The abstract of the judgment (The judgment is available only in Georgian). Abstracts published by the Constitutional Court of Georgia summarise the facts of the case and key legal considerations of the judgment.

Abstract

On 2 August, 2019 the Constitutional Court of Georgia adopted the judgment in the case of “The Public Defender of Georgia v. The Parliament of Georgia” (constitutional complaint №770). The subject of the dispute was constitutionality of the wording “if the application of this measure is considered insufficient after taking into account the circumstances of the case and the person of the offender – administrative detention for up to 15 days” of section 2 of Article 45 of the Administrative Offences Code of Georgia (version of provision that was in force until 28 July 2017) and the wording “or by imprisonment for up to one year” of Article 273 of the Criminal Code of Georgia (version of provision that was in force until 28 July, 2017) with regard to paragraphs (1) and (2) of Article 17 of the Constitution of Georgia (version of provision that was in force until 16 December 2018).

The Public Defender of Georgia claimed that the sanctions of administrative detention and imprisonment, respectively, for illegal production, purchase, storage and/or use without a doctor's prescription of a narcotic drug, its analogue or a precursor in small quantity contradicted the Constitution of Georgia. The complainant indicated that, according to the disputed norms, prison sentence was equally applicable for illegal use of soft and hard narcotic drugs. Furthermore, in some cases, the punishable quantity of narcotic drugs was such small that the public threat derived from this action could not justify the prison sentence. The complainant further stated that the main purpose of above-mentioned sanctions was repression and general prevention of prohibited action. The complainant thereby considered the sanctions of administrative detention and imprisonment, as established by the disputed norms, were clearly disproportional punishment.

The respondent indicated the protection of public health, prevention of distribution of drugs and drug addiction as legitimate aims of the disputed law. Further, the respondent emphasized that the law in question prescribed alternative sanctions, which allowed courts and law enforcement bodies to take into account the factual circumstances of the case and interpret the law in each individual case.

In the present case, the Constitutional Court had to assess, in general, the constitutionality of the sanctions of administrative detention and imprisonment for illegal production, purchase, storage and/or use without a doctor's prescription of a narcotic drug, its analogue or a precursor in small quantity. The Constitutional Court explained that the subject of disputed norms were multiple type of narcotic substances, which had various effects and contained different degree of treat for society. Further, “small quantity”, indicated in the impugned norms, may had been quantity enough for a single use or quantity that exceed the amount of one-time use. Therefore, the Constitutional Court assessed separately, on the one hand, the punishment for production, purchase, storage of a narcotic drug, its analogue or a precursor for a clearly personal use (quantity enough for a single use) and, on the other hand, production, purchase and storage thereof that exceeds the amount of a single-use.

The Constitutional Court noted that every person who was involved in illegal turnover of drugs (drug users, manufacturers, retailers, etc.), to some extent, contributed to illicit traffic of prohibited substances and created a “market demand”. Illegal turnover of narcotic drugs was a threat to public health and safety and preventing these threats was the legitimate aims of the disputed norms.

The Constitutional Court drew the distinction between criminalization of illegal production, purchase, storage and/or use without a doctor's prescription of narcotic drugs, which cause rapid addiction and/or aggressive behavior and prohibited substances, which did not have mentioned side effects. The Constitutional Court stated that the potential risk of violation public order carries the illegal use of only those prohibited substances, which establishing a state of abstinence, causing fast addiction, aggressive behavior or high risk of committing crime. Accordingly, the Constitutional Court noted that the sanctions of administrative detention and imprisonment for illegal production, purchase, storage and/or use without a doctor's prescription of a narcotic drugs for a clearly personal use that do not cause fast addiction and/or aggressive behavior in their user did not serve the legitimate aim of protection of public order and security and it was limited only by the protection of public health.

The Constitutional Court noted, that the sanction for illegal production, purchase, storage and/or use without a doctor's prescription of a narcotic drugs for a personal use had deterrent and preventive effects and was reducing illegal turnover of prohibited substances. Therefore, the impugned provisions protected the health of a consumer of narcotic drug and the health of the entire society. With respect to these legitimate aims, the Constitutional Court stated that imposition of the punishment to prevent an adult person from harming his or her own health was the form of paternalism demonstrated by the state, which was not compatible with the free society and contradicted the requirements of the Constitution. In relation to protection of public health, the Constitutional Court pointed out that the importance of an individual drug user in the process of illegal turnover of prohibited substances was insignificant and by this reason, using prison sentence for drug users had non-essential consequences for reducing illicit traffic. The Constitutional Court further explained that production, purchase, storage of a narcotic drug for personal/single-use generated minimal, hypothetic risk of its distribution and danger of public health emanating from this action was significantly low. Taking the afore-mentioned arguments into account, the Court concluded that the sanctions of administrative detention and imprisonment for production, purchase, storage of a narcotic drug for personal/single-use (prohibited substances which did not cause fast addiction and/or aggressive behavior in their user) was clearly disproportional punishment and contradicted the Constitution.

The Constitutional Court separately addressed the constitutionality of applying imprisonment for narcotic substances which cause fast addiction and/or aggressive behavior in their user and pointed out, that even a single use of these type of drugs, as well as, production, purchase or storage for a clearly personal use contained a high risk of violating public order and safety. According to the Constitutional Court, being under the influence of such drugs or in the condition of abstinence, heightening the risks of committing a crime and/or violating public order. Therefore, the Constitutional Court concluded that applying the sanctions of administrative detention and imprisonment was justified for the prevention of the above-mentioned threats.

Furthermore, the Constitutional Court found constitutional a prison sentence for production, purchase, storage of drugs that exceed the amount of one-time use. The Constitutional Court indicated that production, purchase, storage of narcotic substance that exceed the amount of single use did not necessarily referring to the purpose of distribution. Nevertheless, along with an increase in the amount of drug heightening public (including, adolescents) access to narcotic substances, which, consequently, increases the illegal circulation of drugs. According to all the above mentioned, the Constitutional court concluded that production, purchase, storage of drugs that exceed the amount of one-time use contained significant treat for the society and for this action applying the sanctions of administrative detention and imprisonment could not be considered as an apparent disproportional punishment.