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European Laws

Cannabis and Marijuana Laws and Law Enforcement Procedures in Europe

- A comparative study

Would depenalization initiatives lead to full legalization?

NORML Annual Conference, February 3-5, 2000

Authors: Joel Auster, Jerome Thorel

16 countries surveyed: 15 members of the European Union and Switzerland

Legal Comparative Table included

In this study we will summarize how Western European countries' legal systems deal with cannabis-based substances. We will not explain what the laws are, but how these laws and regulations are applied.

We show that even if the legal systems have evolved towards a pragmatic approach regarding personal use and possession of cannabis-based products -- fines, cautions, probation, exemption from punishment, etc. are the alternatives -- European Union's 15 member states continue to prohibit drug consumption or possession.

We'll look at special countries like France, Germany, The Nederlands, and the UK.

And try to find out if some harmonization schemes may help national countries to adopt less restrictive regulations.

As the EU organization European Monitoring Center for Drugs and Drug Addiction (EMCDDA) puts it in their last report:

Legalisation is not considered an option in many member state, but they are aware that prosecuriton and imprisonnement of individuals with drug problems causes even greater problems.
(...)
Developments in European drug policies and new legal approaches towards illicit drugs show a shift towards decriminalization some behaviour linked to consuming and possesssing drugs for personnal use. Most Members States reject extreme solutions - such as full legalisation or harch repression - but continue to prohibit drug consumption while modifying the penalties an measures applied to it. Although the trend in many Member States is to reduce the emphasis on prosecuting and imprisoning drug users, police arrests and indicators of drug use in prison suggest some contradiction between theory and practise within some areas of the criminal justice system.

We have seen an internal survey made in November 1998 by the French Observatoire des Drogues et de la Toxicomanie (OFDT). The survey's goal was to compare the drugs' legal systems of 16 european countries (EU + Switzerland). The author explained:

"The first obstacle is to separate the law from practice, the frontier between them is difficult to undermine (...). Regarding the official distinctions between drugs it can lead to apparent contradictions - for example, in Belgium the law doesn't make any difference between products although a governement regulation says cannabis is a separate case. This can be explained by the fact that modifying police requirements or rules is an easier task than to modify the law. »

LEGAL CLASSIFICATION

Regarding cannabis and marijuana, all Member States have adopted the UN resolution classifiing these substances as illicit drugs. 11 out of 16 European countries classifies cannabis in the same category as heroin or other hard drugs.

According to the EMCDDA in its1998 report:
"Some Member States classify substances in terms of medical use and health risks, and also by the ways in which illicit activities are punished. These countries distinguish between the nature of the substance, varying the penalty accordingly. The countries in which this happens are Ireland, Italy, the Netherlands, Spain and the United Kingdom."

- Spain distinguishes between substances that do or do not cause serious damage to health;

- The Nederlands makes a distinction drugs that pose unacceptable risks (hard) and others;

- Britain makes some kind of differences between 'hard' and 'soft' drugs: it has 3 classes. Class A is the most controlled one (MDMA, LSD, cocaine, heroine); class B (cannabis, codeine); and class C for steroids, the less controled. But Britain has also 5 schedules for medical applications (cannabis is not included);

- Italy classifies also cannabis in class B, apart from the most controlled class A (hard drugs);

- Ireland considers cannabis is like LSD and opium, but not like heroin and cocaine);

- No distinctions between 'hard' and 'soft' drugs (ie, heroin in the same class as cannabis): Austria, Belgium, Finland, France, Germany, Greece, Luxembourg, Portugal, Spain, Sweden, Switzerland.

 

USE/CONSUMPTION

The distinctions between 'drug use in private' and 'use in groups' is not made in any of the surveyed European countries. But some make differences between 'non-regular users' and 'regular users'.

Concerning prosecution of users, i.e. how the use of drugs in general is controled, Europe is divided into 2 groups:

- 9 out of 16 countries (15 EU Member States + Switzerland) consider drug use as an offense in their Criminal Code.

- And it is not considered an offense in 7 countries (Austria, Belgium, Denmark, Germany, Italy, The Nederlands and Spain). In Tthe UK also, because officially only the opium use is prohibited.

