The Czech drug related legislation is quite extensive and includes laws as well as various by-laws. The most important feature of the Czech legislative system is that criminal law does not consider drug use to be a criminal offence. The new Czech Criminal Code introduced a brand new sig­nificant feature into the Czech legal system – the differentiation between cannabis and other nar­cotic drugs and psychotropic substances.

Many countries that used to be part of the former Eastern European bloc inherited a legacy of heavy-handed drug policy aiming for the unrealistic goal of “society without drugs” and a harsh re­pression of drug-users. Although the Czech Republic used to be part of the Soviet sphere of influence for decades, it managed to escape this model.1 Nowadays, “Czech drug policy has been considered modern, pragmatic, rational and sometimes too liberal”.2 Czech drug policy is now focused on attain­able goals and evidence-based prevention, harm reduction, treatment and rehabilitation program­mes.3

Czech drug policy is conducted at three levels – national, regional and municipal, all of them co­or­dinated by the Government Council for Drug Policy Coordination (GCDPC).This Council also pre­pares and submits the two key documents concerning drug policy: National Drug Policy Strategy and Action Plan for the Implementation of the National Drug Policy strategy. Moreover the Council is in charge of the drug policy budget.

Drug policy in the Czech Republic

The current National Drug Policy Strategy encompasses the 2010-2018 time-framework with four long-term objectives:4 1) Reduction of experimental and occasional drug use (particularly among young people); 2) Reduction of intensive drug use; 3) Reduction of drug-related risks (to individuals as well to society); and 4) Reduction of availability of drugs (above all for young people).

The Action Plan for Implementation of the National Drug Policy Strategy is adopted only for three consecutive years and its task is not only to define specific goals to attain the objectives of the above mentioned strategy but also to articulate the priorities within them. The current one was adopted 2013 and the priorities are: 1) Lowering the scale of excessive alcohol consumption and cannabis consumption by young people; 2) Being more concerned with high percentage of metham­phetamine usage; 3) Reform of the financing of drug policy; and 4) Integration of drug policy.

The Czech drug related legislation is quite extensive and includes laws as well as various by-laws. The most important feature of the Czech legislative system is that criminal law does not consider drug use to be a criminal offence.

The Czech Criminal Code (Act No. 40/2009)prohibits the unauthorised production and other han­dling of narcotic and psychotropic substances and poisons (§283), possession of narcotic and psychotropic substances and poisons (§284), unauthorised cultivation of plants containing narcotic and psychotropic substances and poisons (§286), spreading of drug addiction (§287) and production and other handling of substances with hormonal effect (§288).But it is important to note, that if one possesses amount not “greater than small” for personal use only, one is not liable for a criminal of­fence but only for a misdemeanour which is punishable by a fine up to 15.000,- CZK (around 500 Eu­ros).

Greater than small

What is meant by “greater than small” was not enacted in any law or by-law before 2010 and had to be decided case-by-case within the judicial system.5 This situation changed in 2009 when the government issued a directive setting the amounts. This directive was abolished by a ruling of the Czech Constitutional Court in 2013 because it “asserted that only a law, not a government regulation, could define what a criminal offence is”.6 Consequently, due to significantly increased prevalence by young people and due to increased numbers of large-scale production facilities, the Czech Supreme court set stricter rules concerning non-criminal amounts. The court allowed 1.5 gram of metham­phetamine, 1.5 gram of heroin, 1 gram of cocaine, 10 grams of cannabis dry matter, 5 units of ecstasy and5 grams of hashish.7

A recent survey of law enforcement professionals in the Czech Republic conducted by the In­stitute of Criminology and Social Prevention exposed that the number of convictions for drug-related offences in­creased after the changes in the new Czech Criminal Code.8 Interviewed police officers stated that prosecution of such kind of offences increased by 71 per cent; prosecutors by 66 per cent; and judges by 48 per cent. Since there is no distinction between offences for cannabis and other drugs, the unanswered question is whether the impact of the new legislation is more liberal with regard to cannabis drugs users.

