Constitutional complaint of Mr Miloslav Tetour, MCA, brought to the court on August 7 2015 under file reference I.ÚS 2431/15 to Judge Rapporteur JUDr. Ludvík David
Constitutional Court of the Czech Republic
660 83 Brno 2
Constitutional complaint ref.no. I. ÚS 2431/15
V češtině je ústavní stížnost uvedena ZDE
Request for annulment
of the ruling of the High Court in Prague of May 28 2015, ref.no. 11 To 33/2015
and the ruling of the Regional Court in České Budějovice of March 31 2015, ref.no. 20 T 45/2011
Proposal for posing preliminary questions to the European Court of Justice
Miloslav Tetour, MCA
Dušan Dvořák, MMCA
Parties to the Court:
1) High Court in Prague
2) Regional Court in České Budějovice
Warrant of attorney
Ruling of the High Court in Prague
Ruling of the Regional Court in České Budějovice
and as indicated in the text
Specific violations of guaranteed rights
By the ruling of the Regional Court of České Budějovice of March 31 2015, ref.no. 20 T 45/2011 and the ruling of the High Court in Prague of May 28 2015 ref.no. 11 To 33/2015, the motion of the complainant for reopening of the court proceedings was turned down. The Complainant received the ruling of the High Court in Prague on June 30 2015, the period for filing a constitutional complaint by § 265a of the criminal procedure code and a cassation appeal to the Supreme Court ends on August 30 2015.
Against the above mentioned rulings, on August 7 2015, the Complainant fileswith the Constitutional Court the following
in which he protests the violations of notably
· article 36 article 1 and 2 of the Charter of Fundamental Rights, by which everyone may assert, through the prescribed procedure, her rights before an independent and impartial court or, in specified cases, before another body and also that unless law provides otherwise, a person who claims that their rights were curtailed by a decision of a public administrative authority may turn to a court for review of the legality of that decision. Judicial review of decisions affecting the fundamental rights and freedoms listed in this Charter may not be removed from the jurisdiction of courts.
· article 38 article 1 of the Charter of Fundamental Right, which states that no one may be removed from the jurisdiction of their lawful judge.
· Article 39 of the Charter of Fundamental Rightswhich states that only law may designate which acts constitute a crime.
1) The Complainant participates in the international legal, natural and economic research carried out by Cannabis is The Cure/Konopí je lék, headed by theBrazil based Open Royal Academy association, the EU headquarters of which are located in Germany. The association is represented by an international collective of physical and legal persons called Cannabis is The Cure, z.s.and based in Olomouc, Czech Republic as established by the founding charter of July 14, 2004. Olomouc also happens to be the place where international scientific research of the medicinal effects of cannabis started in the aftermath of the Second World War.There the Complainant was successfully developing fertilizer for medical cannabisusing earthworm digestion to facilitate enzymatic decomposition of the whole plant, including root.The productof that process was loose and liquefied, highly concentrated natural fertilizer, as documented in the police protocol from May 18, 2011 when police confiscated property of the Complainant (following which the Complainant was arrested and held in jail).Cannabis plants nourished by this natural fertilizer are strong, healthy and resilient to disease.Included in documentation as proofs are photos of the grown plants from the research farm facility in Ospělov taken during and before the third confiscation of material from the farm of the Head of research and his wife from August 30, 2011,,. It was at the research farm in Ospělov where the research organisation Konopí je lék, o.s. was established on July 14, 2008 and subsequently registered in the Czech Republic on August 7, 2008.
2) The Complainant was systematically and in accordance with his guaranteed rights, including but not limited to rights to health and scientific research, growing and processing cannabis plants, in accordance with the rulingof the European Court of Justice (ref.no. C‑137/09 (Josemans, article 36) and the rulingof the Supreme Court of the Czech Republic of January 30, 2008, ref.no. 3 T do 52/2008 (Collected rulings and court rulings no. 9/2008) regarding the right to research and to cannabis treatment. The Complainant was also acting in accordance with art. 29, article 5 the Act 167/1998 Coll, on Addictive substances (hereafterthe Addictive substances Act) in its original form before it was amended on April 1, 2013 by act 50/2013 Coll. without notification. The complainant was not under obligation to seek licence as his planted area was smaller than 100m2.The obligation to annually announce growing of cannabis to the customs administration does not arise until the planted area exceeds 100m2, as per the amendment to art. 29 of the Addictive substances Act, which went into effect on May 20, 2004 without being notified to the EU.
