Article 29 par. 1 of Law 4139/2013
1. Whoever, for his own exclusive use, in any way procures or possesses drugs, in quantities justified only for his personal use or uses them or cultivates hemp plants in a number or area that are justified only for his personal use, shall be punished with imprisonment of up to five (5) months. The determination of the purpose of serving its own exclusive use is made by considering the type, purity and quantity of the specific drug, in combination with the frequency of use, the time of use, the daily dose and the special needs of the specific user.
The social danger of drug use has prompted the legislature to criminalize it. The legislator wants to protect the individual himself from drug use, but also society from the general side effects inherent in the spread of drugs.
The legislator with this provision punishes the independent perpetrator for the supply of etc. drugs for his own exclusive use, with the exception of the absolutely coincidental act (par. 2 of article 29 of law 4139/2013). However, if the perpetrator is dependent, this provision does not apply, but article 30 of law 4139/2013.
Supply means either in any way, in person or through a third party, possession of drugs in the possession of the perpetrator, who is also punished as the perpetrator.
Procurement is therefore considered the acquisition by the perpetrator of the drug, eg by import, purchase, offer from a third party but also by illegal act such as theft, robbery, fraud (Conventional 232/91, Pro 1992,149).
A supply can also be made by importing substances into a penitentiary (TrimeFir 251/99 Penal Code 2000,250)
The determination of the service of its own exclusive need for the specific substance is made by taking into account the type of quantity and purity of the substance as well as the diagnostic data of article 30, ie with psychiatric forensic expertise.
• It is not enough to characterize that a substance is intended for the exclusive use of the perpetrator only a small amount of it (AP 513/16 TNP LAW
• It was judged that the amount of 1.29 grams of heroin that he brought to prison for her drug addict friend who had kept it in his house is a small amount and therefore both should be referred to the present mild form of the crime (Supplement 14/15 Penalty 2016,166)
It was deemed that the supply for service of proven exclusive needs of the quantity of 596 grams of cannabis is not justified after a precision balance was found and the drugs were distributed in small doses (AP 1969/2003)
• It was considered that the present case of article 29 par 1 occurs on the supply of a small amount of cannabis or on the cultivation of five cannabis seedlings and no incarceration is ordered in a special treatment shop because Indian cannabis creates only mental and not physical dependence. 636)
It was also considered that the case of no.29 par. 1 (drugs for personal use) occurs:
• Purchase of 35 grams of heroin and 35 grams of cocaine (AP 1036/95)
• Quantity 1,274 grams. Raw Indian hemp for the perpetrator’s winter needs (EfTHes 1012/03 BC 2004, 461)
• 43 numbered separate wrappers (significant weight due to their large number), total weight of 324 grams of Indian hemp (2267/2017 ΕΝΦΘες ΤΝΠ ΝΟΜΟΣ)
Therefore, a good drug lawyer, if the circumstances allow, can achieve the characterization of even an initially large amount of drugs as a quantity for personal use.
Examples: lack of precision scales, great dependence of the user so that he needs a very large quantity for his daily needs, supply of a large quantity to make it all year round, etc.
The criminal treatment of the offender acts of paragraph 1 when measuring the sentence shall take into account the degree of harmfulness of each drug and the particular category to which it belongs. The charges are referred to in Article 1 and in this case the degree of harmfulness of the drug to the perpetrator himself is taken into account.
The present crime of paragraph 1 is cumulatively mixed, ie between the acts of possession supply for own use and cultivation of cannabis plants for the same purpose there is a real real confluence and for each act of them a separate penalty is imposed, even if they concern the same quantity drug and not a new sentence such as the provision of Article 20 (1) because in the present case Article 29 is not specifically defined in the prefecture. However, a total sentence of 94 et seq. Of the Penal Code (AP 86/2005) can be determined.
The provisions of paragraph 1 of this Article and those of Article 20 shall be mutually exclusive on the basis of the criterion of fraud of the same exclusive use or distribution
The potential impunity for a completely accidental act (par.2 no.29)
The perpetrator of the offense referred to in paragraph 1 may be deemed unpunished if the court, assessing the circumstances of the offense, considers that the criminal sentence was completely occasional and is unlikely to be repeated.
• “Impunity” means the court acquits him
• According to the jurisprudence, the use that is justified based on the special circumstances and the personality of the culprit as it is shaped by his age, his mental functions and the possibility of his judgment is accidental.
• Another key point that seems to be taken into account is the amount of the drug (AP 595/2005)
Based on the above criteria were judged unpunished:
Soldiers who made occasional use, one due to the pressure of his problems and the other out of sheer curiosity (Conv. 77/96 BC MST, 1338)
On the contrary, it was deemed that the use of small quantities supplied by the accused for 4 months was not accidental (AP 801/2000)
It was judged that the amount of 68.8 grams of cannabis in combination with the confession of the accused that he used in the past do not justify the application of the provision (AP 1030/2002)
The allegation of accidental supply for the purpose of use is not taken into account ex officio by the court (AP 468/2011)
The above must be invoked in particular the elements of the law and the facts of which the occasional commission.
