentioned case an individual acquires status of the object of law, which might lead to the sacrifice of the constitutional rights of the accused/offender.
9. The Claimant party indicated protection of human health, state and societal security and fulfilment of legal obligation arisen from international treaties of Georgia as the aims for establishing punishment on drug-related crimes.
10. With respect to the obligation taken by Georgia based on international treaties in relation to marijuana the Claimant’s representative indicated that there is no international act, which obliges the state to impose criminal punishment on users of marijuana. The acts indicate only on necessity to regulate and impose certain restriction of that matter.
11. Derived from the above mentioned the Claimant considers that if restriction of certain activities of the persons under the influence of narcotic substance is necessary for maintaining order in society or achieving other legitimate aims the state is authorised to restrict such activities, similar to prohibiting driving under influence of alcohol. This constitutes less restrictive interference in human rights, which equally ensures achievement of aim of maintaining order in society.
12. According to the opinion of the Claimant’s representative it is possible legislator to be aiming to prevent not only procession of marijuana (more than 50 grams) but also its distribution; however the mentioned aim is not clearly readable from the disputed provision. At the same time, when intent to distribute is not established imposition of punishment on an individual might occur only based on assumption and not proven circumstances.
13. The Claimant party indicates that punishment set for certain acts should be used individually, based on assessment of personal characteristics of the accused, circumstances of the crime and other relevant facts. Punishment prescribed for criminal act should be aiming at avoidance of dangers caused by the mentioned act and be directed towards the certain fact. Disregarding the mentioned requirement of setting the punishment creates real risks for violation of human rights.
14. The Claimant’s representative defined that the disputed provision does not differentiate sanction based on the societal danger of different narcotic substances. According to his opinion the disputed provision precludes possibility to individualise punishment which additionally underlines its unconstitutional nature.
15. The Claimant party indicated that individual approach towards an accused by the judge, assessment of the individual act and dangers caused from it is important objective of administration of justice. According to the Claimant’s opinion the disputed provision does not provide possibility for individual approach, because judge is bound with the punishment established by the law. Even if judge considers that in certain case an act committed by an accused does not involve such danger to impose 7 years imprisonment as a punishment, the judge is not authorised to impose imprisonment for shorter period.
16. According to the definition of the Claimant’s representative Cannabises is included in the first and the second table of appendix 1 of the law of Georgia “On Narcotic Drugs, Psychotropic Substances And Precursors, And Narcological Assistance” which lists the narcotic substances strictly limited and limited for circulation, however the list does not include Marijuana. Marijuana is included in the list established by the second appendix of the same law, which only defines quantities of each narcotic substance. Therefore the Claimant considers that according to the legislation in force Marijuana is not by itself included in the category of restricted substances, the law is not sufficiently clear and leaves possibility for controversial definition/interpretation. Therefore, an individual is punished for the act which is not clearly listed as punishable by the law.
17. The Claimant party considers inclusion of Marijuana in the first table of the mentioned law to be unjustifiable, because the latter lists the substance involving the highest medical risk, while marijuana is not substance of such danger. The Claimant considers that legislator is obliged to separate Marijuana from other hard narcotic drugs listed in the table, because it does not constitute narcotic drug of high danger. According to the definition of the Claimant party Marijuana does not lead to drug addiction. He asserts that the danger derived from Marijuana does not substantially exceed danger caused by nicotine and alcohol, which do not constitute prohibited substances and their purchase and possession is not punishable. Therefore, by including Marijuana in the mentioned table of narcotic substances the State changes its natural character.
18. The Claimant’s representative indicated that drug addiction is disease under which addicted person loses control over his/her actions and in some case might commit crime in order to acquire drugs. Therefore matters related to narcotic substances should be regulated, but not punishable by the state. At the same time the Claimant considers that it is necessary for the State to regulate actions of drug distributors, however in relation to the purchaser the matter depends on the danger caused by the acquired drug. The Claimant considers that Marijuana does not constitute substance of such danger which leads to the mentioned necessity.
19. According to the definition of the Claimant the substance which turns Marijuana into the narcotics is Tetrahydrocannabinol, concentration of which might vary between different plants. The level of influence of Marijuana on human depends on the concentration of Tetrahydrocannabinol in it. The Claimant indicates that expertise for evaluating volume of the mentioned substance in the marijuana found in procession of individual is not conducted. Therefore, the person might be punished for possession of marijuana which is not suitable for intoxication.
20. The Claimant draws parallel toward other crimes prescribed in the Criminal Code and indicates that some crimes, for example murder, by its essence involve much higher danger compared to the possession of Marijuana; however the ceiling of period on imprisonment used as a punishment for it is only one year more. The Claimant considers that equalising the penalty imposed for an act prescribed by the disputed provision to the penalty imposed for extremely serious crimes such as murder and rape constitutes clearly disproportionate punishment imposed for possession of Marijuana.
21. The Claimant party defines that incorrect regulation of the matters related to the human rights as a result of incorrect balance between the branches of the state power, in the end constitutes not only violation of the principle of separation of power but also human rights. The claimant considers existing practice of plea bargain and interpretation of the law to be intolerable, because imposition of the penalty is a function of judicial power; however, judge is not allowed to impose penalty lower than established by the Criminal Code of Georgia while Prosecutor’s Office has such authority. The latter decides the use of plea bargain with respect to a certain individual on its own authority based on absolute discretion.
22. The Claimant considers that for possession of marijuana not only the punishment prescribed by the disputed provision but also imposition of imprisonment for any period of time is disproportionate and contrary to human dignity.
23. In order to substantiate its argumentation the Claimant party additionally indicated on the case-law of the Constitutional Court of Georgia related to the disputed issues.
24. Representative of the Respondent party indicated that generally imposition of imprisonment for drug-related crimes is far from cruel and inhuman punishment, which precludes possibility for violation of the second paragraph of article 17 of the Constitution.
25. The representative of the Claimant indicated that determination of policy related to the punishment is not within the scope of the competence of the Constitutional Court. In order the punishment to be contrary to the second paragraph of article 17 of the Constitution it should reach certain character, severity and only after that it could be considered as disproportionate, in cases when it is related to the punishment of highest severity, specifically lifetime imprisonment, physical punishments etc.
26. The Respondent indicated that imprisonment as a penalty is established for the acts which are exceptionally dangerous for the society. The aim of the mentioned punishment is not physical suffering of an individual, but decreasing number of crimes related to illegal circulation of narcotic substances, isolation of the persons promoting such circulation from society. The latter, on its own, leads to well-being of society, protection of citizens’ health, avoidance of spreading of drug addiction and prevention of use and distribution of narcotic substances.
27. Representative of the Respondent drew attention towards the note supplementing article 260 of the Criminal Code of Georgia, according to which “persons who voluntarily turn in drugs, their analogues, precursors, new psychoactive substances, psychotropic substances, their analogues or potent substances shall be released from criminal liability stipulated for the crimes defined in this Chapter, unless there are elements of another offence in their actions”. Based on the mentioned provision the Respondent considers that the primary aim of legislator is prevention of circulation of illegal narcotic substances, not punishment of humans.
28. The Respondent party also defines that the purchase and possession of narcotic substance in small quantity for the purpose of personal use falls outside the scope of the regulation established by the disputed provision. Article 260 is applicable only to purchase and procession of the substance beyond small quantity.
29. The representative of the Parliament of Georgia also defined that “Single Convention on Narcotic Drugs” of 1961 obliges Georgia to include marijuana in the list of illegal narcotic substances and imposition of punishment measures is an exclusive power of the State.
30. The Respondent’s Representative indicates that according to the research of UN Commission on Fight against Crime besides Tetrahydrocannabinol the cannabis contains 70 other ingredients, unity of which generates relevant results. At the same time Tetrahydrocannabinol by itself is included in the list of narcotic substances; therefore, there is no necessity to conduct forensic analysis in order to determine volume of Tetrahydrocannabinol contained in Marijuana which was found in possession of the individual. The Claimant indicates that purchase/possession of Marijuana by itself is the criminal offence, notwithstanding the volume of Tetrahydrocannabinol it contains.
31. In addition to the above mentioned the Respondent considers the range between minimum and maximum term of imprisonment established by the disputed provision is sufficiently wide to ensure that the judge would have possibility to assess suitability of punishment individually.
32. The representative of the Respondent party indicated that Marijuana differs from other narcotic substances in effects of their use. However the legislator reflected difference in societal danger of their use by establishing different punishable volumes for each substance, which at the end generate treatment to each substance corresponding with the danger derived from it.
33. At the same time the Respondent party indicated that it is scientifically proven that Marijuana is a narcotic substance which causes severe consequences, which is especially detrimental to the humans below 30, because in that period of life human brain is not completely formed. The Respondent also counted negative effect of the use of Marijuana, specifically indicating towards the loss of physical coordination by human, complications during pregnancy and post pregnancy periods, problems with the memory and mental health, psychiatric side effects including psychosis, schizophrenia, depression, hallucinations, feeling agitated, impotence, fertility risks. In youth it often forms suicide tendencies. The Respondent claims Marijuana to be the substance use of which in many occasions, especially among vulnerable people, results in switching to stronger narcotics, which might have lethal consequences.
34. Based on all above mentioned the Respondent party considers that the punishment established by the disputed provision constitutes suitable, real and proportional measure for an act committed. At the same time respondent considers that there is no interference within the scope protected by the second paragraph of article 17 of the Constitution of Georgia.
35. Consultant of the Ministry of Labour, Health and Social Affairs of Georgia, expert-narcologist ZaZa Shengelia was invited as a witness on the case. The witness defined the content of notion of narcotic substance Marijuana and indicated that Marijuana is shredded leaves with flowers from the top of the plant Cannabises. The active substance in Marijuana is Tetrahydrocannabinol, average concentration of which is about 3 to 15 percent. The witness indicated that some amount of Tetrahydrocannabinol is always contained by Marijuana, but in some occasions it might be very low, for example 0.02%, due to the species of the plant and environmental factors. The witness also indicated that such plant will also be considered as Marijuana; however same amount of Marijuana with different concentration of Tetrahydrocannabinol is capable of different results in terms of influence on human.
36. The witness also indicated on average amount of Marijuana which is consumed at one time use and in order to prepare one piece of narcotic substance ready for consumption on average 1 gram of Marijuana is required. Therefore it is possible for an individual to be possessing 50 grams of Marijuana solely for the purpose of personal use. The witness indicated that risk of overdose during consumption of marijuana is low and in theory it is possible 50 grams of Marijuana to be consumed by a single person in 3 days. The witness indicated that generally routine user of Marijuana consumes around 8-10 pieces a day.
37. The witness drew attention to the consequences of the use of Marijuana in terms of influence on people. According to his definition effects of Marijuana on its users include relaxation, decrease of psychomotor activity, decrease in concentration or attention, disorder of ability to assess distances, euphoria, sense of well being, carefree condition, alarm, mood swings. In case of consecutive long term use it is characterised with short and fast decrease of memory, inability to fulfil the planned tasks, change in perception of time and space, lowering the threshold of pain, changes in the sexual and emotional field. In certain occasions use of Marijuana might cause hallucinations, psychosis etc. At the same time according to the definition of the witness compared to other narcotic substances the use of Marijuana is not accompanied with additional risks such as diseases transferred via needle and high risk of commission of crime. The witness also indicated that addiction to Marijuana is formed as a result of its consecutive use for 3 years (on average), while in case of the use of other narcotic drug, for example heroin such term varies from one to one and a half months. The witness indicated that in this sense Marijuana might be considered as a soft narcotic substance, however otherwise there is no difference.
38. The witness drew parallel between terms for forming possible physical addiction to Marijuana and alcohol and indicated that addiction to alcohol might form faster compared to that to Marijuana. In relation to the characteristics of nicotine and Marijuana the witness indicated that each of them contains identical carcinogenic substance, which has equal influence on breathing airways; however even much more intensive consumption of nicotine does not cause severe psychotic and hallucinogenic manifestation which is characteristic to Marijuana.
39. Chief Specialist of Branch of Legal Provision of Legal Department of Ministry of Labour, Health and Social Affairs of Georgia Aleksandre Toria invited as a witness on the case indicated that the tables of the narcotic substances prescribed by the Georgian legislation is in conformity with the requirements of “UN Convention on Psychotropic Substances” of 1971. The witness claimed that listing Marijuana under the mentioned category is conditioned by the characteristics of its influence on people, specifically chemical processes which are caused by Marijuana on human brain and lungs. According to the definition of the witness the Convention indicates that each state is authorised to establish stricter policy against certain drugs, however it does not allow the State to use less strict controlling measures than prescribed by the Convention.
40. The witness indicated that unlike other narcotic substances Marijuana is not one of the pharmaceutical products and serial production of it is not allowed. The witness indicated towards the “UN Convention on Psychotropic Substances” of 1971, which according to his definition directly indicates that use of Marijuana is allowed only for the purposes of scientific research and its use in medicine is strictly restricted. Hereby the witness considers that Marijuana unequivocally constitutes narcotic substance.
41. The witness, Deputy Head of Public International Law Department of Ministry of Justice of Georgia Beka Dzamashvili drew attention to the amendments in article 260 of the Criminal Code of Georgia initiated by the Ministry of Justice of Georgia, Ministry of Internal Affairs of Georgia and Prosecutor’s Office of Georgia. The amendments imply separation of criminal responsibility for possession and distribution of narcotic substances. According to the definition of the witness the initiated amendments are oriented towards decreasing punishment for possession of narcotic substances. According to the amendments criminal responsibility for possession of narcotic substances without having any aggravated circumstances is set to imprisonment up to 6 years. In cases when aggravated circumstances prescribed by section 2 of the same article, including possession of the substance in large quantities, are presented the existing punishment – imprisonment from 7 to 14 years will be decreased and as a result of amendments punishment will be set to imprisonment from 5 to 8 years. The witness indicated that the amendments are not limited only to Marijuana; decisive factor for introducing lighter punishment is balanced liberal policy of the State on narcotics. According to the definition of the witness the mentioned regulation will ensure the judge to have discretion to take into consideration each circumstance of the case, including danger caused by the narcotic substance, its quantity and deliver suitable judgment.