3) The Complainant grew, obtained, stored, processed and distributedcannabisfor experimental and industrial purposes, for which no licence was required in accordance with the Addictive substances Act at the time and. even at present, two major amendments to art. 5 of the Addictive substances Act later, a licence is not required for that.The changes brought to the Addictive Substances Act by the amending Act 50/2013 Coll. went into effect on April 1, 2013 without notification to the European Commissionand its effects include the lowering of limits of THC content volume to 0.3 % and the replacement of the phrase “…for experimental purposes…”, which the Complainant unsuccessfully referred to in each of his Constitutional complaints, by the phrase “…for gardening purposes…”. This technical regulation for production of medical cannabis was not notified to the EU as required by the Directive 98/34/EC until Act 273/2013 Coll. went into effect January 1, 2014.
4) The complainant specifically grew cannabis varieties defined for the purposes of Criminal lawsince January 1, 2010 by art. 289, par. 3 of the Criminal Codeas per Act 455/2009 Coll. Supplement 1.A.1 as a cannabis plant which after homogenization of the whole body of the plant including root does not exceed the THC volume threshold stated by the law of 0.3% THC.The Complainant was also acting in accordance with art 28 and 31 par. 1 of the Criminal Code as amended on January 1, 2010, because cannabis for medical purposes and research was not obtainable by other methods and his activities, which are beneficial for the society, could not otherwise be pursued. As of August 1, 2015, when the Health department announced its plan for putting the novelization of regulation no. 221/2013 Coll. into effect, the monthly costs of cannabis in pharmacies for citizens is over 50 000,- CZK (fifty thousand Czech crowns), which is approximately 2 000 EUR (two thousand Euro). Cannabis is a de facto weed, however it might also be one of the most useful plants in the world.
5) We quote a report made out by the Ministry of Labour and Social Affairs: “In the first half of 2014 the average retirement pension was 11 050 CZK. The average for men was 2 200 CZK higher than for women. By the end of June 2014, there were 2 866 146 pensioners in the register of Czech social security administration, receiving retirement, disability or survivors’ pensions. Out of the total, 2 353 691 persons were receiving retirement pension. That means that for each person receiving retirement pension, there are 2.1 taxpayers. According to the social security administration data, the ratio of taxpayers to pensioners was stable for the past 3 years, fluctuating around the 2.1 mark. The average retirement pension by June 30, 2014 was 11 050 CZK, the average for men being 12 237 CZK and 10 028 CZK for women (that is excluding situations when retirement pensions are combined with concurrent survivor’s pensions). Disability pensions averaged 10 274 CZK for third degree disability, 6 678 CZK for second degree disability and 5 964 CZK for first degree disability. Average for widow pension paid out without any other concurrent pensions was 7 247 CZK, 6 284 CZK for widower pension and 5 685 CZK for orphan pension.”
6) The cannabis sold in pharmacies had not, in violation of the Act on Pharmaceuticals, undergone clinical trials,. This significant fact was pointed out by the when the amendment to the Act on Pharmaceuticals and the Addictive substances Act (Act. 50/2013 Coll.) was proposed by the Chairman of the Committee for Healthcare, MUDr. Boris Šťastný, as well as by the Minister of Health, MUDr. LeošHeger,,,,,. There was no further debate on the issue and the documented requests for a legal resolution to the matter received no response either. The Open Royal Academy association responded to request of the Minister of Health, LeošHeger, and, following a meeting with him at the Ministry, offered him a legal resolution to the matter. The proponents of the amendment to the Act on Pharmaceutical included among others the President of the Chamber of Deputies, MiroslavaNěmcová, a signatory of the petition Medical Cannabis issued by the Department of Addictology of the Charles University,,,,. This petition was the third healthcare petition since the January 30, 2008 rulingdecriminalised medical use of cannabis. The two preceding petitions were initiated by the association Konopí je lék, o.s. and its Head of research (2008, 2010). In his response to the interpellations concerning preventing the putting of the Cannabis to Pharmacies act of March 21, 2013 into effect, the Minister of Health, MUDr. LeošHeger, stated that since its introduction he had been pointing out that it would only prove to be a highly lucrative business for the winner of the tender, while the medical cannabis would remain inaccessible to citizens. As was proven to the Court in Constitutional complaints issued by the Head of research as well as elsewhere,,and,the ratios of medically active substances in varieties of the cannabis plant can vary by hundreds of percent, the different varieties have hundreds of different levels of concentration of those substances, and consequently their pharmacological effects and reactions in patients can vary accordingly. This claim was documented and proven by analyses of experimental research to the Court by the Head of the Institute of Forensic Medicine and Medical Law of the University Hospital Olomouc and an expert witness to the Court, RNDr. Peter OndraCSc. The discoveries resulting from 220 years of his research are posted in the section “Documents and Studies” at http://www.konopijelek.cz in a summary presentation of the Head of research for Medical Conference Prague 2015, at http://konopijelek.blogspot.cz/ and on other servers. Section Documents and Studies also contains the unequivocal conclusion of a leading authority in the field of cannabis research and the author of the discovery of anandamide, the first known endogenous cannabinoid (1992), doc. RNDr. LumírHanuš, DrSc. From Hebrew University,,,. He states that because of the prohibition of research, we do not have sufficient data to properly determine suitable composition and concentration of the individual substances for treatment of diseases.Same would apply for treatment of injuries (burns, injuries of the head, bone regrowth, etc.). The proponents of the regulation no. 50/2013 Coll. without notification to the European Commission themselves noted the necessity of standardization and that the cannabis would not be intended for smoking, which they subsequently inexpertly assigned as the only allowed method, contrary to the methods of targeted transport of medical substances. Pharmacies thus sell only the female flowers of highly narcotic cannabis with minimum amounts of the cannabidiol (CBD), which is a significant healing agent and which reduces the narcotic effects of the cannabinoid THC.
