JUDICIAL ASPECTS OF LEGALIZING MEDICAL CANNABIS IN UKRAINE AND THE EXPERIENCE OF GERMANY

Abstract

In this article, the author discusses the Ukraine's Draft Law No. 7457 on the legalization of the use of medical cannabis for patients suffering from severe ailments. As a positive example of such regulation, the author observes the German law of March 6, 2017 as well as relevant case law, namely the cases of the Land Social Court of Baden-Württemberg, and the Federal Supreme Social Court. Within the prism of jurisprudence, the author researches of how does the adopted legislation work in relation to supply of medical cannabis to the patients suffering from severe ailments. The findings of the author are that this administrative procedure is in fact quite difficult to fulfill and has got a number of precautions: the patient has to prove he or she suffers from a severe disease, and no alternative means of treatment are either available, or are unacceptable for a concrete case. Hence, in case the dispute arrives to the court, it is the patient’s task to fulfill the provisions of Art. 31 (6) of the Fifth Book of the Social Code of 1988 by proving the severity of the condition and the lack or alternative therapy, or its insufficiency by appropriate medical records and certificates of physicians. The existing case law shows that courts consider this evidence with a large scrutiny and it may be very complicated for a patient to prove that a medical cannabis-based therapy is the only means of treatment that is available. The cases, discussed in the article, are commented in much detail, so the reader may acquaint himself or herself of how do disputes in this field of social law proceed, and whether patients are able to prove the necessity of a medical cannabis-based therapy to them.