Last Updated on September 1, 2022 by LawEuro
Information Note on the Court’s case-law 265
August-September 2022
Judgment 1.9.2022 [Section I]
Article 8
Article 8-1
Respect for private life
Applicant’s conviction and fine for manufacturing cannabis for personal treatment of chronic pain, without prescription, within State’s wide margin of appreciation: no violation
Facts – The applicant suffered serious injuries after a traffic accident that confined him to a wheelchair and left him with severe chronic pain. After having tried a form of medical cannabis authorised on the Swedish market without noticeable effects, he decided to treat himself by illegally growing his own cannabis for his own consumption. Its use improved his quality of life significantly. Criminal proceedings were brought against the applicant, the case being appealed up to the Supreme Court. He was eventually convicted of manufacturing narcotics and a fine of approximately EUR 520 was imposed on him.
Law – Article 8: Both the conviction and the fine had entailed an interference with the applicant’s right to respect for his private life. In this context the Court’s case-law on the inability of patients to access certain medical treatments, which it had examined under Article 8, was relevant. Further, the interference had been in accordance with the law and had pursued the legitimate aims of “the prevention of disorder or crime” and “the protection of health or morals”.
As to whether it had been “necessary in a democratic society”, the Court noted that the issue to be examined was whether the domestic authorities had violated the applicant’s right to respect for his private life when not exempting him from the general criminal liability that would normally attach to the acts in issue relating to the production and consumption of narcotics, on the basis of the grounds that he had invoked for being exempt; namely that his acts had been within the scope of the necessity defence under Swedish law: he had acted out of “necessity” and his acts had not been otherwise “unjustifiable” within the meaning of the Criminal Code.
In so far as the domestic courts might at all be said to have carried out a balancing exercise with regard to the applicant’s conviction as such, this had been effectively limited to pointing out that, although he might have acted out of necessity, his acts had in any event been unjustifiable. This was because the matter had been regulated by the existing domestic legislation on the control of narcotics and on approving and licensing medicines and had thus been contrary to the balancing of the interests already carried out by the legislature. Instead, the individual circumstances of the applicant’s case had been taken into account when deciding on the punishment, at which point the Supreme Court had made an overall assessment of the circumstances of the case.
The question before the Court, in contrast to the foregoing, was whether, viewing the domestic proceedings as a whole, the authorities had struck a sufficiently fair balance between the competing interests. The authorities’ interest in the applicant’s specific case had been principally to ensure the observance and enforcement of the domestic legislation relating to narcotics and medicines, whereas the applicant’s interest had lain in finding a way to alleviate his pain. However, the case did not concern the freedom to accept or refuse specific medical treatment, or to select an alternative form of treatment, which was vital to the principles of self-determination and personal autonomy. It concerned the unlicenced production and use of narcotics, an area in which the domestic authorities had a wide margin of appreciation.
The Supreme Court had not called into question the applicant’s submissions about his pain and that the cannabis that he had produced had helped against it; nor that the medicines he otherwise had had access to had been either less effective at alleviating his pain, had side-effects that he had reasonably wished to avoid, or had been costly. At the same time, it had found it understandable that the applicant had turned to cultivating and using cannabis and that the offence had been in a way excusable. It had also considered that this had not been a case with any particular risk of dissemination of narcotics and, in that context, that the cannabis in question did not contain high levels of THC (and therefore deemed of limited interest for any person seeking intoxication). Consequently, the Supreme Court had classified the applicant’s acts as only a minor offence and had set the fine at an amount which was less than what would normally be considered a fair punishment for an offence involving the amount of cannabis in issue. It had taken the applicant’s interest in finding effective pain relief into account and had reflected it principally in setting the fine at the level that it did.
There was no indication that the applicant had lacked the means to pay that fine, that its payment would for other reasons have been particularly burdensome to him or that the punishment had had other negative consequences. In that context, it was relevant to the Court’s overall assessment that although the authorities of the respondent State had punished the applicant for his unauthorised cannabis production, while the domestic proceedings had been pending, they had also licenced a prescription for him of a lawful medicine that had apparently been effective in alleviating his pain.
The Court emphasised that the issue to be determined was not whether a different, less rigid, policy might have been adopted but rather whether, in striking the particular balance between the competing interests, the Swedish authorities had remained within their wide margin of appreciation. Against the above background, the Court found that those authorities had not overstepped that margin.
Conclusion: no violation (unanimously).
(See also Hristozov and Others v. Bulgaria, 47039/11 and 358/12, 13 November 2012, Legal Summary; Durisotto v. Italy (dec.), 62804/13, 28 May 2014)
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