It is an observable international trend that substances having a narcotic effect can be prepared easily and swiftly by way of changing the chemical composition of other substances already classified as drugs and although the resulting substances do not share the legal classification of the original drug still they trigger very similar effects. If the regulations are inadequate, the parties having an interest in producing drugs may gain time and the legislator is constantly forced to make new moves by amending and modifying the laws. The Constitutional Court established: it is not against the Fundamental Law that for determining the quantity of certain drugs the legislator created a rule whereby the basis of the calculation is not specified as a concrete unit of mass, using an abstract standard instead.

 

Judges of courts of Budapest, Pécs and Tatabánya initiated at the Constitutional Court the annulment of certain provisions of the Criminal Code. On the desks of the initiating judges there are pending criminal procedures related to drugs where the investigating authority seized – among others – synthetic cannabinoids called AB-CHMINACA and MDMB-CHMICA. The challenged regulation pertains to the determination of “small”, “substantial” and “particularly substantial” quantities of certain drugs. According to the Criminal Code, the quantity of the mentioned substances can be determined by examining the pure active substance content based on the volume of the average effective dose of a non-addicted user”. On the other hand, in the case of other drugs, the law provides concrete figures of the quantities to be taken into account. According to the petition, the challenged provision violates legal certainty by allowing nothing else but arbitrary interpretation by the law-applying authority. The law-applying authority can specify the content of the concepts of “non-addicted user” and “average effective dose” by appointing a forensic  medical expert.

In the course of the investigation, the Constitutional Court concluded that in the cases where the law uses concrete figures for the determination of drug quantities, the regulations pertain to substances that have been known for a long time and the composition of which can be regarded as almost constant.  When determining the quantity of other substances, the legislator’s aim was to set up an abstract standard that can be used by the authorities to judge upon an activity related to narcotic substances of new composition.

As pointed out in the decisison of the Constitutional Court: legal certainty can sometimes be facilitated by a regulation of more general character rather than by a detailed one. In the present case, by formulating a general standard, the legislator laid down a standard suitable for universal application, owing to which it is not necessary to amend the criminal law when new substances classified as drugs emerge. Moreover, the determination of quantity based on average can be regarded as an objective one as the quantity of the drug shall depend neither on the personal characteristics of the actual offender nor on the actual manner of using the drug.

With due regard to all the above arguments, the Constitutional Court rejected the judicial motions seeking the declaration of the violation of the Fundamental Law by Section 461 para. (4) of Act C of 2012 on the Criminal Code. Judge dr. Ágnes Czine attached a dissenting opinion to the decision. The full text of the decision of the Constitutional Court is available on the Constitutional Court’s website in Hungarian language.

Budapest, 7 November 2017