Republic of Colombia

Constitutional Court Gazette 1994 Special Edition

Official Organism for the Circulation of Constitutional Jurisprudence

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Constitutional Court Sentence No. C-221/94

REF.: Record No.D-429

Accused norms: section j) of article 2 and article 51 of Law 30 of 1986.

Demandant: Alexandre Sochandamandou

Expounding Magistrate: Dr. Carlos Gaviria Diaz

In Santafe' de Bogota', May 5, 1994, the Plenary Session of the Constitutional Court,

IN THE NAME OF THE PEOPLE AND BY ORDER OF THE CONSTITUTION,

Proceeds to dictate sentence in the process of constitutionality vs. section j) of article 2 and article 5 of Law 30 of 1986.

1. ANTECEDENTS

The citizen ALEXANDRE SOCHANDAMANDOU, exercising the public action of unconstitutionality, asks the Court to declare unconstitutional section j) of article 2 and article 51 of Law 30 of 1986. As the constitutional and legal procedures for this type of process are complete, the Court proceeds to decide.

2. ACCUSED NORMS

The text of the contested dispositions is as follows:

"Article 2. For effects of the present law the following definitions will be adopted:

...............

j) Doses for personal use: Is the quantity of a narcotic that a person carries or conserves for his or her own consumption. A doses for personal use is a quantity of marijuana that does not exceed twenty (20) grams, of marijuana hashish that doesn't exceed five (5) grams, of cocaine or any substance with a cocaine base that doesn't exceed one (1) gram, and of methadone that doesn't exceed two (2) grams.

A narcotic that a person carries for the purpose of distribution or sale, no matter what the quantity, is not a doses for personal use."

"Article 51. A person that carries, conserves for his or her own use, or consumes cocaine, marijuana, or any other drug that produces dependence, in quantities considered as a doses for personal use according to this law, will incur the following sanctions:

a)For first time offense: Arrest for up to thirty (30) days and fine of one-half (1/2) of the monthly minimum salary.

b)For second offense: Arrest from one (1) month to one (1) year and a fine of one (1) and a half (1/2) minimum monthly salaries, when the new offense has been committed within twelve (12) months following the first act.

c)The user or consumer who, according to a legal medical report, is in a state of drug addiction, even if it is the first offense, will be interned in a psychiatric or similar public or private establishment for the time necessary for his or her recuperation. In this case neither fines nor arrest will be applied.

The corresponding authority will be able to entrust the drug addict to the care of the family or remit him/her under the family's responsibility, to a clinic, hospital or health center for the corresponding treatment, which will be prolonged for the time necessary for the recuperation of the addict, which must be certified by the doctor responsible for the treatment and by the corresponding Section of Legal Medicine. The family of the drug addict must fulfill its obligations, by means of bail that a competent official will dictate taking into account the economic capacity of the family. The treating doctor will periodically inform the authorities that are familiar will the case about the state of health and rehabilitation of the drug addict. If the family fails in its corresponding obligations, bail will be effected and the drug addict will be interned by force."

3. THE ACTION

In spite of the fact that the redaction of the demand is not as clear as it could be, it is clear enough to understand the reasons the demandant considers it to violate constitutional norms. They are the following:

3.1. ON THE CONSTITUTIONAL LIMITS OF STATE INTERVENTION IN PERSONAL HEALTH.

The demandant states that the accused norms violate article 366 of the Constitution, that is, if the State cannot guarantee the cure of the sick person, neither can it deprive him or her of an alleviating drug. "If the State cannot guarantee the recuperation of the health of those psychophysiologically ill from drug addiction or toxicmania, because a radical and scientific treatment that assures a cure does not clinically exist, neither can the State impede or limit the use of medicines that alleviate the suffering of the sick person. Narcotics are an integral part of the sickness of drug addiction or toxicmania and at the same time they are the medicine that alleviates the pain and the suffering of incurably sick people."

According to the demandant, the accused norms violate articles 5, 28, 29, 34 and 49 of the Political Constitution (Carta Pol!tica) because drug addicts and toxicmaniacs are psychophysiologically ill whether they are under the influence of narcotics or not; "the State cannot sanction with penalties or security measures the inalienable right of people to be psychophysiologically ill whatever the cause, including drug addiction or toxicmania."

The demandant adds that the accused norms violate articles 28 and 95, No.1 of the Constitution, "those who simply consume narcotics cannot be penalized because their conduct does not prejudice anyone other than themselves."

3.2. ON THE DISCRIMINATORY TREATMENT OF CONSUMERS OF DETERMINED NARCOTICS.

The demandant notes the discrimination of addicts with respect to other incurably ill people. He affirms that if the State permits the suffering of other incurably sick to be mitigated with drugs that produce addiction, it cannot deny incurable drug addicts consumption of the drug that alleviates their suffering under the pretext that it produces addiction, without violating the right to equality.