7) Let us add apart from this Complaint that on planting areas exceeding 100 m2, only those varieties of cannabis which are subsidized, have undergone an EU THC content volumetesting and are registered in catalogue of varietiesby the EU are legally allowed to be grown. Article 29 of the Addictive substances Act, which was not notified to the EU contradicts a ruling of the European Court of Justice which ruled in C 59/11 Kokopelli Association v GrainesBaumaux SAS in favour of the right of European subjects to grow and trade not only plants which are for grown profit and trade and which are subject to registration in variety listings, but also plants which contribute to landscape conservation, cultural diversity and protection of cultural heritage. Who remembers today how tall apple tress used to be, when apple orchards of today are but rows of bushes?
8) At the same time, the Complainant was not under obligation to seek licencedue to legal facts ensuing from EU law and judicature of the European Court of Justice. A number of articles of the European Charter of Fundamental Rightsare being violated by unrestricted prohibition, but that is not the matter of this Complaint, instead we will focus on EU law. In violation of Directive 98/34/EC, Czech Republic did not notify its amendments to the Addictive Substances Act regarding the production of medical cannabis to the EU until May 21, 2012. Czech Republic also did not notify the European Commission concerning Act 50/2013 Coll. Cannabis to Pharmacies, with its crucial amendments to the Act on Pharmaceuticals and the Addictive substances Act, despite repeated warnings given by the Head of research to the Czech government,,, both of the Houses of Parliament,,,,,, and to the President of the Czech Republic,,. The notification to the EU was not given in spite of warnings which were sent to the Parliamentary Institute. The changes to sections 8 and 29 of the Addictive substances Act (in conjunction with section 24 par 1 of the Addictive substances Act) are technical regulations and as such, due to the fact that they were not notified, they are not legally enforceable. It was not and is not de iure possible to demand that the Complainant seek a licence for his activities.Let us also note that in some countries, at the time of their joining the EU, substances contained in cannabis were listed in their pharmacopoeia and companies such as Bedrocan (NL) or GB Pharmaceuticals (UK) were cannabis products for medical purposes (sprays, granules, herbs, resp. female cannabis flower)A cannabis seed oil had already been legally registered in the Czech pharmacopoeia at the European Commission and since April 2011, they have been joined by Sativex, a compound of CBD and THC, two cannabinoids with healing properties (for which a patient has to pay 25 thousand CZK, which is approximately 1 thousand EUR, per month of therapy). In 2009 a synthetic THC cannabinoid under the trade mark Dronabinolwas introduced to the Czech pharmacopoeia by transcription from pharmacopoeia of another country, but it is neither produced in the Czech Republic, nor imported into it.
