Constitutional Court Rules "Punishment for Marijuana Import Without Asking Possession Circumstances Is Constitutional" Under Narcotics Control Act

Constitutional Court Grand Bench.
[Photo by Yonhap News]

[Asia Economy Reporter Choi Seok-jin, Legal Affairs Specialist] The Constitutional Court has ruled that the provision in the Narcotics Control Act punishing the importation of narcotics regardless of the circumstances under which the narcotics were possessed does not violate the Constitution.

On the 6th, the Constitutional Court announced that it unanimously upheld the constitutionality of Article 58 of the Narcotics Control Act in a constitutional complaint filed by Mr. A, who was indicted on charges of importing cannabis, claiming that the article violated the constitutional principles of clarity and equality.

The Constitutional Court stated in its ruling, "The phrase 'a person who imported cannabis' in Article 58, Paragraph 1, Subparagraph 5 of the Narcotics Control Act does not violate the Constitution."

On March 19, 2019, Mr. A entered the country by plane from Vietnam carrying five cannabis oil cartridges in his travel bag. He was indicted for violating the Narcotics Control Act (importing cannabis) and was on trial at the Incheon District Court. After his request for a constitutional review of Article 58 of the Narcotics Control Act was dismissed, he directly filed a constitutional complaint with the Constitutional Court.

Mr. A argued that the cannabis oil he brought was legally purchased by his American husband and claimed that the provision punishing importation without distinguishing whether the person entering the country purchased the cannabis or merely possessed and brought it in infringed on his fundamental rights.

He also argued that the statutory penalty of "life imprisonment or imprisonment for five years or more" was excessively harsh and that the provision contradicted the international trend of gradually legalizing medical cannabis use.

Article 58 (Penalties), Paragraph 1 of the Narcotics Control Act stipulates that "any person who falls under any of the following subparagraphs shall be punished by life imprisonment or imprisonment for not less than five years," listing the punishable acts. Subparagraph 5 defines "a person who imported or exported cannabis in violation of Article 3, Subparagraph 7, or a person who possessed or owned cannabis for such purposes."

The Constitutional Court limited the subject of review to the phrase "a person who imported cannabis" in Article 58, Paragraph 1, Subparagraph 5 of the Narcotics Control Act.

First, regarding the petitioner’s claim that the concept of "import" in the provision deviates from its dictionary meaning and the general public’s expectation, thus violating the principle of clarity under the rule of law, the Court noted, "In the dictionary, 'import' means purchasing goods or technology from another country and bringing them into the country, generally involving payment to acquire ownership. However, this interpretation presupposes that the purchase of such goods or technology is lawful." It added, "Therefore, in cases where the act of purchasing itself is illegal, such as with cannabis, this interpretation cannot be directly applied."

It continued, "The 'import' of cannabis stipulated as punishable in the provision clearly means the act of bringing cannabis into the country from abroad regardless of how the cannabis was possessed overseas, and thus does not violate the principle of clarity under the rule of law."

Regarding Mr. A’s claim that the statutory penalty is too severe and violates the principle of proportionality between responsibility and punishment, the Court stated, "Cannabis can induce hallucinations even with small amounts inhaled and has strong addictive properties that can devastate the human body and mind." It added, "Cannabis is relatively easy to cultivate and manufacture, so if not strictly controlled, it is highly likely to become widely distributed, and because it can be consumed simply by smoking, accessibility is high."

It further explained, "The act of 'distribution' of narcotics produces criminals and encourages abuse and misuse of narcotics, so it requires harsher punishment compared to acts related to 'use,' which is the subject of the criminal act itself." It emphasized, "therefore, the provision punishes all acts of bringing cannabis into the country from abroad as the crime of cannabis 'import,' and the necessity of such punishment does not change depending on the circumstances or motives of importation or whether the cannabis was directly purchased."

The Constitutional Court concluded, "Since the statutory minimum sentence is five years, in cases of minor offenses, probation through statutory mitigation or discretionary mitigation is possible," and "the statutory penalty prescribed in the provision cannot be considered excessively severe or in violation of the principle of proportionality between responsibility and punishment."

Finally, regarding the claim that punishing simple importation and importation after purchase without distinction violates the principle of equality, the Court pointed out, "When cannabis is purchased and imported domestically, a separate crime of purchase is established in addition to the crime of import, so it is not punished the same as cases where cannabis is imported without purchase."

It added, "Moreover, even if purchase is not involved, the act of importing cannabis increases the possibility of domestic supply and distribution, so the illegality cannot be considered different, and the blameworthiness or nature of the crime does not change depending on whether the cannabis was purchased abroad." It concluded, "it is difficult to view the provision as significantly unbalanced in the penal system and violating the principle of equality."

A Constitutional Court official said, "Although there have been previous rulings upholding the constitutionality of provisions punishing cannabis importation, this decision is significant in that it clearly clarified the meaning of 'import' of cannabis."

This content was produced with the assistance of AI translation services.