The frames within which a state formulates its drug policy are comprised of laws, strategies and action plans for implementation of these strategies, all towards controlling drugs or people who use drugs. The Republic of Macedonia is a signatory of the three UN drug-related conventions. The conventions determine the penalties such as: possession, acquisition, distribution or offering for sales, but do not determine simple drug use as a punitive act. According to the Convention commentaries, Governments have the right not to impose prison sentences for possession for personal use, as opposed to possession for distribution, which must be subject to the „arrest” sanction.
Regarding the use of drugs, there is no specific request for criminalization within the conventions, and there is a significant flexibility for minor offences related to personal use. The level of de-penalization and/or decriminalization has been stipulated as possible in UN drug conventions, regarding offences related to personal use such as, for example, possession or cultivation for personal use. These conventions are part of the state’s legal framework, but still, legal practice shows that courts have almost never referred to them when stating verdicts. On the other hand, the Criminal Code of the Republic of Macedonia determines three types of criminal acts related to drugs with which it sanctions the unauthorized production and release for trade of narcotic drugs, psychotropic substances and precursors (article 215); facilitating the use of drugs (article 216) and causing severe bodily injury or health damage by performing the above two crimes (article 217). Most drug related cases in courts are based on article 215 „The unauthorized production and release for trade of narcotic drugs and other psychotropic substances and precursors“. Since the enactment of the Criminal code in 1996, until today, this provision has been only applied in September 2009 when a new paragraph was added foreseeing a milder penalty if the offence has been committed with a lesser drug quantity. The Criminal Code does not stipulate the quantities, which is why the Public Prosecutor’s office adopted an Internal guideline according to which it determines which quantity shall be considered to be lesser quantity, for a different type of drug. Thus, according to the Public Prosecutor’s office, a lesser quantity is considered to be 5 grams marihuana, 2 grams heroin and 2 grams cocaine.
The description of the offence unauthorized production and release for trade of narcotic drugs and other psychotropic substances and precursors, as well as the interpretation of the characteristics of the offence by scientists and experts, does not encompass the possession for personal use, which, in fact, is in congruence with the interpretation of the above-mentioned conventions. In practice, that would mean that the court, regardless of the quantity of drugs, should primarily assess whether there was an intent for sales by the accused, or the drug is possessed for a personal use. The analysis of circumstances indicates a whole different practice. Namely, the number of adults, convicted for drug related crimes, in the period from 2009–2013 is around 4% of the total number of convicted persons in Macedonia. In the same period, the number of prison sentences for drug related crimes is ca. 9% in average of all stated prison sentences on the territory of the Republic of Macedonia.
Although there is no predominant court practice, still, the analysis of the practice of one of the courts in the Republic of Macedonia may provide a partial indication as to the judicial policy in deciding on drug related cases. Namely, from the analysis of the drug policy on national level and on first instance court level, carried out in 2014, the practice of the First Instance Court in Strumica was analyzed. On the level of First Instance Court Strumica, in the period from October 2009 (since the changes in the Criminal Code became effective) until December 2013, there were 87 effectively completed procedures for unauthorized production and release for trade of narcotic drugs and psychotropic substances and precursors, of which 29 verdicts are related to the lesser quantity of drugs. The penalty for the primary offence may range from three to ten years of imprisonment, and for a lesser quantity, from six months to three years. In no case did the court state the legal maximum foreseen for this offence, while 1/3 of the stated imprisonments were below the legal minimum. In 1/3 of the penalties, the Court found that the objective of the penalty could be achieved with an alternative measure as well, prison sentence which shall not come into force if the convicted does not perform a new offence in a probation period of one or two years, depending on the particular case. When determining the sanction, the Court has, in almost all cases, found as aggravating circumstance the increased use of drugs, especially among the younger population as well as the socio-economic consequences from the use of drugs. Extenuating circumstances were deemed by the Court, among others, to be the lesser quantity, and in one case, it was even stated that the drug was marihuana, which was a less damaging drug. In this line of Court reasoning go two cases where both convicted parties were first time offenders, but the penalty differed, and the person who possessed 9,6 grams of cocaine got 3 years prison sentence, while the person who possessed 78,7 grams marihuana got one year and six months prison sentence. Namely, the Court through its practice differentiates substances on damaging and less damaging, a criterion which does not exist in the law, but still affects the penalty. When analyzing the circumstances affecting the extent of the penalty, it is characteristic that the Court has in several verdicts taken as extenuating circumstance the fact that the accused did not sell the drug, but possessed it for personal use. This conclusion is contrary to the formally defined characteristics of the offence and the already reached verdict of the First Instance court that possession for personal use does not fulfill the characteristics of the offence „unauthorized production and release for trade of narcotic drugs and other psychotropic substances and precursors”.
In all criminal procedures for „unauthorized production and release for trade of narcotic drugs and other psychotropic substances and precursors”, the Court as an extenuating circumstance has taken the lesser quantity. On the other hand, during the procedure, the Court sticks to the legal qualification of the Public Prosecution in line with the quantity established in the Internal guidelines of the Public Prosecution office. The Criminal Code does not specify any amount which shall be considered lesser quantity, so with the strict keeping to the qualification of the Prosecution, given in their Internal guideline, the legal power of the Criminal code is undermined and the freedom of the Court to make discretionary assessment of the quantity in certain cases and to individually evaluate each case as to the fulfillment of the characteristics of offence, is limited.
The analysis of the legal framework in regards to the practice concerning its implementation in drug related offences opens issues which should be re-examined in order to ensure the proper application of the existing provisions and protection of the rule of law principle. The court neglects the description of the offence from the Criminal Code and the verdict of the Supreme Court that drug possession for personal use is not a criminal offence. Hence arises the need for reaffirming this practice and properly interpreting and applying the provision which clearly states that the intent to sell is punitive. Furthermore, the Court’s tendency to state lower sentences if the offender possessed marihuana, as opposed to heroin or cocaine, is evident, which raises the need for division of substances according to their damaging effects. Such legal practice can be a good foundation for differentiating milder criteria for punishments in cases of marihuana possession as compared to other psychotropic substances, of course, if it is not a case of possession for personal use.
Natasha Boshkova holds a BA in Law from the Ss “Cyril and Methodius” University in Skopje, and an MA in gender studies from the University in Sarajevo. Since 2008 she has been actively engaged in the improvement of human rights of people using drugs and other marginalized communities.