Criminal liability for drug possession in Poland
Under Polish law, the possession of narcotic drugs or psychotropic substances is a prohibited act pursuant to Article 62 of the Polish Act on Counteracting Drug Addiction. This provision also covers the most common narcotic drug, namely cannabis, regardless of the quantity involved.
With regard to the basic offence, possession of drugs is punishable by a fine, a restriction of liberty or imprisonment for up to 3 years. In aggravated cases, particularly where a significant quantity of the substance is involved, the law provides for more severe criminal liability. Stricter criminal sanctions also apply to behaviour involving the supply of narcotic drugs to other persons.
At the same time, the Act provides for mechanisms allowing, in certain situations, for proceedings to be discontinued where the quantity of the substance is insignificant and intended for the offender’s personal use (Article 62a of the Act).
Drug possession – the rights of a detained person and defence options in criminal proceedings
In cases involving the possession of narcotic drugs or psychotropic substances, despite the frequency of convictions, each case requires an individual assessment and analysis of the available defences. It is crucial to make informed decisions at an early stage of the proceedings, particularly whilst in police custody.
A person against whom charges have been brought has the right to refuse to make a statement or answer questions. In practice, this means that law enforcement authorities cannot ‘force’ them to provide evidence against themselves or to admit guilt.
Naturally, the offender’s nationality does not affect the scope of their fundamental rights in criminal proceedings. A foreign national has the right to a defence, may refuse to make a statement, appoint a defence lawyer and – if they do not speak Polish well enough to participate in the proceedings – is entitled to free assistance from an interpreter. The correct exercise of these rights is of particular importance right from the very first steps taken by the police or the prosecutor.
In the practice of drug-related proceedings, decisions taken without prior consultation with a defence lawyer, including admitting to possession of a substance, may influence the further course of the case. In particular, this may relate to the subsequent assessment of the evidence and the possibility of applying measures mitigating criminal liability, such as the discontinuation of proceedings under Article 62a of the Polish Act on Counteracting Drug Addiction.
It should be emphasised, however, that the procedural effects of statements made at an early stage are not uniform; their significance depends on the body of evidence as a whole and the litigation strategy adopted.
Possession of drugs – discontinuation of proceedings prior to the issuance of a decision to initiate a criminal investigation or inquiry
Pursuant to Section 62a of the Polish Act on Counteracting Drug Addiction, where the offence involves a negligible quantity of a narcotic drug or psychotropic substance intended for the offender’s personal use, proceedings may be discontinued even at an early stage of the preparatory proceedings, before a formal investigation or inquiry has been initiated.
This provision applies both during proceedings conducted by the police under the supervision of a prosecutor, and at later stages of the preparatory proceedings, as well as, in certain situations, before the court.
It is only through a comprehensive assessment of these circumstances that Article 62a may be applied. However, failure to meet the conditions does not automatically determine the outcome of the case, and the proceedings may be concluded in a different manner, depending on the body of evidence as a whole and the legal classification adopted.
Possession of a negligible quantity of a narcotic drug or psychotropic substance
The Polish Act on Counteracting Drug Addiction does not contain a legal definition of the term ‘negligible quantity’, which means that its interpretation has been shaped entirely by judicial case law and the decisions of law enforcement authorities.
Legal scholarship points out that ‘the legislator has not specified precisely what specific quantity of narcotic drugs or psychotropic substances justifies the discontinuation of proceedings, using the vague phrase “insignificant quantity”’ (J. Karnat, B. Gadecki (eds.), Criminal Provisions of the Polish Act on Counteracting Drug Addiction (Articles 53–74). Commentary, 1st ed., 2024).
Consequently, the assessment of whether a ‘negligible quantity’ is involved in a given case depends on the circumstances of that specific case.
In the practice of law enforcement agencies and the courts, the following factors are primarily taken into account:
- the type of substance,
- its purity and intoxicating potential,
- the number of consumable doses that can be obtained,
- the factual context of the arrest (including the absence of evidence of trafficking).
