Roar Mikalsen -AROD: Norwegian courts will not let drug users question the law – The European Court is next


A key assignment for the courts is to settle disputes and, through legal decisions, to control the exercise of state power. Additionally, the justice system is to work for legal clarification and legal development but nevertheless, the Norwegian Supreme Court agreed on 20 December 2022 with the District Court that “it is outside the court’s duties to assess whether Norwegian drug policy is sensible or just as seen from a higher perspective


Roar Mikalsen
Leader of AROD

In this way, elementary legal guarantees were invalidated. Since 1866, Norwegian law has built a tradition for the courts’ duty to ensure the quality of the political process, and the right of review is considered a safety valve and emergency brake for democracy. Norway’s most renowned lawyer, Johs Andenæs, described it as “one of the West’s most important contributions to world culture” and a “core point in the rule of law”, and both shipowners and the property industry have benefited from the courts’ control of legislation.

The right to review and drug policy

It is therefore surprising that Norwegian courts will not do the same for the country’s drug users. Since the 1970s, personal freedoms have been higher in the hierarchy of democratic values than economic rights, which indicates that they are protected to a greater extent by the courts against the legislative power, but now it is clear that the legal system emphasizes the economic rights of the upper class over the right of excluded groups to self-determination and freedom. This is incompatible with the principles of the rule of law and is particularly serious as the 2019 Royal Drug Reform Committee’s report shows that public panic has shaped the policy. 

To the extent that panic has informed legislation, principles such as equality, proportionality, self-determination and the presumption of freedom will not be sufficiently emphasized, and it is the task of the courts to carry out a human rights analysis so that citizens do not have to suffer from established prejudices. 

In this context, the Norwegian courts’ invalidation of the right of review shows that something is seriously wrong. The more marginalized a grouping is, the greater the chances of error in the political process, and for 40 years professors of criminology and sociology of law have pointed out the hunt for scapegoats as the engine of drug policy. Over the past 30 years, lawyers have increasingly realized the same, and the Royal Commission was not the first expert committee to point out the lack of a basis for punishment. 

In 2002, the majority of the Norwegian Criminal Law Commission also questioned the legislator’s moral compass and claimed that “in the same way as with the use of alcohol, tobacco, inhalants and doping agents, the use of narcotic substances should also be without punishment”. We therefore see increased discord between politicians and professionals, but punishment continues because of the moral panic that the Royal Commission described as a problem. 

Covering up human rights violations

It was on this basis that the Alliance for Rights-Oriented Drug Policy (AROD) set up a table with cannabis and psilocybin products outside the Police House in Oslo, two banned substances that give access to the courts. In the summer of 2022, AROD was given three days in the Oslo District Court to show a connection between the Royal Commission’s finding of public panic, human rights violations, and the arbitrary persecution of the past, but the prosecution did not want human rights protection. 

In direct conflict with the ethical guidelines, the prosecutor would not “promote a legally reliable and trust-inspiring criminal justice system in accordance with the law and legal order”. Neither witnesses, documents nor documentary films were allowed to be presented, and the district judge defended the decision by saying that “we must distinguish between the law and assessing a conflict with the Constitution and human rights”. 

No lawyer who recognizes the importance of human rights would agree, but the Supreme Court accepted the district court’s treatment, and this is a bad sign for the rule of law. 

While prohibition supporters see punishment as necessary to protect public health, it has not reduced supply or demand. Prohibition has instead made drug use as dangerous and destructive as possible, while at the same time giving organized crime increased influence, and the more the police interfere in gang activity, the more violence and insecurity arise. Columbia’s president recently told the UN that “democracy will die” if the drug market is not regulated, and the relationship between ends and means is only becoming more and more contested. 

The Supreme Court therefore puts not only the persecuted groups, but the Norwegian people in a difficult situation with the decision to refuse clarification of rights. Historically, the scapegoat mechanism is the tendency that to the greatest extent brings out totalitarian tendencies in a society, and in human rights issues it is not possible to separate law from politics. 

Instead, the lack of motivation to question the legislature demonstrates that the prosecution and the courts are more interested in protecting the drug prohibition than in clarifying the relationship with the rule of law. The right to try the law is, after all, guaranteed through Section 89 of the Norwegian Constitution, and there is constitutional responsibility associated with opposing human rights. 

The European Court must decide

This is what the prosecution and courts have done by going against 150 years of legal development. The case therefore will move forward to the European Court of Human Rights because the right to a fair trial (ECHR article 6) and effective remedy (ECHR article 13) has been violated. Internationally, this case may be of great interest, as Germany and other countries intend to regulate the cannabis industry. 

European law releases the member states from taking actions against the drug trade if this trade is rightful or based on a right. If Germany’s cannabis legislation is to pass EU law therefore, cannabis consumption must be shown to be a right, and the European Court may provide guidance on a matter that affects Western civilization. 

Not only do cannabis users have a right not to be arbitrarily held to a different standard than alcohol and tobacco users, but the police have a right to provide a better service, the prosecution and the courts have a right to build on proper ethics, and the people have a right not to be burdened by dysfunctional and toxic laws.

For this reason, the European Court is requested to provide guidance. Within a few years, it appears that most Europeans will live in a country that regulates the cannabis industry, and the Court must decide (1) if there is a right to use cannabis and (2) whether this right includes access to a safe supply. Both the Council of Europe’s Parliamentary Assembly and the Pompidou Group have lamented the lack of guidance from the Court, and it is time to bring light to a long-ignored area of law.

In addition to the international ramifications, the Standing Committee on Scrutiny and Constitutional Affairs has been asked to intervene with the unconstitutional behaviour of the Norwegian courts. The legislator’s intention when codifying the right of constitutional review in 2015 was to ensure effective minority protection, and there can be no doubt that the courts have failed in their legitimate control function vis-à-vis the Storting. 

Let us therefore hope that these institutions will bring light to a long-overlooked area of the law, and that guidance from the European Court prepares the way for a truth and reconciliation commission.

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