42. The witness indicated that existence of punishment for use of marijuana is caused by the requirements of international acts participant of which Georgia is, therefore they are binding. In order to substantiate his argumentation the witness indicated towards the UN “Single Convention on Narcotic Drugs” of 1961, which according to his definition considers Marijuana to be one of the most dangerous narcotic substance and sets the strictest control defined by the convention on it. Based on the above mentioned the witness defined that the Convention requires the State to introduce strictest form of control in relation to Marijuana, which precludes its possession and the use on the state territory. The witness claimed that analogous regulation is included in the UN Convention “Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances” of 1998, which considers possession of narcotic substances for intent to consume as well as intent to distribute to be acts for which criminal responsibility is set. At the same time there is no unified standard on what large quantities of narcotic substance should be and punishable quantity of narcotic substance is determined by each state individually, based on the conditions presented on its territory.
43. The witness also drew attention to the dangers caused by the consumption of Marijuana. He indicated that Marijuana is the narcotic substance consumption of which leads to addiction and requires treatment. The witness claims that according to the UN Office on Drugs and Crime Marijuana is used by around 200 million people annually and the biggest amount of money is spent on treatment of addiction caused by this substance. The witness drew attention on physical results which appears as a result of the use of Marijuana and indicated that such symptoms are diseases of respiratory organs, deterioration of memory, problems with mental health, decrease in work productivity, the dangers related to the foetus during pregnancy, etc. At the same time according to the mentioned UN data use of other stronger narcotic substances is more probable by the user of Marijuana. Furthermore, the witness indicated that according to the data of relevant UN bodies use of the narcotics might lead to commission of other crimes in the period when person is under the influence of the drug, for the purpose of buying the narcotic substance or as a result of criminal activities between the criminal gangs distributing the narcotic substances.
44. The witness additionally indicated on possible results of decriminalisation of possession of Marijuana. He claimed that Georgia is possible transit country for narcotics; therefore, the mentioned approach involves the risks. At the same time the witness considers that allowing possibility for possession of narcotic substances even for personal use substantially increases risks for its abuse and danger of its distribution in illegal civil turnover.
45. The witness - deputy head of Department of Prosecutorial Activities Supervision and Strategic Development of Prosecutor’s Office of Georgia Shalva Saghirashvili drew attention to concentration of Tetrahydrocannabinol in the leaves of Marijuana and indicated that any Marijuana, which contains even small quantities of Tetrahydrocannabinol might be used as narcotic substance. Specifically, it is possible to prepare oily liquid so called “Managua” from Marijuana which has small concentration of Tetrahydrocannabinol. At the same time evaluation of quantity of Marijuana based on concentration of Tetrahydrocannabinol is related to practical difficulties, because its concentration varies constantly and in 24 hours period its quantity might decrease as a result of natural processes, for example vaporisation.
46. The witness referred to the research conducted in Georgia in the year 2012 about narcotic substances and indicated that 73% of probationers which were punished for use of different narcotic substances responded that first narcotic substance that they used was Marijuana. The witness stated that according to the statistical data of 2014 6% of all crimes were committed under influence of narcotic substances. However he explained that from the mentioned data it is impossible to assess percentage of the crimes committed under the influence of Marijuana, because such statistics are not available in Georgia.
47. The witness indicated that Marijuana is considered to be one of the most easily accessible narcotic substances; it is easily distributable for payment as well as without it. Therefore there is great risk for its distribution in civil turnover. The witness also referred to discretionally power in relation to punishment and defined that there are detailed written guidelines for employees of prosecutors offices based on which prosecutor takes into consideration several factors while offering plea bargain to an individual.
48. With respect to interrelationship between alcohol and Marijuana the witness indicated that it is true that number of crimes committed under influence of alcohol exceeds number of crimes committed under influence of Marijuana, but this is caused by the circumstance that use of Marijuana is prohibited. The witness considers that in case the use of Marijuana was legal the data would change rapidly. At the same time the witness considers that dangers derived from Marijuana substantially differs from danger derived from alcohol. The witness indicated that during driving under the influence of alcohol the person has slower reactions, while such reactions are almost nonexistent under the influence of Marijuana.
49. The witness - Pro-Rector of Academy of Ministry of Internal Affairs of Georgia Sopho Kiladze drew attention towards the circumstances that Georgia is a party of three UN Conventions. At the same time together with obligations taken by the state, it has also acknowledged the danger derived from Marijuana and determined suitable criminal punishment. She also indicated that the states which conduct strict policy are characterised with lower level of use of narcotic substances. The witness indicated that strict policy on narcotics, which implies imposition of punishment for possession and distribution of narcotic substances, is an effective one. In order to substantiate the mentioned argumentation the witness refers to legislative amendment in relation to certain substances – preparations containing Codeine, Ephedrine, Norephedrine and indicated that as a result of criminalisation of purchase and possession of the mentioned substances in 2012 its use has been diminished by around 99%. The same are results in relation to consumption of narcotic substance so called “Bio” – as a result of relevant legislative amendments decrease in consumption of the mentioned substance is evident.
50. The witness indicated on national security as a legitimate aim, achievement of which is intended by the restriction. According to her definition high level of the use of Marijuana leads to mass addiction of individuals on drugs, which has detrimental effect on demographic development of people, ability to work, psychical conditions etc.
51. The narcologist Davit Andghuladze invited as a specialist on the case submitted written statement to the Constitutional Court. According to the opinion of the specialist independent fact of purchase or possession of Marijuana does not involve danger towards the society; because the mentioned act assumes such character only if the indicated narcotic substance is consumed. The dangers related to use of marijuana might be manifested in deterioration of health of an individual on the one hand and in probable behavioural disorder on the other. The specialist did not preclude the existence of possible correlation between use/distribution of Marijuana and promotion of commission of other crimes of offences.
52. The specialist also indicated that unlike other narcotic substance Marijuana does not cause physical addiction. At the same time although it has strong negative influence on psychical health of an individual, the danger derived from it is substantially lower compared to other narcotic drugs. The specialist defined that analogous psychical and physical dangers might be arisen in cases of consumption of certain amount of alcohol. The specialist also indicated that unlike Marijuana exaggerated use of most of other narcotic drugs results in lethal outcome.
53. According to the specialist’s definition only the volume of the plant cannot be adequate criteria for assessing danger derived from it, however the financial resources which the State would need in order to provide comprehensive evaluation of concentration of the narcotic substances also needs to be taken into consideration. The specialist indicated that if suitable material-technical utilities exist it would be expedient to measure active substances concentrated in the plant and not the volume of the plant itself. However in absence of such utilities there is better alternative to the measuring of the mass of the plant in order to assess danger to society derived from it.
54. Based on the first paragraph of article 141 of the law of Georgia “On Constitutional Legal Proceedings” the professor of the Law Faculty of Ivane Javakhishvili Tbilisi State University Nona Todua submitted written amicus curiae opinion on N592 Constitutional Claim.
55. In support of disproportionality of punishment author of amicus curiae indicates in the written opinion that the margin between minimum and maximum punishment prescribed by the disputed provision is so high that it creates risks of subjectivism of the judge. At the same time such high amplitude hinders addressees of the provision to foresee possible outcomes of commission of unlawful act. All of the mentioned creates problems with respect to foreseeability of the provision. According to the opinion of amicus curiae the foreseeability of the law implies not only knowledge of the type of punishment prescribed for certain act, but also the possibility to foresee its volume and severity.
56. Additionally the opinion indicates that based on the second section of article 50 of the Criminal Code minimum volume of punishment prescribed by the first section of article 260 of the same code is imprisonment of 6 month, while the judge is not authorised to use less that 7 years imprisonment as a punishment for acts prescribed by the second section of the article 260. It is indicated in the written amicus curiae opinion that the issue whether an act committed falls under section 1 or section 2 of the mentioned article might be decided due to extra 1 gram of Marijuana. Such small difference in volumes cannot justify such huge difference between the punishments, this additionally indicates on disproportionality of the punishment established by the disputed provision.
57. Amicus curiae compared purchase/possession of Marijuana to other crimes, including murder and indicated that the later constitutes violent crime; it has a victim and is directed toward violation of the supreme value – human life. Danger derived from murder is substantially higher compared to the danger derived from purchase/possession of Marijuana. The latter constitutes delict of an abstract nature, it does not have victim. Based on all of the mentioned only one year difference between maximum terms of imprisonment set as a punishment for these crimes constitutes clearly disproportionate approach towards the dangers derived from these acts.
58. Amicus curiae opinion indicates that the second paragraph of article 260 of the Criminal Code covers illegal manufacturing, production, purchase, storage, transportation, transfer as well as sale of narcotic substance in large quantities. The sale of narcotic substances involves substantially greater danger to the society compared to all other enlisted acts. Including all enlisted acts in the same article also constitutes violation of principle of proportionality.
59. It is indicated in amicus curiae opinion that although the acts on which punishment is set by article 260 involve danger to society, the punishment prescribed by the same article should be considered to be disproportionate compared to the danger derived from the acts.
60. In order to substantiate her argumentation the analysis of the legislation of different counties in relation to criminalisation of purchase/possession of Marijuana and punishment imposed for it was included in the written opinion of the amicus curiae.
1. Before assessing the constitutionality of the disputed provision the Constitutional Court considers necessary to draw attention on the following circumstance: on July 8, 2015, after completion of hearing on merits on N592 constitutional claim the Parliament of Georgia adopted law of Georgia "On Amendments in the Criminal Code of Georgia" (№3975-rs). Based on this law article 260 of the Criminal Code of Georgia was amended.
2. Version of article 260 of the Criminal Code of Georgia in force from May 1, 2014 till July 31, 2015 (The law adopted on July 8, 2015 was enforced from July 31) was criminalising illegal manufacturing, production, purchase, possession, transportation, transfer or sale of drugs, their analogues or precursors. Subparagraph "a" of the second section of the same article was criminalising the act prescribed by the first section committed in large quantities and punishment was set to from 7 to 14 years of imprisonment.
3. According to the first article of law of Georgia №3975-rs "On Amendments in the Criminal Code of Georgia" of July 8, 2015 article 260 of the Criminal Code of Georgia was reformulated. The content of criminal act prescribed by the first paragraph of the mentioned article was partially kept unchanged- specifically illegal manufacturing, production, purchase, possession, transportation or transfer of drugs, their analogues or precursors, while the act prohibited by this provision such as sale of the mentioned substances became prescribed by the fourth section of the same article. At the same time the act prescribed by subparagraph "a" of the second section of article 260 (version before the amendments) - act indicated in the first section committed in large quantities became prescribed by the subparagraph "a" of the third section of the same article. At the same time degree of the punishment (imprisonment from 7 to 14 years) prescribed for the mentioned crime was also changed and it set imprisonment from 5 to 8 years.
4. Therefore the mentioned changes did not influence the content of criminalised act (within the scope of constitutional claim - purchase/possession of dried Marijuana in large quantities) prescribed by subparagraph "a" of the second section of article 260 of the Criminal Code of Georgia (version in force from May 1, 2014 till July 31, 2015). However, the degree of punishment for the mentioned act was amended - it became less strict.
5. In cases when the disputed provision is repealed/invalidated after completion of hearing on merits in the Constitutional Court (when the Court is adjudicating on the case in the Chambers) there is no legal basis for termination of proceeding. Repealing/invalidation of the disputed provision during even the oral hearing on merits does not cause automatic termination of the proceeding in the Constitutional Court. According to the paragraph 6 of article 13 of the law of Georgia "On Constitutional Legal Proceedings" in cases when disputed provision is repealed or invalidated after admitting the case for consideration on merits, the Constitutional Court is authorised to rule on constitutionality of the disputed provision if it is of crucial importance for protection of constitutional rights and freedoms
6. Although the Constitutional Court has repeatedly indicated that "only the provision in force might be creating risks for violation of human rights guaranteed by the Constitution" (Ruling №1/494 of the Constitutional Court of Georgia of December 28, 2010 on the case of "Citizen of Georgia Vladimer Vakhania v. the Parliament of Georgia", II-9) repealing of the disputed provision might not cause invalidation of the disputed normative content in every case. After repealing the norm it might be replaced by other provision which entirely or partially contains the normative content disputed by the Claimant.
7. Purpose of paragraph 6 of article 13 of the law of Georgia "On Constitutional Legal Proceedings" is "not to give opportunity to the legislation to abuse legislative process" (Ruling №1/1/386 of the Constitutional Court of Georgia of December 23, 2008 on the case of "Citizens of Georgia Shalva Natelashvili and Giorgi Gugava v. the Georgian National Energy and Water Supply Regulatory Commission", II-4). For the same reasons the law obliges the Constitutional Court to assess constitutionality of the disputed provision and adjudicate on the dispute even in cases when after completion of hearing on case (till delivery of the court judgment) legislator repeals/amends the disputed provision. Termination of proceeding on the case due to the repealing of the disputed provision on this stage would make constitutional control entirely depended on dynamic legislative process, thus would make the protection of right in the Constitutional Court unreasonably stricter. The mentioned approach would allow for the possibility of abuse of legislative process, which would be detrimental to effective protection of constitutional supremacy, constitutional legality and constitutionally recognised rights and liberties by the Constitutional Court.
