Interview with Yann Bisiou: cannabis fines effective but not yet applicable

In January, the French National Assembly approved the justice reform bill, article 58 of which enshrines the contraventionalization of the offence of drug use. However, the entire project was the subject of’referral to the Constitutional Council by members of parliament, suspending promulgation of the law. The Council issued its opinion last week rejecting all objections to article 58. In other words, that's it, the «Poulliat fine» (named after its creator) is effective. We asked Yann Bisiou, Senior Lecturer in Private Law and Criminal Sciences and a specialist in drug law, for his opinion.

Is there no way to prevent the promulgation of article 58?

«Indeed. The law has been promulgated in the Journal Officiel of March 24, It is no longer possible to prevent the law from being promulgated. On the other hand, certain appeals remain possible in theory, once again before the Constitutional Council via a «Question Prioritaire de Constitutionnalité» or before the European Court of Human Rights. In reality, these remedies seem to me to be rather illusory.»

Does the fine apply as of today?

«Yes, at least in theory. The law comes into force the day after its publication (Article 1 of the Civil Code), i.e. as of March 25. The law's entry into force can be postponed when implementing decrees are needed, but this is not the case here, as the legislator is simply adding new criminal fines to a procedure that has already existed for several years. There are, however, two obstacles which, in my opinion, should postpone the practical application of the law.»

«Firstly, the Minister of Justice indicated during the debates that «penal circulars» should indicate to police officers the situations in which they should resort to the fixed fine. Until these circulars are issued, the procedure cannot be implemented. Above all, police officers and gendarmes need to be equipped with several specific devices (tablets in particular), which will also delay the application of the fine.»

Would it be more advantageous to refuse to pay the fine and go to court?

https://t.co/aAAtYxVb10 Cannabis c'est fait the catastrophic political decision to impose the €200 fine is validated (UFCM advises all its members who use cannabis not to pay this fine and to go to court to try to get real justice). pic.twitter.com/2aLWX0mNkY

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- B.Rambaud (Ex UFCM-I Care) (@BertrandRambaud) March 23, 2019

«It's difficult to give advice in such a situation, but it's important to realize that everything has been done to dissuade users from appealing. Any error on the part of the person concerned works against them, and if they don't win their case, contesting the fine will cost them more than paying it. The amount of the «minor» fine (150€ if you pay within 15 days) or the «simple» fine (200€ if you pay within 45 days), is lower than the previous average of fines handed down for use.»

«In addition, for contest the fine, you have to deposit the amount. Pay first, contest later! And the legislator has imposed a minimum amount equal to the fine incurred, plus 10% if the dispute is not accepted. Conversely, if the user does not contest the fine, he or she can ask the public accountant for a deferment of payment or an ex gratia remission! Business is business, public health is no longer even a pretext».»

«You really need to have solid arguments, in fact and in law, and a lot of courage to challenge. Of course, contesting will put a grain of sand in the wheels of a slaughterhouse justice system at the service of prohibition, but the user risks paying dearly for it. In the end, it can be said that by avoiding consumption in public places, you essentially avoid the risk of a fixed fine, because more often than not, it's on the public highway that the fine should be imposed.»

What happens if I refuse to pay?

«The consumer has 45 days to pay, then the fine increases to €800.»

In the event of a claim, how can I prove non-use?

«Well, several points can be discussed, including the reliability of the tests and the nature of the products seized. And the person must not have admitted to using drugs... »

Can a CBD user be convicted of drug use?

«For the flowers, it's complicated. We're awaiting a decision from the Court of Cassation at the beginning of April and there's still a long way to go. a question referred to the Court of Justice of the European Union too, but for the time being the ministry and some of the prosecutors consider it prohibited. In particular, they use an old Court of Cassation ruling which held that the law does not distinguish between varieties of cannabis.»

What is your personal opinion of the Constitutional Council's opinion?

«The High Assembly doesn't do itself any favors. It's like Pontius Pilate. The Conseil Constitutionnel took care not to rule on the offence of drug use itself, confining itself to commenting on its repression by the fixed fine procedure. Yet it is the very principle of the prohibition of drug use that poses a constitutional problem. Other constitutional judges, in Georgia, in South Africa, at Mexico, were more courageous. For the country of Human Rights, this is not glorious.»