The application of Article 62a is discretionary, which means that the procedural authority assesses on a case-by-case basis whether, in the given circumstances, it is justified to discontinue the proceedings.
In practice, three factors are of particular significance:
- the quantity of the seized substance and its actual ‘potency’ in terms of consumption doses,
- circumstances indicating that it was intended solely for personal use,
- the absence of evidence suggesting that the substance was being trafficked or made available to others.
In the absence of statutory quantitative thresholds, various interpretative approaches have emerged in case law. Some courts refer to a literal interpretation of the term ‘insignificant’, understood as small or marginal, pointing out that this refers to a quantity intended essentially for one-off or incidental use.
Other judgements emphasise the functional nature of this concept, linking it to so-called ‘consumer doses’ and the need to assess whether the possession was incidental in nature or whether it could have been linked to further trafficking.
Some rulings contain references to specific quantitative values; however, these are illustrative rather than prescriptive in nature and cannot be treated as universal standards for the application of Article 62a of the Act.
A practical example from Polish case law:
“Narcotic substances in quantities not exceeding 5 grams (…) can undoubtedly be classified as a negligible quantity, given that the legislator, in the original text of the annex to the draft Act on Combating Drug Addiction, specified as negligible quantities up to 10 grams of cannabis, up to 3 grams of hashish and up to 0.25 grams of amphetamine” (judgement of the Polish Court of Appeal in Lublin, 3rd Criminal Division, dated 29 September 2005, case no. III AKa 217/05).
“In the absence of a legal definition, when interpreting the expression ‘insignificant quantity’ used in Article 62a of the Act, one must refer to its linguistic meaning” (judgement of the Polish Court of Appeal in Poznań, 2nd Criminal Division, dated 23 February 2017, case no. II AKa 247/16).
From this perspective, the term ‘insignificant’ is understood to mean small or trivial. The quantity of narcotic drugs or psychotropic substances required for the application of the provision set out in Article 62a should be small; it should not exceed a few grams.
How is the quantity of drugs determined in a criminal case?
In criminal proceedings, determining the quantity of a narcotic drug or psychotropic substance is based primarily on the opinion of an expert in physical chemistry or toxicology. The expert identifies the substance and determines its net mass; subsequently, depending on the needs of the proceedings, they may indicate its potential narcotic properties.
In some cases, an expert’s opinion is also accompanied by an attempt to estimate so-called ‘consumption doses’, i.e. the quantity of the substance that may be used by a user on a single occasion. It should be emphasised, however, that this does not constitute a uniform standard of evidence, and experts’ approaches may vary in this regard.
In the case of dried cannabis, expert opinions are often inconsistent regarding the unit dose values adopted, which in practice may be determined within a wide range of grams, depending on the methodology used and the assumptions regarding how the substance is used.
However, the assessment of whether a given quantity is ‘insignificant’ does not stem solely from converting the weight into consumption doses. It is a comprehensive assessment and also takes into account the circumstances of the case, the type of substance and its intoxicating potential.
Possession of drugs for personal use
The interpretation of the concept of ‘possession for personal use’ in court case law is also not uniform, which stems from the lack of a legal definition and the need to assess the circumstances of each specific case on its own merits. Legal scholarship and case law emphasise that the purpose of the provisions of Article 62 of the Polish Act on Counteracting Drug Addiction is to distinguish between behaviour related to the consumption of intoxicating substances and their possession for the purpose of further trafficking.
Consequently, the assessment of whether a given act constitutes ‘possession for personal use’ is a case-by-case matter and depends on the interpretation adopted by the court and the overall circumstances of the case.
Case law concerning the consumption and immediate use of a narcotic substance
In the case law of the Supreme Court, views have been expressed regarding a narrow interpretation of the element of ‘possession’ in the context of Article 62 of the Polish Act on Counteracting Drug Addiction.
