The Czech Republic Annual Report 2010 Drug ... - Drogy-info.cz

ange applies to addictologists who have acquired a bachelor’s degree in the field. It is assumed that an amendment
to the decree will be adopted which should also involve the extension of the salary range that would include the
graduates of master’s studies in addictology.
In relation to the above, the Health Ministry’s Decree No. 55/2011 Coll., concerning the activities of health
professionals and other practitioners, was issued in 2011. It sets out specific activities which an addictologist is
allowed to perform either without a physician’s expert supervision and indication or on the basis of a physician’s
indication or expert supervision.
1.1.1.6 Proposed Changes in Relation to Compulsory Treatment and Security Detention
In summer 2011 the Parliament of the Czech Republic considered an amendment to Act No. 40/2009 Coll., the
Penal Code, and Act No. 141/1961 Coll., on criminal proceedings (the Code of Criminal Procedure) which, if passed
in the present wording 1 , will considerably moderate the conditions for the imposition of security detention orders on
drug users for both obligatory and optional reasons. As an innovation, the amendment provides that in specific cases
security detention may be imposed on the perpetrators of felonies (i.e. for offences carrying a prison sentence of a
minimum of 5 years), while the existing regulation makes it possible to impose security detention on the perpetrators
or repeated perpetrators of particularly serious crimes (i.e. criminal offences carrying a sentence of a minimum of 10
years’ imprisonment). If adopted, the legal regulation as proposed would lead to a dramatic extension of the range of
possibilities for imposing security detention on problem drug users. This wider range of possibilities emerges in
combination with the fact that repeated offending, even if it only involves small-scale dealing in drugs or the
manufacturing of drugs for personal use, has been regarded as a circumstance conditioning the application of a
stricter punishment range of 2–10 years since the effective date of the new Penal Code (Section 283, Subsection 2,
Letter b) of the new Penal Code).
In addition to the moderation of the conditions for the imposition of security detention, the amendment also allows for
the dramatic loosening of the terms governing the change of compulsory treatment to security detention by modifying
Section 99 (5) of the new Penal Code. As an innovation, a court might change institutional compulsory treatment to
security detention if compulsory treatment imposed on and undergone by a person does not fulfil its purpose or does
not provide sufficient protection for the public, particularly in cases where an offender escapes from a healthcare
facility, uses violence against the staff of a healthcare facility or other individuals undergoing compulsory treatment,
and/or repeatedly refuses to accept examining or treatment interventions or otherwise expresses a negative attitude
to compulsory treatment. In the most extreme cases, the offender’s “otherwise expressing their negative attitude to
compulsory treatment” may also provide grounds for compulsory treatment being changed to security detention.
Among drug users, however, the aforementioned conditions may be a common sign of a lack of motivation to
treatment as part of the compulsory treatment order, which is usually addressed using motivational work with the
client. Such a vague definition of the terms for compulsory treatment being changed to detention poses a potential
danger of the instrument of security detention being overused.
1.1.2 Implementation of Laws
The changes in the practical application of the legal norms concerning illegal drugs are immediately associated with
Act No. 40/2009 Coll., the Penal Code, coming into force. In 2010, both the new Penal Code and the previous penal
code defined by Act No. 140/1961 Coll., effective until 31 December 2009 (the old Penal Code), were applied by the
courts in deciding about primary drug-related crime, as the punishability of an act is considered in the light of the law
that was effective at the time when the offence was committed. The more recent legal regulation is only applied
when it is more favourable for the offender. Thus, as regards criminal offences committed prior to 1 January 2011,
the court had to consider which of the two criminal codes was more favourable for the offender. This issue was also
addressed in the decisions of the Supreme Court of the Czech Republic. Another area of problems concerned the
assessment of the scale (significant, substantial, and large) of the perpetrators’ involvement in primary drug-related
offences in the light of the new legal regulation. It may be concluded that, to a significant degree, it should also be
possible to make use of the existing case law decisions in applying the new Penal Code. Of all the decisions, the
Resolution of the Supreme Court of the Czech Republic, Case File 4 Tdo 827/2010, dated 15 September 2010,
should be highlighted. In this ruling, the court also concluded that the scale of the perpetrator’s offending against a
child should be assessed in stricter terms than the same scale of offending against an adult consumer. In this
respect, thus, the new judicial practice should differ considerably from the previous verdicts. No other decisions on
how to address certain ambiguities arising in association with the application of the new Penal Code (such as those
involving the possession of small quantities of multiple substances for personal use and the cultivation of medicinal
cannabis) have been handed down as yet.
As for the practical application of provisions governing the misdemeanours of the possession of a small quantity of
drugs for personal use and the cultivation of a small quantity of plants or mushrooms containing narcotic or
psychotropic substances for personal use, Section 30 (1) (j) and (k), respectively, of Act No. 200/1990 Coll., on
misdemeanours, it may be stated that, given the number of drug users, or the number of people in the Czech
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http://www.psp.cz/sqw/text/tiskt.sqwO=6&CT=297&CT1=0 (2011-09-06)
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