Comments concerning the application into judicial practice of the provisions of art. 4, from Law No. 143/2000 on countering the illicit drug use and traficking

Author:Traian Dima; Lamya-Diana Al-Kawadri
Pages:9-15

Traian Dima. Professor Ph.D., Faculty of Law, “Nicolae Titulescu” University, Bucharest (e-mail: traian.dima@univnt.ro).

Lamya-Diana Al-Kawadri. Teaching Assistant, Faculty of Law, “Nicolae Titulescu” University, Bucharest (e-mail: ldk@univnt.ro).

Page 9

Introduction

Concerned about preventing and fighting1 against drug use and illegal drug trafficking, in order to protect public health and the individual against drug addiction, the Romanian legislator decided by Law no. 143/20002 to accomplish this through two means. On one hand, through medical measures, on the other, through criminal law measures.

Therefore, according to art. 27, paragraph (1), Law no. 143/2000, “doping with drugs under national control, without medical prescription, is forbidden on the territory of Romania”, andPage 10 according to paragraph (2) from the same article, “the person who illegally uses drugs which are under national control can be included, with one’s agreement, into an integrated program for assisting drug addicted people”.

As an expression of the provisions from art. 27, paragraph (2), Law no. 143/2000, the Government of Romania, by Decree no. 1.102/September 18, 20083, approved ‘The National Program concerning medical, psychological and social assistance of drug addicted for 2009-2012’. Through the introduction of this National Program, the fundamentals of a complex integrated set of medical psychological and social services have been established for treatment and social re-integration of drug addicted in our country.

Accordingly, at present, Romania has an adequate legal framework to solve medical and social problems which occur inevitably when drug consumers or addicted people are taken into account.

But, as we have stated, the Romanian legislator, by means of Law no. 143/2000, has introduced legal provisions through art. 4, from the above mentioned law, in order to protect public health and the individual against the danger of drug addiction.

As it has been emphasized in the doctrine, the incrimination from art. 4 has been conceived by the legislative power as an obstacle offence, to make the addressees of the criminal law not to use drugs which are under national control and to discourage them, by provisions of criminal penalties from practicing this bad habit.

By incriminating facts like growing plants which contain drugs, the production, fabrication, preparation or drug transformation, the legislator has done nothing else than to stop the addicted from carrying on activities which could help them obtain their own means or other ways, like buying them4.

Also, by incriminating such deeds, the legislator exerts a pressure on the drug addicted (or future drug addicted) to restrain from developing banned activities which could help one produce above the drugs for one’s own use. If one still buys and possesses drugs, one will have to answer in front of the law for such penalty5.

Studying legal practice of the field after the year 2000, we have concluded that the interpretation given about applications of art. 4, from Law no. 143/2000, made by some legal authorities, is not unitary, and there are different points of view. Consequently we are going to present two concrete cases from the legal practice, the way they have been solved by legal authorities, and then we will give some theoretical explanatory notes about the specific features of the offence stipulated for in art. 4, Law no. 143/2000, about possessing drugs for own use, without being allowed to.

1. Through legal decision no. 336 from March 16th 2005, the Law Court from Bucharest disposed discharge for P.M., the defendant, proceeding from art. 11, point 2, letter a), connected with art. 10, par. (1), letter d) Code of legal procedure, for having committed the offence mentioned in art. 4, Law no. 143/2000. In order to pass this sentence, the court of first instance memorized the following situation:

On June 16th, 2003, at a search at C. I.’ s place of residence, known as a heroine dealer, the policeman identified the so-called P.M. in the apartment. Questioned, the above mentioned P.M.,Page 11 who had the sum of 50 RON on her declared she bad come to C.I.’s place of residence in order to buy heroine, as she was a consumer, and that she had bought heroine from him many times before, for her own use. When she was found and identified, the above mentioned P.M. did not possess any kind of drug bought from the above-mentioned C.I.

The above mentioned P.M. was sent to court by the Prosecutor’s Office from The Law Court of Bucharest for the offence of drug possession without being allowed to use any drugs for herself. In the bill of indictment, the Prosecutor’s office motivated sending in court for the defendant P.M., for the above mentioned offence, although she had not been found with any forbidden substances about herself when she was detained, with the reason that ‘the above mentioned, being a consumer of such substances, drug use necessarily supposes possession’.

To this situation, the Law Court of Bucharest disposed the discharge of the defendant on the basis that the case lacks the material evidence of the offence dealt with in art. 4, Law 143/2000, as this above mentioned person was not found illegally possessing drugs.

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