The demandant only accuses articles 51 and section j) of article 2 as unconstitutional because he considers the treatment given by Law 30 of 1986 to other drug addicts and toxicmaniacs to be constitutional, which highlights another discrimination that violates the right to equality. Effectively, according to Law 30, the nicotine addict and the alcoholic are equally drug addicts and toxicmaniacs as are marijuana and cocaine addicts. Discriminatory treatment is incurred in relation to the first two types in the legal treatment of socially accepted addicts while other drug consumers are treated as infringers (contraventores) or delinquents, depending on how sick they are.

The demandant affirms that the discrimination imposed by Law 30 of 1986 for toxicmaniacs other than alcoholics and nicotine addicts is apparent not only in relation to other incurably sick and toxicmaniacs, but the Law also discriminates between "greater and lesser" drug addicts. The quantity of the drug that a toxicmaniac requires daily depends on the degree of addiction and on the biophysiological conditions of each person. Therefore, the establishment of a maximum quantity for a personal doses that does not take into account the necessities of different addicts introduces an artificial and unjustified difference among people suffering from the same illness, with the only legal consequence being to treat those that consume less as infringers and those that are more affected by the illness as delinquents or criminals.

3.3. ON THE MEDICAL TREATMENT FORESEEN IN THE ACCUSED NORMS.

For the demandant, articles 51 and 2 section j) of Law 30 of 1986 violate article 5 of the Constitution

"because the inalienable rights of people extend to their right to become psychophysiologically ill."

The demandant adds that articles 28 and 34 of the Constitution are violated because incurable toxicmaniacs exist "in whose case the duration of the treatment would be indefinite and the INTERNMENT in a PSYCHIATRIC or similar establishment for the TIME NECESSARY FOR HIS/HER RECUPERATION would become a UNPRESCRIBABLE PUNISHMENT."

The demandant also shows that the accused norms violate article 47 of the Constitution "because the Colombian State lacks, in practice, all the provisions necessary to offer those ILL FROM DRUG ADDICTION OR TOXICMANIA psychiatric rehabilitation centers that are not annexed to prisons nor inhuman slums where the human rights of the SICK are violated."

Finally, the demandant notes that constitutionally, the freedom of a person can only be decided by a Judge of the Republic and not by a doctor in charge of treatment nor by state officials that do not have jurisdiction: "... the legal situation of a person ILL FROM DRUG ADDICTION OR TOXICMANIA, interned in a psychiatric establishment, will be vulnerable to the group of people from the private or public sector that have the power to discretionally decide whether the sick person be rehabilitated or not."

4. INTERVENORS

The Minister of Justice, by means of the power constituted for these reasons, presented a document in which the reasons that justify the constitutionality of the demanded norms are explained. These are summarized as follows:

-Section j) of article 2 of Law 30 of 1986 does not violate article 366 of the Constitution because "the unsatisfied health necessities of narcotic users are not solved by administering them the toxic, nor by permitting that they continue to use them freely. Rather they are solved by educational, preventative, treatment, and rehabilitation measures that are all based on the suppression of drug use."

-Article 51 of the same Law does not violate article 5 of the Constitution "given that the Colombian citizen has the right to health, psychic as well as organic, and not, as the demandant suggests, the right to be sick since sickness is a concept opposite to health... State actions must work towards helping the sick person recover and not to facilitate the perpetuation of the sickness with the use of toxic substances that are damaging to the organism and psychic of the person".

-Neither are articles 34, 37, and 49 of the Constitution violated. The demandant "confuses the treatment for a sickness with the punishment of an infringer". Neither are articles 28 and 29 of the Constitution violated because the same Law that is partially accused as well as the criminal procedural norms, consecrate "competent jurisdiction, formalities and procedures for the judgement of those who have broken the law consecrated in article 51".

-Article 95-1 of the Supreme Law is not harmed by the accused norm. Although it is true that this law states that each person and citizen is obliged to "respect the rights of others and not abuse their own rights, the individual that consumes stupefying drugs knowing that they are a toxic substance prejudicial to health, is abusing her or his right to liberty. Sometimes this is motivated by the illness. The State therefore fulfills its obligation when it tries to administer or at least facilitate the possibility of treatment for this suffering".

-The Minister of Justice annexes a concept on this topic which was given by the subdirector of scientific research at the National Institute of Legal Medicine and Forensic Sciences (Instituto Nacional de Medicina Legal y Ciencias Forenses) at the end of his statement.

5. CONCEPT OF THE PROSECUTION

The (Acting) Attorney General of the Nation gives the prosecution's perspective in effect under writ No.350 of December 1, 1993. In conclusion the prosecution asks the Court to declare section j) of article 2 and article 51 of Law 30 of 1986 constitutional, the latter "with the understanding that the sanction of interning or restricting freedom in virtue of section c) cannot be superior to the penalties of arrest contained in sections a) and b)".

The following are the arguments of the cited official:

-Law 30 of 1986 allows for a more benign treatment for drug users than for those who produce or sell drugs. The reason for this "can be found in the fact that generally, the person who uses drugs is considered to be a victim more than a delinquent and therefore instead of punishment, this person should receive adequate treatment". In order for a conduct related to the utilization of drugs to be considered an infringement, it is necessary, according to article 51 of the Law, "that the quantity of the drug correspond to the concept of a personal doses", which is also defined in this law.

