Treatment as an alternative to prosecution or imprisonment for adults
Drug users or addicts have traditionally been addressed by the criminal justice system, but gradually countries are concluding that prison is not necessarily the most effective response, and so a number of alternatives are arising. They may be alternatives to prison, given by the court, or frequently even alternatives to prosecution, diverting the user from the criminal justice system at an earlier stage.The principle, reflected in one of the two general aims of the EU Drug Strategy 2005-2012, is to prevent and reduce drug use, dependence and drug-related harms to health and society.
The UN Single Convention on Narcotic Drugs 1961, Art 36.1(b), states that “…when abusers of drugs have committed … offences, the Parties may provide … as an alternative to conviction or punishment … that such abusers shall undergo measures of treatment, education, after-care, rehabilitation and social reintegration…”. This is repeated by the UN Convention on Psychotropic Substances 1971in Art 22.1(b), and by the UN Convention against Illicit Traffic 1988 in Art 3.4 (b-d). The Commentary to the latter Convention observes that “bridges between the criminal justice system and the treatment system might also be envisaged at other stages of the criminal process, including the prosecution stage” (para 3.108).
Building on this, Article 14 of the UNGASS declaration states that “Member States should develop within the criminal justice system, where appropriate, capacities for assisting drug abusers with education, treatment and rehabilitation services. In this overall context, close cooperation between criminal justice, health and social systems is a necessity and should be encouraged.” Objective 10 of the guiding principles of drug demand reduction, agreed in March 1999 by the UN Economic and Social Council, states the need to provide alternative social or therapeutic measures to punishment or conviction.
In its 2004 report, part I.B, para 27, the INCB favoured treatment as an alternative to prison:
“Drug prevention efforts, coupled with accessible treatment programmes offering psychosocial support and pharmacological therapy, supported by local law enforcement efforts that target the drug trafficking activities of addicts, may have a synergistic effect: reducing both the supply of and the demand for illicit drugs. Programmes that offer alternatives to prison and combine both law enforcement and individual recovery components have proved to be effective both in treating health conditions associated with drug abuse and in reducing crime; they may also prevent young drug abusers from coming into contact with the criminal culture in prison. Consequently, demand reduction activities such as treatment alternatives that provide choices for drug abusers outside drug distribution networks may affect drug trafficking organizations and reduce their ability to supply illicit drugs.”
The EU Action Plan 2000-2004 listed Action 3.4.2 as to provide alternatives to prison, especially for young drug offenders. The EU Action Plan (2005-2008) foresees in Objective 13 to "further develop alternatives to imprisonment for drug abusers and drug services for people in prisons, with due regard to national legislation", with the corresponding action to "make effective use and develop further alternatives to prison for drug abusers".
The table below shows the alternatives to prosecution or prison with a treatment component that are specified in the national laws of the different Member States. They are usually given as an option for the judicial authorities, but occasionally the law may specify that it is obligatory in the case of a first offence.
A number of countries offer different options depending on the type of offence or the type of offender. Overall, there are approximately twice as many alternatives for problem drug users (usually referred to in the national law as an addict) as for simply “users”, who may be occasional users. This may suggest that addicts are somehow viewed as the more appropriate recipients of rehabilitative justice and that punishment is perhaps less appropriate than for the casual drug user. It reflects the view that addiction is a medical problem that can be successfully treated, whereas drug use by non-addicts is still seen as responsive to legal sanctions.
The table also shows that, in many countries, the offer of treatment alternatives is not limited to an accused charged with an offence against the drug laws (e.g. drug use, possession, trafficking). Acquisitive crimes, carried out to support a drug habit, are among the principal non-drug law offences committed by drug users, and, in fact, we can see that a clear majority of options available for problem drug users across the EU may be invoked even for a non-drug offence. This demonstrates a legislative will to avoid prison for the drug-addicted offender, increasing the possibility of successful treatment and limiting the chances of recidivism.
Unless stated otherwise, the option is given in the form of a suspended prosecution or sentence, which will remain permanently suspended or be closed on successful completion of the treatment - if the offender fails to follow the treatment programme to the satisfaction of the authorities, the prosecution or sentence will be re-activated. Most national legislations do not specify the treatment setting, and it will be for the judiciary, following specialist advice, to choose the most appropriate setting for each offender. However, where a treatment alternative takes place in a particular setting, this has been noted.
As with many legal analyses, existence of an option in the law is no indication of actual frequency of use by the judiciary.