8. In the present case new formulation of the disputed provision essentially repeats the normative content of the old (disputed) formulation. Scope of authority of the Constitutional Court is limited to boundaries of the disputed matter and therefore it cannot assess new formulation of the disputed provision, however assessment of the repealed formulation of the disputed provision constitutes effective and preventive mechanism for protection of the claimant's right because, “The constitutional court, holds deliberations about normative content of a specific issue and, accordingly, adopts a decision on the conformity of normative content of the plausible problem caused by the disputed provision with the constitution… Consequently, in the case of retaining the norm (norms) having identical content and causing identical problem in the legislation, the norm shall be regarded as the one that neglects and overrides the court decision” (Judgment №1/3/534 of the Constitutional Court of Georgia of June 11, 2013 on the case of “Citizen of Georgia Tristan Mamagulashvili v. the Parliament of Georgia”, II-34). At the same time according to paragraphs 4 and 41 of article 25 of the organic law of Georgia "On the Constitutional Court of Georgia" it is not allowed to adopt legal act which contains the provisions content of which is similar to the provisions which were already declared unconstitutional by the Court. At the same time if the Court finds that the disputed normative act or its part contains the norms content of which is similar to the norms which were already declared unconstitutional by the Court it adopts ruling on inadmissibility of the complaint and invalidates the disputed act or its part. Therefore assessment of constitutionality of the repealed provision promotes complete elimination of danger derived from the disputed provision.
9. In order to assess constitutionality of the disputed provision the Constitutional Court should analyse the content and the scope of relevant constitutional provision.
10. According to paragraph 1 of article 17 of the Constitution of Georgia “Human honour and dignity shall be inviolable".
11. Human dignity is a source of legal scale of liberty; therefore society of free people is an advantage of the state in which inviolability of dignity is basis of system of legal values. Dignity is the foundation of human individuality and equal guarantee to be different from others in dependency of development based on own skills, opportunities, taste and individually chosen way of development. By recognising the fundamental principle of human dignity article 17 of the Constitution of Georgia serves as a guarantee of the mentioned order, which was several times indicated by the Constitutional Court of Georgia. “The essence of the first paragraph of article 17 of the Constitution implies that in accordance to this norm, the central value is an individual, as independent, free and equal subject. The protection of the dignity of an individual is an obligation of a state which belongs to every individual. Human dignity implies social requirement of respecting people by the state. ... Respect to human dignity implies recognition of personality of each and every human, strip or restriction of which is impermissible. For the state individual shall be main aim, object of respect, major value, and not means for achieving certain aims ..." (Judgment N2/2/389 of the Constitutional Court of Georgia of October 26, 2007 on the case of "The citizen of Georgia Maia Natadze and others V. the Parliament and the President of Georgia", II-30).
12. As a result the constitutional principle of human dignity is the basis for each fundamental right - including human liberty. The complete exercise of the right and its effective protection is direct guarantee of inviolability of dignity. "Human dignity and personal liberty ... is expressed in his/her basic rights, their adequate protection and complete exercise. Therefore disproportionate, excessive interference in these rights by the state violates human dignity" (Judgment N1/3/407 of the Constitutional Court of Georgia of December 26, 2007 on the case of "Georgian Young Lawyers Association and citizen of Georgia – Ekaterine Lomtatidze v. the Parliament of Georgia") "Dignity ...shall not be considered as an object of only one subjective constitutional right. The dignity if the right and at the same time fundamental constitutional principle, to which basic rights are relied and related...violation of dignity factually almost always relates to breach of other basic right of rights" (Judgment N2/2/389 of the Constitutional Court of Georgia of October 26, 2007 on the case of "The citizen of Georgia Maia Natadze and others V. the Parliament and the President of Georgia", II-31) "Concept of human rights serves to primary imperative, protection of human dignity, which is also reflected in the mentioned rights" (Judgment N3/1/512 of the Constitutional Court of Georgia of June 26, 2012 on the case of "The citizen Denmark Heike Kronqvist v. the Parliament of Georgia", II-43)
13. The Constitutional Court additionally indicated to the tight interrelationship between human dignity and fundamental rights while interpreting certain constitutional rights (Judgment N1/1/477 of December 22, 2011 on the case of "The Public Defender of Georgia v. the Parliament of Georgia", II-4; Judgment N3/1/512 of June 26, 2012 on the case of "The citizen Denmark Heike Kronqvist v. the Parliament of Georgia", II-38).
14. Practical realisation and protection of fundamental principle of human dignity is ensured through the system of constitutional values: "basic constitutional principles constitute legal guarantee for protection of human dignity" (Judgment N1/3/407 of the Constitutional Court of Georgia of December 26, 2007 on the case of "Georgian Young Lawyers Association and Citizen of Georgia – Ekaterine Lomtatidze v. the Parliament of Georgia", II-3). Practical results of realisation and application of basic constitutional principles is related to satisfaction of the following expectations: these principles "...require from the state's legal system to ensure recognition of human rights and freedoms and creation of all legal mechanisms necessary for protection of them" (Judgment N1/466 of the Constitutional Court of Georgia of June 28, 2010 on the case of "The Public Defender of Georgia v. the Parliament of Georgia", II-2).
15. For that matter article 7 of the Constitution of Georgia constitutes guarantee of utmost importance, according to the article: "The State shall recognise and protect universally recognised human rights and freedoms as eternal and supreme human values. While exercising authority, the people and the State shall be bound by these rights and freedoms as directly applicable law". By this provision Constitution of Georgia recognises the human and his/her rights as the highest value. "Constitutional system of values is based on prioritizing and respecting human rights" (Judgment N2/3/423 of the Constitutional Court of Georgia of 2009 on the case of "The Public Defender of Georgia v. the Parliament of Georgia", II-6).
16. Therefore, for the purposes of the Constitution protection of values implies social requirement of respecting a human. This is the fundamental constitutional principle on which human rights are based and related. At the same time the state breaches the first paragraph of article 17 of the Constitution in cases when as a result of violating fundamental right it intends to humiliate an individual, use him as a means for achieving the aim and/or his factual act inevitably causes such result.
17. The first paragraph of article 17 of the Constitution constitutes basis for the right protected under the second paragraph of article 17 of the constitution (as is for other right protected by the constitution) violation of which inevitably causes violation of constitutional principle of human dignity.
18. According to the second paragraph of article 17 of the constitution "no one shall be subjected to torture, cruel, inhuman, or degrading treatment or punishment".
19. The mentioned provision of the Constitution of Georgia establishes absolute protection of an individual from acts prohibited by it. Thus constitutional prohibition on use of torture, inhuman, cruel and degrading treatment or punishment creates absolute right of a human, which means that the Constitution unconditionally precludes interference in these rights. It is noteworthy that the mentioned prohibition is applicable during the war and the state of emergency as well. Therefore there is no legitimate aim sufficiently compelling (territorial integrity, protection of state sovereignty, fight against terrorism, state security, etc.) for achievement of which interference in this right might be justifiable. Potential conflict between the values protected by the second paragraph of the article 17 and any other valuable interest protected by the Constitution (permanent duty of protection of which is on the state) is always and unconditionally settled in favour of protection of human dignity by the Constitution. Obviously the state is not free from constitutional obligation to protect important public interests, legitimate aims prescribed by the Constitution (state security, territorial integrity, rights of others, administration of fair justice etc.). However protection of none of these values can justify human torture, inhuman and cruel treatment, act or punishment violating honour and dignity.
20. It is not possible in a democratic society, foundation and objective of which is a free individual, the demand and necessity for human torture, inhuman cruel and degrading treatment to exist. The power and law which allows human torture, inhuman, cruel and degrading treatment and punishment cannot create, protect and ensure democracy. Because democracy and violation of dignity is not compatible with each other. The idea of democracy is based on and serves a free individual, whose dignity is protected. Therefore assumption, according to which free society might be achieved by human torture, inhuman, cruel and degrading punishment, is fundamentally false and cynical.
21. The second paragraph of article 17 of the Constitution of Georgia prohibits a) human torture; b) inhuman, cruel treatment and punishment; c) degrading treatment and punishment. Within the scope of the present dispute the Constitutional Court does not face the necessity to make exhaustive interpretation of the second paragraph of article 17 of the Constitution. The court only needs to answer the question whether setting/using disproportionate punishment in the face of imprisonment as a criminal responsibility might be considered as inhuman, cruel and degrading punishment.
22. Generally inhuman, cruel as well as degrading treatment and punishment is intentional psychical and moral influence, coercion on individual which results in his/her stress, suffering. At the same time such pressure, coercion, influences on human with its character and duration should reach certain intensity, high level. It is difficult, sometimes even impossible, to differentiate inhuman, cruel treatment and punishment from degrading treatment and punishment, because in most cases it is impossible the inhuman and cruel treatment not to cause degradation of human. At the same time treatment and punishment will be considered degrading if it compels an individual to commit act against his/her conscience and desire. Moreover, in order the punishment to be considered degrading the level of influence (psychological and moral) on human, restriction and coercion used against him/her should exceed the natural level by itself attributed to certain punishments (which are imposed on the individual). The punishment which leads to fear, strong suffering and humiliation of an individual, which disrespects the victim, is degrading. In such cases it should be assessed whether objective of punishment is humiliation and disrespect towards an individual and how serious the impact of this action on personality of the victim is.
23. As it was already indicated for the purposes of the present claim it is important to determine whether constitutionality of use of imprisonment as a criminal responsibility is measurable with respect to the provision of the second paragraph of article 17 of the Constitution of Georgia prohibiting inhuman, cruel and degrading treatment. Although the constitutional claim was considered admissible with respect to this constitutional provision the respondent party still questions the mentioned possibility. Therefore the Constitutional Court considers it necessary to provide suitable definition on that matter.
24. In modern democratic society the duration of imprisonment in some occasions is considered as inhuman and degrading treatment – for example prolonged term of pre-trial detention, as well as clearly disproportionate punishment (imprisonment) imposed for commission of criminal act. At the same time it should be underlined that imprisonment for long period, even lifetime imprisonment, does not automatically entail inhuman, cruel and degrading treatment towards individuals. It is possible long term imprisonment (15, 20 years) as well as lifetime imprisonment, not to violate the mentioned right; it might even not be within its ambit. However, in some cases imprisonment for sufficiently shorter period might be considered as inhuman treatment and cruel punishment. Therefore, the duration of imprisonment as a criterion cannot be entirely dismissed; however, long period of imprisonment does not always and automatically lead to violation of the mentioned right. Long term and lifetime imprisonment without chance (possibility) of release is considered to be inhuman and degrading treatment. At the same time possibility for release cannot preclude qualifying punishment as inhuman and degrading in cases when it is clearly disproportionate to the act committed.
25. Therefore, clearly disproportionate punishments, which do not correspond to character and severity of the crime, not only fall within the ambit of the prohibition of inhuman and degrading treatment and punishment, but also violate the mentioned constitutional provision.
26. For these reasons the Constitutional Court does not share the Respondent’s view claiming that the disputed provision does not fall within the ambit of the right protected by the second paragraph of article 17 of the Constitution of Georgia. Specifically the representative of the Respondent claimed that proportionality of the punishment is not assessable with respect to the second paragraph of the article 17. She stated that only act/treatment which does not have punishment as an objective can be assessed with respect to the mentioned constitutional provision. According to definition of the respondent “while deciding on compliance of the disputed provision with respect to mentioned constitutional provision the scope of assessment is limited to determining degrading and inhuman character of the punishment not adequacy of the punishment with respect to the act committed”. The respondent indicated that physical punishments and lifetime imprisonment without possibility of release are inhuman and degrading punishments.
27. The cases indicated by the Respondent are undisputedly assessable with respect to the second paragraph of article 17 of the Constitution; however, scope of protection of the mentioned constitutional provision is not limited to these cases. Assuming determinant for inhuman and degrading treatment is the suffering, stress incurred on individual, in cases when state action leads to interference in different human rights (right to life, right to health, right to private life, equality etc) with intensity clearly higher than allowed within the strictly delimited scope of interference, it is impossible for the imprisonment without any cause, and thus no necessity or when term of imprisonment is clearly disproportionate for achieving objective of sufficient responsibility for committed act, not to be considered as inhuman treatment and punishment. Proving correctness of such approach becomes even easier by understanding the importance of right to human liberty (personal inviolability).
28. The right to personal inviolability is very important for human liberty – free development, effective and comprehensive exercise of the rights by individual. Restriction of right to personal inviolability leads to limited exercise of the most of human rights or even impossibility to exercise some rights. The Constitutional Court has repeatedly indicated on special importance of this right. Hereby, human liberty does not have equivalent, there is no value which can counterweight or entirely replace it.
29. Since imprisonment leads to restricted liberty it should be used only in cases when and only with the duration which is extremely necessary in the democratic society. In this sense the state is required to ensure administration of objective justice. However, in order to achieve the mentioned first of all the law should arm the judge with sufficient mechanisms enabling him/her to carry the burden of fair justice. The law should arm the judiciary with sufficient, effective procedural guarantees as well as substantive provisions enabling imprisonment only in cases and only with the duration objectively necessary.
30. Within the present dispute the following should be assessed: whether the punishment prescribed by the disputed provision for a certain act (from 7 to 14 years imprisonment for possession/purchase of Marijuana in large quantities with the purposes of personal use) constitutes inhuman, cruel and degrading treatment/punishment. In order to decide on that matter the following questions should be answered: a) in which cases is the Constitutional Court authorised/obliged to review constitutionality of punishment – whether the court is competent to assess constitutionality of any measure used as a punishment or whether Constitution sets special requirements for the Court on this matter. b) Whether the mentioned measure used for punishment is determined with objective necessity in the democratic society or whether it is unjustifiable burden on human liberty. Whether it constitutes clearly, strictly disproportionate response from the state and equals to cruel, inhuman treatment and punishment.