-The "establishment of quantitative maximum limits of drugs or controlled substances by Law in order to categorize them within the concept of personal doses does not oppose any precept of our Constitutional order. The penalization or non-penalization of consumption, its treatment as a crime or infringement, and the determination of maximum portions for personal doses, are basically consequences of the criminal policy that the State has adopted in a determined moment as a means to fight against drug trafficking. As is logical, this is allowed when the choice of any of these options is made within the limits of reason, our constitutional principles, and human dignity".

-Section i) of article 2 of Law 30 of 1986 establishes that a therapeutic doses is the quantity of the drug or medicine that a doctor prescribes according to the clinical necessities of the patient. This statute does not include any sanction for behaviors related to a doses of this type. On the contrary, "that relative to therapeutic doses is one of the possible licit uses of controlled drugs, within the concept of a medicine and not of a narcotic, in the framework of the exercise of a licit activity such as medicine, and with a judicially legitimate finality as is the treatment, cure or rehabilitation of a sick person". This includes a therapeutic doses that can be greater than a personal doses.

-With respect to article 51 of the accused norms, the Attorney General states that section c) of said law "is directed at achieving the recuperation of the drug addict through her or his internment in an adequate establishment so that the person can receive the medical treatment necessary, or by placing the person under the responsibility of his or her family to undergo said treatment in their care". Because the person is sick, neither sanctions, fines, nor arrest are imposed. Thus the State exercises "a social function directed towards recuperating the health of the drug dependent person", and fulfills articles 47,48 and 49 of the Constitution.

-The curative and rehabilitative function of the norm is also perceived in clause 2 of letter c) of cited article 51 "when it foresees the possibility of entrusting the care of the drug addict to his or her family, or by remitting said person, under their responsibility, to a specialized institution to receive due treatment". However, the Attorney General considers that the internment referred to in clause 1 of accused article 51 "has the character of a sanction and implies for those who deserve it, the loss of liberty in the cases in which internment must be forced, or a limitation to the exercise of liberty when care is entrusted to the family. As this is an infringement on fundamental rights of which liberty is one, it is not possible for the restrictions to be for an undetermined period of time. The expression 'for the time necessary for recuperation' contained in the article without stating a maximum amount would permit the sanction to be prolonged indefinitely, and could even become perpetual in cases in which the drug addict does not recuperate. This would be flagrantly opposed to articles 16, 28 and 34 of the Political Constitution", as was sustained by the Constitutional Court in sentence C-176 of May 6, 1993.

-Therefore the Attorney General considers that "when internment or other measures that imply the loss or restriction of liberty are imposed on the drug consumer or user who is in a state of addiction, in accordance with the sanctions in section c) of article 51, Law 30 of 1986; these measures cannot be greater than the limits determined for arrest for those who have realized the same conducts but are not in a state of addiction. These are thirty (30) days for first offense and twelve (12) months for second offense".

6. CONSIDERATIONS BY THE COURT

6.1. Competence.

Given the accusation directed against norms that form part of a law, this Corporation is competent to decide over their constitutionality, according to the article 241- 4 of the National Constitution.

6.2. In depth considerations

6.2.1. The law as a form of regulating the objected conduct. Do judicial duties exist for this case?

Beyond academic disputes about the nature of law, it can be affirmed that what characterizes this specific form of control of human conduct is to have an objected conduct as an object of regulation. That is: the actions of a person that influence the circle of action of another or other people, that criss-cross it, that interfere within it. When this doesn't occur it is the moral norm that evaluates the conduct of the acting subject (including omissive conduct within the generic category of action). For this reason and with all propriety, it is said that while the law is ad alterum, morality is ab agenti. In other words, while the judicial norm is bilateral, morality is unilateral. In Hohfeldian terms, it can be affirmed that the precept of law always creates a disadvantageous situation that correlates with a advantageous situation. In this case, whose analysis is important, {obligations} correlate with {rights}. Morality does not recognize this mode of regulation. The obligations that morality imposes do not favor anyone in the power to demand proper conduct. Its unilaterality originates in this characteristic. It does not come from the fact that it does not impose obligations on other people, but rather in the circumstance that it does not lend this power to demand.

From this point on there is no difficulty in admitting the existence of moral obligations to oneself and much less when the professed morality adheres to a theological concept according to which God is the owner of our lives, and the obligation to conserve life (obligation to oneself) is an obligation to God.

But another thing happens in the field of law: when a legislator regulates my conduct while disregarding other people, he or she transposes frontiers that are ontologically prohibited. In other words, the legislator can prescribe the form in which I must behave with others, but not the form in which I must behave with myself, to the extent that my conduct does not interfere with the world of action of anyone else. If in fact it does, the legislative prescription can only be interpreted in one of three ways: 1) it expresses a wish without normative connotations; 2) it is assumed to be the absolute owner of the behavior of every person, even in aspects that do not have anything to do with the indifferent conduct; 3) it takes into account the situation of other people whom the conduct of the destined subject can affect.