9) The only activity prohibited without a licence, which however the Complainant did not practise, is the separation of resins from cannabis plant, under art. 15 e) of the Addictive substances Act. Even after the unnotified amendment to the Addictive substances Act with the Cannabis to Pharmacies Act which has been in effect since April 1, 2013, according to art. 15 e) of the Addictive substances Act, no authority can issue a permission for production of cannabis based medical products such as cannabis resina. The law does not even allow the extraction of the CBD cannabinoid from non-narcotic cannabis, let alone the extraction of THC from narcotic cannabis. According to scholars from the Charles University, the rector of which, MUDr. Tomáš Zima was the expert backer of the Cannabis to Pharmacies Act and whose Department of Addictology was the initiator of Act 50/2013 Coll., the legislators have appointed smoking as the only legal way of ingesting the cannabis (moreover, only highly narcotic cannabis is allowed), which constitutes one of the least efficient methods, although it may alleviate symptoms of some illnesses for a number of people (a vaporizer is charged separately). State Institute for Drug Control (hereafter SIDC) also published on its website that the cannabis from pharmacies, which costs app. 300 CZK/gram, should be brewed as a tea. When the Head of research asked for an explanation of the meaning of article 15 e) of the Addictive substances Act, how exactly would a judge, a physician, a policeman, a pharmacist, but most crucially, a common citizen would understand it, it became evident that there is not a clear definition.The Complainant believes that the production of cannabis based fertilizers for the purposes of production of medical cannabis and the production of ointments and tinctures equals transformation and dilution of the substances contained in cannabis rather than their isolation or separation. All legal authorities, including the Court and governmental bodies have answered that they do not have information concerning this interpretation, specifically the Court provided no answer when asked under the 160/199 Coll. Act. The Complainant believes that the public body obliged to provide information is the Ministry of Health as the sponsor and coordinator of the Addictive substances Act, as well as any Court which does not disclose the reasoning of their judgement.In spite of the fact that the Minister of Health, MUDr. BohuslavNěmeček ordered on June 6, 2014 under ref.no. MZDR 27796/2014-2/PRO at the request of the remonstrance committee that information concerning the article in question, as well as other ambiguities within the Addictive substances Act such as three completely different definitions of cannabis regarding its content volume of active substances or certain unorthodox interpretations of the Addictive substances Act be disclosed to a nongovernmental organisation which was participating in related research and a cofounder of the Cannabis educational clinic, even with multiple complaints to the Minister, deputy ministers, the internal audit and inspection department and a direct order from the Minister of Health, the officials have not disclosed the information yet.
10) For his above mentioned actions of providing medical aid to himself and others, the Complainant was convicted as the perpetrator of especially serious felony, unlicensed production and handling of psychotropic substances according to art. 283 par. 1 and 3 c) of the Criminal Code in the stage of attempt and he was put under arrest and subsequently sentenced tothree years of imprisonment in a high security prison and under art. 70 par. 1 a), b) and c) of the Criminal Code, his property was confiscated. The Complainant refers the Court to the witness testimony given by MUDr. Jana Budařová in the trial and listed in the court’s file and adds that in 2010, she was the chairperson of the expert society Konopí je lék, o.s.
11) The complaints lodged with the Minister of Justice by dozens of citizens and nongovernmental organisations from the Open Royal Academy association for breach of law to the detriment of the Complainant and requests for his immediate release from custody and prison were all declined without explanation,.
12) Is it known to the Constitutional Court that 50 years after the conference Cannabis as cure held in Olomouc on the Human Rights Day on December 10, 1954, the European Parliament adopted a set of recommendations regarding EU drug strategy, which include the abolishing of the current prohibitionist policies that lead to tragedies and are detrimental to citizens, and that so far these recommendations have never been implemented into national policies of the EU member states? Is it known to the Court that scientists and physicians from Europe and America have passed a declaration stating that access to cannabis treatment is a human right[LS1] [LS1]? Is it known to the Court that nongovernmental organisations from the whole world, uniting patients who use medicinal cannabis, have in in Prague on March 8, 2015 signed a memorandum addressed to the United Nations, asking for the abolition of the prohibition policies and that representatives of the UN have issued a public apology, condemning the policy as scientifically and morally untenable and spoke of recodification of cannabis at the March 2016 United Nations conference in Vienna as a substance not subject to strict control, because it is evident that these policies are not only scientifically untenable, immoral and detrimental to the whole society, but more importantly also in contradiction with the international agreements and laws on public health? Is it known to the Constitutional Court that cannabis cures cancer and other diseases? As the Head of research has repeatedly proven to the court, cannabis is one of the safest medicaments in the world and its risks are trivial compared to the enormity of the benefits it provides,.