Interesting is that most of them recognise that the number of drug of­fences remained the same. The increase in prosecutions might be explained by the fact that law enforcement officials do not share the lib­eral attitude of society to cannabis use, and show a more repressive and punitive approach, although they appreciate the fact that the new legislation distinguishes between cannabis and other drugs and introduced the offence of the illegal cannabis cultivation. The law enforcement professionals also observed that juveniles are in­creasingly more in­volved in drug-re­lated crimes. Sta­tistics show that there are increasing num­bers of foreigners con­victed of drug of­fences in the Czech Republic, in particular Vietnamese whose numbers of convic­tions of drug-related offences increased almost nine fold from 2008 to 2013.9

Cannabis policy in the Czech Republic

According to the 2014 European Drug Report, the Czechs rank among the top cannabis users in Europe, with 4.4 per cent last-month cannabis use prevalence, behind France with 9.8 per cent and Spain with 7 per cent.10 The Czech Republic, with 15 per cent, also ranks high regarding last-month prevalence of cannabis by juveniles (15–16 years old), behind France (24 per cent).11 This explains the emphasis on lowering excessive alcohol and cannabis consumption by young people in the current Czech Action Plan. Looking at these high numbers, it looks like cannabis is not illegal in the Czech Republic. But it is.

The new Czech Criminal Code, which came into force in January 2010, introduced a brand new sig­nificant feature into the Czech legal system – the differentiation between cannabis and other nar­cotic drugs and psychotropic substances. As a consequence lower penalties for offences related to cannabis were set. Cultivation and distribution of cannabis is still a criminal offence punishable by one to eight years of imprisonment (depending on the quantity). The exception for amounts not “greater than small” applies to cannabis as well. Possession for personal use of such an amount is only a misdemeanour punishable by a fine but not by imprisonment. The Czech Supreme Court ruled that amount “greater than small” of herbal cannabis equals 10 grams of dry matter.

How many plants can be grown without facing the possibility of imprisonment still needs to be decided – the governmental directive that set this amount at up to 5 cannabis plants has been abol­ished by the Constitutional Court’s ruling, but the Court did not set a the number of plants in the above mentioned binding decision. The situation for a user cultivating cannabis for personal use is very confusing. The user commits a crime under Section 285, for which there is a criminal penalty of between six months and five years imprisonment,12 but after harvesting the cannabis and during the process of drying it, the offender is “producing marihuana” under Section 283 for personal use and faces a penalty of between one and ten years imprisonment. If the plants have already been dried, the offence will be classified as possession for personal use under Section 284, and is punishable with a maximum penalty of impris­onment for eight years. Possible problems arising from assessing the relationships between the devel­opmental stages of these crimes are not mentioned. Cannabis users receive more lenient penalties only if they are ‘caught’ before or after drying the cultivated plants.

Medical use of cannabis

Speaking about cannabis related legislation we cannot neglect to mention the legalization of can­nabis for medical use which was achieved by the renewal of Acts No. 167/1998, 634/2004 and 378/2007in 2013.13 Important details were specified in by-law No. 221/2013, which came into force in August 2013. This by-law sets the allowed amount of medical cannabis on 30 grams of dry matter per month. Furthermore, it enacts the prescription procedure of medical cannabis: only special elec­tronic prescription is allowed14 for patients diagnosed with one of the few explic­itly mentioned dis­eases and the prescription can only be issued by specific medical professionals from (i.e. general practitioner cannot prescribe cannabis). Any company, that would want to grow or import medical cannabis, needs to obtain state licence to do so. Self supply, even for medical purposes, remains legally forbidden.

