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Marihuana not always a drug, court rules

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A police raid conducted a few years ago was successful: The police discovered a field with 500 hemp plants at a farm in Hradec Králové.

Mojmír Miklica and Hana Tichá were given suspended sentences, although they objected that they had sowed the hemp as medicine. But on Tuesday the Constitutional Court ruled that growing the forbidden hemp is not sufficient for a person to be sentenced. The court said police and courts always have to prove convincingly that a person grew “pot” for cannabis. And nothing like that was allegedly proved in this case.

“To deduce an intentional production of intoxicants from the growing of hemp plants itself is not convincing,” the judge of the Constitutional court, Eliška Wagnerová, said.

Without regard to whether Miklica and Tichá are lying or whether they really wanted to make an ointment from marihuana, it is an important verdict. It reflects the tolerant atmosphere that exists in the Czech Republic towards marihuana. While eight years ago one could have been sentenced up to eight years in prison for marihuana, the new criminal code tolerates growing several plants for one’s own use.

Hemp need not necessarily mean drug

The judges considered the Miklica and Tichá’s case to be clear also because of the immense amount of hemp – their field could yield over two kilos of pure THC, a substance causing intoxication. So they received suspended sentences of one and a half and two years.

However, the Constitutional Court judges said there was no evidence that they were planning to dry the plants and “produce” a drug, as the law says. For that matter, also the Supreme Court ruled in this case last year that such evidence is key for the couple to be sentenced. At the same time, the judges were resisting the interpretation of the law that growing hemp is permitted following their verdict. But still, a strange situation has arisen in the Czech Republic: the law prohibits to grow hemp plants with more than 0.3% of THC in them, but according to both the Supreme and Constitutional Courts this does not necessarily mean punishment.

But what the judges of the Constitutional Court did not say on Tuesday was how the courts should judge similar cases. “That’s a matter mainly of the Supreme Court that has to oversee the judicature, keep an eye on it and unify it,” Wagnerová said. However, when it comes to marihuana, courts deliver very dissimilar verdicts. A year ago, judges of the Supreme Court for example defended people who grow hemp for medicine – for instance against rheumatism or ulcer.

Up to eight years for “pot”

That is exactly what also Libuše Bryndová was doing, but she received suspended sentence from a court in Tábor in July. Growing hemp and ointment cooking was fine, but the fifty-one-year old translator confessed that she also dried the “pot” and smoked it. And that is a crime according to the judge. Completely unusual was the case of Petr Žáček, who was building an ecological house from hemp in northern Bohemia and who bought the seeds from an official vendor. Still, the police accused him and the entrepreneur left with a suspended sentence three years ago: experts namely found out that the construction material contained more than the allowed 0.3% of intoxicant and also traces of THC in Žáček’s urine.

Still, the attitude to marihuana has been changing – and also in politics. When the deputies voted on the new criminal code a month ago, the proposal of the Education Minister Ondřej Liška to make marihuana legal did not go through. But the majority of deputies neither supported the Christian Democrats who refused to differentiate between hard and soft drugs. They took the middle way: a person who grows three hemp plants and smokes them by himself will not be prosecuted.

“It’s not dangerous for society,” says the author of the criminal court, the Supreme Court judge Pavel Šámal.

Interesting court sentences for marihuana

1997 – Sentence for recipes

The owners of the Votobia publishing house were on trial for publishing a cooking book with hemp recipes. While the public prosecutor regarded the book Vaříme s konopím (Cooking with hemp) for addiction spreading, the publisher Tomáš Kudela pleaded the freedom of press. However, he received suspended sentence that was later abolished with the granting of pardon by the president Václav Havel.

2000 – Presidential pardon

The prosecutor requested eight years for the nineteen-year-old Stanislav Pobuda who was selling marihuana to friends – one of them was under fifteen. In total, he sold eighteen cigarettes. The court ruled that Pobuda will go to prison for four years. However, he spent only seven months in custody before he was also granted a presidential pardon.

2004 – Harsh eight years

The twenty-two-year-old Josef Gerych was sentenced to eight years in prison for growing one hemp plant. He then smoked the drug with several school-age children. High Court later abolished the sentence as too harsh and gave him suspended sentence. The court said only drug mafia’s dealers and not people who grow marihuana in small amount should be sent for years to prison.

2008 – Pot as medicine

The Supreme Court backed people who grow hemp for medicine. Mária Brodská from the Nymburk area used hemp as the basis of her lotions against rheumatism. Till that time people who used similar arguments were losing with the Czech courts. For example, a seventy-two-year-old pensioner from Břidličná in Bruntál area received a two-year suspended sentence for two kilos of drug, although she neither sold it nor smoked it and used it allegedly only for her eczema.

Translated with permission by the Prague Daily Monitor.

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