13) It is surprising that in its findings ref.no. P1 ÚS 13/12 from July 21, 2013, the Court did not declare art 289 par 3 of the Criminal Code to be in contradiction to the art. 39 of the Charter of Fundamental Rights when they declared paragraph 2 of the same to be so. The supplement 1.A.1 (amendment to the order 455/2009 Coll.) to the purposefully amended order 3/2012 Coll. of the Nečas and Pospíšiladministration, in effect from January 5, 2012, declared a highly unorthodox legal norm defining cannabis sample taking for determination of THC volume content for the purposes of Criminal law. This norm is in abject contradiction not only to the EU norm for determining non-narcotic cannabis with less than 0,2% THC volume, but also to all three definitions of cannabis according to art 3 d) of the Addictive substances Act, including the most strict one.The strictest of the three cannabis definitions from the Addictive substances Act is the flowering top, which has the highest concentration of the medically active (prohibited) substance, THC. This definition, same as the one focusing on the gynoecium, should with regard to the principle of subsidiarity never be used for the purposes of Criminal law. However, when police confiscates even hundreds of kilograms of cannabis, samples of mere grams of unidentifiable segments of the cannabis plant are used for analysis, without calculations accounting for the weights of seeds, branches, stem and the root. It was the administration of Jan Fischer and Daniela Kolářová, which on December 17, 2009 strengthened the security of citizens provide by the judicature, keeping in mind the proximity of coming into effect of the new Criminal Code prepared by the Topolánek and Pospíšiladministration, which would for the first time in the history of this country as of January 1, 2010 prohibit the growing of cannabis. That was the reasoning behind why police was supposed to always measure THC volume content from the whole body of the plant including its root according to order 455/2009 Coll. (supplement 1.A.1). However, that never happened. The police did not even measure, nor does it in the present, the THC volume content from the whole above-ground part of the plant including the flowering top, as prescribed in the Addictive substances Act. The police did not even measure the THC volume content of 60 30 cm high homogenised flowering tops of male and female plants 20 days before flowering and within 10 days of the onset of seed generation (a period of 30 days), as prescribed by the highly detailed methodological standard set by the EU, which prohibits the measuring of THC content volume from the dry matter and also prohibits the measuring during the specified month of the plants’ life cycle, because cannabis demonstrates significant deviations in the content volume of the measured substances outside of these specific parameters, the evidence of which was provided (to no effect) by the Head of research to the Court in the fourth constitutional complaint with proof. Police states that the limits have been exceededwithout weighing the cannabis according to the legally defined procedure, as is documented below in the interpellation to the Minister of Interior and supplements.
14) In reply to the interpellation of Martin Novotný, a Member of the Parliament and the former mayor of Olomouc, the Minister of Interior and the Regional Court in Brno stated to the request under Act 106/1999 Coll. that police bases their method for measuring THC content volume from the UN norm. The police however claims that their method is based onthe Addictive Substances Act and since January 5, 2012, they sometimes do and sometimes do not follow the government order 3/2012 Coll. The Supreme Court, on the other hand, claims in the judgement of May 20, 2015 ref.no. Tdo 181/2015 that the police method is based on the EU norm. None of these claims regarding what the police method is based on is verifiable. Verifiability is an essential attribute of Administrative law, let alone Criminal law!
15) In the view of the Complainant, the curtailing of liberties and guaranteed rights of citizens and confiscations of their properties based on the unorthodox procedures smuggled into the law in the form of legislative rule by government order 3/2012 Coll. supplement 1.A.1, in effect since January 5, 2012, after rejecting the complaints of the Head of research by the Nečas and Pospíšil administration, is not only a gross violation of art. 39 of the Charter of Fundamental Rights, but also a violation of art. 401 of the Criminal Code and it also constitutes criminal offences including, but not limited to endangering the safety of the public, failure to provide assistance, misuse of power and scaremongering. The police had likely been using this unorthodox method of measuring THC content volume in cannabis before the Addictive Substances Act came into effect in 1998, because as was stated by the police, they do not followlegislative changes in this matter and the measuring of the whole above-ground part of the plant in accordance with the Addictive Substances Act is being used at the request of police higher-ups.Although the director of the Criminology Institute states that the definition of cannabis for Criminal Law ingovernment order 455/2013 Coll. is a legal rule and as such irrelevant for the police, because the Addictive Substances Act takes precedence over it, he conceals the current practice had been used long before and that it was this police practice that was smuggled into the legal rule 3/2012 Coll. As is documented in the interpellation to the Minister of Interior, police refuses to disclose when, by who, under what reference number and with what wording of the method was this so-called recommended police method for determining THC content volume in cannabis issued.
16) The Complainant believes that Court expert reports have been legally unenforceableat least since May 20, 2004 when art. 29 of the Addictive Substances Act made it legal to grow cannabis on up to 100m2 without reporting it to authorities.
17) It is surprising that the Regional court in České Budějovice did not consider the provided and referenced proofs as new facts, learning the expert statement of the court expert doc. RNDr. Peter Ondra, CSc. and the leading chemist doc. RNDr. LumírHanuš, DrSc., who have proven with evidencebeyond doubt that the police never measured THC content volume in cannabis in accordance with the Addictive Substances Act,nor with the EU norm. The UN norm is intended for international drug smugglers. Among other facts, doc. Hanuš stated that there might be a difference in THC content volume of up to 7 percent between individual vertical segments of the same plant and that within a single strain of cannabis, one plant specimen can contain up to 26 times the volume of active substances compared to another. The deciding fact is not whether the laboratory quantitative analysis of THC content volume in the sample is carried out according to the EU norm or the UN one, the fundamental priority lies in the proper identification and determination of a representative cannabis sample for measuring.