The biggest issue concerning medical cannabis in the Czech Republic is its price. The fact that medical cannabis is not covered by common medical insurance is heavily criticized by the public, doctors and some politicians too. The situation would most likely im­prove with enhanced competi­tion and also with granting the licences for growing medical cannabis in the Czech Republic. Today, the only supply of medical cannabis is done only through imports from the Netherlands. Import from any other country (for example, the United States or Israel which already explicitly expressed the desire to enter the Czech market) is not allowed be­cause the by-law only allows certain types of can­nabis, which are only offered by the Dutch company Bedrocan.15

The procedure of granting licences to grow canna­bis for medical purposes in the Czech Republic is also not established yet. But even after these changes, it can’t be expected, that the state regulated system of medical cannabis supply (without its coverage by medical insurance) could provide the same price as the current illegal mar­ket. Another issue that is interlinked with the implementation of medical cannabis is the time it is taking. All the necessary organisational steps are taking way too long. The law legalizing cannabis for medical use came into force in August 2013 and the first patient could purchase it more than year later – in November 2014.16

Cannabis cultivation

From police databases results that 43% of all drug-related crimes prosecuted in the Czech Repub­lic in 2014 are related to cannabis.17 Although the possession and cultivation of cannabis (even in the amount not “greater than small”) is still de jure forbidden, the de facto situation is perceived differ­ently. The primarily concern of Czech police officers is usually not the prosecution of individuals who are growing cannabis for their own needs in only small amounts.18 But it is also true, that “as a result of cultivation crimes being moved from production into new paragraph of the criminal law after 2010, these actually increased from 2443 in 2009 to 2516 in 2010, and up to 3097 in 2011.

The in­creases in cannabis cultivation crimes in the Czech Republic in 2010 and 2011 suggest that the de jure policy liber­alisation has not translated into de facto changes in the policing of cannabis cultivation but, most likely, more people were arrested for cannabis cultivation after the legislative changes in 2010”.19 This is probably result of the clarification of the rules concerning cannabis and police now has greater clar­ity of what can be prosecuted under the criminal law.20

The Czech police focuses mainly on dismantling organized and large-scale grow houses, and on prosecuting the street and club dealers.21 Most of cannabis cultivated in this manner is for the do­mestic market, but some of it is also heading into neighbouring states, Ukraine, Hungary, and Great Britain and to Scandinavia.22 Nowadays, most of the Czech grow houses are run by members of Viet­namese community. This fact makes the efforts of the police more complex, because communities of this minority are usually linked tightly together and it is almost im­pos­sible to infiltrate them. Most of the grow houses are discovered due to high electricity consumption.23 People with Czech nation­ality are usually more involved in the process of distribution of the cannabis cultivated in large grow-houses.24

Grow shops

In November 2013, the Czech police targeted a number of grow shops and its own­ers. The raids were very controversial, because grow shops in the Czech Republic had been allowed for many years and their legality was not disputed at all. Their owners were treated as the rest of ordinary shop owners and paid their taxes, which indicates that their existence was de jure legal and not only con­doned. The action was followed by number of immediate protests – the biggest of them com­prised of two hundred people demonstrating in the centre of Prague.25

The officially declared goal of this so called “pre-emptive action” was to “limit the negative impacts of the activities of the grow shops owners towards the whole society”.26 The po­lice justified their action to be in accordance to a Su­preme Court ruling following a decision of the court of lower instance, which sentenced one particu­lar grow shop owner and its salesman for spreading drug addiction. The Czech Supreme Court adjudi­cated that cumulative sell­ing cannabis seeds, fertilisers, flowerpots and guidelines (e.g. books, leaflets etc.) for cannabis cultivation fulfils the elements of the crime of spreading drug addiction under §287 of the Criminal Code.27

It is worth pointing out, that the Czech legal system belongs to continental legal systems and judicial decisions are therefore binding only inter partes and do not serve as a legally binding prece­dents28 and therefore its executive (i.g. police in this case) is bound by laws and not by the judicial decisions. It certainly is not usual for the police to engage in such extensive actions based on a single court decision.

The police action was also vehemently criticized because on many points it did not distinguish between grow shops offering all of these goods and those offering only some of them (which cannot be considered as spreading drug addiction as stated in the above mentioned decision of Supreme Court). According to the ruling, selling only some of those supplies cannot be considered a crime – one spreads drug addiction only if one sells all above mentioned supplies cumulatively. This indiscriminate approach caused major loses for the grow shop owners.

