Communicated on 3 April 2020 Published on 25 May 2020

THIRD SECTION

Application no. 24547/18 Andreas THÖRN against Sweden lodged on 17 May 2018

SUBJECT MATTER OF THE CASE

The applicant, Mr Andreas Thörn , is a Swedish national who was born in 1978 and lives in Väster å s . He is represented before the Court by Mr Y. Djuanvat , a lawyer practising in Hudiksvall .

The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

In 1994 the applicant had broken his neck in a traffic accident and been confined to a wheelchair. He suffered from cramping and severe pain on account of his injuries. He had visited numerous doctors and tried several pain treatments but in vain. In 2010 his condition worsened and he succumbed to deep depression. In 2012 he was hospitalised several times on account of debilitating pain. Several types of pain medication were prescribed, but they had little effect. Ultimately, the doctors suggested methadone. The applicant refused to take methadone on account of the negative side effects he had experienced after having been prescribed other opiates in the past.

The applicant had read online that cannabis might be helpful for pain relief. He had found out that cannabis offered excellent pain relief with very few side effects. Medical cannabis ( Sativex ) was available in Sweden but generally only for persons suffering from multiple sclerosis (MS). The applicant had tried Sativex but found it less effective for pain relief than cannabis. Sativex was, in any event, not covered by high-cost protection insurance ( högkostnadsskyddet ), a social policy which ensures that individuals do not have to pay more than a certain amount for the medicine they need. Accordingly, Sativex would have been very expensive.

The applicant thus began growing cannabis for his own consumption. When he started using cannabis, his quality of life improved significantly: he started working full-time, took care of his family and managed to live a quite normal life. He was taking approximately 0.2 g of cannabis in the morning and in the evening with his coffee.

On 22 April 2015 the applicant was charged for unlawful preparation and possession or consumption of illicit drugs. He acknowledged that he had grown and consumed cannabis for almost two years but submitted that he needed it for medical reasons.

On 27 August 2015 the Västmanland District Court ( tingsrätten ) acquitted the applicant. It found that the applicant had tried everything that the Swedish public health care system could offer for pain relief except Sativex . The monthly cost of a Sativex prescription was exceptionally high and it was unreasonable to expect the applicant, given his personal and financial situation, to be able to afford Sativex . Producing cannabis was the only possibility for the applicant to live a decent life. The court found that the applicant was deemed to be in an emergency situation ( nödsituation ) and his actions could not be regarded as irresponsible. His actions did not constitute a crime and he was thus cleared of all charges. This outcome was reached after voting. The professional judge voted against the acquittal and presented her dissenting opinion, finding that the applicant had not been in an emergency situation.

On an unspecified date the public prosecutor appealed against the District Court judgment.

On 31 March 2016 the Court of Appeal ( Svea hovrätt ) quashed the District Court ’ s judgment, convicted the applicant as charged and sentenced him to a suspended prison sentence and 90 day-fines of 130 Swedish kronor (approximately 12 euros) each. It found that the applicant had not been in an emergency situation as he had been offered alternative treatment by the health services, even though the drugs available to him were expensive or had negative side effects. One of the judges voted against the outcome and gave her dissenting opinion.

After the criminal conviction, the applicant ’ s quality of life worsened and he was on sick leave 75% of the time.

On an unspecified date the applicant appealed against the judgment of the Court of Appeal.

The applicant was granted leave to appeal to the Supreme Court ( Högsta domstolen ). On 20 November 2017 the Supreme Court upheld the applicant ’ s conviction but reduced the number of imposed day-fines from 90 to 40. It held that the applicant ’ s acts were covered by the criminal prohibition on possessing cannabis. He could not be regarded as being in an emergency situation since such a situation could only be at stake when the legislator had not made an intentional choice as to how the conduct in question should be regulated. In the instant case, a system of control, approval and distribution of medicines had been put in place and it was intended to balance the need for using drugs as effective pain relief for patients. A drug offence which was committed with the aim of alleviating pain could be defended only in purely exceptional situations, for example when immediate access to normal health care was lacking. The court also noted that, in spring 2017, the applicant had obtained a licence to be prescribed Bediol , a cannabis-based drug.

COMPLAINT

The applicant complains under Article 8 of the Convention that the criminal conviction had an impact on his private life as it hindered him from living free from debilitating pain. He does not contest that the State has a legitimate interest in drug control and policing but claims that it failed to strike a reasonable balance between this interest and his need to preserve a decent quality of life. There are no reasonable alternatives to cannabis available which would alleviate his severe pain.

QUESTION TO THE PARTIES

Has there been an interference with the applicant ’ s right to respect for his private life, within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?