In Poland, possession of drugs is not a criminal offence…

The issue of possession and use of drugs has been very controversial in Poland for years, and from time to time the demand for legalisation of these substances appears on the banners of various political parties. Still, under the current legal regime, possession of even minimal amounts of narcotic or psychotropic drugs is always a prohibited act, never a misdemeanour, and regardless of the quantity. Under the provisions of the Act, neither possession of prohibited substances for so-called personal use, nor their small amount, is relevant to fulfilment of the statutory attributes of an offence.The legal regime in our country remains unchanged, despite the very visible trend in both Europe and the United States to legalise possession of many substances described as narcotic (examples include the USA, Canada, Portugal, the Czech Republic or the notorious Netherlands). Recently, regulations in this area have been changed in Germany, where possession of cannabis for personal use will be permitted from 1 April 2024. Interestingly, according to the regulation in force in our western neighbours, the permitted use is 25 grams of cannabis 😉 As far as the legal state is concerned, it is still very restrictive in Poland and the practice of law enforcement agencies leaves much to be desired. I have occasionally seen indictments in which the charge was possession of a so-called “barrel“ with a burnt content of an unspecified substance.However, I think I am not exaggerating if I say that in recent years, a significant proportion of the “possession” cases I have handled have ended successfully for my clients. All the more so when we recently heard an acquittal –how did that happen?As usual, the devil is in the detail, which is why it is necessary to look at specific cases.Firstly, I would like to mention the case of a client who was hypothesised to have a substance that, firstly, belonged to him because it was found – in short – in the room he occupied. Secondly, it was verified, by means of an expert opinion, what the substance was in fact… After the indictment was handed down, it turned out that none of the above-mentioned assumptions had any validity.Why? It turned out that the charging decision had suspected that the substance in the suspect’s possession was narcotic X. There was evena kind of “preliminary” expertreport on the matter. A kind of “preliminary” expert opinion had even been drawn up on the subject. However, even at the pre-trial stage, as a result of the expert’s opinion, it was established that this substance had changed its form into substance Y, which should have aroused the astonishment and reflection of the law enforcement authorities. After all, they were dealing with a kind of magical transformation of one substance into another, just like in the biblical story of the changing of water into wine.If the pre-trial proceedings were a field for literary talents, then perhaps such a situation would be acceptable. However, the reality of a criminal trial is more brutal and such an inaccuracy should have been clarified already at the pre-trial stage.This did not happen, however, and the trial moved on.This turn of events required verification of what was actually among the material evidence in the case and why the type of substance had been changed. Or was the wrong substance handed over for testing?Furthermore, it was not fully clarified to whom the substance actually belonged, and whether it was X or Y? After all, no one, during the pre-trial proceedings, claimed that the suspect possessed both, and quite rightly so, as such claims were not supported by any evidence. A further fundamental question therefore arose: the possession of which substance was referred to in the indictment? For possession of a prohibited substance must be concrete and verified as to place and time, but in order to carry out such verification, one must know what to verify.That’ s it and that’s it. ..With so many doubts, the case turned out to be a bit time-consuming, but, most importantly, it found its happy ending in the form of an acquittal:. It can be said that in the case in question the law enforcement authorities were simply in a hurry to close the investigation and such a situation could have been avoided. However, everything depends on the chosen procedural tactics and it is not always the case that immediately pointing out mistakes necessarily has the desired effect. It was no different in other cases in which, knowing the haste of the law enforcement authorities, I requested the return of indictments. Of course, the choice of appropriate procedural tactics is always an individual matter, nevertheless, experience in such cases shows that proceedings in “possession” cases are conducted very quickly and an indictment is quickly drawn up, interestingly, not always against the right person. This, of course, requires us lawyers to prove our case, but should always result in an acquittal. Of course, irrespective of the amount of drugs the accused is alleged to have possessed, as in the following case:Finally, one of perhaps the most interesting decisions, certainly precedent-setting. It would seem that proceedings in the case of possession of narcotic drugs in the form of cannabis and hashish in amounts of 50 grams each must not only find their final outcome in court, but must be concluded with a conviction, sometimes with imprisonment. However, in one of our cases, not only did such proceedings not go beyond the framework of preparatory proceedings, but they ended with discontinuance of the case, and the Client remains an unpunished person.Already at the pre-trial stage the proceedings were discontinued due to… possession of narcotic drugs in insignificant amount and intended for personal use😊 Of course, such a course of action is envisaged by the Act on Counteracting Drug Addiction, nevertheless it is undoubtedly surprising to read such a qualification of a total of 100 grams of prohibited substances.As I indicated at the beginning, the law in Poland is sometimes restrictive, but in practice it happens differently. Here is the ruling:

It can be said that the Client won the above-mentioned case by a whisker: it never went “to court”, and as there were no other parties in the case, it was not appealed either. Although I cannot disclose the details of the case and the reasons leading to the decision in question, I must emphasise that in this case neither the notorious Article 60 of the Criminal Code nor any other agreement with the prosecutor was applicable.Thus, as can be seen from the above examples, although the Act on Counteracting Drug Addiction is a very restrictive regulation, in practice, in the situation of an indictment, the situation does not always appear as deplorable as it does at first glance, and criminal liability is conditioned – after all – by several premises that require verification. When devising trial tactics for a particular case, it is important to think ahead and the work of the defence counsel may be guided by the words of Napoleon Bonaparte: “Never disturb your enemy when he makes a mistake“.