6.2.2. Implications in the sub-examine case.

In the case at hand, (in relation to the consumption of narcotics) it is necessary to link the norms of Law 30 of 1986, which refer to the consumption of substances therein indicated, with the last clause of article 49 of the Constitution, which states: "Every person has the obligation to procure the integral care {of their health} and of the health of the community." (Emphasis added.) Upon applying these lines to the analysis of this clause we would have:

1) This is a mere wish of the citizen, called to produce psychological effects that are judged to be plausible, but in some way generator of a generic judicial obligation that is susceptible to be typified as a criminal conduct.

2) The Colombian State assumes itself (inasmuch as it is a pretended subject) to be the owner and lord of the life of each of its citizens and, therefore, it gives itself the role of God. In the theological concept it prescribes, beyond the range of the law, behaviors that are only tied to the individual and over which each person has the right to decide.

3) It takes into account the consequences that individual conduct can have on other people and for this reason is made an object of judicial regulation. For example: the helplessness in which the family of the drug addict can be placed; depriving the community of a potentially useful person; the danger for other people that aggressive conduct unleashed by the consumption of substances indicated in the Law can imply.

The Court will examine the three hermeneutic possibilities mentioned. It will begin with the last possibility and take into account situations that, by way of example, are indicated thus:

FIRST HERMENEUTIC POSSIBILITY.

1) If it is assumed that in consideration of the people closest to the drug addict who will be deprived of his or her presence, affection and eventually economic support, that the punishable conduct is typified, it will have to be concluded that having loved ones and family obligations to fulfill, this would have to form part of the typified conduct and, therefore, those who are different cannot be judged for the crime in question. However, the norm addresses all of these conditions and accuses of infraction all who are included in this hypothesis, whether or not they have a family or connective obligations with someone. In other words, a person guilty of these crimes couldn't validly argue in his or her favor to become deserving of exemption from responsibility, that he or she is alone in the world and nobody is related by ties of affection or blood.

In the case of a person who is part of a family unit, and the penal sanction is revealed to be inept at inhibiting consumption, maintaining the punishment will only add another anguish for the family, an anguish derived from the sanction.

2) If it is argued that the entire community, to which one must inexorably belong, is going to be deprived of one of its potentially useful members, we would have to conclude that those people marginalized for other types of asocial, egoistic behaviors, uncompromising misanthropes, could spend their entire existence consuming harmful substances. Moreover society, instead of losing, would gain from this somewhat natural segregation of an undesirable member. If doubt still persists: Why, if this is the motive for the prohibition of consumption, isn't the consumption of tobacco threatened with punishment since, according to trustworthy medical research and widely accepted in the scientific field, it causes lung cancer and cancer in general? And why isn't the ingestion of greasy substances that increase cholesterol and lead to coronary diseases that accelerate processes leading to death, prohibited? No, the subject in question is subject to judgment for behavior which, from this perspective, would be socially advantageous. Neither is this the reason that justifies repression.

3) Finally, potential danger to others that the aggressive behavior released by the consumption of drugs implies can be invoked as the motive for punishment. It is necessary to analyze several considerations with regard to this point. First is the openly discriminatory treatment that the Law accords to consumers of the drugs therein indicated versus consumers of other substances of similar effects, for example, alcohol. While alcohol has the virtue flowing out towards someone other than the consumer, for good or for bad, to love or destroy her/him; the effect of some of the substances included in Law 30 in the category of "drugs" such as marijuana and hashish, is essentially interior, an intensifier of intimate experiences belonging to a monastic being. Therefore Octavio Paz was able to say that wine has been linked to dialogue (relation to others) since its beginnings: the Grecian symposium. Drugs belong to interior trips or relations more a part of the Oriental culture. Those who consume alcohol belong to a more pure Western tradition, while those who consume drugs are heterodox (and perhaps because of this, are punished).

Is not an empirically verifiable fact that the ingestion of alcohol, in an elevated number of people, causes the lowering of inhibiting barriers and the consequent exteriorization of violent attitudes that were formerly repressed, and that it is the efficient factor in the commission of innumerable crimes? Why, then, is there an openly different treatment, irritatingly discriminatory, for alcoholics (who can consume without measure or limit) and for drug addicts?

This is seen in the data provided by the Institute of Legal Medicine and Forensic Sciences of the North- Western Regional-Medellin (Instituto de Medicina Legal y Ciencias Forenses, Regional Nor-Occidente - Medellin) on the incidence of alcohol in delinquent behaviors not only from the perspective of the acting subjects but also from the victims.

The pertinent part of this report states: "In the overall figure of mortality due to violent causes, at least for the city of Medellin, a factor exists that could be considered as a risk, and that is the ingestion of alcoholic beverages: in 1980, 27% of the victims of violent death had positive percentages of alcohol in their blood, in 1990 this figure increased to 48.51%.

Through two annexes which are included at the end of this sentence, the former information is graphically illustrated and a relationship between the crimes committed in a state of intoxication and the criminal conducts determined by drug dependence is specifically established.

