Legalization of cannabis should not be confused as co-optation with the Government towards adopting the business part of the legislation in exchange for a social club licence – in other words lucrative motives. Unfortunately, two civil society organizations have already gone down that road, with the Government throwing dust into our eyes with decriminalization in times when we are asking for legalization.
Up until the 1980s, drug use and drug trade were hardly existent. The fact that the Federal Criminal Code of the former Yugoslavian Federation almost did not contain an article targeting drug use or drug trade is proof enough. Since Macedonia adopted its first Criminal Code in 1996, it has been amended more than 25 times. The amendments touched upon the notorious Article 215 as well, extended in 2009 with a new paragraph on prosecution for a small amount of drugs, which I have analysed on countless occasions. Although proper, this paragraph and its incorrect application is the root of the problem persisting for eleven years, and in accordance with which thousands of Macedonian citizens have received punishments more seeming to a drug dealer.
Of course, the Public Prosecutor’s Office has the authority to issue mandatory guidelines to its subordinated prosecutors, however the legal problem arises when the criminal courts in the country treat the guidelines as a source of the law, which it certainly isn’t. Such an attitude has led to illegal convictions of thousands of citizens, most of whom plain cannabis users.
The practical legal problem is in the norms. The sanction prescribed with Article 215 is far from naïve – three to ten years of imprisonment, while the alternative – a probation sentence is rendered when the highest punishment is received, which is two years of imprisonment. The three-year minimum punishment could be decreased to one with the application of the institute Extraordinary Lenient Sentencing. However, despite the legal provisions, in their decisions judges insist on recognizing the offence in order to apply this institute, even though the very nature of it is completely different and unrelated to recognition of guilt.
However, when faced with three years of imprisonment, most accused parties choose to recognize the guilt, reluctantly, in order to avoid prison sentences. This could be handicapping, preventing us from applying with such cases to the European Court of Human Rights as a clear violation of Article 6 of the Convention, namely the right to a fair trial, because by recognizing the guilt an application can be submitted only regarding the severity of the sentence. This prevents us from employing all domestic legal remedies as a precondition for submitting applications to the Strasbourg Court.
Interestingly, from an aspect of the criminal procedure, the Mandatory Guidelines issued by the Public Prosecutor prescribe the quantity of cocaine, heroin and cannabis but not of other psychotropic substances. Quantity higher than two grams of cocaine, two grams of heroin and five grams of cannabis by default carries charges for “the intention of selling”. Since ecstasy is exempted, in practice prosecutors identify it as cocaine and heroin, hence the quantity which automatically prescribes charges for intention to sale is two. For only two ecstasies, which in most cases serve for personal use, in Macedonia you will be facing charges prescribing imprisonment from three to ten years.
Such a constellation paints a very clear picture on how the Macedonian law enforcement agencies and judiciary fail to differentiate among the different types of narcotics, in other words different types of narcotics formally imply the same punishment. It is somewhat of a paradox, receiving the same punishment for cannabis and for heroin. This is quite contradictory with the internationally established standards on penalizing drug-related offences which consider two criteria: how harmful the specific drug is and the addiction degree it can produce.
Fact is, pursuant to the abovementioned criteria, each signatory country would be expected to punish differently for the different types of drugs. Heroin and cocaine being listed in the so-called А drug class are incomparably more harmful than cannabis, and carry a significantly greater risk of developing an addiction. And yet, the Conventions themselves are contradictory because cannabis is listed on List 1, along with heroin, which from a medical, but also a legal aspect makes no sense.
On the other hand, beyond the legal aspects and problems drug users face in North Macedonia, the black market understandably takes its toll on the quality of the drugs as well due to the lack of controls or analyses. Specifically, I am referring to cannabis which I have been consuming fondly for two decades now. The quality of the cannabis bought from the streets has lost its satisfactory quality long ago. And before the quasi conservatives attack me for using the phrase “satisfactory quality”, I am speaking from a pretext that the existence of drug use is well established and the problems won’t go away by sweeping them under the rug but by locating them and working on reducing harms.
The cannabis market in my high school days, in the early 2000s, was divided 50-50, so to speak, on good, natural, light green, not very potent, domicile cannabis, the so-called gigglebush, and the dark green, sometimes brown, without a strong aroma and always with additives (bluestone, “pips”) brought from Albanian, the so-called well known schwag.
With time, the first type could hardly be found, while the second, the imported one, increasingly dominated the market. As I enrolled at university, after 2004-2005, the schwag was the only type of cannabis for purchase. The good, quality strains were rare, they were mostly imported or purchased from the last standing fighters.
Near the end of my studies, particularly in the past six-seven years, top-quality hybrid strains maintain a relatively high price for Macedonian standards. One gram can cost from eight to twelve Euros, while when I was a child this would buy you a handful of cannabis. However, the ever so popular schwag is slowly but surely disappearing from the market. Consuming less but with better quality is better than having to end up with the so-called “hammer efect“.
And finally we arrived to the question of what the next steps would be. Of course, legalization is the obvious choice, but according to which model? Should the model be investment only in the business sector – i.e. export, disregarding the needs of the users? Social clubs might be a solution, and yet, how would they be structured? All these questions require the cooperation of civil society organizations and the activists, which at present is lacking.
The Prime Minister publically opened a debate on cannabis decriminalization (rather than legalization), disregarding the fact that this debate has been ongoing for some time now only no one had been willing to listen. Will cannabis decriminalization find support among the dying cannabis associations in exchange for social clubs licenses or coffee shops is of no significance. What scares me is that once again we are going to end up with the short end of the stick, while the government will be using it as an excuse to developing and monopolize the business sector.
Finally, what is the purpose of legalization if, burdened by numerous taxes, the end result is the same as the one in Canada, where the price is as high as 35 Canadian dollars? A misguided state policy will only boost the black market rather than annihilating it.
Janaki Mitrovski Janaki Mitrovski 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 psychoactive substances for personal use. He writes articles and texts for the legal magazines “Pravnik” and “Pravomatika” and is the co-founder of the Cannabis and Green Policies Association BILKA Skopje.