31. The Constitutional Court of Georgia uses specific approach for assessing constitutionality of the provisions establishing responsibility. Although the Constitutional Court has never reviewed constitutionality of certain measures of punishment, some criteria and foundation for assessment of measures used for criminal responsibility have been established with respect to measures used as administrative penalty. On one of the cases the Court indicated: “Determination of an act as an offence, setting the sanction and determination of its severity is exclusive competence of the state (legislator) ... Although legislator has wide margin of discretion in determination of size of a sanction, volume and severity its discretionary power is not unlimited. The legislator is obliged to respect the principle of proportionality of an act while setting sanction for certain offences. The administrative sanction prescribed by the law should not be clearly unreasonable and disproportionate mean for achievement of aim designed by legislator and accordingly should not result violation of the constitutional rights and freedoms of individual. Although acts of legislator should always be aimed towards setting adequate administrative penalty for the acts violating rights of others and harming society the size of administrative penalty might become subject of assessment of the Constitutional Court only in exceptional circumstances. ...The Constitutional Court will consider administrative penalty to be within the ambit of a constitutional right of an individual only if it constitutes clearly unreasonable and disproportionate measure of achieving legitimate aim designed by legislator and interference within the scope protected by the constitutional right” (Recording notice №4/482,483,487,502 of the Constitutional Court of Georgia of November 10, 2010 on the case of “Political Union of Citizens “Movement For Unified Georgia”, Political Union of Citizens “Conservative Party Of Georgia”, Citizens of Georgia - Zviad Dzidziguri and Kakha Kukava, Georgian Young Lawyers’ Association, Citizens of Georgia - Datchi Tsaguria And Jaba Jishkariani, Public Defender of Georgia v. the Parliament of Georgia”, II-8).
32. The government has wide margin of appreciation in determining criminal policy. The state based on the Rule of Law serves ensuring free and safe human, therefore in order to achieve this aim it should be armed with suitable and sufficient effective mechanisms. On this matter fight against crime constitutes strong and important instrument in state’s disposal. By this instrument state ensures protection of order is society, state security and other legitimate constitutional aims, which results in avoidance, prevention of violation of rights and freedom of an individual. However responsibility of state is very high on correct use of the mentioned instrument. The instrument should not become the source of violation of values for protection of which state authority is constitutionally obliged to use it. In this process state is obliged to correctly assess the risks threatening the state and the society, objectively evaluate real dangers and use reasonable, extremely necessary and at the same time sufficient mechanisms for neutralising them. Therefore, regulating certain activities by the law, setting restriction and use of suitable measures of responsibility for violating such general rules falls within the scope of state authority. Obviously in this process the state needs to be very careful in order to prevent groundless restriction of human liberty via setting restriction on certain acts and at the same time state response on commission of restricted act should not be excessive, disproportionate. Such response by itself implies limitation of scope of human liberty by the state. The state should not interfere in human liberty (human rights) more intensively than it is objectively necessary, because aim of such approach would turn into restriction of individual and not protection of him/her.
33. Therefore, criminalisation of certain acts and determination of punishment for them is within the scope of state policy. The state should have effective opportunity to fight the dangers derived from certain acts and based on their severity and seriousness criminalise certain acts and determine extent of punishment which is sufficient and effective for fighting against the dangers. At the same time, first of all nature of the crime and legal interest damaged by it should be taken into consideration. Moreover the mentioned issue should be determined based on historical experience, culture of the state, values and legal sentiment of society. However margin of appreciation of the state cannot be unlimited. Notwithstanding how serious motivation of the state is and how important the values are for adopting the regulation aimed to protect the state it is not free from responsibility to act within the boundaries strictly determined by the Constitution and unconditionally be bound with fundamental rights of people. In democratic and Rule of Law based state there is no aim, interest, including the aim to protect human rights, which would arm the state with the legitimate right to violate right to liberty of certain individuals.
34. Therefore, this is the threshold which the state is not allowed to overcome. Accordingly the Constitutional Court is obliged to assess punishment policy in extreme cases when it results in violation of a human right. It does not mean that the Constitutional Court is potentially eligible to assess constitutionality of every measure used as a punishment. Such approach would violate the balance between competencies of the court and legislature, would create temptation of judiciary to replace legislator. However, restraint from the judiciary from involving itself in this scope would become groundless and inappropriate in cases when size of punishment is clearly unreasonable and disproportionate. The court is authorised and obliged as well to assess constitutionality of punishment inadequacy and disproportionality of which reaches the certain level, imbalance is clearly, evidently presented. In such cases the punishment goes beyond its purpose and unjustifiably restricts constitutional rights.
35. The principle of separation of powers would be under danger not only if the Constitutional Court assesses compatibility of every sanction with an offence committed but also if determining severity of punishment would be left entirely, without control up to the discretion of legislator. Survival and maintenance of democracy is supported by the constitutional mechanisms balancing political power, delimiting its authority, hindering its arbitrariness, neutralising risks of abuse of power.
36. Therefore, the Constitutional Court should guide itself with foreseeable and clearly expressed criteria, which will support to keep its activities within the boundaries (without breaching) of principle of separation of powers and ensures protection of fundamental rights of people in such a sensitive field.
37. In the state based on Rule of Law criminalisation of acts and setting punishment for it is successful only if it is used as ultima ratio. For protection of interests of human and society criminal law provision should be used as last instance measure, in cases when non-criminal legal mechanisms for protection of legal value are exhausted. Success in this process can be ensured by cumulatively fulfilling the following conditions by the State: a) the law should qualify as a crime only an act which entails serious risks neutralisation of which and protection of society and people from which are objectively within the scope of criminal law; b) the law should prescribe proportional measure of responsibility for commission of criminalised act. The punishment as a mechanism of social control constitutes the strictest measure of compulsion; therefore, the legislator is obliged to demonstrate that selected punishment for an act is effective and proportional; c) the legislator should arm the court with the ability to decide on every individual case after considering seriousness of an act, personality of the criminal, every individual circumstance presented; d) correct and fair use of all above mentioned instruments by the court.
38. In order the assessment of unconstitutionality of the punishments with respect to the second paragraph of article 17 of the Constitution to be possible the prescribed punishment should be more than “simply excessive” compared to the criminal act committed. Specifically, in the present case assessment of constitutionality of the punishment is based on the following circumstances: 1) clear disproportionality between severity of crime and punishment prescribed for it is checked – punishment set for commission of certain acts should be reasonably and logically related to the damages caused by the crime which are incurred/might be incurred on individuals/society. Te punishment will be considered to be clearly disproportionate, inhuman, cruel if its duration is plainly, evidently disproportionate to the level of unlawfulness of an act, damages which might be incurred by it. 2) In order to impose disproportionate punishment without considering every relevant factor/circumstance the law should be enabling the judge to take into consideration specific circumstances of the case, damages caused by wrongful act, level of culpability of the accused etc. while deciding on imposition of penalty. Therefore on the one hand punishments determined for each crime should be reasonably proportionate to the danger derived from an act and on the other hand there should be possibility to impose punishment in every individual case by taking individual circumstances related to commission of a crime into consideration. At the same time boundaries of judicial discretion should be foreseeable as well, in order to ensure equal treatment towards similar situations as well as purposeful use of judicial discretion – to preclude risks of adoption of judgments founded only on subjective views as a result of judicial discretion.
39. Constitutionality of the disputed provision should be assessed by the Constitutional Court based on the above mentioned criteria. Firstly the aims of criminalising the acts prescribed by the disputed provision should be determined. Afterwards, the Court should determine whether the size of punishment imposable for an act prescribed by the disputed provision is suitable and proportional means for achieving the legitimate aims and ensures possibility for achievement of objectives of punishment itself. Because objectives of punishment should serve the aims of criminalisation of an act itself. Otherwise the punishment will become aims itself while it should be the measure of last resort for the achievement of certain legitimate aims. As a result any unreasoned punishment, which is not oriented on the aim and is disproportionate, will turn into an aim itself which is not permissible and justifiable in the democratic and the Rule of Law based state.
40. In order the existence of certain punishment to be justified in a democratic society, it should be adequate means for achievement of aims of punishment itself. Any punishment prescribed by the state will become an aim itself if it is not connected to the aims of punishment. Punishment of an individual without necessity to achieve the aims of punishment turns punishment into an aim and main function of the state, as a result nullifies the essence of state based on the Rule of Law.
41. In general the aims of punishment are: restoration of justice, avoidance of new crime and re-socialisation of an offender. We will briefly describe the essence and the function of each aim and take this context into consideration while assessing proportionality of punishment prescribed by the disputed provision.
42. On the one hand the state is obliged not to disregard the function, importance, role of punishment and aims which are intended to be achieved as a result of it (thus the state should not refrain from setting/using the punishment in cases when use of strict restrictive measure is objectively necessary since there is no other way to ensure protection of certain values) and on the other hand the state should not exceed, artificially increase the importance and the expectation of the use of punishment and as a result of it set/use the strictest measure of restriction in cases when there is no necessity for it or when objectively it is not able to produce result on which the state was oriented while selecting the mentioned measure as effective and the best.
43. At the same time in the state based on the Rule of Law it is logical to expect that the punishment, by its essence, would substantially exceed the primitive desire on revenge which has nothing in common with the justice and which neither promotes protection of human and society nor decreases the crime rate and enables re-socialisation of offenders. In the end it promotes neither progressive development of justice in accordance to its function, nor harmonious coexistence of members of society. As a result it cannot ensure existence of legal order for protection of which state restrictive measures should be used.
44. Generally there is no definition of fairness, no notion regulated by the law, however as derived from the essence of the state based on the Rule of Law fairness constitutes unconditional objective of legislator and the law enforcer, and is assessable by the quality of protection and comprehensive exercise of fundamental rights and freedoms of a human.
45. Practical content of restoration of justice through imposing punishment for certain action is related to necessity of fulfilling the following expectations:
a) Although human liberty is the most important value, for the same reason it is restricted with liberty (basic rights and liberties) of other members of society. Since the liberty is equal value for every individual and implies opportunity of each member of society of development and self-realisation. Everyone, who abuses this liberty, steps over the boundary, violates liberty (rights) of others, by the requirement of the justice original balance should be restored and everyone's equal right on liberty should not be threatened. In order to maintain the mentioned balance the state applies different means including the strictest restrictive measure (punishment). Therefore, the aim of restoration of justice implies restoration and maintenance of the mentioned balance.
b) The aim of restoration of justice implies satisfaction of social expectations related to guaranteeing and protecting security, social order and peaceful, harmonious co-existence by the state. Order, peaceful and harmonious co-existence are immanent need of society, within the scope of which we, the people are demanding towards each other, entire society and the state authority. Therefore it is reasonable and logical that the society expects each act/behaviour, which endangers order agreed between the members of society, to be suppressed, avoided and responded. This promotes protection of the mentioned order in a long term perspective.
c) At the same time, restoration of justice by setting the punishment implies imposing the penalty which is adequate, suitable and proportionate with dangers derived from an offence. In this sense first of all potential dangers derived from an offender (his/her act) should be neutralised. The punishment should be sufficient for achieving the mentioned aim; however at the same time it should be extremely necessary, objective person should have an assumption that neutralising the dangers would not be possible otherwise without using the punishment. Fair punishment implies rational and expedient, proportionate response from the state and the society on the unlawful act. The above mentioned promotes successful implementation of fight against crime, protection of the rules dictated by the society and adopted by the state for ensuring peaceful and harmonious coexistence of society.
d) The aim to restore justice through imposing punishment binds both legislator and the law enforcer and ensures that the use of punishment is based on individual circumstances, severity of the case, dangers derived from an offence, preconditions of commission of offence, motives, results, necessity to take into consideration individual characteristic related to personality of an offender. On the one hand the legislator should arm law enforcer with sufficient mechanisms to impose penalty on individual after considering every individual circumstance presented in every individual case and on the other hand the judge himself/herself should be ready to investigate every relevant ground and prerequisite and impose the punishment measure on individual which promotes realisation of the aims of punishment.
46. Therefore, the restoration of justice function is realised only when punishment proportional to the crime committed is imposed and through this way it serves possibility of realisation of other aims of punishment. For example, disproportionately strict punishment hinders and in some cases even entirely precludes re-socialisation; as a result the punishment contradicts the achievement of its own goals, fulfilment of its own functions.
47. Aim of re-socialisation implies accommodating the offender towards the rules of coexistence universally recognised in the society, his/her adaptation toward the rules and condition of lawful conduct renowned by the society. However, possibility of achievement of this aim via punishment would become dubious unless conditions suitable for it are guaranteed. It is also possible the punishment to cause the contrary result: imprisonment might result greater separation of an individual from the accepted rules and skills of normal coexistence in the society. Therefore, when it comes to achievement the above mentioned aim and justification of punishment the burden of responsibility on the state is very high, in relation to the selection of the type of punishment, its fair imposition, as well as ensuring placing the convicted person under the normal living conditions (first of all it implies creating suitable environment for imprisonment) which in the end should make achieving re-socialisation aim objectively possible.
48. According to the second section of article 39 of the Criminal Code of Georgia "the goal of a sentence shall be accomplished by exerting influence on the convicted person and other persons in order to ensure that they develop a sense of responsibility before the law and the observance of public order". Therefore one of the main aims of punishment is prevention of crime, both special as well as general prevention.
49. The special prevention is directed against recidivism. It implies abolition of possibility of commission of new crime by the convicted. The logic is based on the following assumptions: a) when the offender entails such a serious danger, the deprivation of his/her liberty is necessary in order to protect the society. His/her isolation from society decreases risks of causing damage towards the society by him/her (however commission of crime by imprisoned individual is also possible); b) at the same time, since the individual is personally influenced by the legal consequences of commission of crime, negative effects of restrictive measure used by the state, it has preventive effect on his/her future behaviour. However it is also evident that the punishment is not absolute guarantee for avoidance of commission of a crime in the future by the person. It cannot be claimed with an absolute certainty that the fear of sentence strengthens for the offender after he/she is already punished. It could also have a contrary effect. Possible commission of a crime in the future by the convicted person might be dependent on many factors. The sentence only has general potential to minimise the mentioned risks, which might or might not be achieved in every individual case.