 

POSSESSION

But several surveys have found countries indirectly prevent the consumption by prohibiting "possession" even of tiny amounts of the stuff. In this respect, laws vary also a lot:

6 to 7 countries don't prosecute for tiny amounts possessions and prefer probation to deal with (Austria, Belgium, Germany, Greece, Italy, Ireland and Spain). The number 7 would be Britain, where it is said that since recent years -- as we will see it thereafter in this survey -- cannabis use and possession have lead to a simple fine.

 

SPECIAL CASES

HOLLAND

A particular country, as you know it, is the Nederlands. Even if it is seen in the US as a kind of "marijuana-heaven", The Neds have no anarchic legal systems regarding soft drugs.

YES: private use and cultivation of marijuana leaf IS free. BUT the law says, however, that you can be prosecuted, and condemned to 1 month of jail, if you "possess" up to 30 grams of marijuana. In practise, if you possess an sell less than 5 grams you are not prosecuted.

What is legal and controlled is the commercialization scheme of coffee-shops. And in theory, cannabis consumption should be reserved to these places. And it is also illegal and fiercely condemned to sell even soft drugs outside of this scheme.

So, Holland is a safe country for basic smokers, but its law system has more to do with decriminalization than with full legalization.

 

FRANCE

Surely the most repressive country in the whole Western Europe regarding simple use and consumption of cannabis-based products. The prohibition is the law even if the Justice ministry has passed requirements to prosecutors not to jail someone for tiny amounts considered as for personal use.

But in practise, the French law system is so harch that it has even be condemned recently in the European Court of Human Rights in Strasbourg.

The reason is as follow: the use of illicit drugs (of any nature) is a minor offense, up to 1 year in jail -- "minor", a question of speaking... --, while possession and trafic can lead to 20 years sentences, even life sentences -- according to the new Penal Code of 1994. But it happens that someone that is caught with tiny amounts of cannabis can easily prosecuted under the term of "detention of illicit drug with intent to trafficking by way of networked crime". And the Penal Code says that under this charge the police can keep you in custody for 4 days. Usually for a common crime even serious one the custody is fixed at 1 or 2 days. So the police have the power to impose this 4 days of custody (without the presence of their lawyer) for the possession of cannabis for personal use.

Says a French lawyer, Francis CABALLERO, that fights the prohibition for more than 20 years in France:

&laqno;A basic cannabis smoker can have his civil rights fooled, considered as a narco-trafficking criminal and be subject to police intimidation for 4 days without seeing a lawyer, while someone convicted for child pornography will have only a 24-hours custody with the right to see his lawyer after the 20th hour. That's how France is dealing with soft drugs.»

 

GERMANY

In April 29, 1994, the Federal Constitutional Court took a decision that could be considered as a step towards depenalization of cannabis use. In fact the court has only renounced to pronounce jail sentenses for use AND possession of small quantities (it is said exactly that the prosecution is "subject to "nolle persequi" by Landers' attorneys' of state).

These depenalization schemes were decided only under 3 conditions :

a) for "small amount" detained;
b) if the amount seized were for "irregular use";
c) and "when there is no "public interest" in prosecuting";

Since drug policy is decentralized in Germany, it is a matter of regions or Landers to decide what is a "small amount. It varies from 6 grams to 30 grams.

  • Schleswig-Holstein: 30 g
  • Hessen and Northrhine-Westfalia: 10 g - optional up to 30 g
  • Hamburg: "the volume of one match-box" or 10 g
  • Berlin, Bremen, Saarland: 10 g
  • Bavaria, Baden-Wurttemberg: 6 g.

So there is a big tolerance for smokers since then.

I interviewed Dr. Lorentz Boellinger, Dean of the Legal Department of the University of Bremen. He's a member of the Koln-based Association for Cannabis in Medecine and a member of the Amsterdam-based Foundation of Drug Policy and Human Rights. He explains the advantages of this policy:

"... It has influenced the police enforcement practice: at least in the Northern parts of Germany police bothers less about Cannabis, meaning it invests less resources in enforcing the law, so the chances of being caught even with "small amounts" (...) have decreased.
" The police in Bavaria and Baden-Wurttemberg (Stuttgart), however, has intensified cannabis control in order to defy the 1994 Federal Constitutional Court decision."
The police always has methods and means of "upgrading" suspicion or, what in German law is called, "reasonable cause" to start investigation. The police can easily define possession of small amounts as trafficking, enough reason to confine. But confinement can only last 24 hrs. max and contacting a lawyer is a must. This malicious procedure rarely ever happens, only if the police really want to hastle a special person. Only in Bavaria the police seems to use the instrument of confining for 23 hours as a deterrent and hastle. In most of Germany the Cannabis decision of 1994 has lead to a decrease of Cannabis enforcement and an increase in "hard drug" enforcement.