It is not enough to just claim that the use of this drug was accidental. Otherwise, the non-response by the court does not establish the grounds of appeal of article 510 paragraph 1 D and E (AP 8/2009)
It is also an indefinite claim if they are not mentioned. Also the psychological reasons led him to the possession and use (AP 942/2008)
The defendant’s allegation that “I was not well psychologically and I took 2 grams of the cigarette that day out of curiosity I went to get it lost and I was caught since then I have never tried to buy or use hashish again” (AP 1168 / 2004)
Drug legislation. Law 4139/2013
Article 1
Definition of drugs
1. The term “drugs” within the meaning of this law means substances with different chemical structure and different action in the central nervous system and with common features the change of the user’s mood and the cause of dependence of different nature, mental or and physical and varying degrees, as well as the relief of the chronically ill from the symptoms of a specific disease, for which they are deemed medically necessary.
2. Substances belonging to drugs are included in particular in tables A ‘, B’, C ‘and D’, which are referred to in par. 2 of article 1 of law 3459/2006 (A’103), as amended by decisions issued by authorization of par. 3 of article 1 of law 3459/2006.
3. The above substances do not include raw harvested products resulting from the cultivation of cannabis varieties of Cannabis Sativa L with low tetrahydrocannabinol (THC) content and in particular up to 0.2%, in accordance with the applicable provisions of European Union legislation. A joint decision of the Ministers of Rural Development and Food and Justice, Transparency and Human Rights defines the terms and conditions for the cultivation of Cannabis Sativa L cannabis varieties, the control of compliance with the terms and conditions and any relevant issue.
4. By joint decision of the Ministers of Health and Justice, Transparency and Human Rights issued after the opinion of the Narcotics Committee, substances may be added or removed to the categories of this article or transferred from one category to another or the terms and conditions may be changed. the conditions of their disposal, in particular in accordance with international conventions.
Article 2
Production, possession and trafficking of drugs
1. The production, possession, transport, storage, supply, processing, circulation and in any way mediation in the distribution of the substances of table A ‘of par. 2 of article 1 of law 3459/2006 (A’103), is exclusive right of the State, exercised by the National Medicines Agency (EOF). These substances are only available in laboratories or hospitals for the execution of approved programs, after consulting the Drugs Committee.
2. The production, possession, transport, storage, processing in general of the raw materials and finished products imported from abroad, as well as the distribution of the substances of the pharmaceutical products and the special preparations of table B ‘of par. 2 of article 1 of Law 3459/2006 (A’103), is made only by the State Narcotics Monopoly, after the opinion of the Narcotics Committee, under the responsibility of the EOF, which also issues the relevant license.
3. The production, transport, storage, supply of the substances of table C ‘of par. 2 of article 1 of law 3459/2006 (A’103), as well as of the finished pharmaceutical products and special preparations that contain these substances, are done by legal and natural persons through the State Narcotics Monopoly, following the opinion of the Narcotics Committee under the responsibility of the EOF, which issues the relevant license and controls the process. Their disposal in pharmacies, drugstores and clinics is done under the responsibility and under the control of the National Medicines Agency.
4. The production, transport, storage, supply of the substances of table D ‘of par. 2 of article 1 of law 3459/2006 (A’103), as well as of the finished pharmaceutical products and proprietary preparations that contain these substances, is done by legal or natural persons, following the opinion of the Drug Committee under the responsibility of the EOF, which also issues the relevant license. Their disposal in pharmacies, drugstores and clinics is done under the responsibility and under the control of EOF.
5. The authorization for the import and export of the substances, as well as of the finished pharmaceutical products and proprietary preparations that contain the substances that are included in the tables of par. 2 of article 1 is granted by decision of the Ministry of Health, after opinion of the Drugs Committee.
Article 3
Precursors
1. Drug precursors are the substances listed in Annex I, categories 1, 2, 3 of Regulation (EC) No 273/2004 of the European Parliament and of the Council (L 47) and Annex 1, categories 1, 2, 3 of the Regulation ( EC Regulation (EC) No 111/2005 (L 22).
2. The import, export, transit, production, manufacture, supply, storage, possession, sale, distribution and distribution of precursors, as well as the persons or companies employed by them, are subject to the control of the State. The competent authority for this purpose is considered to be the customs service with the assistance of co-competent authorities on a case by case basis. For the substances of category 1, the co-competent authority is the E.O.F. and for the substances of categories 2 and 3 the General Chemistry of the State.
Michael Zidianakis, penologist – criminologist, Lawyer Thessaloniki