50. Hereby, special prevention aim of punishment implies attempt to avoid, minimise recidivism, which in principle should mainly be achieved through re-socialisation of a criminal. In this sense the aims of special prevention of crime and re-socialisation are closely related.
51. On the other hand punishment of a person for certain act is a demonstration, declaration that every individual who commits similar act will be equally punished. As a result it has a deterring function on each potential offender. Therefore, the punishment determined/imposed for certain act has an ability to decrease commission of the crime by the same person as well as by other persons. The punishment should ensure changing lifestyle towards better (ceasing criminal activity in the future) by the offender as well as protection of society from aggression of an offender.
52. Generally aims of punishment can/should be achieved cumulatively. However state response towards the offender is primarily motivated by the necessity to correct offender’s behaviour through the use of proportionate restrictive measures against him/her - through his/her adaptation on the society and avoidance/minimising risks of commission of future crime by him/her. Naturally, the aim of general prevention should not be ignored, it truly serves as an example in the society and plays positive role in terms of decreasing criminal activity and ensuring peaceful, harmonious development of society. However while using restrictive measures the state should have passive expectation of achieving the mentioned positive results related to general prevention. State is not allowed to punish an individual only for deterring others from committing the same act. It is intolerable for the punishment to be used only for the purpose of scaring, threatening others in order to minimise the risks of commission of the same offence by other people. Thus, only general prevention cannot be sufficient for imposition of any sentence on an individual, because such approach would turn human into the tool which is used by the state to threaten the society. This might turn human into an object stripped of his/her rights and used for threatening with restrictive measure. Such an approach should not be allowed in a democratic society.
53. Punishment, which is used only for deterring others, is obviously an unfair one, because using last resort criminal instrument (sentence) only or predominantly based on the fact that others are lenient towards the asocial behaviour is not allowed. On the one hand it is not allowed, and on the other hand is even impossible to deter criminal activity at any cost. Therefore general function of negative prevention of a punishment is obviously important and operative; however its purposive functionality is achievable only when a sentence imposed for a certain act has objective foundation and the ability to ensure restoration of justice, re-socialisation and the function of special prevention. In absence of natural compatibility with this function, establishing or using the punishment oriented only towards the aim of general prevention violates the balance, on which imposition of punishment should be based and which should be served by it. It is intolerable to impose punishment on an individual only for the purpose of influencing the attitude of society, because this circumstance turns the punishment into the disproportionate one.
54. A human shall not be an instrument of criminal policy and a tool for fight against crime. A human is an aim itself on which the state action is oriented, including in the process of criminal policy formation. More specifically, formation of criminal policy should serve the mentioned aim.
55. As it was already indicated general prevention function of a punishment serves ensuring and maintaining respect towards the rules universally agreed by the members of the society. By the force of this function the rules regulating the punishment address the entire society, while aiming at promotion and strengthening of correct and comfortable behaviour. However, achievement of the mentioned aim becomes automatically dubious when punishment determined for a certain act is conditioned only by this aim and as a result is disproportionately strict, inadequate, unjustifiable and unfair. Under these conditions the justice would have the temptation to ensure respect towards the rules established in society only based on the fear. Such approach automatically disrespects human dignity and results in loss of main function of justice in the state based on the Rule of Law.
56. In the process of establishing the type/size of a punishment for crime the state should employ very careful approach during determination of the role of the aim of punishment. Suffering caused by the enforcement of a punishment automatically would be additional, unjustified punishment in cases when the sentence is not proportionate to the crime committed, does not comply with the requirements of fairness, is not adequate means for avoidance of new crime and re-socialisation of the offender. Such a punishment would result in violation of human dignity, because "punishment and generally responsibility will go beyond its purposes and will become a potential tool for revenge. As a result, justice and law will lose its main function. Law is needed for justice and order and if it is transformed into the instrument of the authorities to manipulate with people, the law itself will become the main source of a problem, for eradication of which it is created" (Judgment N1/6/557,571,576 of the Constitutional Court of Georgia of November 13, 2014 on the case of "Citizens of Georgia _ Valerian Gelbakhiani, Mamuka Nikoleishvili and Alexandre Silagadze v. the Parliament of Georgia", II- 51).
57. "In the Rule of Law based state, the government is restricted by unconventional obligation to interfere into a person’s freedom (in any right) only when it is absolutely necessary and as much as it is objectively necessary. That is how the constitutional order of any Rule of Law based state looks. Obviously, the state is specially limited by this obligation during establishing and applying of legislation regulating responsibility. Such legislation is characterized with appropriateness of intensive interference into a person’s freedom. That is why it is also appropriate that the State is extremely cautious in this process, because justice will lose its function if people are punished without appropriate and indispensable grounds. ... It is also obvious, that the function of humanity of justice cannot be ignored either, as it promotes not only justice itself, but also progressive development of the public. Consequently, achievement of humanity of justice and its development through it is a permanent goal, promotion and assurance of which is state’s obligation, however, obviously till the point when it comes in conflict with justice and other goals and main function of the law. ... People shall enjoy the positive outcomes of progressive humane understanding of the development of society and the law. An individual should be responsible for really publicly dangerous action, although in frames and in accordance with rules objectively necessary and sufficient to achieve the goal” (Judgment N1/6/557,571,576 of the Constitutional Court of Georgia of November 13, 2014 on the case of "Citizens of Georgia - Valerian Gelbakhiani, Mamuka Nikoleishvili and Alexandre Silagadze v. the Parliament of Georgia", II- 62-64). Co-existence of functions of law/justice and equals protection of their objectives determines the scope and the content of the responsibility.
58. Based on all above mentioned the Constitution restricts the scope of margin of appreciation of the state with the principle of prohibition of interference in the human liberty in cases when there is no necessity for it or when interference is stricter than is objectively necessary for protection of specific legitimate aim.
59. Therefore, in order to achieve its purpose and aim the punishment should deter damaging act without incurring damage superior to the one prevention of which it aims. Punishment by its essence automatically implies and causes restriction of fundamental rights. This is a logical side effect of the use of punishment, which causes at least the discomfort of the offender, results in moral, psycho-emotional influence on him/her. However discomfort should not reach the level which turns punishment into the means used for the aim of causing suffering and pain (moral of physical) of human. The punishment might become such means also in cases when it is not used as extremely necessary and sole instrument.
60. It would be impossible to assess proportionality of punishment unless character of criminal act, its severity and damages caused by it are determined.
61. At the same time it should be mentioned that since the scope of assessment of the Constitutional Court is limited which the issues indicated in a constitutional claim only the normative content of the disputed provision which applies to the applicant should be assessed. Specifically, the Claimant disputes constitutionality of the sentence, imprisonment from 7 to 14 years, for possession for personal use (not every act prohibited by the disputed provision) of dried Marijuana (not narcotic substances in general). At the same time the Claimant draws attention towards unconstitutionality of the sentence used for purchase/possession for personal use (not for realisation). It is worth mentioning that the Claimant considers the quantity (69 grams) of Marijuana for purchase/possession of which he was accused does not constitutes an amount possession of which might automatically imply possession for realisation purposes.
62. It should also be indicated that the Claimant unequivocally disclaimed that it is not the purpose of the constitutional claim to achieve assessment of constitutionality of exclusion of Marijuana from legal turnover as well as the Claimant does not demand general decriminalisation of the purchase/possession of Marijuana. The Claimant considers the amount of sentence determined for purchase/possession of Marijuana for personal use, as well as the imprisonment in general is disproportionate punishment for the mentioned act. At the same time legalisation of Marijuana is not subject of the dispute.
63. Representative of the Respondent party indicated that the disputed provision does not regulate responsibility for purchase and possession of marijuana for personal use, this act is criminalised and the punishment is defined by article 273 of the Criminal Code of Georgia. The disputed provision prescribes responsibility for illegal purchase and possession of narcotic substances, including Marijuana, in large quantities. However, it should also be mentioned that the Respondent indicated exclusion, minimisation of dangers related to the personal use and realisation of narcotic substance to be the legitimate aim of the disputed provision.
64. Although purchase and possession of the narcotic substances is regulated by special provision, article 273 of the Criminal Code of Georgia, this does not exclude possibility of imposition of the responsibility based on the article 260 of the Criminal Code of Georgia for purchase/possession of Marijuana for personal use and the use of punishment prescribed by the disputed provision. Specifically, unlawfulness of any act prohibited by the article 260, including purchase and possession, could be established notwithstanding whether it is intended for personal use of distribution, since it creates danger towards the human health and safety in general.
65. Criminalisation of purchase and possession of some substances/items is generally related to the dangers derived from their turnover and distribution. In some cases merely purchase possession and production of items and substances even without intent to distribute could involve some danger, because of the nature, character of these items and substances. For example mere fact of possession and storage of explosive substances by itself involves some risks and dangers. The narcotic substances do not involve such automatic risks, therefore their production, purchase, possession, etc. is prohibited/regulated in order to eliminate dangers related to their consumption and realisation.
66. Based on the above mentioned, criminalisation of the purchase and possession of Marijuana based on the disputed provision is reasoned with the objective to prevent, avoid its consumption and realisation. As it was already mentioned the Respondent’s argument related to the legitimate aims of the disputed provision indicate to the same reasoning.
67. Legitimate aims of regulating (restricting, prohibiting) turnover of narcotic substances are protection of health and ensuring social safety. Fight against drug crimes, including establishing the imprisonment as punishment, serves avoidance of increase in number of drug crimes, prevention of other crimes and asocial behaviour, and as a result protection/improvement of health and wellbeing of society. According to the argumentation of the Respondent “imprisonment as a punishment is determined by legislator for the crime involving extreme danger towards the society. Use of imprisonment for the crimes related to illegal turnover of drugs aims decreasing illegal turnover of the mentioned substances, isolation of individuals promoting such turnover from the society and as a result fulfilment of positive obligation of the state to care for health of citizens, avoidance of drug distribution. ... it is directed towards protection of the interest of the state and the society as well as prevention of distribution and consumption of narcotic substances”. According to the definition of the Respondent the main legitimate aim of fight against drugs is protection of health of an individual and population from the dangers derived from narcotics as well as prevention of drug addiction in the society, especially among youth population.
68. At the same time, it is noteworthy that the respondent did not indicate on different or specific legitimate aims in relation to imposition of the indicated measure of responsibility for purchase/possession of Marijuana for personal use based on the disputed provision. Respondent drew attention towards general legitimate aims of setting sanction for purchase/possession of every narcotic substance. In this context, the Respondent considers that criminalisation of purchase/possession of Marijuana in quantities more than 50 grams serves prevention of distribution of narcotic substances, protection of health, prevention of crime and other antisocial behaviour. The Respondent indicated that “Classifying Marijuana as illegal narcotic substance is derived from indentation obligation taken by the state of Georgia. Specifically, Single Convention on Narcotic Drugs of 1961 obliges Georgia to include Marijuana in a list of illegal narcotic substances, while setting measure of responsibility is obviously determined as exclusive competence of the state. ... Marijuana is prohibited substance similar to any other narcotics, and difference in its effect is balanced with setting different quantity within the legislation”. At the same time, the witnesses (from different state agencies) invited on the hearing on merits additionally indicated that Marijuana is one of the most widely spread narcotic substance not only in Georgia, but also around the world. Therefore, setting imprisonment as a punishment for its illegal turnover ensures better prevention of the abovementioned dangers.
69. It is obvious that generally state has legitimate interest to ensure social safety. The aims indicated by the respondent – prevention of distribution of narcotic substances, protection of health, prevention of crime and other antisocial behaviour truly constitutes legitimate aims. However the court should assess whether the restriction prescribed by the disputed provision constitutes proportionate means for achieving these aims. At the same time, proportionate punishment with respect to drug related crimes should be determined based on the potential damage the certain substance is capable to incur on health and wellbeing of the society.
70. It is evident that the possibility to conduct criminal act cannot considered as a part of constitutional right. However, criminalization of certain act by the legislator cannot become grounds for automatic alienation of such act from the scope protected by the Constitution. Although the state has wide margin of appreciation in relation to formation of criminal policy; however the scope of its discretion is not unlimited. Any state act is unconditionally restricted with the Constitution, most importantly with fundamental human rights and freedoms as directly applicable law. The Constitutional Court has indicated in several judgments that “The principles of democracy and the Rule of Law … oblige the state to be bound by the Constitution, which means that no branch of a government has the right to act only on the basis of expediency, a political necessity or other ground. A Government should act on the basis of the Constitution and the laws. Only in this way can just legal order be produced, without which there is no chance for democratic state under the rule of law” (Judgment N1/3/407 of the Constitutional Court of Georgia of December 26, 2007 on the case of "Georgian Young Lawyers Association and citizen of Georgia – Ekaterine Lomtatidze v. the Parliament of Georgia", II-2). Therefore, criminalisation of an act in absence of real and objective necessity to protect suitable social needs, legitimate aims, as well as setting punishment inadequate, disproportionate to the danger of the committed act equally endangers human liberty, and as a result strips the state action from the constitutional foundation. The conduct of the state authority which violates human rights goes beyond constitution.
71. As it was already indicated, the constitutionality of the disputed provision should be determined in relation to the legitimate aims it intends to achieve, taking into the consideration the possibilities to achieve the objective of the punishment.
72. Each legitimate aim needs to be assessed separately. One of the aims of the disputed provision is the prevention of distribution of narcotic substance – Marijuana. The Respondent repeatedly referred to the international provisions, which oblige the state to subject Marijuana to a strict regulation and exclude it from free circulation. The witnesses invited on the proceeding indicate the same.