In addition many grow shop owners and others also complained about the fact, that the action was very different in different regions. In some cities police confiscated everything in the shops (also for example flower pots and other usual goods) while in others they just listed down the stock of the shop and left everything on the spot, which of course affected their business less. As a conse­quence the effects of this police action on the businesses were uneven. The police action led to num­ber of trials; most of them are still running. Those already decided (about 1/3 of all trials linked with the police action) led mainly, according to the annual report of the Czech police, to conditional sen­tences of one year imprisonment and in some cases also to the forfeiture of properties connected to the businesses of grow shops.

Self cultivation

Because Czech law enforcement is and has been focused mainly on large scale cultivation, a high­ly competitive small-scale cultivation market developed. In the Czech Re­public there is a history of cannabis self-supply due to the historical evolution of the Czech drug market.29 In the communist era the drug market was not a significant threat to the gov­ernment because of the closed economy at the time. Cannabis users were left to a self-help system. Small and isolated groups cultivated and used cannabis together – they did not engage in commercial distribution. Even after the downfall of the Iron curtain and after the opening of the Czech drug market (which quickly reached the western level), the cannabis market remained specific in this respect.

Due to domestic production there was little need for the import of cannabis, although the Czech Republic became a transit country for can­nabis in the first decade of the post-communist era.30 This legacy is still visible today. According to a 2014 survey 9 per cent of can­nabis users in the Czech Republic cultivated their own cannabis. A large pro­portion of cannabis users (44 per cent) declared that they got their cannabis for free.31 However, cannabis production is shifting from small and isolated groups towards large-scale production.32

Large scale cannabis cultivation in the Czech Republic is increasingly dominated by Vietnamese groups, but the distribution is usually provided by Czech citizens. The high prevalence of cannabis in the Czech population indicates that it is not difficult to purchase it. Most cannabis users start to consume with friends and cannabis is often provided via channels of friends. Besides that, dealers can be found and contacted in clubs and during various cultural events such as music festivals, concerts etc.

Political context

Czech society can be described tolerant towards cannabis. There is extensive public action ex­pressing support towards further liberalization of cannabis. The Million Marijuana March, sup­porting the full legalization of cannabis, takes place in the Czech capital Prague every year since 1998.33 In 2003 the march was fully legal for the first time, i.e. reported to the authorities in advance and properly advertised. The numbers of participants increased from a few hundred in 1999 to 15,000 in 2009 and then decreased again to 5,000 in 2015. Another signifi­cant public action, which is taking place every year since 2009, is the Cannafest – an international fair, which offers not only the possi­bility to buy seeds, fertilisers and other necessary tools for canna­bis cultivation from various interna­tional sellers but also provides the visitors with an ex­tensive technical/scientific background such as various lectures about the medical use of cannabis given by leading authorities in their fields etc.

Many relevant political parties support a more liberal approach towards canna­bis. For example the Green Party argues the positive consequences of state regulated cannabis trade and is actively en­gaged on regional and local levels, trying to push through full decriminalization of cannabis pointing out that cannabis use has much less severe consequences than the use of alcohol or tobacco, which are both legal and freely accessible. The Greens used to be represented in the Czech Parliament, but didn’t get the necessary votes in the last Czech elections. Some members of the political party Strana svobod­ných ob?an? (which is currently repre­sented in the European Parliament, but has never been part of the Czech Parliament) are promoting full legalization of canna­bis – including its free trade. More importantly, the legalization of cannabis is also supported by political party ANO, which is cur­rently one of the three governmental parties.

The problem is that this issue is not high up on their political agenda and the governmental coalition is di­vided on the issue; the Czech Social Democrats are against legalization of cannabis, and the Christian Democrats are against legalization of cannabis for other than medical purposes.34 It is highly unlikely that the current state of cannabis legislation will change during upcoming years. The strongest sup­porter of legalization of cannabis is the Czech Pirate party (which is currently represented in some municipal councils but has never been part of the Czech Parliament), which also intends to open the first Czech Cannabis Social Club. However, after several postpone­ments it is still not functioning with no further deadline set.

Notes