UNITED KINGDOM

The British law says (EMCDDA, 1998):

  • Possession of cannabis (a class B drug) carnes a maximum prison sentence of 5 years and/on an unlimited fine.
  • Supply of cannabis carnes a maximum sentence of 14 years and/or an unlimited fine.
  • Courts may also apply caution, probation or community service.


But I said earlier, Britain has begun to tolerate private use of soft drugs, while possession for small quantities is infrequently prosecuted. Very recently, in January, a think-tank called the Police Foundation recommended a radical new approach that could lead to an official depenalization of cannabis use and detention.

The weekly magazine The Economist said this Foundation "is widely seen as a quasi-Royal Commission". It report says:

  • (...) Under two grammes of cannabis, it suggests that possession should be treated as a minor civil offence. Above two grammes, there could be a charge of supply, but the committee is expected to stress that the law should distinguish between social and commercial supply.
  • (...) The possession of marijuana will remain illegal even if the committee's recommendations are accepted.
  • (...) "Depenalisation" of soft drugs in Britain would be likely to lead to tacit acceptance of the sale of cannabis much as the police currently allow brothels to function under the guise of massage parlours, even though allowing premises to be used for prostitution is illegal -- so said The Economist.

 

OTHERS

Spain : a "laxist" failure of depenalisation.

- Spain first passed a law in 1967 (under Franco's rule) that said the use of all psychoactive drugs are not an offense.

- In 1983, under the Socialist government of Felipe Gonzales, the distinction was made between hard and soft drugs.

- In 1992 a new law has stricly regulated the use of drugs in public places, although it is not considered as a crime - thus, no jail sentenses.

- No, it is said that depenalisation of cannabis is less and less accepted in Spain. And that around 80% of Spaniards are against any "legalisation" schemes. Thus : a laxist drug policy, a laxist depenalisation, can prevent legalisation.

 

Italy : a "pragmatist" success

- Italy passed its first law in 1930, in which it prohibit drugs consumption, but only in publlic places.

- In 1954 a new law says that "possession" of cannabis is forbidden. In 1974 a new one considers it is a serious offence leading to jail only for large quantities. But the private use AND possession is not prosecuted.

- And finally a 1978 law clearly states that the "consumption of drugs", of all sorts, is "completely depenalized". While possession could lead to an administrative fine.

- It is very well accepted now. 2 years ago some distinctions were made between possession in public and private places. But nothing else.

 

LEGALIZATION THROUGH EU HARMONIZATION ?

 

Right now there is no chance to see national laws regarding cannabis modified because of the European Union. Harmonization in this field has more to do with education, prevention, and therapeutic procudures for hard drug users. The reason is: the EU has no legal power concerning law enforcement, penal or criminal codes. These domains are the competence of Member States.

 

But, as a conclusion, I would say to a certain extent, that European laws can be used to ease national prohibition schemes.

Europe has developed a legal system under the European Convention on Human Rights - which is a protection system for the convicted people. The European Court of Human Rights is based in Strasbourg, and recently it has condemned France for illegaly convicted a man for possession of Cannabis. The Court said it was unfair to confine someone during 4 days without his lawyer's help, for the sole reason that he was in possession of illicit drugs.

Unfortunately this decision doesn't force France to change its law. But it is a positive example of how some extremist prohibition legal systems could be challenged by a supra-national legal system.

Another fact useful to note is that the EU legalized the cultivation of hemp, non-THC cannabis (less than 0.5% THC) for industrial purpose. Sometimes, this law has been used in France to challenge the conviction of people found guilty of possessing marijuana

And some says that the medical use of marijuana could also be a means to challenge the prohibition of the recreative use of cannabis.

But yes, all these means would never replace legalization schemes.