The second annex states that in relation to the fact that within a liberal and democratic penal system such as that which comes from a Constitution of the same type; danger, which is so costly to penal positivism, must be banned. Today danger is fortunately absent from all civilized societies. One cannot punish a person for something that they will possibly do, rather for what they have effectively done. Unless being a drug addict is considered to be punishable in itself, even if the behavior does not transcend the most intimate sphere of the consuming subject, which without a doubt is abusive because it is precisely a sphere subtracted from the law, and prohibited by an order that finds in the free determination and the dignity of the person (that can autonomously choose his or her own destiny) the basic pillars of the entire legal superstructure.

Thomas Szasz, a sharp critic of what we could call psychiatric totalitarianism, rightly said: "In a society of free people, everyone must be responsible for their actions and sanctioned for them. If a drug addict commits a crime, he or she must be punished for the crime, not for being a drug addict. If a cleptomaniac robs, if a pyromaniac starts a fire, if a regicide kills, they all must fall under the weight of the law and be punished." (Interview with Guy Sorman, in "Los verdaderos pensadores de nuestro tiempo", Seix Barral, 1992).

SECOND HERMENEUTIC POSSIBILITY.

Discarding the former interpretation for arbitrarity and unharmony with basic statute, (it violates liberty and equality) it is necessary to regard the norms within the second term: the Colombian State is assumed to be the owner and lord of the life and destiny of every person subject to its jurisdiction, and therefore it is prescribed behaviors that under a less absolute perspective would remain under personal decision and not of the State. However, this tentative exegesis must also be thrown out, since the philosophy of the Political Constitution of 1991 is libertarian and democratic, not authoritarian and much less totalitarian. Therefore, if from the text of a norm, a conclusion in the tone of an ideology of this nature can be taken, it would be necessary in a task of syntactic harmonization that concerns the interpreter, to extract from the norm a conclusion that doesn't abruptly break with the system but instead preserves it. It is not nor can it be the task of a constitutional judge to resign to the idea that basic norm is a web of incongruent threads that are among themselves irreconcilable. Rather, their task is to eliminate contradictions in a reasonable manner. For example: if from one norm it follows that humans are free and therefore dispose of a field of autonomy that is compatible with others' fields; and from another that humans are not free, the alternative has no escape: we opt to give relevance to the first ("pro favor libertatis"), ratifying the ideological substance of the Constitution, or we distort it, attributing derogatory transcendence to a precept of vicarious normative meaning. The choice that is upheld in this sentence is, without a doubt, the first.

However if the perspective is moderated and we assume that the State in not all-embracing with pretensions to interfere in the most intimate decisions of the destined subject, but rather a paternalistic State protective of its subjects and that knows better than them what is best for their own interests and therefore makes obligatory what for a free person would be optional, we would still arrive at the same inadmissable result: the denial of individual freedom in ambits that don't interfere in the sphere of others' freedom.

THIRD HERMENEUTIC POSSIBILITY.

The only plausible interpretation the remains then is that which was announced first. That is, that this is only the expression of a desire of a citizen, of mere symbolic efficiency, carrier of a message that the emitting subject judges to be desirable, since its finds it good that people care for their health; but that cannot have normative connotations of general legal character, and much less of specific punitive character. As noted at the beginning, this is due to the fact that it is not possible to speak of a pretending subject of this duty without impairing the current Political Constitution and liberal philosophy which inspires it. The Political Constitution determines that only those conducts that interfere with the freedom and interests of others can be legally demanded.

6.2.3. Medical treatment as a protective measure for the drug addict, and the penal sanction.

Accused section c) of article 51 deserves special attention. It prescribes: "The user or consumer who, according to a legal medical report, is in a state of drug addiction, even if it is the first offense, will be interned in a psychiatric or similar public or private establishment for the time necessary for his or her recuperation. In this case neither fines nor arrest will be applied." "The corresponding authority will be able to entrust the drug addict to the care of the family or remit him/her under the family's responsibility, to a clinic, hospital or health center for the corresponding treatment, which will be prolonged for the time necessary for the recuperation of the addict, which must be certified by the doctor responsible for the treatment and by the corresponding Section of Legal Medicine. The family of the drug addict must fulfill its obligations, by means of bail that a competent official will dictate taking into account the economic capacity of the family." "The treating doctor will periodically inform the authorities that are familiar will the case about the state of health and rehabilitation of the drug addict. If the family fails in its corresponding obligations, bail will be effected and the drug addict will be interned by force."

Such a disposition imposes on the drug addict (a condition that must be established by means medical and legal experts) internment "in an establishment of psychiatric or similar character" until recuperation is effected. The question that the norms provokes is obvious: Is this a punishment (retaliation for having committed a crime) destined for the acting subject in a crime or is it a humanitarian measure to benefit a sick person? If it is the first, the norm is unconstitutional according to the prior analysis. It does not agree with our basic order of typification as criminal conduct which in itself only concerns those who observe it and, consequently, is subtracted from the form of normative control that we call law and more so from a legal system respectful of liberty and human dignity, as is, without a doubt, our system. Or does it perhaps deal with a humanitarian measure directed towards restituting the health of someone suffering from a grave illness? The Court has no doubt that under this perspective as well the disposition is openly unconstitutional. Every person is free to decide whether or not to recuperate his or her health. Not even under the former Constitution, which was less prodigal and jealous of the protection of the fundamental rights of the person, was the State considered owner of the life of every person and, in harmony with this, Decree 100 of 1980 (Penal Code) did not consider attempted suicide as a delinquent conduct.