Country | Name of treatment option | Legal basis for treatment option | Which type of offender can be eligible for the treatment option, according to the law? | Which type of offence can trigger the treatment option, according to the law? | Treatment takes place with consent, or is it court ordered? | Decision to award treatment taken by police, prosecution or court? | Notes | ||||
Belgium | Avis therapeutique | Royal Decree of 31 December 1930, Art.26ter | User | Problematic use | Consent | Police | Treatment takes place in mental health institution (rarely used, few case managers) | ||||
| Praetorian probation | Principle of opportunity for prosecutors | Addict | Any | Consent | Prosecutor |
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| Avis therapeutique | Royal Decree of 31 December 1930, Art.26 quater | Problematic user | Possession or trafficking | Consent | Prosecutor or court |
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| Avis therapeutique (in draft) | Royal Decree of 31 December 1930, Art.26quinquies | Problematic user | Any offence committed under influence / to procure or finance drugs | Consent | Prosecutor or court |
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Bulgaria | Compulsory treatment | Penal Code, Art.92 | Person who suffers from alcoholism or from other addiction and has committed a crime | Any criminal offence (including drug possession, keeping, etc.) | Court ordered (with the main sentence for the offence) | Court | Treatment takes place in medical establishments with special treatment. It’s in addition to the sentence. | ||||
Czech Republic | Compulsory treatment - protective measure | Penal Code, s.99 | Problem user | Any offence | Court ordered | Court | This is in addition to the sentence, rather than an alternative | ||||
| Custodial detention – protective measure | Penal Code, s. 100 | Problem user | Crime (i.e. offence punishable by imprisonment up to 5 years or more) | Court ordered | Court | This is in addition to the sentence, rather than an alternative | ||||
| Desisting from punishment with imposing of custodial detention | Penal Code, s. 47 par. 2; JJA, s. 12 p. a) | Problem user; Juvenile problem user | Crime (i.e. offence punishable by imprisonment up to 5 years or more) - for adults; Any offence punishable by imprisonment up to 5 years – for juveniles | Court ordered | Court |
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| Treatment of drug addiction as an educational measure | JJA, s. 18 par. 1 p. f) | Juvenile problem user | Any offence | Court (prosecutor) ordered | Court or state prosecutor (pre-trial phase) | This is either in addition to the sentence or an alternative to it | ||||
| Treatment of drug addiction as a condition in the following cases: | ||||||||||
| a) Conditional desisting from punishment with probation | Penal Code, s. 48; JJA, s. 14 | Problem user; Juvenile problem user | Any less serious offence – for adults; Any offence punishable by imprisonment up to 5 years – for juveniles | Court ordered if offender consents to treatment | Court |
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| b) Conditional sentence of imprisonment | Penal Code, s. 81-83; JJA, s. 33 | Problem user; Juvenile problem user | Any offence for which the sentence of imprisonment up to 3 years has been imposed | Court ordered if offender consents to treatment | Court |
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| c) Conditional sentence of imprisonment with probation | Penal Code, s. 84 – 87; JJA, s. 33 | Problem user; Juvenile problem user | Any offence for which the sentence of imprisonment up to 3 years has been imposed | Court ordered if offender consents to treatment | Court |
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| d) Conditional release from imprisonment | Penal Code, s. 88 – 91; JJA, s. 78 | Problem user; Juvenile problem user | Any offence | Court ordered if offender consents to treatment | Court |
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| e) Conditional discontinuance of the prosecution | Code of Criminal Procedure, s. 307-308 | Problem user
| Any negligent offence or any intentional offence punishable by imprisonment up to 5 years | Court ordered if offender consents to treatment | Court |
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Denmark | Treatment-related imprisonment | Corrections Act s. 78 | This option can be applied whenever the offender needs "special treatment or care" AND the offenders age, health or other special circumstances give special reason not to incarcerate the offender AND no considerable enforcement considerations are against placing the offender in such institution. | Can be applied to all types of offences | Court ordered | Court | Treatment takes place in a specialised treatment facility | ||||
| Treatment instead of punishment | Penal Code s.57, parts 3-4 | Discretion of the court. In any case where the court finds the treatment suitable. | Can be applied to all types of offences | Court ordered | Court |
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Germany | Therapy instead of punishment | BtMG s.35 | Addict | Offence committed due to addiction (mainly consumption-related offences) | Consent | Court | Breach of treatment may lead to prison or to compulsory treatment in institution (s.35(7)) | ||||
| Commitment to an institution for the cure of drug addicts (Unterbringung in einer Erziehungsanstalt) | Criminal Code, s. 61 N°1 and s. 64 | Person having a disposition to excessively consume (alcohol or) narcotic drugs, if there is danger that, due to his disposition, he will commit illegal acts. | Any offence committed while intoxicated or due to the offender's disposition | Ordered |
| Treatment takes place in a closed institution | ||||