18) It is astounding that, even though the Regional Court in České Budějovice accepted it as a new fact of significance that the amendments to the Addictive Substances Act were not notified to the European Commission as required by Directive 98/34/EC, the High Court in Prague did notaccount it worthy of consideration, nor of posing the preliminary questions to the European Court of Justice, even though the erroneous ruling of the Supreme Court ref.no. 8 Tdo 1231/2011 of October 27, 2011 was proven invalid by the notification of the amendment to the Addictive Substances Act with Act no. 273/2013 Coll., documented in the public database TRIS under ref.no. 2012/329/CZ. The High Court in Prague referenced this technically and legally erroneous judgment of the Supreme Court in order to avoid the obligation of posing the Preliminary Questions to the European Court of Justice according to article 267 par. 3 of the Treaty on the Functioning of the European Union and three separate court rulings. In these rulings, the Court stated that such action is in violation of the right to lawful judge and to just process.
19) The notification of two amendments to the Addictive Substances Act regarding the production of cannabis based products in art. 88 and art. 5 par. 5 of the Addictive Substances Act was carried out after the Head of research had repeatedly and unsuccessfully defended himself against them at the District Court, Regional Court, Supreme Court and the Constitutional Court and on April 13, 2012 the Court rejected his initial complaint without providing reasoning as unsubstantial with ref.no. II ÚS 664/12, and subsequently kept referencing this ruling for the three following complaints. Let us repeat that the amendment to art. 5 par. 5 concerning experimental research and industrial production of cannabis products, which was from April 1, 2013 allowed by Act 50/2013 Coll. only for cannabis with up to 0.3 percent THC volume content, was later notified to the Commission probably knowingly and intentionally by Act 273/2013 Coll. with the words “experimental purposes” replaced by the words “gardening purposes”. The new limit for manipulation with cannabis with up to 0.3% THC volume content was replaced in the notification of May 21, 2012 by the new amendment of the Addictive Substances Act with Act 273/2013 Coll. which came into effect on April 1, 2014. That was at the time when the Addictive Substances Act was being substantially modified in the Parliament because of the Act. 50/2013 Coll. Cannabis to Pharmacies, which was not notified to the European Commission.
20) The contested ruling (as well as the ruling of the Supreme Court in the matter of the cassation appeal of the Head of Research of May 20, 2015 ref.no. Tdo 181/2015) erroneously declared the notification of the Addictive Substances Act to the EU as unnecessary due to the application of the Regulation (EC) No 273/2004 of the European Parliament and of the Council of 11 February 2004 on drug precursors to the Addictive Substances Act documented in the referenced ruling of the Supreme Court of October 27, 2011 ref.no. 8 Tdo 1231/2011 and the ruling of the Court of April 13, 2012 ref.no. II. ÚS 664/12. Not only can EU regulations not be directly transposed into laws, but also cannabis is not a precursor. At the same time the stances of Czech Office for Standards and Ministry of Health have also been documented in the proceedings, which prove that the Addictive Substances Act is a technical regulation in the sense of Regulation 98/34/EC and is subject to notification to the European Commission, which previously the Ministry of Health as well as the government of the Czech Republic and the Court refused to accept.
- Preliminary questions for the European Court of Justice
I. Does article 267 par. 3 of the Treaty on the Functioning of the European Union have to be interpreted as preventing the Supreme Court from taking action, which the Supreme Court cites as reason to refuse to grant permission to pose preliminary questions to the European Court of Justice regarding the unenforceability of legal provisions of the Act 167/1998 Coll. on Addictive Substances (Zákon o návykovýchlátkách, henceforth Addictive Substances Act), based the on the finding of the Czech Supreme Court (ref.no. 8 Tdo 1231/2011) that the Addictive Substances Act transposes a legal provision of the European Community, specifically an EC directive, which however must not be transposed.
II. Given that following Act 362/2004 Coll. (CZ), which amends the Addictive Substances Act, the legal regime of growing hemp for research (experimental) and industrial purposes has shifted from regime under which growing hemp was not allowed without prior notice to authorities to regime under which growing hemp without prior notice to authorities is allowed up to a growing area of 100m2 per person, does § 29 of the Addictive Substances Act represent a technical regulation in the sense of art. 1 par. 11 of the directive 98/34/EC and is it thus, considering that this clause has not been notified to the European Commission in accordance with art. 8 and 9 of the directive 98/34/EC, unenforceable in terms of the European Court of Justice ruling concerning C-194/94 CIA Security International, point 55?
III. Does the European Commission regulation(EC)No. 1122/2009 for determining of narcotic and non-narcotic hemp varieties following the “Community method for quantitative determination of Δ9-tetrahydrocannabinol content in hemp varieties” (Annex I of the regulation from November 30, 2009), have to be interpreted as preventing other methods for determining Δ9-tetrahydrocannabinol content in hemp varieties and their narcotic effects, than the method listed in the regulation from being enacted?