Much less could this consideration be made now. If I am the owner of my life, a fortiori I am free to care or not for my health. Even if its deterioration leads to death, I can licitly inflict this upon myself.

The most ferocious repressive power is hiding under the treatment of certain conducts judged to be deviant, such as illnesses. The more paternalistic (almost loving) that this attitude is towards the dissident, the more censurable it becomes. Imprisonment in psychiatric or similar establishments has been for a long time a detestable mechanism used by totalitarian regimes to "cure" heterodox people. Contemporary societies have persisted in treating drug addicts as heterodox people, but as sick heterodox people who must be made to see the world as those who govern it view it. Szasz, with customary sharpness, notes in regard to this point: "The act of drugging oneself is not a voluntary sickness, it is a totally deliberate way of confronting the difficulties of life, the sickness of living. But since we don't know how to cure the sickness of living, we prefer to "treat" the drug addict". ob. cit.

Referring to the same problem (covering up the punishment with treatment) Lon L. Fuller in "The anatomy of the Law" tells that a curious visitor to one of these famous establishments where one says treatment instead of punishment, upon hearing that one of the patients was submitted to a cruel torture consisting of putting a pressurized shower of water on the nose, asked with intelligent candor: "And this can be called "hydrotherapy'?".

A notable precedent exists in this same Court regarding the point that we have been examining about the obligation of a sick person (a person considered to be sick) to observe a medical treatment directed towards a cure. It is sentence No. T-493 of 1993 of the Second Revisionary Tribunal (Sala Segunda de Revisio'n), that with the presentation of H. Magister Antonio Barrera, set forth a meaningful doctrine by rejecting a protection (tutela) that would impose the obligation to medically treat oneself on people who suffer from grave illnesses. In its most relevant part the mentioned sentence states:

"The petitioners of the tutela as well as the sentence of the Jury of the Ituango Antioquia Circuit Court (Juzgado Promiscuo del Circuito de Ituango Antioquia) are not familiar with the constitutional mandate of article 16 that recognizes the right to the free development of personality 'with no more limitations than those imposed by the rights of others and by the legal order'. They restrict the freedom that Mari'a Libia

Pe'rez Duque possesses to decide if she will submit herself or not to medical treatment and the measures of the same, and they interfere unduly in her power of self-determination in agreement with her own free will within the permitted limits relative to what in her judgement is most convenient to preserve her health and assure a special quality of life."

There is an implicit inadmissible discrimination against drug addicts that have economic resources or lack them in the cited norm. While the first can go to a private clinic to receive treatment with self-chosen specialists, the second will be lead to enter an establishment that she or he does not choose, with all the connotations of a penitentiary institute.

6.2.4. The sanction (or treatment) for drug consumption, and the free development of personality.

To clarify in toto the constitutionality of the norms that make the consumption of drugs a criminal conduct, it is necessary to relate these to a basic norm which, for this purpose, is decisive. This basic norm is article 16 of the Constitution, which consecrates the right to free development of personality. It does so in the following terms: "All people have the right to the free development of their personalities with no more limitations than those imposed by the rights of others and by the legal order".

The phrase "with no more limitations than those imposed by the rights of others and {{by the legal order}}" deserves a reflective examination, especially with respect to the underlined expression. If any limitation is corroborated by the simple fact of being included in the legal order, the right consecrated in article 16 Superior is made invalid. In other words, the legislator cannot validly establish more limitations that those that are in harmony with the spirit of the Constitution.

Keep in mind that in this norm freedom is consecrated in nuce, because any type of freedom is finally reduced to the recognition of all people as autonomous beings as much as is proper (article 1 of the P.C.). That is, to an end in themselves and not as a medium to obtain an end. All people have the full ability to decide over their own actions and, above all, over their own destiny. The first consequence that is derived from autonomy is that it is the person by him or herself (and no one for him or her) who must give meaning to his or her existence and, in harmony with her/his existence, a direction. If the person's autonomy is recognized it cannot be limited, except in the measure that it comes into conflict with other autonomies. John Rawls, in "A theory of justice", upon setting down the basis for a just society constituted by free people, formulates first the principle of liberty in the following terms: "Every person should enjoy an ambit of liberties as wide ranging as possible that is shared with an equal ambit of liberties for every other person." That is to say, it is the function of the liberty of others and only this that can restrain my liberty.

The former, of course, is within a personalized concept of society that postulates the State as an instrument at the service of the people and not of the people at the service of the State in order to realize an end beyond the person (transpersonalism), such as victory of the superior race or triumph of the working class.

To consider a person autonomous has inevitable and inexorable consequences. The first and foremost of these consists of the matters that concern only the person, and that therefore should only be decided by that person. To decide for him or her is to brutally seize the person's ethic condition, to reduce her or him to the condition of an object, to convert her or him in a medium for the ends that are elected outside of the person.

