After the law on the legalization of medical cannabis was enacted, Cabinet Resolution No. 653 came into force, by which the government amended the list of narcotic drugs, psychotropic substances and precursors. The government excluded cannabis, cannabis resin, extracts and tinctures of cannabis from the list of especially dangerous narcotic drugs, the circulation of which is prohibited. Instead, cannabis and its derivatives were included in the list of narcotic drugs and plants, the circulation of which is restricted.
While considering the case on this issue, the Joint Chamber of the Cassation Criminal Court of the Supreme Court considered whether the changes made by the Cabinet of Ministers' resolution to the List of Narcotic Drugs are grounds for applying the provisions of Article 5 of the Criminal Code regarding the retroactive effect of the law on criminal liability and, accordingly, whether they cancel or mitigate liability (resolution of February 24.02.2025, 552 in case No. 4770/19/XNUMX).
The circumstances of the case
The man purchased hemp seeds, after which in the spring he illegally sowed and grew 11 hemp plants on the plot near his place of residence, which were seized by the police during a search in May 2019. He also purchased cannabis for the purpose of sale and stored it at his place of residence, and twice sold it to a person with a criminal record for UAH 100 and UAH 130, respectively.
The court found the man guilty and imposed a sentence. However, in the cassation appeal, the prosecutor raised the issue of applying the principle of retroactive effect of the law on criminal liability, which cancels the criminal illegality of an act, mitigates criminal liability, or otherwise improves the position of a person in view of the amendments made to the legislation.
In particular, according to the prosecutor, it is necessary to exclude from court decisions references to the fact that the subject of such actions was particularly dangerous narcotics as a qualifying characteristic.
What did the Joint Chamber of the Supreme Court of Justice decide?
The Joint Chamber of the Cassation Criminal Court of the Supreme Court indicated that in order to fulfill the requirements of the Law "On Amendments to Certain Laws of Ukraine on State Regulation of the Circulation of Plants of the Cannabis Genus (Cannabis) for Use in Educational, Scientific and Scientific-Technical Activities, Production of Narcotic Drugs, Psychotropic Substances and Medicinal Products in Order to Expand Patients' Access to Necessary Treatment" dated 21.12.2023 No. 3528-IX, amendments were made to the List of Narcotic Drugs, Psychotropic Substances and Precursors by Resolution of the Cabinet of Ministers No. 653. Namely, the following item was excluded: "Cannabis, Cannabis Resin, Cannabis Extracts and Tinctures", and in Table II in List No. 1 the title was set out in the following wording: "List No. 1 Narcotic Drugs and Plants, the Circulation of Which is Restricted" and supplemented with the item: "Cannabis, Cannabis Resin, Cannabis Extracts and Tinctures".
However, such changes to the subordinate regulatory legal act, namely the List of Narcotic Drugs, Psychotropic Substances and Precursors, approved by the Resolution of the Cabinet of Ministers of Ukraine dated May 6.05.2000, 770 No. 6, which is referenced in the blanket provisions of the Criminal Code, taking into account the Decision of the Constitutional Court of Ukraine No. 2000-rp/XNUMX, do not change the verbal and documentary form of the criminal law and the criminal legal norm remains unchanged.
Conclusion of the Supreme Court of Ukraine's Criminal Procedure Code on the application of Article 5 of the Criminal Code: The amendments made by Resolution No. 653 of the Cabinet of Ministers of Ukraine to the List of Narcotic Drugs, Psychotropic Substances and Precursors are not amendments to the Law on Criminal Liability, and in accordance with Article 5 of the Criminal Code and Article 58 of the Constitution of Ukraine, they do not have retroactive effect in time.
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