According to Section 287 of the Criminal Code of the Czech Republic, spreading toxic addiction is a criminal offence. This offence involves incitement to use an addictive substance other than alcohol, the aim being the protection of public health and morals. The penalties for this offence may vary according to the circumstances and intensity of the conduct in question.
The lower courts considered the Legalization magazine to be a platform encouraging the abuse of cannabis and THC, which is punishable under Section 287 of the Criminal Code. However, the Constitutional Court found that the lower courts had partially violated the right to freedom of expression.
Freedom of expression is a fundamental human right enshrined in Article 17 of the Charter of Fundamental Rights and Freedoms. It includes the right to express one’s opinions and disseminate information without interference by the State. This right is essential for the functioning of a democratic society, as it allows for free debate on key issues of public interest.
Legalisation magazine focuses on information about cannabis cultivation, the effects of THC and research into its effects. Some articles, such as instructions on how to grow or make cannabis products, have been ruled illegal by the courts. Along with this, the magazine also included articles criticising the criminal policy of the Czech Republic or texts reporting on the health effects of cannabis, which are constitutionally protected speech.
According to Article 287 of the Criminal Code of the Czech Republic, the dissemination of intoxication is a criminal offence. This offence includes incitement to use an addictive substance other than alcohol with the aim of protecting public health and morals. The penalties for this offence may vary according to the circumstances and intensity of the conduct in question. However, the law must not be applied in a way that unjustifiably restricts freedom of expression, as confirmed by the Constitutional Court.
The District Court had imposed a suspended prison sentence on the editor-in-chief, which the Regional Court had later commuted to a fine of CZK 100 000. The complainant appealed to the Supreme Court, but the latter rejected his appeal, which led to the constitutional complaint.
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The Constitutional Court has stressed that freedom of expression also protects controversial and unpopular opinions, especially if they contribute to public debate. According to the court, information about cannabis use, including criticism of the legislation, is among the speech that is strongly protected.
However, the court did of course acknowledge that freedom of expression is not absolute. It can only be restricted if it is absolutely necessary in a democratic society and if the interference is proportionate to the objective – for example, the protection of public health or morals.
The Constitutional Court subjected the entire case to a proportionality test. This examines whether the interference with a fundamental right pursues a legitimate aim, is necessary and proportionate. The result? The criminalisation of certain magazine articles that merely summarised scientific findings or reported on the effects of cannabis was disproportionate, according to the court.
In addition, it pointed to the so-called chilling effect – that is, the deterrent effect whereby fear of criminal prosecution limits public debate. This effect should not occur in a democratic state, especially on topics of public interest, such as national criminal policy or substance abuse prevention.
The General Courts first singled out specific articles as defective, but later claimed to have assessed the applicant’s conduct as a whole. The Constitutional Court rejected this approach. It held that articles aimed at educating or criticising legislation could not be criminalised because they contributed to public debate and were protected by the Constitution.
The Constitutional Court eventually overturned the lower courts’ rulings. It emphasised that freedom of expression must take precedence in a democratic state, even at the cost of tolerating some harmful speech. This is because its restriction risks leading to the suppression of a whole range of legitimate discussions.
Nevertheless, the Constitutional Court rejected the application for the repeal of section 287 of the Criminal Code, which the applicant had also brought. According to him, it is for the legislators to decide on the limits of criminal liability for the dissemination of intoxication, not for the courts.
From 2025, new legislation allowing the partial legalisation of cannabis will come into force in the Czech Republic. This legislation is intended to allow the controlled use of cannabis for recreational purposes, within a strictly regulated market. Cannabis can be grown and sold under clearly defined conditions. This change reflects the trend towards decriminalisation of cannabis use in other European countries.
The case of Legalization magazine has thus reopened the debate on the balance between freedom of expression and the protection of public health. The Constitutional Court has made it clear that even controversial topics must not be excluded from public debate unless their aim is clearly to cause harm.
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