In its judgment of 21 January 2009 (case no. II KK 197/08), the Polish Supreme Court stated that criminal liability under Article 62 of the Act applies to a person who, contrary to the provisions of the law, ‘possesses’ a narcotic drug or psychotropic substance. At the same time, it was emphasised that the concept of ‘possession’ cannot be equated either with the duration of control over an item in the civil law sense, or with the full set of attributes of ownership.
However, this view should be regarded as one element of a broader interpretative dispute, as subsequent case law of the Supreme Court and the courts of appeal has also established a contrary line of reasoning, adopting a broad understanding of ‘possession’ encompassing any actual control over a narcotic drug, regardless of its duration or purpose.
The non-criminalisation of drug use per se and liability under Article 62 of the Polish Act on Counteracting Drug Addiction
A finding that the offender was under the influence of a narcotic drug or psychotropic substance does not, in itself, constitute proof of prior possession of such a substance within the meaning of Article 62 of the Polish Act on Counteracting Drug Addiction. The assessment of criminal liability requires, in each case, a demonstration that the offender actually had control over the narcotic drug within the meaning accepted in criminal law.
Case law emphasises that the mere consumption of a substance is not a separate offence under the Polish Act on Counteracting Drug Addiction. However, this merely means that the act of consumption itself is not punishable, and does not preclude liability for any prior possession of a narcotic drug. Consequently, the mere use of a substance does not necessarily imply prior possession within the meaning of Article 62 of the Act.
Some judgments of the courts of appeal have emphasised that the short-term possession of a narcotic substance, closely linked to its immediate use, requires a case-by-case assessment in the context of the elements of ‘possession’ within the meaning of Article 62 of the Act. However, this view is not uniform and coexists alongside a line of case law adopting a broad interpretation of possession encompassing any actual control over the substance.
A restrictive interpretation of the concept of ‘possession’ – any actual control over the substance
In the case-law of the Polish Supreme Court and the courts of appeal, a restrictive interpretation of the concept of ‘possession’ within the meaning of Article 62(1) of the Polish Act on Counteracting Drug Addiction has also emerged, according to which any actual control over a narcotic drug or psychotropic substance may constitute a criminal offence.
In a resolution of a panel of seven judges of the Supreme Court dated 27 January 2011 (case no. I KZP 24/10), it was held that the term ‘has’ used in Article 62 of the Act should be understood broadly as any actual control over a narcotic drug or psychotropic substance. From this perspective, neither the civil law understanding of possession nor the duration of control over the item is relevant to the existence of the offence.
The Polish Court of Appeal in Wrocław expressed a similar view in its judgment of 30 November 2017 (case no. II AKa 299/17), pointing out that the length of time one has control over a narcotic drug is irrelevant for the purposes of establishing ‘possession’, and that even short-term actual control over the substance may fulfil the elements of a prohibited act.
Consequently, in this line of case law, the mere finding of actual control over the narcotic substance is of key importance, regardless of its duration or the declared purpose of its use.
Discrepancies in case law and the lack of a uniform interpretative approach
Discrepancies in case law regarding the interpretation of the terms ‘possession’ and ‘insignificant quantity’ have a direct impact on the application of Article 62a of the Polish Act on Combating Drug Addiction. This provision is discretionary in nature, which means that the decision to discontinue proceedings depends on the assessment made by the adjudicating authority based on the overall circumstances of the case.
In practice, factors such as the quantity of the seized substance, its intended use and the absence of evidence suggesting that it was being trafficked or made available to others are of particular significance. However, this assessment is not limited solely to a mathematical conversion of weight into ‘number of doses’, but is comprehensive in nature and also takes into account the degree of social harm caused by the act and the factual context of the incident.
Consequently, the arguments put forward during the preliminary proceedings focus on demonstrating that the circumstances of the case correspond to the model of incidental possession of a narcotic substance intended solely for personal use, without any evidence of its distribution or trafficking.