73. The task to exclude some substances from free circulation cannot be considered as legitimate aim itself. Prevention of distribution of Marijuana as well as other narcotic substances should be related to safeguarding constitutionally protected value – human health, public order and safety. Thus, the Court should assess whether purchase/possession of Marijuana for personal use constitutes danger for achieving any of the above mentioned legitimate aims. In absence of such danger the punishment prescribed by the disputed provision would be incompatible with the Constitution.
74. When assessing the legitimate aims to protect the health the Court should distinguish the danger related to the health of the consumer of Marijuana and danger toward the health of others caused by the distributor. It is unequivocal that the state should not interfere into the human liberty only because he/she conducts irrational act. In order the interference to be justified it is necessary the act to reach the level beyond which it causes real and serious danger towards others.
75. At the same time the act may be subjected to restriction/regulation which is antisocial by its nature and there is high probability that it may cause real danger at the moment of commission of the act, potentially cause danger towards health of others and public order. At the same time it is also obvious that the state response for antisocial conduct should become stricter based on the severity, level of reality and the scale of potential danger cause by it.
76. Based on the information provided by the Respondent party, witnesses (from state agencies) invited on the hearing and the expert - Head of Psychological Support Centre, psychiatrist, psychotherapist, narcologist - Davit Andghuladze as well as other relevant materials presented on the case the Court concludes that it should not be denied that consumption of Marijuana carries potential threat to human health. Although formation of drug addiction as well as incurrence of specific damage, level of health damage depends on individual characteristics of each user, general heath conduction as well as on duration of drug consumption, existence of such danger still cannot be disregarded and ignored.
77. Representative of the Respondent referred to the following general threats derived from consumption of Marijuana: loss of physical coordination by human, complications during pregnancy and post pregnancy periods, problems with memory and mental health, Psychiatric side effects including psychosis, schizophrenia, depression, hallucinations, agitation, impotence, risks to fertility. According to the statement provided by the consultant of the Ministry of Labour, Health and Social Affairs of Georgia, expert-narcologist ZaZa Shengelia "behavioural effect of consumption of Marijuana includes: relaxation, decrease of psychomotor activity, decrease in concentration of attention, disorder of ability to assess distances, euphoria, sense of wellbeing, carefree condition, alarm, condition of mood swing". At the same time Z. Shengelia indicated that the mentioned symptoms are characteristic to the initial stage of consumption of Marijuana. "In case of consecutive long term use it is characterised with short and fast decrease on memory, inability of fulfil the planned task, change in perception of time and space, lowering the threshold of pain, changes in sexual and emotional field". In extreme occasions long term consumption of Marijuana in large quantities might cause hallucinations and psychosis. According to the statement of Chief Specialist of the Branch of Legal Provision of Legal Department of Ministry of Labour, Health and Social affairs of Georgia Aleksandre Toria: "every canabinoid is substance dissolvable in fat, therefore it accumulates in fat tissue. During its intake ... it goes directly to the brain, lungs and genitalia, as well as membrane of cell. After entering into the nucleus of the cell through the membrane canabinoids lead to chemical processes and changes in cell metabolism, disturb process of DNA and cell protein synthesis as a result of which cell activity lowers or stops which causes inhibition of suitable body functions". According to the statement of the Deputy Head of Public International Law department of Ministry of Justice of Georgia – Beka Dzamashvili Marijuana "causes lung diseases, deterioration of memory, problems with mental health, hinders psychical development. At the same time consumption of Marijuana in large quantities might cause symptoms such as anxiety, depression, psychotic symptoms and harms the respiratory and blood circulation systems". According to the statement of expert - Head of Psychological Support Centre, psychiatrist, psychotherapist, narcologist - Davit Andghuladze: "consumption of canabinoids causes psychical and behavioural anxiety which has suitable place in the international classification of deceases - "12- psychical and behavioural anxiety caused by consumption of canabinoids". During consumption of cannabis ability of perception is distorted, specifically perception of time, own body, environment, measurement of the body, illumination etc. changes. Colours and sounds become unnaturally clear. Emotion and thinking changes. Euphoria is formed. After termination of influence of cannabises the consumer feels emotional downfall, decrease in motivation and interests. In some cases it causes delirium with auditory hallucination, sometimes with aggression and with other manifestation".
78. Besides the above mentioned an opinion was stated that Marijuana might cause danger of addiction to other, stronger narcotic substances. However, neither the Respondent nor the witnesses invited on the hearing presented trustworthy information, incontrovertible researches showing that there is correlation, or mostly, addiction to drugs is caused by Marijuana and not by any other factor.
79. To summarise, there is controversy about the level of health damage caused by Marijuana and it would be difficult for the Constitutional Court to determine the mentioned danger promptly. However it is evident that consumption of Marijuana might have negative effect on human health. At the same time the mentioned danger (which Marijuana might cause to its consumers) is lighter compared to the damage caused by consumption of other so called strong drugs. The expert D. Andguladze indicated that unlike other narcotic drugs Marijuana does not lead to a physical addiction. At the same time although it has negative effect on human psychology its influence is way lighter compared to most the other drugs the so called strong narcotics. With the level of damage caused to human health consumption of Marijuana is also comparable to legally allowed substances (cigarette, alcohol). According to the definition of the same expert (Andguladze) alcohol abuse causes no less psycho-physical and legal difficulties.
80. Therefore, the restriction of free circulation of Marijuana serves the legitimate aim - protection of health. At the same time purchase (cultivation) and possession (as was indicated the Claimant does not ask for decriminalisation of this act) of prohibited substance keeps on to be antisocial (and unlawful) act. Thus a person who purchases (cultivates) substance prohibited by the law acknowledges that he/she commits offence and hereby, his/her action might be considered as antisocial and punishable act. However, the state should substantiate that establishing the criminal punishment, in the present case imprisonment (especially with the long period prescribed by the disputed provision) for purchase/possession of illegal narcotic substances constitutes effective and proportionate means for achieving the mentioned aim.
81. First of all the dangers derived from purchase/possession of Marijuana in some quantities caused to the possessor himself/herself and to other persons (danger to the society) needs to be differentiated.
82. As it was already indicated consumer’s health might be damaged, intensity and level of which might depend on different circumstances. However, even in cases when the most severe result is caused reasonableness of imposition of imprisonment on individual only for acts damaging his/her own health is questionable. The Constitution protects individual from the threats derived from other people - from violation of rights by private persons or state. At the same time it is obvious that the state has constitutional obligation to ensure avoidance/minimisation of risks which as a result of mistake lead to creating danger of person damaging himself/herself through regulating the certain act. For example state might regulate free access to some medicines in order to prevent mistaken intake of some drugs which would cause damage to health. However it is not justifiable to impose criminal responsibility of an individual for taking wrong medicine without prescription or overdose. Same logic leads to imposition of imprisonment on an individual (in order to prevent future self-harm by him/her) who attempted suicide but survived. Using imprisonment as criminal punishment for avoidance of self-harm to human health is unexplainable and unjustified. In extreme cases consumption of Marijuana, when its consumed volume and consumption period reaches high intensity, might lead to an addiction to this narcotic substance. Use of imprisonment as a punishment is unreasonable and unjustifiable especially in cases when person becomes addicted to a certain substance. With this regard opinion of the representative of the Ministry of Labour, Health and Social Affairs of Georgia ZaZa Shengelia is notable. Specifically he indicated: "According to my, as a doctor’s, opinion person who consumes ... probably, should not be imprisoned".
83. Imposition of imprisonment on individual for risk of damaging his/her own health serves only to the objective of general prevention, in order to deter others from commission of the same act and cause harm to his/her own health. The sole objective of general prevention in absence of the proportionality targets specific individual and turns him/her into the object of power, because in such cases the punishment is not legitimated by the act committed, it is not justified by the danger derived from the act of individual. Thus human becomes an instrument of state policy, which inevitably leads to violation of his/her dignity.
84. Based on the abovementioned, imposition of imprisonment for an act which endangers only the author of the act and is not directed (could not be directed) towards violation of right of others is incompatible with the Constitution. Imposition of punishment on individual for an act which might endanger only his/her health is aimless and therefore, unjustifiable. Hereby, establishing criminal punishment which might involve imprisonment for purchase/possession of Marijuana for personal use constitutes disproportionate means for achieving the general legitimate aim to protect health.
85. In relation to the danger towards the third parties/society potentially derived from purchase/possession of Marijuana two issues needs to be examined: a) whether consumption of Marijuana causes commission/increase of other crimes; b) whether purchase/possession of Marijuana in quantities prescribed by the disputed provision automatically involves risks of distribution, therefore causing the damage to health of others.
86. It is noteworthy that the Respondent party could not present adequate information to the Constitutional Court, trustworthy researches, which would indicate to the existence of inevitable correlation between consumption of Marijuana and increased number of other crimes. In this regard the testimony of witnesses and specialists invited on the proceeding is also controversial. They drew attention mainly towards possible increase in number of traffic violations. Deputy Head of Public International Law Department of Ministry of Justice of Georgia Beka Dzamashvili stated that: "According to UN data consumption of Marijuana increases risks of car accidents by 10 times and this risk is even higher if Marijuana is consumed in combination with alcohol". Similarly general was the position of the Pro-Rector of Academy of Ministry of Internal Affairs of Georgia – Sopho Kiladze: "the UN directly indicates that number of car accidents committed under influence of Marijuana is very high around the word". Deputy Head of the Department of Prosecutorial Activities Supervision and Strategic Development of Prosecutor’s Office of Georgia – Shalva Saghirashvili indicated that "Almost 6% of all crimes in Georgia in 2014 were committed under the influence of narcotic substance; however, the similar statistical data on Marijuana is not available". It is noteworthy that the witness did not know how many the crimes committed under the influence of Marijuana were.
87. Hereby, in support of correlation between consumption of Marijuana and increase in number of other crimes the Respondent as well as witnesses mainly indicated only on probable increase in number of car accidents. At the same time neither the Respondent nor the witnesses were able to establish existence of inevitable connection between consumption of Marijuana and commission/increase of this (even more so other) crime. Representative of none of the entities were able to indicate in affirmative form, or provide either statistic or accurate researches showing that consumption of Marijuana directly causes commission of other crimes. They could not demonstrate that such connection is more frequent and evident with consumption of Marijuana even compared to consumption of alcohol. The same was indicated by the expert Davit Andghuladze. In absence of such evident and natural connection imposition of imprisonment as punishment for purchase/possession of Marijuana constitutes clearly disproportionate means. In some hypothetical or certain cases isolation of an individual from the society precludes some risks and can be considered as suitable means for achievement of the legitimate aim, however it cannot be considered as sole and the least restrictive means for achievement of the legitimate aim. At least through taking into consideration that the risks of commission of other crimes derived from characteristics of Marijuana is the same or less compared to the risks derived from consumption of alcohol as was indicated by the witnesses and experts, necessity of use of not only imprisonment for the period prescribed by the disputed provision, but use of such measure of responsibility (imprisonment) is inexplicable.
88. At the same time, the argument of the Respondent according to which purchase/possession of Marijuana in large quantities automatically involves danger of its distribution and, therefore implies increased risks of causing harm to health of others is noteworthy. Obviously state discretion is wider with respect to protection of health of others.
89. Since general danger towards harming health of individuals by Marijuana is not excluded, its distribution might be regulated by the state, among others by imposition of responsibility. Thus, in cases when quantity of narcotic substance is so high that it objectively creates real danger not only for its purchase/possession for personal use but also for distribution, the state is authorised to set criminal responsibility for it. At the same time size of punishment might be related to the quantity of the narcotic substance. However, it should be underlined that reviewing constitutionality of the punishment for purchase/possession of Marijuana for distribution is outside the scope of the present constitutional dispute. The Court is deprived of an opportunity to assess constitutionality of this content of the disputed provision.
90. The disputed provision prescribes imprisonment from 7 to 14 years as a punishment for purchase/possession of Marijuana in large quantities. The law of Georgia “On Narcotic Drugs, Psychotropic Substances and Precursors, and Narcological Assistance” determines 50-500 grams to be large quantity for Marijuana. At the same time, as it was already indicated the Claimant disputed constitutionality of the mentioned punishment for quantity of Marijuana which is possessed for personal use and not for distribution. Simultaneously amount of Marijuana found in possession of the Claimant equals to 69 grams. Therefore, subject of assessment is application of the disputed provision to purchase/possession of Marijuana within this quantity.
91. It is obvious that increasing the quantity of narcotic substance causes proportional increase of risks of its distribution and incurring damage to health of others. Naturally, it is possible an individual to use even small quantity of Marijuana for distribution and not for personal use while it is also possible that he/she will use purchased Marijuana in large quantities only for personal consumption. However, it cannot be denied that larger the quantity possessed, the more logical, clear and realistic it is to assume that it is possessed for distribution. Increasing the quantity also causes increase in magnitude of damage incurred to other people. Therefore, it is very important in every individual case differentiation of purchase/possession for personal use and for distribution to be enabled by the law. In cases when the quantity of the substance objectively creates inevitable danger of distribution the legislator should be freed from obligation to bind law enforcers to provide the proof of intent to distribute.
92. In the present case there is a need to assess whether up to 70 grams of dried Marijuana creates inevitable risks of distribution. As is determined from definitions of representative of different state agencies 50-70 grams of Marijuana does not constitute the quantity which, with high probability, would indicate on inevitability of purchase/possession for distribution. Mr. Zaza Shengelia indicated that for a single consumption on average 1 gram of Marijuana is consumed. According to his definition the risk of overdose from Marijuana is so much lower compared to other narcotic substances, that human death as a result of overdose from Marijuana is practically impossible. Accordingly, he considers consumption of 50-70 grams of Marijuana in a short period of time to be possible.
