Headnotes:
I. Given the importance of freedom of expression and the right to disseminate information in a democratic society, each specific expression must be assessed strictly on a case-by-case basis. Therefore, it is unacceptable for a dispositif of a criminal court's judgment to include in the description of criminal conduct in question expressions (magazine articles published by a convicted person) that are not of a criminal nature. Such a description of the facts of the criminal offense suggests that these expressions (magazine articles) also contributed to the fulfillment of the elements of the crime, even if they did not fulfill them on their own, which has a chilling effect on public debate.
Summary:
I. The complainant publishes a magazine focusing on cannabis cultivation and the effects of THC. The District Court found the complainant and his company guilty of the offense of promoting drug abuse. It sentenced the complainant to twelve months' imprisonment, suspended for two and a half years. The essence of the offense consisted in inciting the abuse of an addictive substance through the press and a publicly accessible computer network. The complainant is the editor-in-chief of the magazine. Some of the articles published promoted cannabis and THC in a way that could have prompted readers to use them as an addictive (rather than medicinal) substance. The Regional Court changed the sentence to a fine of CZK 100,000. The Supreme Court rejected the complainant's appeal.
II. The Constitutional Court emphasised that freedom of expression includes expressions that may be controversial, shocking, or offensive. The media play a crucial role in informing the public and fostering public debate, but freedom of expression is not unlimited; it may be restricted by law if necessary to protect the rights of others, public health, or public safety. Cases involving the promotion of drugs must be assessed by the courts on a case-by-case basis, depending on the author's intention and the circumstances. Discussion of sensitive topics such as marijuana is permissible under the conditions set out above.
The Constitutional Court confirmed that punishment for acts related to the publication of a magazine constituted an interference with the complainant's freedom of expression; this interference was based on Section 287 of the Criminal Code (the criminal offense of promoting drug abuse). It was therefore necessary to examine whether the interference was capable of achieving a legitimate aim (criterion of suitability), whether the aim could not be achieved by less restrictive means (criterion of necessity) and, finally, which of the protected values should be given priority in the case in question (criterion of proportionality in the narrower sense).
The Constitutional Court emphasised that the dissemination of information on the issue of cannabis, including criticism of the legal regulation of its use, is a legitimate contribution to public debate and enjoys a high level of protection as an expression of a political nature. Such activity may only be restricted in exceptional cases where it is necessary in a democratic society. The debate on the effects of cannabis and its substances (THC, CBD) is in the public interest, even if it does not belong to the traditional core of political expression. Although the criminal courts characterised the complainant's actions as promoting drug addiction, they recognised that most of the articles in the magazine were serious and objective, which was a mitigating circumstance.
The criminal courts concluded that part of the complainant's texts in the magazine constituted the offense of promoting drug abuse by containing instructions on how to grow cannabis with a high THC content, how to process it, how to produce concentrated preparations, and how to promote related products. The courts emphasised that the complainant was not being tried for publishing the magazine as such, but only for the specific content of certain articles. The courts clearly identified these articles in the factual findings of their judgments in order to avoid any misunderstanding that the conviction related to the entire publication.
However, the Constitutional Court agreed with the complainant that the criminal courts had not been consistent and that the list in the statement of facts also included articles whose criminal punishment could not be accepted. First and foremost, these were articles criticising the state's criminal policy on cannabis use and advocating its decriminalisation. These had to be considered constitutionally protected because they concerned the public interest in setting the state's criminal policy on addictive substances. The courts' decisions did not indicate how these articles encouraged the abuse of THC.
Articles describing the effects of cannabis on the human body or focusing on its use in sports also belong in the public debate. Any positive mention of cannabis cannot be punished. Instructions for the production of medicinal products from cannabis also belong in the public debate, as their publication can contribute to awareness of the health effects of cannabis. The criminal prosecution of the complainant for publishing these specific articles was disproportionate. The courts erred in including articles that did not meet the criteria for a criminal offense in their description of the offense.
For these reasons, the Constitutional Court partially upheld the constitutional complaint and overturned the decisions of the regional court and the Supreme Court for violating the complainant's right to freedom of expression and the right to disseminate information under Article 17(1) and (2) of the Charter of Fundamental Rights and Freedoms. The Constitutional Court dismissed the constitutional complaint against the district court's decision. It rejected the petition to repeal Section 287 of the Criminal Code as manifestly unfounded.
III. The Justice Rapporteur was Tomáš Langášek. None of the Justices dissented.