Legal aspects of cannabis in the EU and NorwayBrendan Hughes

Lisbon, 2 October 2007

Presentation

1. European Legal Database on Drugs: structure and contents

2. What the laws say: consumption, possession, quantities, treatment alternatives, driving, workplace…

3. What happens: some sentencing statistics

National laws - European Legal Database on Drugs (ELDD)

• ELDD is a free database on a public website.• Specific objectives :

• Availability and updating of the relevant texts of drug-related legislation in the EU Member States;

• Country Profiles, brief Topic Overviews and in-depth Legal Reports show research and analysis on selected subjects within the drug legislation sphere, in order to exchange good practices and inform policymakers.

• Legal Correspondents: • National experts, probably from a Ministry• Appointed by each country• Validate the content of the ELDD

Classification – UN Narcotics Convention 1961

Schedule Guidelines for included substances Cannabinoids

I Those which are, inter alia, having, or convertible into substances having, “a liability to abuse comparable to that of cannabis, cannabis resin, or cocaine”.

Cannabis and resin;Extracts and tinctures of cannabis

II Substances 1. “Having addiction-producing or addiction-sustaining properties not greater than those of codeine but at least as great as those of dextropropoxyphene; or2. Convertible into a substance having addiction-producing or addiction-sustaining properties with an ease and yield such as to constitute a risk of abuse not greater than codeine.”

III Preparations which are intended for legitimate medical use, and which the WHO considers not liable to abuse and cannot produce ill effects, and the drug therein is not readily recoverable.

IV Substances that are particularly liable to abuse and to produce ill effects, and such liability is not offset by substantial therapeutic advantages not possessed by substances other than drugs in Schedule IV.

Cannabis and cannabis resin

Classification – UN Psychotropics Convention 1971

Schedule Guidelines for included substances Cannabinoids included

I Substances whose liability to abuse constitutes an especially serious risk to public health and which have a very limited, if any, therapeutic usefulness

THC, specified isomers and their stereochemical variants

II Substances whose liability to abuse constitutes a substantial risk to public health and which have little to moderate therapeutic usefulness

Delta-9-THC and its stereochemical variants / Dronabinol

III Substances whose liability to abuse constitutes a substantial risk to public health and which have moderate to great therapeutic usefulness

IV Substances whose liability to abuse constitutes a smaller but still significant risk to public health and which have a therapeutic usefulness from little to great

Government reports on cannabis in 100 years

• Cannabis is not harmless• The dangers have been overstated• Civil sanctions, fines, compulsory health

assessments should take the place of criminal penalties

Classification systems – national

• May be classed by• Narcotic or psychotropic (echoing UN), • level of harm, • medicinal use or not• links to punishment or not

Some countries have one table, some have 12!

Distinctions between cannabis and other drugs

• Classification by law• Cyprus, Netherlands, UK (unique among 17 Sch.IV

substances)

• Specific exemption to the law• Ireland, Belgium, Luxembourg, Greece (cultivation)

• Exception by guidelines• Denmark (prosecutors), Germany (Constitutional Court), UK

(police)

• Exception due to judicial discretion • The nature of the substance is one of the criteria (together

with the quantity, previous criminal records, and other circumstances) considered by prosecutorial or judicial discretion

What offence; use, or possession for use?

Slightly academic distinction (can’t use without possessing), but:

• UN asks to criminalise possession, not use• Possession always retains the possibility of

trafficking• Positive blood or urine test – criminal charge?• Police suspect a crime being committed – what

extra powers?

Not an offence (15)

Drug use/consumption – an offence?

Criminal offence (7)

Non-criminal offence (4)

Drug possession

Various combinations of the following main factors:

• Possession / • of a certain amount / • with intention / • of a certain drug / • by an addict.

Possession of drugs for personal use

OffenceOffence

The legal status

Non-criminal / no prison (8)

Criminal, prison possible (14)

Penalties in Laws

Cannabis – non-criminal/ no prison;Other drugs – criminal, prison possible (4)

Possession of drugs for personal use

Non-criminal / no prison (8)

Criminal, prison possible (11)

Penalties in Laws and Guidelines

Cannabis – non-criminal/ no prison;Other drugs – criminal, prison possible (7)

Possession of drugs for personal use

Hypothetical penalties: possession of small quantity of drugs for personal use, without aggravating circumstances

Fines for possession of cannabis for personal use:

BELGIUM 1st €75-125 ; 2nd €130-250  ; 3rd €250-500

DENMARK 1st – fine; 2nd €40 for 0-10g / €67 for 10-15g / €135 for 50-100g

SPAIN (in a public place) between €301 and €30,000 or suspension of the driving licence

IRELAND 1st €63; 2nd €127; 3rd €317 or up to 1 year prison

LUXEMBOURG €250- €2500Source: EMCDDA 2004, Illicit drug use in the EU; Legislative approaches

Recent legal changes

• 2000 – Portugal (drugs)• 2001 – Luxembourg (cannabis)• 2003 – Belgium (cannabis)• 2004 – UK (cannabis)

• 2004 – Denmark (drugs)• (2005 – Netherlands)• (2005 – France)• 2006 - Italy

The role of the quantity in the prosecution of drug offences – April 2003

• Should be an aid to distinguish between personal use and trafficking

• “Small” (defined) / “small” (not defined) / not mentioned.• Defined by street value, doses, weight, active principle…• Different status / consequences of offences• 2006: Italy / Bulgaria / UK • 2006: UK Home Office: “There are difficulties in

establishing prescribed amounts which are universally applicable and appropriate.”

