Decriminalization Now

According to data from the Ministry of Interior of the former Socialist Republic of Macedonia, the number of registered drug users in 1990 was only 314 in a country with a population of two millions. Only fourteen years later, the Ministry of Interior informed that in 2004, the number of registered drug users had increased to 6,583 or more than 20 times.

At the same time, in the past few decades, the state apparatus has been attempting to deal with the growing number of drug users as well as the increased drugs influx with conservative methods – mostly with more severe penalization. Towards this end, the prescribed minimum sanction for criminal acts pursuant Article 215 from the Macedonian Criminal Code targeting production, sale, transport, drug possession with an intention to sell, imprisonment, was increased from one to ten years to three to ten years. Additionally, from 2015, the country began implementing the idiotic legal solution called Law for Determination of the Type and Duration of Sentence.
 


It seems that behind all this there is a clear intention to limit judges in their options for finding alternative measures. Unfortunately, such conservative policies have failed to bear fruit, as evidenced by statistics. Each year, according to the State Statistical Office data, somewhere between 333 and 478 adult citizens (2012-2016 statistics) are sentenced for criminal acts against the health of people (mostly pursuant Article 215). Additional sanctions against drug users with imprisonment is counterproductive since we are all aware that Macedonia does very little or nothing at all for rehabilitation, and consequently, instead of supporting drug users, the country additionally criminalizes and stigmatizes them, exhibiting a sterile attitude regarding rehabilitation and resocialization of these people.

Furthermore, according to devastating data issued by the University Psychiatric Clinic in Skopje, the number of registered drug users from 11 in 1989 increased to 700 in 1998. The average age of 32 for first contact with drugs had dropped to 22 in this time frame. 

The data is a clear indicator of the state’s unfitting methods in the fight to eradicate drug trade and remove related harms. Instead of prompting serious actions towards dealing with the issue, state authorities resort to punitive politics in a failed attempt to target the problem.

Apart from being de jure problematic, regarding prosecution pursuant Article 215, the extremely privileged position public prosecutors enjoy is problematic de facto as well. Flagrant circumstances, since by raising the minimum imprisonment from one to three years, the state also introduced a privileged (lighter) form of the criminal act pursuant Article 215, paragraph 2 – SMALLER QUANTITY. This, however, created a legal vacuum since despite adopting a privileged form of the act, the article fails to determine the exact amount considered as smaller quantity, and does so again in Article 122 from the Criminal Code where the legal terms are defined. The state Public Prosecutor’s Office filled the legal void, contrary to the principle of lawfulness, with compulsory guidelines determining the quantity of drugs considered as smaller and the quantity liable to prosecution pursuant Article 215, even in cases where there is no evidence for selling or intention to sell.       

Unfortunately, I am unable to disclose the contents prescribed with the mandatory guidelines due to its CONFIDENTIALITY, which in my opinion was done so only to prevent the public from discovering the fact that the Public Prosecutor’s Office took on the role of a legislator, filling legal voids with the document in question. The severity of the situation is apparent in the fact that all criminal courts, contrary to the principle of lawfulness, free judicial persuasion and independence, accept these accusations, resulting with imprisonment of citizens for possession of six grams of “pot” or three pills of “ecstasy”, all prosecuted for drug sale.

It should be stressed that these are criminal cases with no other evidence to support the accusation: no witnesses to testify they have bought drugs from the accused, no specific investigative measures (telephones tapped, video surveillance) no competent official to testify. In such cases, attorneys resort to sinister and unlawful grounds that “the quantity itself proofs the drugs were intended for sale,” copied by courts in the explanation of the judgment. Such a claim is unlawful and ungrounded legally since drug possession is a misdemeanour under the Law on Misdemeanours against Public Peace and Order, Article 20, and it should be noted that the guidelines issued by the Public Prosecutor’s Office is not on the radar of legal sources bounding for the court. Not only is it unlawful but it is unconstitutional and undermines the fundamental values of the Constitution prescribed with Article 8, namely the rule of law and respect for generally-excepted norms recognized by international law.  