Once liberty has been chosen, it cannot be feared. In a beautiful book, "El miedo a la libertad"1, Erich Fromm emphasizes as a sign of modern humans (after the Reform) the profound fear individuals have of exercising their own freedom and that others exercise theirs. It is the panic to assume oneself as a person, to decide and become responsible for one's own decisions, that is, to be responsible. Therefore we look for the protection of collectivity in any of its forms: of the party, if I am a political militant, because the decisions that are made there are not mine rather the party's; of the church, if I am a believer in a sect, because there I am told what I must believe and thus I am freed of the enormous weight of deciding by myself; of a union, because in union solidarity I elude my personal responsibility, and thus it is in all other cases.

When the State resolves to recognize the autonomy of the person, what it has decided, no more or less, is to confirm the ambit that corresponds to the ethical subject: to let the person decide over what is most radically human, over good and bad, over the meaning of one's existence. If the person resolves, for example, to dedicate his or her life to hedonistic gratification, one cannot interfere in this decision while it is a {concrete}, not abstract, form of life that does not translate into harm to others. We may not share this ideal of life, the government may not share it, but that does not make it illegitimate. These are consequences that come with the assumption of liberty as a guiding principle within a society which, through this path, proposes to reach justice.

To recognize and guarantee the free development of personality while limiting it with on the whim of the legislator is a illusory trick to deny that which is affirmed. It is equivalent to this: "You are free to choose, but only to choose good and the State says what is good."

And it is not said that everything that legislators do is done in function of common interests, because, inside-out common interests would rigorously observe the basic guidelines that have been established to prosecute a just society. In other words: that people are free and autonomous to choose their way of life as long as this doesn't interfere with the autonomy of others, is a vital part of the common interests of a personalized society, such as the Political Constitution that governs us today pretends to be.

If the right to the free development of personality has some meaning within our system, it is necessary to conclude that for the noted reasons, the norms that make the consumption of drugs a crime are clearly unconstitutional.

6.2.5. Liberty, education and drugs.

It can therefore be questioned: What can the State do if it finds the consumption of narcotics undesirable and judges it desirable to avoid this consumption without impairing the liberty of the people? The Court believes that the only adequate way that is compatible with the principles that the State itself has promised to respect and promote, is to offer its people possibilities to educate themselves. Does said road lead to the indicated end? Not necessarily, nor is this what is being dealt with in the first place. We are referring to the possibility of each person to responsibly choose their way of life, and to achieve this objective it is necessary to remove the greater and definite obstacle: ignorance. Without completely sharing the socratic doctrine that the only evil that affects humans is ignorance, because when we know that truth we know good and when we know good we cannot do less that follow it, it is necessary to admit that knowledge is an essential presupposition of free choice and if choice, whatever it may be, has this connotation, there is no alternative other than to respect it, whenever it satisfies the conditions that throughout this sentence have been indicated: that it does not attempt against the sphere of freedom of others and that, therefore, is not judged to be harmful if it only affects the person who freely decides.

Empty predictions against vice serve little. Referring to thinking beings (and education helps to be one), the only dignified and efficient path is to demonstrate in an honest and rigorous way the causal connection that exists between distinct ways of life and their inevitable consequences, without manipulating consciences. Because in the same way that there are people who proclaim themselves personifications of a cosmovision, but that contradict it in practice by ignoring the implications, there are people who opt for a way of life blind to its effects.

A rational examination of things does not fatally bring the will to opt for that which is judged to be better. But there is one invaluable advantage: it guarantees that the choice is free and, generally, freedom harvests good fruit. At least this is the supposition of a libertarian philosophy such as that which informs our basic statute. With good reason Richard Rorty2 wrote: "The social glue that keeps a liberal society united is little more than the consensus in as much as the essence of social organization consists of giving everyone the possibility to create themselves according to their capacities".

If, in a merely theoretic hypothesis -which the Court does not favor nor judge desirable- a society of educated and free humans resolves to live drugged, there is nothing ethical to oppose this decision. But if said suppositions take place, it is highly probable that such a thing would not occur. Education has as its addressee the same subject as law: the free person. Electric shocks, surgical intervention and chemical treatments do not educate, they induce irresistible conducts and, in this way, brutally deny the moral condition of humans, which is the only thing that differs us from animals.

A State respectful of human dignity, personal autonomy and free development of personality cannot, therefore, evade its unrenouncible obligation to educate, nor substitute it with repression as a form of controlling the consumption of substances that are judged to be harmful to the person individually considered, and, eventually, to the community to which the person is necessarily integrated.

7. Normative unity.

In agreement with the former, articles 51 and 87 of Law 30 of 1986 violate Basic Statute, the latter by constituting normative unity with the accused norms. Section j) of article 2, also accused, is not in violation, for reasons that will be expounded later and that bring the Court to consider it clearly in line with the Constitution.

In order to integrate the normative proposition, it is necessary to make reference to article 87 that, without a doubt, deserves special comment. Said norm establishes:

"The people that, without having committed any infraction described in this statute, are affected by the consumption of drugs that produce dependency, will be sent to the establishments mentioned in articles 4 and 5 of Decree 1136 of 1970, in accordance with the procedure indicated by this Decree".