• There is no right answer!!

Treatment alternatives to conviction or punishment

• Usually an option: occasionally obligatory for a first offence. 

• Some countries have 1, others may have 5• Depends on type of offence

• Not only a drug consumption/ possession offence: can be used for property crime or any “minor” offence – avoid imprisoning an addict.

• Depends on type of offender• In Europe, approximately twice as many alternatives for problem

drug users (“addicts”) as for simply “users” (occasional users).

• Austria, Germany – occasional cannabis users were blocking “real” treatment places…

Young people and drugs - October 2003

• Minor as victim; selling to minors, encouraging minors, selling near schools or sports facilities.

• Minor as dealer; age of criminal responsibility, lower penalties or diversion, responsibility of parent

• Minor as user; almost always education or treatment.

2-tier system (4)BE (Any substance causing impairment, but 7 subject to zero tolerance; both criminal offences)CZ (Impairment is criminal, trace (zero tolerance) is non-criminal. Complex!)DE (Any substance causing impairment, but 7 subject to zero tolerance; former is criminal, latter is non-criminal) FI (Any substance causing impairment, but non-prescribed products are subject to zero tolerance; both are criminal)

Zero (7) ET, FR, LI, PL, SI, SK, SE (but no liability if in accordance with prescription)

Impairment (13)DK, ES, GR, IE, IT, CY, LU, HU, NL, AT, PT, UK, NO

Drugged driving – Tolerance

Testing in the workplace

• Normally covered by general health and safety, privacy, and/or data protection laws

• 3 countries have adopted specific legislation on drug testing in the workplace:

Finland, Ireland, and Norway. • In Italy, the main drug law contains an article

addressing specifically drug testing in the workplace.

Testing in the workplace – on what basis?

• Safety risk – BE, DK, FR • When necessary – DK, NO• Proportionate – DK, NO• When justified – BE, NL, NO• When reasonable – IE, NL • When suspicion – LV, LU, FI

• Germany; Federal Labour Court considered that armed guard did not justify regular blood tests without cause

Testing in the workplace - who can be tested?

• Job applicant: BE (where drug use presents a safety risk), FR, LV, NL (prohibited for all applicants), SK, FI, NO (when necessary)…

• Employee: FR, FI, IR, NO…

However…

Existence of an option in the law is no indication of actual frequency of use by the judiciary.

What really happens?

Prosecution of drug users in Europe (2002)

• Questioned 10 experts in each country – “what is likely to happen?”

• Police, prosecutor, court stages• Most countries look to deal with possession of

small amounts by police or prosecutor, not in court

• Retail sale will usually be prosecuted, unless there is a close link to addiction

NEW PROJECT - Implementation of laws

• What’s written in the law vs. what actually happens; “Liberal / repressive countries”

• EMCDDA monitors entry to criminal justice system (DLOs). What about exit; police warning, fines, prison, diversion, case closed?

• Diversion to treatment; how many are actually used?

• National statistics of “CJS outputs” not always kept, or clear.

• Subject of Selected Issue, November 2009

UK – Disposal of drug possession offences by type of

drug, England and Wales, 2004

Source: Home Office Statistical Bulletin, 23/05

Portugal – Commissions for Dissuasion of Drug Abuse

Rulings of 3192 cases in 2005 (from 6260 started)

500

1 000 1 500

2 000

2 500

3 000 3 500

2001 (2.º semester)

2002 2003 2004 2005

Offences

Provisional Suspension, non addict.

Provisional Suspension with treatment.

Suspension of the ruling/ execution of the sanction.

Punitive.

Aquittal.

Source: NFP report, 2006

Portugal – Commissions for Dissuasion of Drug AbuseType of drug involved in administrative offences by year

Source: NFP report, 2006

500

1 000

1 500

2 000

2 500

3 000

3 500

4 000

4 500

2001 (2.º semester) 2002 2003 2004 2005

Heroin Cocaine Hashish Polydrugs

Offences

Sweden – Convictions and sanctions for drug offences in 2005

• almost 19 200 persons were convicted of drug offences in 2005

• 48% use, 30% possession, 4% smuggling and 5% distribution.

• 73% minor offences, 24% non-minor offences, 2% serious offences

• 36% cannabis, 30% amphetamines…• 56% awarded fines (by prosecutor or court), 19%

waivers of prosecution, 16% prison sentences

Source: NFP Report 2006

Thank you for listening

Brendan Hughes

http://eldd.emcdda.europa.eu/