In cases involving foreign nationals, it is also advisable to present to the court all the circumstances indicating that the incident was a one-off occurrence and that a conviction could have disproportionately far-reaching consequences for the foreign national. This applies in particular to those studying, working or raising a family in Poland, for whom a criminal record might adversely affect their residence or employment status. These circumstances do not in themselves constitute grounds for applying Article 62a of the Polish Act on Counteracting Drug Addiction, but they may strengthen the case for discontinuing the proceedings.
Imposing a penalty would be inappropriate given the circumstances of the offence or the degree of harm to society
One of the key grounds for applying Article 62a of the Polish Act on Counteracting Drug Addiction is an assessment of whether imposing a penalty would be inappropriate given the circumstances in which the offence was committed and the degree of its social harmfulness. This assessment is comprehensive in nature and is carried out on the basis of the criteria set out in Article 115 § 2 of the Polish Criminal Code.
In practice, circumstances relating to the manner and location of the offence are of significant importance, in particular whether the offender’s behaviour involved exposing other people to a narcotic substance or its uncontrolled distribution. Circumstances such as the possession of drugs in public places with high footfall, near educational institutions or during mass events may lead to the degree of social harm being assessed as higher.
On the other hand, case law and law enforcement practice identify instances of incidental possession of a small quantity of a narcotic substance, without any elements of its further distribution and without exposing third parties, as circumstances pointing to a lower assessment of social harmfulness.
Consequently, the assessment of the condition set out in Article 62a is discretionary and depends on a comprehensive analysis of the circumstances of the case, whilst the burden of proving the circumstances justifying the inappropriateness of punishment rests, in practice, on the assessment of the evidence gathered during the proceedings.
Summary
The institution of discontinuing proceedings provided for in Article 62a of the Polish Act on Counteracting Drug Addiction was introduced to enable the prosecution to be waived in cases concerning minor instances of possession of narcotic drugs or psychotropic substances. Its application is discretionary and depends on the assessment made by the authority conducting the proceedings in each individual case.
This means that decision-making is not automatic; each case is subject to an individual analysis of the facts and an assessment of the degree of social harm caused by the act. In practice, it is crucial to correctly classify the legal situation at an early stage of the pre-trial proceedings.
No. The application of Article 62a of the Act is discretionary. Even if the offender possessed a negligible amount of the substance for personal use, the prosecuting authority assesses on a case-by-case basis whether discontinuation would be justified. For this reason, it is crucial to present arguments and evidence in favour of applying Article 62a, as merely meeting the statutory conditions does not guarantee that proceedings will be discontinued.
No. In certain cases, proceedings may be discontinued. However, this is not automatic. The conditions include, amongst other things, a negligible quantity of the substance, its intended use for personal consumption, and the investigating authority’s assessment that imposing a penalty would be inappropriate.
No. The Act does not specify any quantitative thresholds. The assessment depends, amongst other things, on the type of substance, its weight, the number of possible doses, and the circumstances of the case. The weight of the substance alone does not determine whether Article 62a can be applied.
No. If proceedings are discontinued under Article 62a of the Act on Combating Drug Addiction, no conviction is recorded and, consequently, no entry is made in the National Criminal Register.
No. The provision may also apply to other narcotic drugs and psychotropic substances. What is decisive is whether the statutory conditions are met and the circumstances of the specific case, rather than the type of drug.
Yes. In cases involving drug possession, decisions taken at the outset of proceedings can influence their subsequent course. A properly prepared defence strategy can increase the chances of securing favourable procedural outcomes, including the discontinuation of proceedings, if the circumstances of the case permit.
No. The Polish Act on Counteracting Drug Addiction does not criminalise the mere consumption of intoxicating substances. However, criminal liability may arise from their prior possession or other acts provided for in the Act, such as drug trafficking.