93. Based on the above mentioned, the Respondent's opinion according to which possession of Marijuana in large quantities might create risks of its distribution and causing damage towards the health of others should be noted. Therefore, general approach, which implies imposition of responsibility of purchase/possession of Marijuana in large quantities, serves the legitimate aim. However, connection between imposition of responsibility and the mentioned legitimate aim is lost in cases when the danger, avoidance of which is intended by punishment, does not exist. In cases when distribution of Marijuana is excluded, risk of damaging the health of others is also avoided. Therefore, in such cases imposition of imprisonment as a punishment becomes ungrounded, unjustifiable and disproportionate.
94. Obviously, in cases when risks of distribution of Marijuana are presented there are grounds for state interference through setting responsibility; however the legislator is obliged to arm the law enforcers with adequate instruments in order to preclude state interference into the human liberty in absence of substantial ground and extreme necessity. Accordingly it is important to oblige the law enforcer and arm him/her with suitable instruments, mechanisms for investigating the objective of purchase/possession of Marijuana in every individual case and to interfere in human liberty only in cases when the intent to distribute, inevitability of distribution is presented. At the same time it is necessary to ensure that type and size of punishment imposed is increasing proportionally to the magnitude of the dangers derived from the act. As it was already indicated, after certain condition, when solely due to quantity of the substance real danger of distribution is objectively evident, determination of purpose of possession becomes irrelevant.
95. In the present case it is not the task of the Constitutional Court to determine which quantity of Marijuana should be considered as quantity for purpose of distribution or possession of which quantity of Marijuana precludes objective to distribute. Within the scope of the claim the Court determined that 69 grams of Marijuana (which was found in the Claimant's possession) cannot a priori be considered as quantity which is not intended for personal use and which automatically creates inevitable danger of its distribution and causing damage to the health of other people. Therefore, the punishment prescribed by the disputed provision cannot be considered as proportionate means, because such quantity does not indicate on intent, real danger of its distribution and as a result endangerment of health of other people. The provision is problematic due to its blank nature, which precludes possibility for individual approach and imposition of punishment based on the level and seriousness of the danger.
96. Since imprisonment constitutes strictest form of restricting the human liberty the state policy should be oriented on its use only in extreme situations. At the same time, it implies not only its use by the judge based on the mentioned approach but also setting imprisonment for an act by the law only in cases when it is objectively necessary based on severity of an act, dangers incurred, and specific circumstances of commission of the crime, personality of offender and other factors. In cases when neutralising potential dangers derived from an offender and achievement of objectives of the punishment is impossible without isolation of an individual from the society. At the same time, even in cases when regulation of individual's act is necessary the law should lead the law enforcers towards the use of non-custodial sentences in cases when such measures/types of responsibility are objectively necessary to achieve purposes of punishment.
97. The essence of constitutional restriction in relation to punishment is imposition of proportionate sentence in substantially individualised manner, during which seriousness of the crime, guilt of an individual and damage (for individual victims or for the society) caused by crime, personal characteristics of offender and specific circumstances of the case is taken into the consideration in order to determine which punishment would be suitable for rehabilitation of individual and protection of the society through restraining the offender. Punishment would fulfil its objectives only under such circumstances.
98. The Constitutional Court indicated that mostly due to its blank character the disputed provision does not satisfy essential criteria used for assessment of proportionality of punishment - possibility for individualised approach. specifically:
a) The punishment prescribed by the disputed provision equally applies to all narcotic substances, while they are radically different in terms of essence of dangers caused, magnitude, and level of threat. Although the representative of the Respondent as well as witnesses invited on the hearing indicated that Marijuana is a narcotic substance harmful to human health, free circulating of which should be restricted, at the same time none of them denied that Marijuana in terms of negative results of its consumption and dangers caused by it is substantially lighter compared to other narcotic substances. One witness (Z. Shengelia) even indicated that Marijuana is comparable to alcohol, tobacco and in some occasions it is able to cause not only identical, but also less dangers.
b) The legislation does not create possibility of differentiation between purchase/possession of Marijuana for personal use and for distribution; it generally establishes responsibility for purchase/possession. Although the judge might use individual approach within the scope of quantities prescribed by the law and impose imprisonment for 7 years for purchase/possession of 50-70 grams and 14 years for 500 grams, however as it was already mentioned nothing indicates towards high risks of realisation during purchase/possession of 50 grams. Since the disputed provision sets imprisonment at least for 7 years even in the mentioned situations it automatically preludes possibility of taking individual circumstances into considering and imposition of punishment adequate to the act committed, including refusal to impose imprisonment as disproportionate sentence as is in the present case.
99. The argument of the Respondent according to which the law prescribes possibility of individual to be freed from responsibility by willingly surrendering narcotic substance could not be considered sufficient for proving proportionality. Such regulation indicates on state goal to relate criminal responsibility for drug related crime to exclusion of narcotic substances from free circulation; however this regulation not only does not preclude, but also directly allows punishment of individual with imprisonment from 7 to 14 years for purchase/possession of Marijuana for personal use. As it was already indicated, based on all of above mentioned factors such sentence constitutes disproportionate punishment.
100. Although the legislator is deprived of an opportunity to describe in details which punishment should be imposed (as a result of taking every individual circumstance into consideration) by the judge in every individual case; the legislator is not freed from obligation (especially in criminal law field) to arm the court with sufficiently flexible rules enabling the judge to take every individual circumstance into consideration and use sentence, which is objectively necessary in every individual case.
101. Based on the above mentioned, since the disputed provision has a blank character and not only does not preclude but also directly enables imposition of imprisonment as a criminal responsibility for an act which does not create danger towards the health of others it could not be considered necessary and proportionate state interference into the right of human liberty. Such sentence does not ensure fulfilment of objectives of punishment, thus turns punishment into the aim itself. It is impossible to elaborate on restoration of justice and re-socialisation of an individual by the punishment in cases when there are no suitable reason and grounds for it. As it was already indicated imposition of responsibility for creating danger to own health serves only to general prevention to ensure deterrence of others from commission of asocial action, which damages their own health. In cases when criminal responsibility is imposed in order to avoid risks of damage incurred towards others and such risks are hypothetical or do not exist at all, or it is impossible to prove that they exist, in every individual case the general prevention is still dominating objective of such punishment, thus is impermissible and unjustifiable.
102. In the state based on the Rule of Law the legislator should not allow for the possibility for use of the so called "exemplary" punishment, because such punishment is objectively mismatched with its objectives, it is not only unsuitable means for achievement of objectives of punishment but also has result counterproductive to the objectives of punishment - causes the risks, for avoidance of which it is imposed as extreme measure for correction of asocial behaviour. Such approach breaches the principle of proportionality, results in disproportionate punishment of an individual and violation of his/her dignity. Consequently it endangers perception of fairness in society.
103. Generally during assessment of proportionality of punishment with respect to the act committed, comparing it (punishment) with the punishment imposed for similar or more severe crimes is an interesting criterion. However, since on the present case the disproportional nature of imprisonment as a punishment for purchase/possession of up to 70 grams of dried Marijuana for personal use has been already established, there is no need to analyse the legislation in this regard.
104. Any disproportionate punishment, which entails imprisonment in cases when there is no grounds for it, or when the size of sentence is disproportionate to the severity of committed act, violates the right to human liberty. At the same time in order the certain period of imprisonment to be considered as inhuman and degrading punishment for the purpose of the second paragraph of article 17 of the Constitution of Georgia it should reach very high level of intensity, cruelty; should be clearly, severely disproportionate.
105. In the present case the disputed provision due to its blank nature entails possibility for imprisonment of an individual only because he/she might harm his own health, while there are no real risks of damaging the health of others (because the provision allows punishing individual even in cases when purchase/possession is not conducted for distribution); therefore, cruelty and eminent inadequacy of such punishment is clear and obvious. In such cases strict punishment like this is used as aim to punish human and not as extreme and necessary measure for protection of a legitimate aim. As a result human becomes instrument in disposal of the state and not the object of protection. Therefore it causes violation of human dignity through setting inhuman, cruel punishment.
Based on subparagraph “f” of paragraph 1 and paragraph 2 of article 89 of the Constitution of Georgia, subparagraph “e” of paragraph 1 of article 19, paragraph 2 of article 21, paragraph 3 of article 25, subparagraph “a” of paragraph 1 of article 39, paragraphs 2, 4, 7 and 8 of article 43 of the organic law of Georgia “On The Constitutional Court of Georgia”, paragraphs 1 and 2 of article 7, paragraph 4 of article 24, articles 30, 31, 32 and 33 of the Law of Georgia “On Constitutional Legal Proceedings”
THE CONSTITUTIONAL COURT
1. The Constitutional Claim N592 (Citizen of Georgia Beka Tsikarishvili v. the Parliament of Georgia) shall be upheld.
2. Normative content of the following wording “is punished with imprisonment from 7 to 15 years” of section 2 of Article 260 (Version in force from May 1, 2014 till July 31, 2015) of the Criminal Code of Georgia which sets imprisonment as a punishment for purchase-possession for personal use of narcotic substance – dried Marijuana indicated in 92th horizontal cell of the second appendix of the law of Georgia “On Narcotic Drugs, Psychotropic Substances And Precursors, and Narcological Assistance” in quantities disputed by the Claimant (up to 70 grams) shall be declared unconstitutional with respect to paragraph 2 of article 17 of the Constitution of Georgia.
3. This judgment is in force from the moment of its public announcement on the hearing of the Constitutional Court.
4. The judgment is final and is not subject to appeal or review.
5. A copy of the judgment shall be sent to: the parties, the President, the Government and the Supreme Court of Georgia.
6. The judgment shall be published in the “Legislative Herald of Georgia” within the period of 15 days.
Composition of the board:
Of the member of the Constitutional Court of Georgia
On the Judgment №1/4/592 of the First Board of the Constitutional Court of Georgia of October 24, 2015
Based on the article 47 of the organic law of Georgia "On Constitutional Court of Georgia" and article 7 of the law of Georgia "On Constitutional Legal Proceedings" I hereby pronounce dissenting opinion on the Judgment №1/4/592 of the First Board of the Constitutional Court of Georgia of October 24, 2015
Title of the Case: Citizen of Georgia Beka Tsikarishvili v. the Parliament of Georgia
Subject of the Dispute: Constitutionality of normative content of the wording “is punished with imprisonment from 7 to 15 years” of section 2 of Article 260 of the Criminal Code of Georgia which sets punishment for purchase-possession of narcotic substance – dried Marijuana indicated in 92th horizontal cell of the second appendix of the law of Georgia “On Narcotic Drugs, Psychotropic Substances And Precursors, and Narcological Assistance” in large quantities with respect to paragraph 2 of article 17 of the Constitution of Georgia.
I partially agree on the judgment adopted by the majority of votes by my colleagues on the constitutional claim of Beka Tsikarishvili (i.e. Marijuana case). I consider the statement given in the judgment according to which a human should not be an instrument in state disposal rather that the object of protection to be the correct one. Setting severely disproportionate sentence in a form of imprisonment as a punishment for purchase/possession of Marijuana for personal use, in absence of aim to distribute in cases when minimal sentence is excessively strict and judge is not allowed to impose sentence below the statutory minimum or use other lighter alternative measure the punishment might be considered as violation of human dignity protected by article 17 of the Constitution of Georgia. Setting imprisonment from 7 to 14 years for purchase/possession of up to 70 grams of Marijuana (in absence of the aim to distribute) as was prescribed by the second paragraph of article 260 of the Criminal Code of Georgia (version in force until July 31, 2015) should not be allowed in a democratic and Rule of Law state, oriented on human rights protection. Imprisonment from 5 to 8 years as is prescribed by the third paragraph of article 260 as was formulated by the amendments in article 260 adopted on July 8, 2015 (enforced from July 31, 2015) still is not proportional punishment for act indicated in the constitutional claim.
Based on the law adopted on July 8, 2015 occasions of purchase/possession without the aim to distribute and illegal distribution was differentiated on the legislative level, which is legally correct; however this change should be considered as insufficient, because minimum sentence for purchase/possession of Marijuana (up to 70 grams) for personal use became imprisonment for 5 years. It is indicated in the judgment of the Constitutional Court that "the restoration of justice function is realised only when punishment proportional to the crime committed is imposed and through this way it serves possibility of realisation of other aims of punishment. For example, disproportionately strict punishment hinders and in some cases even entirely precludes re-socialisation; as a result the punishment contradicts the achievement of its own goals, fulfilment of its own functions" (see paragraph II-46).
Notwithstanding the above mentioned I don't agree with the reasoning and ruling part of the judgment of the Constitutional Court, according to which not only the punishment prescribed by the disputed provision (and its new version) but also imprisonment for any period of time included from even 6 months to 1, 2, 3, or 5 years for purchase/possession of Marijuana (up to 70 grams) for personal use, without intent to distribute was declared to be disproportionate punishment, which violates the right to human dignity guaranteed by the Constitution. Reconsidering act indicated in the claim as less serious crime and setting low custodial sentence for its commission by legislator and arming the judge with the possibility to use other alternative punishment or measure would remedy the legal error which causes violation of the second paragraph of article 1 of the Constitution. The notion formulated in paragraph II-27 of the judgment of the Constitutional Court precludes the possibility to allege violation of human dignity guaranteed under the Constitution in cases when low custodial sentence is imposed for the act indicated in the constitutional claim. Specifically, according to the mentioned paragraph of the judgment of the Constitutional Court imprisonment could be considered as inhuman treatment and punishment in cases when state action leads to interference in different human rights (right to life, right to health, right to private life, equality, etc.) with intensity clearly higher than allowed within the strictly delimited scope of interference. This is the case when there is no cause, thus no necessity for it or when term of imprisonment is clearly disproportionate for achieving objective of sufficient responsibility for committed act.