IV. Does art. 5 par. 5 of the Addictive Substances Act represent a regulation in the sense of art. 1 par. 11 of the Directive 98/34/EC since its amendment by Act (CZ) 50/2013 Coll. establishes a new THC content threshold for research (experimental) and industrial purposes, up to 0, 3 % THC content, and is it thus, since the clause has not been notified to the European Commission in accordance with art. 8 and 9 of the directive 98/34/EC, unenforceable in terms of the European Court of Justice ruling concerning C-194/94 CIA Security International, point 55?
V. Does art. 5 par. 5 of the Addictive Substances Act represent a regulation in the sense of art. 1 par. 11 of the Directive 98/34/EC since it changes the legal regime of manipulation with addictive substances from regime under which licences for manipulation with addictive substances could not applied for to a regime under which licences for manipulation can be applied for in accordance with Act No. 141/2009 Coll. (CZ), which amended the Addictive Substances Act and is it thus, considering that this clause has not been notified to the European Commission in accordance with art. 8 and 9 of the directive 98/34/EC, unenforceable in terms of the European Court of Justice ruling concerning C-194/94 CIA Security International, point 55?
VI. Does art. 9 of the directive 98/34/EC have to be interpreted as preventing the passing of a regulation without delay for urgent reasons according to art. 7 of the directive for national regularization such as Decree No. 221/2013 Coll. which states the conditions for prescription, preparation, dispensing and use of individually prepared pharmaceutical agents (CZ), which states the requirements for the properties of medicinal hemp?
VII. Does art. 24a of the Addictive Substances Act represent a regulation in the sense of art. 1 par. 11 of the Directive 98/34/EC as it establishes the requirement of having a licence for growing hemp and is it thus, since the clause has not been notified to the European Commission in accordance with art. 8 and 9 of the directive 98/34/EC, unenforceable in terms of the European Court of Justice ruling concerning C-194/94 CIA Security International, point 55?
VIII. Does art. 24b of the Addictive Substances Act represent a regulation in the sense of art. 1 par. 11 of the Directive 98/34/EC as it requires that all medicinal hemp be turned in to the State Institute for Drug Control and is it thus, since the clause has not been notified to the European Commission in accordance with art. 8 and 9 of the directive 98/34/EC, unenforceable in terms of the European Court of Justice ruling concerning C-194/94 CIA Security International, point 55?
IX. Does article No. 34 of the Treaty on the Functioning of the European Union have to be interpreted as estopping national regulation such as Act No. 378/2007 Coll. on pharmaceuticals (CZ), Addictive Substances Act and decree No. 221/2013 Coll. (CZ), since these regulations set the requirements for the properties of medicinal hemp which de facto has to be imported from the Netherlands where it is grown for use as a narcotic and which is demonstrably less suitable for medicinal purposes than other (nationally produced or imported) strains of hemp, including non-narcotic hemp strains and non-narcotic methods of application of narcotic hemp, which are not allowed for medicinal use?
X. Considering the findings of the European Court of Justice in C-137/09 Josemans, which explicitly state the admissibility of using narcotic substances such as hemp for medical and research purposes, does article No. 34 of the Treaty on the Functioning of the European Union have to be interpreted as estopping national regulation which only allows the use of medically unsuitable hemp (imported from the Netherlands), primarily intended for intoxication and under legal sanctions prohibits all growing, research and use of other (nationally produced or imported) hemp strains, which would be more suitable for medicinal purposes?
XI. Does art. 15 e) of the Addictive Substances Act represent a regulation in the sense of art. 1 par. 11 of the Directive 98/34/EC as it changes the legal regime of separation substances from hemp for research and medical purposes from regime where this was not allowed to a regime when it may be allowed based on Act No. 50/2013 Coll. (CZ) which amended the Addictive Substances Act and is it thus, since the clause has not been notified to the European Commission in accordance with art. 8 and 9 of the directive 98/34/EC, unenforceable in terms of the European Court of Justice ruling concerning C-194/94 CIA Security International, point 55?
In view of the above mentioned facts, the Complainant proposes that the Constitutional Court issue the following
Ruling of the Regional Court in České Budějovice of March 31, 2015 ref.no. 20 T 45/2011 and the ruling of High Court in Prague of May 28, 2015 ref.no. 11 To 33/2015 are hereby annulledas being in contradiction of constitutionally guaranteed rights.
ref.no. I. ÚS 2431/15
Expert statement of the Faculty of Science of the Palacký University in Olomouc
On August 7, 2015 the Complainant filed a Constitutional Complaint against the ruling of the Regional Court in České Budějovice of May 28, 2015, ref.no. 11 To 33/2015.