The solution regarding the constantly high drug flow and the increase in drug users, as well as the consequent criminalization of users is simple. Decriminalization. Now. Not in five, not in three years but NOW. In 2018. I need to stress that drugs legalization in Macedonia is impossible since the country signed all three UN Conventions against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. However, this shouldn’t prevent decriminalization of drugs for personal use. Possession of a quantity determined by law, provided there is no additional proof for sale, would be illegal but only as a misdemeanour. Or it wouldn’t be a penalized criminal act; or a criminal act not sentenced with imprisonment. Any model, chosen as a result of a comprehensive social and institutional analysis, would by a more suitable solution than the current one.

However, liberal policies carry real danger as well. Not all attempts have a successful conclusion. Such is the Swiss project Plastic Park, which caused an influx in drug dealers and criminals from Europe and achieved nothing to uphold its purpose. The Dutch model is also partially questionable. The Dutch, according to the European Monitoring Centre for Drugs and Drug Addictions, are the largest cocaine and ecstasy consumers and second largest of cannabis in Europe. It is the reason why I insist on an in-depth analysis and debates and participation of all relevant factors, with the possibility to create a special body working on this issue towards developing the most suitable model for Macedonia. In my opinion, the most suitable is the Portugal decriminalization model, proven as the most successful and applied for more than 16 years. The model prescribes mandatory counselling with a team of a lawyer provided by the state, psychiatrist and psychologist, for first-time offenders in whose possession was discovered a legally prescribed quantity for personal use.  

Unfortunately, prevention and rehabilitation are indecipherable for our state organs. The term self-harm is considered as taboo by the coercive apparatus which knows only how to punish, without any results for decades. A responsible state acts like Portugal – prevents and rehabilitates properly, without placing in prisons where there is full access to drugs. As a lawyer I stand for every drug user being able to possess drugs for personal use, in a quantity determined specifically for each drug, without the user being criminalized by the coercive apparatus or stigmatized by society. As a citizen, I would like to see a portion of the state budget, to which I contribute by paying taxes, allocated to resocialization programs for helping users with addiction mostly with the so-called heavy drugs, instead of labelling them as convicts. This is my principal position. Secondary would be the possibility for a financial gain, developing drug tourism etc.     
      
In my experience, the short-term solution, towards terminating the legally unbearable circumstances where the Public Prosecutor’s guidelines create a legal vacuum and criminalizes without grounds and unlawfully, is amendment of Article 122 and 215 of the Criminal Code with an explanation as to what is considered a smaller quantity with the Law. However, in the long-term, the serious approach would be decriminalization of drugs for personal use, with an accent on rehabilitation. Regarding cannabis for medical purposes, in my opinion people diagnosed with a condition curable with the oil, should be allowed to legally grow and produce cannabis oil. Otherwise, the state apparatus must take on this role by introducing a legal obligation to allocate taxed money for rehabilitation of drug addicts, as well as people suffering from a serious condition but who don’t have sufficient finances for treatment.

Our state and society has placed drug users on the margins for far too long, rejecting them as marked and cramming prisons, thus firstly, harming users twice as much since they are unnecessarily criminalized, and secondly, undermining the war on drugs since it targets users, labelling them as criminals instead of helping them. In addition, easy access to drugs in state punitive-correctional institutions is notorious. Decriminalization NOW!

Janaki Mitrovski

The author has been practicing law since 2012. He finished his master studies with a thesis on “Legalization towards Eradication of Drug Trade” from the Iustinianus Primus Faculty of Law at the St. Cyril and Methodius University in Skopje. He is a fervent supporter of legalization/decriminalization of all drugs for personal use. He writes articles and texts for the legal magazines “Pravnik” and “Pravomatika” and is a co-founder of the Cannabis and Green Policies Association BILKA Skopje.

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