Generally acts adopted by the state, especially by legislative branch determine the criminal policy, what it should be like - conservative, liberal or moderate. “The government has wide margin of appreciation in determining criminal policy” (see paragraph II-32 of the Judgment). At the same time "margin of appreciation of the state cannot be unlimited" (see paragraph II-33 of the Judgment). In order the punishment to violate right guaranteed under the second paragraph of article 17 of the Constitution it should reach the extraordinary level of severity and disproportionality. Imposition of such punishment for certain act should be so severely disproportionate that it should be in conflict with legal approaches established in the civilized states. Punishment of analogous severity should not be prescribed in other democratic and civilized states. According to the legal approach established in the most of the civilized states imposition of such punishment for the act committed should be considered intolerable. Hereby in order to substantiate violation of right to dignity guaranteed by the Constitution it is not sufficient to merely indicate on disproportionality of the punishment, but the case of clear and severe disproportionality should be presented.
Paragraph II-22 of the judgment of the Constitutional Court itself indicates that " 1. Generally inhuman, cruel as well as degrading treatment and punishment is intentional psychical and moral influence, coercion on individual which results in his/her stress, suffering. At the same time such pressure, coercion, influences on human with its character and duration should reach certain intensity, high level. ... in order the punishment to be considered degrading the level of influence (psychological and moral) on human, restriction and coercion used against him/her should exceed the natural level by itself attributed to certain punishments (which are imposed on the individual). The punishment which leads to fear, strong suffering and humiliation of an individual, which disrespects the victim, is degrading”.
Familiarising the legal practice and Constitutional Court's judgments of different European countries assured me that the punishment prescribed by the disputed provision does not constitute means adequate, real and proportionate to the act (purchase/possession of up to 70 grams of Marijuana for personal use without intent to distribute). However, it should also be unequivocally indicated that establishing sentence to comparably lower period of imprisonment, statutory minimum of which starts from 6 months would neither cause interference into the right protected under the second paragraph of article 17 of the Constitution, nor violate human dignity. Setting imprisonment from 6 months to some low period for an act indicated in the constitutional claim does not reach level of intensity, which is sufficient to consider that human dignity is violated by setting inhuman and cruel punishment.
It is a different issue when for an act indicated in the constitutional claim such a high punishment is set, statutory minimum period of imprisonment of which starts from 7 years (or even from 5 years), while the judge is not allowed to impose imprisonment for shorter period or use other lighter alternative punishing measure. The above mentioned might be considered to be inhuman and cruel treatment/punishment. The same could not be said in cases when imprisonment for short period of time or other lighter alternative punishment is imposed. Restriction on imposition of imprisonment for any period of time for purchase/possession of up to 70 grams of Marijuana for personal use (without intent to distribute) is not rational and does not support fulfilment of other legitimate tasks of the state, realisation of punishment objectives. The threat of imprisonment prescribed by the criminal law in accordance with the principle of proportionality promotes fulfilment of general and special prevention tasks of punishment. I underline predominantly the tasks of not negative, but positive prevention.
The criminal law provisions on drug related crimes predominantly protect not the consumer which harms oneself but the society, its health, social security and order. As a result of its liberalisation wide spread of purchase/possession of Marijuana in the state might cause mass increase in number of individuals addicted to narcotic substances, which might have negative effect on demographic development of society, ability to work, psychological state. Individual might purchase and possess 70 grams of Marijuana without prior intent to distribute, but there is always abstract danger that this quantity of Marijuana will be passed to other individuals, especially youth and possessor, sometimes without his/her desire, becomes its distributor without prior intent. Up to 70 grams of Marijuana constitutes large quantity which is not intended for one, two or even ten use by an individual. As is indicated in the judgment in order to produce one cigarette around one gram of Marijuana is needed. This indicates on increased social danger of possession of 70 grams of Marijuana. According to the Georgian legislation from 50 to 500 grams of dried Marijuana constitutes large quantity. In accordance to the proportionality principle, existence of threat of imprisonment for reasonable time for purchase/possession of up to 70 grams of Marijuana could not be considered as inhuman and cruel punishing measure violating human dignity; however it should be considered as effective and proportionate means for achieving aims of punishment .
The state should create system of application of criminal law which would ensure that the threat of imprisonment prescribed by the law does not bind the judge to impose imprisonment in every case involving purchase/possession of up to 70 grams of Marijuana for personal use, without intent to distribute. The law should allow the judge to use individual approach towards every case and person, not within the margin from 7 to 14 years (or from 5 to 8 years) of imprisonment, but should be authorised to use proportionality principle and impose imprisonment for short period, conditional sentence or other light alternative measures.
The judgment of the Constitutional Court also indicated that the law should arm the court with sufficient and effective procedural guarantees as well as substantive provisions which would enable imprisonment only in cases when/as long as it is objectively necessary (see paragraph II-29 of the judgment).
Responsibility for purchase/possession of Marijuana should be differentiated from responsibility for other narcotic substances; because it is comparably soft narcotic substance and potential negative results caused by it are less severe.
Article 260 of the Criminal Code sets punishment not for consumption of Marijuana, but for its purchase/possession. The disputed provision does not regulate the fact of consumption, cases when narcotic substance is already used, but its purchase/possession, the cases when Marijuana is found in individual's pocket, home, workplace even if it is intended for consumption; however such narcotic substance might be passed to any of his/her colleagues, friends (increased abstract danger of distribution of narcotic substance which was originally purchased/possessed for consumption). Such act (purchase/possession), especially 69 grams which is intended for several days, implies way greater danger compared to its consumption. It is state's objective to protect the society from abstract but increased danger, among other via employing criminal measures including imprisonment, but is should not be conducted through setting and using disproportionate punishment. Individual, who possesses Marijuana in large quantities without prior intent to distribute, might distribute it anytime as a result of formation of sudden intent. Distribution of narcotic substance is widely interpreted in criminal law and it is not limited only to the sale for profit.
It is indicated in the judgment of the Constitutional Court that individual should not be punished for harming himself/herself (the right to self-harm), which is correct. However, the mentioned crime is directed against the social security and order. It constitutes delict of abstract danger directed against the health of society and is prescribed not in the chapter of crimes against human but in the chapter of crimes against social security and order.
It should not be doubted that the imprisonment from 7 to 14 years or from 5 to 8 years for purchase/possession of Marijuana for personal use is such a strict punishment that the disputed legal provision reaches the level of unconstitutionality. This is supplemented with Georgian criminal legal order according to which the judge is not allowed based on his/her own assessment to impose sentence below statutory minimum as well as he/she does not have the possibility to use other alternative lighter punishment. The above mentioned restricts the judge and does not give him/her an opportunity to refuse imposition of severely disproportionate sentence.
Generally, even though there is no legal provision establishing judicial authority on the use of sentence below statutory minimum, in cases when the punishment is clearly and severely disproportionate the judge is able to decide in favour of an accused and use sentence below the statutory minimum or any other alternative punishment, or adopt any other decision in favour of accused which should be reasoned based on the constitutional rights. The ability of the judge to use the law in favour of the accused, distinct of its literal meaning, in accordance with the Constitution and to protect right to human dignity constitutes European approach on interpretation of the law.
At the same time, inclusion of the crime indicated in the constitutional claim in the category of particularly serious crimes, as it was the case with the disputed provision (version of the law in force until July 31, 2015) should be considered incorrect. According to the version of the law in force since July 31, 2015 it is included in the category of serious crimes. The Judgment of the Constitutional Court in fact correctly turned it into the category of the less serious crimes.
It is indicated in the Judgment of the Constitutional Court that "the Constitutional Court is obliged to assess punishment policy in extreme cases when it results in violation of a human right. It does not mean that the Constitutional Court is potentially eligible to assess constitutionality of every measure used as a punishment" (see paragraph 34 of the Judgment).
The Constitutional Court should not have directly indicated in the Judgment that purchase/possession of Marijuana in large quantities should never become ground for imposition of imprisonment for any period of time. Such approach will violate the balance between the competences of the court and the legislator and will create temptation for the court to replace the legislator, because setting imprisonment as a punishment for the mentioned act in compliance with the principle of proportionality could not be considered as manifestly unreasonable and disproportionate. The quality of its inadequacy and disproportionality does not reach the sufficient level; imbalance is not clear and evident. Establishing such punishment does not overcome its objective and does not violate human right guaranteed under article 17 of the Constitution. In this regard mentioned paragraph 34 of the judgment of the Constitutional Court is notable. Contrary to the argumentation mentioned in this paragraph the Constitutional Court declared the provision unconstitutional and established absolute prohibition on the use of imprisonment for any period of time for commission of the act indicated in the constitutional claim.
The mentioned might promote increased number of cases when individual would have around 70 grams of Marijuana for the personal use in drawer of office desk, in a wardrobe at home, because there will be no threat of imprisonment as a punishment. This might obstruct fulfilment of other legitimate tasks (prevention of distribution of narcotic substances, protection of public health, avoidance of crime and other antisocial behaviour etc.) by the state and thus hinder effective fulfilment of tasks of general and special prevention for fight against drug related crimes.
For instance, by the judgment of March 9, 1994 the Federal Constitutional Court of Germany declared that punishment of an individual for circulation of narcotic substances (including Marijuana) including imposition of imprisonment does not contradict constitutional principle of proportionality. The Court indicated that circulation of narcotic substances might cause much more serious negative results that dangers related to drug consumption, because it relates to illegal trade of narcotic substances, organised crimes etc. At the same time distribution of narcotic substance not only for profit but also for free, as a gift, involves dangers. Such behaviour might have special influence on vulnerable groups of society, which are characterised with psychical instability, because of which they might become addicted to narcotic substances.
The Judgment of the Federal Constitutional Court of Germany also draws attention on possession without the aim to distribute of narcotic substances from cannabis' group. The Court indicated that illegal storage and possession of such narcotic substances also endangers the society, because it creates possibility for passing narcotic substances to the third parties without any control. Such danger exists even in cases when it is proven that person does not have intent to distribute. The fact of possession of narcotic substances for personal use created demand on the drug, which on its own leads to existence of illegal market of narcotic substances. Therefore, criminalisation of such act constitutes measure of general prevention.
Based on the above mentioned the Federal Constitutional Court of Germany defined that there are clear and solid arguments for establishing criminal responsibility, therefore declared the disputed provision to be compatible with the Constitution. According to the Court opinion, derived from the existent scientific knowledge, there is no alternative to criminal responsibility which could ensure achievement of existing legitimate aims with equal efficiency. In existing situation sometimes restriction is the sole effective mechanism for preventive influence on potential consumers.
The Federal Constitutional Court of Germany also assessed constitutionality of the disputed provision in the context of equality. There was an argumentation that narcotic substances caused results similar to tobacco and alcohol. The Court indicated that tobacco was not a narcotic substance, therefore in this sense consideration with respect of equality was impossible, since essentially similar risk of incurring damages did not exist. In relation to alcohol the Court indicated that there was no possibility to identify comparable consumption of these two products, since consumption of alcohol was possible for multiple purposes. At the same time consumption of alcohol did not lead to same results as consumption of narcotic substance.
All above mentioned does not mean that Georgian legislator does not have the right to choose liberal drug policy on different stages of development of criminal law and not only de-penalise, but also decriminalise acts related to soft narcotic drugs. At the same time on different stages of development the state is authorised to set proportionately strict mechanism of social control as punishment, including imprisonment which will hinder drug purchase/possession within the state territory. The mentioned is relevant for the soft narcotic substances such as Marijuana.
Therefore, drug related policy in the criminal law is determined by the legislator. The Constitutional Court not only declares punishment to be disproportionate, in cases when prescribed sentence for the committed act is more than "simply excessive", but the court qualifies it as inhuman and cruel punishment, state coercive measure violating human dignity protected under the second paragraph of article 17 of the Constitution of Georgia. As is indicated in the judgment of the Constitutional Court any disproportionate punishment, which involves imprisonment in cases when there is no grounds for it or sentence is disproportionate for the committed act, violates right to human liberty. At the same time in order a certain period of imprisonment to be considered as inhuman and cruel punishment for the purpose of the second paragraph of article 17 of the Constitution of Georgia, as was already indicated, it should reach very high level of intensity, cruelty; should be clearly, severely disproportionate (see paragraph II-104 of the judgment).
It is notable that such a modern act in the field of human rights protection as is the Charter of Fundamental Human Rights of the European Union differentiates dignity of human (article 1), prohibition of torture and inhuman or degrading treatment or punishment (article 4) and principles of proportionality of criminal offences and penalties (article 49) from each other.
Therefore in relation to the judgment of the Constitution Court I consider it the most important to underline that the Constitutional Court should not have declared imposition of imprisonment even for short period in any case of purchase/possession of up to 70 grams of Marijuana without intent to distribute unconstitutional. In alternative the judge deciding on criminal case should be authorised to use different alternative measures, including imprisonment strictly compatible with proportionality principle. Otherwise, the criminal law will lose its main function of general and special prevention.
Based on the above mentioned, the second point of the Ruling Part of the judgment N1/4/592 of the Constitutional Court of Georgia should have been formulated differently and the Court should have declared unconstitutional not the imposition of imprisonment for any period of time for purchase-possession for personal use of narcotic substance – dried Marijuana indicated in 92th horizontal cell of the second appendix of the law of Georgia “On Narcotic Drugs, Psychotropic Substances And Precursors, and Narcological Assistance” in quantities disputed by the Claimant (up to 70 grams) with respect to the second paragraph of article 17 of the Constitution of Georgia, but only clearly and severely disproportionate imprisonment prescribed for this act by the disputed provision as well as by the provision currently in force.
Member of the Constitutional Court of Georgia