That a person that hasn't committed any criminal infraction - as is established by this same article- is obligated to receive medical treatment against an "illness" from which the person doesn't wish to be cured, openly attempts against the liberty and autonomy consecrated in article 16 as "free development of personality". It is pertinent, at this point, to refer to the former considerations about internment in a psychiatric or similar establishment whether it is considered under the perspective of medical treatment or under the perspective of a punishment. If the first is adopted, the norm is unconstitutional because is violates the will of an addressee through the substitution of his or her ability to decide by the decision of the judge or doctor. Everyone is free to choose (within our legislation) what illnesses they treat and whether or not to recuperate their "health", as is conceived in agreement with official criteria.

If the second is adopted, the evidence of unconstitutionality is even greater, because not only is it inconceivable but also monstrous and contrary to the most elemental principles of civilized law that a person be sanctioned without having infringed upon any norm, or be compelled to receive undesired medical treatment. However, the protection of "physically, sensorily, and psychically" impaired that is referred to in article 47 of the Constitution must be understood as an obligation of the State to people that, being in one of these situations, asks for it, thus creating an advantageous situation for themselves because they have the {faculty} to demand said help and not the {obligation} to put up with decisions that the State resolves to take against their autonomy, which, we repeat, within our legislation, cannot assume itself as the owner of the will and life its addressees.

The pertinent considerations with regards to the "duty" established in the last clause of article 49 were explained elsewhere. The Court refers to these.

In summary, the precepts of the Constitution that are directly violated by the indicated dispositions are the following: article 1 which alludes to respect for human dignity as a principle of the State; article 2 which obliges the State to guarantee "the effectivity of the principles, rights and duties consecrated in the Constitution"; article 5 which recognizes the primacy of the inalienable rights of the person, among which autonomy occupies a privileged place as the immediate expression of liberty; article 16 which expressly consecrates the right priorly referred to; and article 13, consecrator of the right to equality, since different treatment for categories of people that should be treated analogously does not harmonize with this right.

8. Section j) of article 2 of Law 30 of 1986

In reference to section j) of article 2, also accused, the Court finds it in compliance Basic Statute since it constitutes an exercise of the legislative authority inscribed within the precise sphere of its competence. The determination of a doses for personal consumption implies the fixation of limits of a licit activity (that only deals with the liberty of the consumer) with another illicit activity: drug trafficking that, in a profitable function, stimulates tendencies that are esteemed to be socially undesirable.

In this same order of ideas, the legislator can validly regulate the circumstances of place, age, temporary exercise of activities and other analogies within which the consumption of drugs is inadequate or socially harmful, as are currently alcohol and tobacco, without impairing the essential nucleus of the rights of equality and liberty unrecognized in the dispositions that will be retired from the legislation. This is material appropriate for police norms (Police Code). Another leaves room to tell those in charge of the direction of institutional activities, public or private, who derive from this quality of competence to dictate internal regulations that make ordered cohabitation possible within the spheres they govern. The Court alludes to labor, disciplinary, educational, recreational and other regulations.

We reiterate that the dispositions of Law 30 of 1986 relative to transportation, storage, production, elaboration, distribution, sale and other similar activities in relation to the narcotics included in the same statute are not affected by this verdict.

Finally, the Court judges it convenient to observe that in agreement with Convention of Vienna of 1988, signed by Colombia, and that, together with Law 67 of 1993, was revised by this Corporation, (sentence C-176/94), establishes the same distinction between consumption and drug trafficking maintained in the present sentence and that, with respect to the first, leaves the liberty to penalize or not to the signing States.

The declaration of unconstitutionality of articles 51 and 87 of Law 30 of 1986, for the reasons expounded, impedes the renewal of norms with similar content, that were abolished by the Law in question.

In merit of the expounded, the Constitutional Court administrating justice in the name of the People and by mandate of the National Constitution,

RESOLVES:

FIRST: To declare CONSTITUTIONAL section j) of article 2 of Law 30 of 1986.

SECOND: To declare UNCONSTITUTIONAL articles 51 and 87 of Law 30 of 1986.

Copy, notify, communicate to whom it may concern, publish, insert in the Constitutional Court Gazette and file the record.

JORGE ARANGO MEJIA, President

ANTONIO BARRERA CARBONELL, Magistrate

EDUARDO CIFUENTES MUNOZ, Magistrate

CARLOS GAVIRIA DIAZ, Magistrate

JOSE GREGORIO HERNANDEZ GALINDO, Magistrate

(Dissenting opinion (Salvamento de voto))

HERNANDO HERRERA VERGARA, Magistrate

(Dissenting opinion)

ALEJANDRO MARTINEZ CABALLERO, Magistrate

(Dissenting opinion)

FABIO MORON DIAZ, Magistrate

(Dissenting opinion)

VLADIMIRO NARANJO MESA, Magistrate

(Dissenting opinion)

MARTHA VICTORIA SACHICA DE MONCALEANO, General Secretary