The Complainant further amends this Constitutional Complaint with the expert statement of the Faculty of Science of the Palacký University in Olomouc ref.no. UPOL 489216-NEVě-UPOL-100329/3900S, issued on August 10, 2015 (that is, issued after the Constitutional Complaint had been filed), from which it can be indisputably concluded that:
a) Cannabis is not a precursor, from which it follows that Directive 98/34/EC may not be applied into Czech law, as the High Court claims in its ruling – besides, this notion has also been adopted by probably all the courts dealing with the cannabis issue. This claim, which by the way requires expert knowledge to be substantiated and cannot be reached purely by the court’s deliberation, contradicts the reasoning for denying access to the European Court of Justice by posing preliminary questions when it is evident that no due notification of the regulation was made so far, which substantially affects the legal situation of the Complainant, his right to a fair trial, or rather of the principle that only law can determine what constitutes a criminal offence.
b) If we use different segments of the cannabis plant for determining its THC content volume, we will reach different conclusions about the THC content volume in the plant as a whole, while it is necessary that the authorities participating in prosecution base their conclusions concerning the THC content volume on the same samples (segments) of the plant.
The Complainant further amends this Constitutional Complaint with the ruling of the Constitutional Court ref.no. SPR ÚS 578/15 and SPR ÚS 433/15 (see also http://pravnistat.blogspot.com/) as evidence that:
1) The by the High Court referenced ruling of the Supreme Court ref.no. 8 Tdo 1231/2011, resp. II. ÚS 664/12 on the obligation of obtaining a licence for growing cannabis as per art. 29 of 167/1998 Coll. if the planted area for growing does not exceed 100 m2 per person is not supported by any evidence because art. 29 of 167/1998 Coll. as amended on May 20, 2004 states, while growing cannabis on planted area exceeding 100 m2 per person must be notified to the Customs Office, there is no designated authority which should be notified if the planted area does not exceed 100 m2 per person.
2) There is no court practice for determining proper cannabis samples for THC content volume measuring. In spite of the fact that measured THC content volume using different samples, e.g. male or female flower, gynoecium, the flowering top, the whole herb or its above-ground part including root, will vary greatly and in spite of the fact that there is no evidence proving that police ever measured the THC content volume according to the sample and procedure set by the EU, as stated by the Supreme Court in ref.no. 11 Tdo 181/2015; and that there is no proof documenting that the police ever measured THC content volume according to any of the three definitions of cannabis sample stated in Act 167/1998 Coll. The Complainant was growing varieties of cannabis defined for Criminal law since January 1, 2010 in art. 289 par. 3 of the Criminal Code by Government Order 455/2009 Coll. supplement 1.A.1 as cannabis plant which after the homogenisation of the whole body of the plant including root does not exceed the legally stated THC content threshold of 0.3% THC. However, the police had never used a sample and plant definition to measure THC volume content.
3) There is no court practice supporting the erroneous statement that a Regulation of the EC can be applied directly into law, which the Supreme Court stated in ref.no. 8 Tdo 1231/2011, resp. ref.no. II ÚS 664/12 as grounds for refusing to pose preliminary questions to the European Court of Justice.
The UN requests that limitations on growing area for poppy and cannabis be defined. Southern America countries request that limitations for coca be invalidated for them as the declare the plant a part of their cultural heritage.
Ref.no. II. ÚS 664/12, IV.ÚS 4859/12, II. ÚS 1311/13 a II.ÚS 289/14
 The legal limit for purchase of cannabis allowed by the Ministry of Health as of August 1, 2015 is 180 grams
 Quoting from the referenced web:” August 16, 2011: a petition committee of 10 people, physicians, researchers, representatives of patients and of the general public is publishing petition http://www.lecebnekonopi.cz/, which will pique the interest of the media and politicians alike. The first to join the petition just a day after its publishing is the President of the Chamber of Deputies, MiroslavaNěmcová.
European Court of Justice: ref.no.. C -194/ 94 and C-390/99. European Court of Justice applied the consequences of violation of the obligation to notify according to Directive 98/34/EC also in trials ref.no. C‑267/03 and C-20/05.
 Request for the text of the ruling ref.no. ÚS 433/15-2 of June 7, 2015
see II. ÚS 664/12, IV.ÚS 4859/12, II. ÚS 1311/13 and II.ÚS 289/14
 The Supreme Court was equally rejecting in its ruling of May 20, 2015, ref.no. 11 Tdo 181/2015 concerning the cassation appeal of the Head of Research
The findings of the Constitutional Court of Czech Republic ref.no. II ÚS 1009/08 of January 8, 2009 concerning Pfizer, articles 22 and 30, alsoref.no. II. ÚS 1658/11 of November 29, 2011 a ref.no. II. ÚS 2504/10 of September 10, 2012