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Sweden: Supreme Court Rules Growing Medical Marijuana Is Minor Drug Offense

(Nov. 29, 2017) On November 20, 2017, the Swedish Supreme Court sentenced a man to a fine for growing medical marijuana in his home. He was sentenced to 40 day-fines at SEK130 a day (a total of SEK5,200, about US$630). (Case No. B 2106-16, Supreme Court, Nov. 20, 2017, HÖGSTA DOMSTOLEN (in Swedish).)

Legal Provisions 

Under Swedish law, production, distribution, use, and possession of narcotics are all crimes. (1 § Narkotikastrafflagen (Narcotics Penal Act) (Svensk författningssamling [SFS] 1968:64), NOTISUM; Brottsbalken (Criminal Code) [BrB] (SFS 1962:700), NOTISUM.) Such crimes may be considered ringa (minor offenses) and may then only be sanctioned with day-fines or at most six months of imprisonment. (2 § Narkotikastrafflagen.)

A person who is convicted of more than one narcotics crime will only be sentenced for the most heinous of the crimes perpetrated. In this case, that crime is production. (Case No. B 2106-16, ¶ 8; see also Nytt Juridiskt Arkiv [NJA] 2017 s.415, HÖGSTA DOMSTOLEN (in Swedish).)

Under Swedish law, criminal acts may be allowed under an emergency exception (nöd). (24 kap. 4 § BrB). Whether such an emergency exception was warranted in this case, in which a man who had suffered spinal injuries in a motorcycle accident grew and used marijuana for medical purposes, was the question before the Supreme Court. (Case No. B 2106-16, ¶¶ 1-2.)   

Case History

The court of first instance, the district court, had freed the man of all charges, under the emergency exception. (Id. ¶¶ 3-5.) The Appeals Court had reversed that verdict and sentenced the man to villkorling dom (suspended sentence) and day-fines. (Id. at ¶ 5.) The man appealed the case to the Supreme Court, claiming the emergency exception.

The Supreme Court rejected the emergency exception, stating that it is only to be allowed in purely exceptional cases, such as “emergency situation[s] where immediate access to ordinary health care could not be obtained,” and that that was not the situation in this case. (Id. ¶¶ 15-16.) The Court noted that for the crime of production of narcotics, it was enough that the accused knew that he was producing narcotics illegally; it was not necessary to establish that he himself considered the production to be for an addiction. (Id. ¶ 18.)

The Court decided not to use the “penal tables” when determining the penal sentencing for the crime. (Id. ¶ 22.) In determining the sentence, the Court found that the crime did not warrant a prison sentence and should be classified as a “ringa narkotikabrott” (minor drug offense). (Id. ¶ 23.)

The Supreme Court also considered the fact that the accused now has a doctor’s prescription for cannabis, acknowledging that this was a validation of the accused’s need to use cannabis for medical purposes, when it determined his sentence. (Id. ¶ 27.)

The Status of Medical Marijuana in Sweden Today

The man in the case at hand now has a prescription for an otherwise unapproved cannabis medication (id. ¶ 25), a practice that is legal only through an application to the Läkemedelsverket (the Swedish Medical Products Agency). (Användning av cannabis i läkemedel, LÄKEMEDELSVERKET (Nov. 15, 2016).) There is only one drug that contains cannabis extract that has been approved for prescription without a special license in Sweden; a drug for treatment of multiple sclerosis symptoms. (Id.; Licens, LÄKEMEDELSVERKET (Oct. 11, 2017).) 

Calculating Day-Fines  

Under Swedish law, criminal fines are typically imposed as day-fines where the severity of the crime determines the number of days a fine should be paid and the amount is calculated on the basis of the daily income of the offender. (25 kap. 2 § BrB.)