Estonia | Voluntary treatment | Narcotic Drugs and Psychotropic Substances Act 1997 s.11(1) | Addict | No offence needed | Consent |
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Greece | Advisory therapeutic programme | 3189/03 in conjunction with 2161, art 14 (New Art 12(2) of 1729) | User without previous convictions | Use, possession/ cultivation of cannabis for personal use |
| Prosecutor | This is obligatory, not optional, for the prosecutor | ||||
| Special treatment | 3189/03 in conjunction with 2161, art 15 (New Art 13 of 1729) | Addict | Any drug-related criminal act, including trafficking or property crime | Ordered |
| This is the sentence, rather than an alternative to it. Treatment takes place in a special department of a correctional institution / therapeutic Institution | ||||
Spain | Voluntary treatment | Constitutional Act 19/1995 on the Penal Code, Art. 87(1), as amended by 15/2003 | Addicts (non-habitual offenders) | Sentence under 5 years' prison | Consent | Court/ Judge | Addicts need only serve one half of their sentence for the Penitentiary Surveillance Judge to be able to advance their parole by a max. of 90 days per year of prison term actually served [NFP report 2004] | ||||
| Compulsory Treatment | Constitutional Act 19/1995 on the Penal Code, Art. 20(2) | Non/semi-indictable on grounds of drug addiction (mental abnormality =no liability) | Any committed in state of total intoxication or as a result of withdrawal symptoms | Ordered | Court | The court replaces imprisonment by compulsory treatment. | ||||
| Voluntary community treatment | Organic Law 10/1995, 23 November, of Penal Code (art 90) | All convicted classified in third penitentiary grade, with good behaviour, half sentence served and effective participation in treatment programs can obtain parole earlier until a maximum of 90 days for each year of imprisonment served | Any offence | Consent | Judges of penitentiary surveillance | Needs previous request of General Directorate of Penitentiary Institutions and favourable report of the prosecutor. | ||||
| Voluntary admission in a official centre or organization legally approved to continue with treatment | Penal Trial Law 14 Sept 1882 (art 508) amended by Organic law 15/2003, 25 November (First Final Regulation) | All that had begun treatment before the commission of the offence. | Any offence | Consent | Examining magistrate or court |
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| Voluntary treatment in institutions outside prisons | Art.182 Penitentiary Regulation RD 190/1996, 9 February | Convicted classified on 3rd degree who need a specific treatment for overcoming addiction | Not in terrorism crimes | Consent | Judges of penitentiary surveillance | Needs previous request of General Directorate of Penitentiary Institutions. | ||||
France | Therapeutic injunction | Article L34-23-1 Public Health Code; Article 47 and following of Law of 5 March 2007 | Addict and problematic user | Use and possession | Treatment takes place with consent of the offender but it is ordered by the Court and prosecutor | Court and prosecutor | This is an alternative to prosecution, a sentence, and an addition to the sentence | ||||
| Drug awareness course | 131-35-1 Penal Code; article 65 of Law of 5 March 2007; L34-21-1 Public Health Code | user | use | Treatment takes place with consent of the offender but it is ordered by the Court and prosecutor | Court and prosecutor | This is an alternative to prosecution, a sentence, and an addition to the sentence | ||||
Italy | Voluntary treatment | DPR 309/90 modified by DL 272 Art.4 (1, 2) of 30 December 2005 | Addicts | Sentences and residuals equal to 6 years or 4 years for more serious crimes | Consent | Court | ATP for drug addicts and alcoholics are under revision in order to allow them to serving the last period of the sentence in a TC or at home but with a compulsory treatment | ||||
Cyprus | Care and Treatment of Drug Addicts | Treatment of and Dealing with Drug Dependents, Law 57(1)/1992 | Addicts, other drug-sentenced offenders |
| Order | Court |
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Latvia | Therapy instead of punishment | Penal Code Art.55.(7), 59.(4), 61.(2) | User | Any criminal offence sentenced up to 2 years (less serious offences) | Consent/ order | Court |
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Lithuania
| Voluntary treatment | Penal Code of the | Addict | Under Art. 75, a sentence of up to 3 years imprisonment for minor crimes, and up to 6 years imprisonment for crimes committed through negligence, may be suspended and treatment may be imposed. | Consent | Court |
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Luxembourg | Rehabilitation treatment | Main drug law of 1973, amended 2001 - Art.23 | User (or addicted dealer) who submits to treatment prior to the use offence record | Drug use or possession (or distribution if main reason for committing was own use) | Consent | Public prosecutor | In Grand-Duchy of | ||||
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| Main drug law of 1973, amended 2001 - Art.24 | User | Drug use or possession | Court ordered | Court |
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| Main drug law of 1973, amended 2001 - Art.25 | Minor users | Drug use | Court ordered | Youth court |
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Netherlands | Conditional Release Act, 1 July 2008: Act gives authorities the possibility to impose judicial supervision on detainees with a sentence longer than 1 year after release from detention: [from NFP report 2007] | ||||||||||
| Quasi-compulsion during prosecution | Code of Criminal Procedure, Art.80 | Any | Serious offence where pre-trial custody is allowed |
| Prosecutor |
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| Quasi-compulsion during court | Criminal Code, Art 14 a t/m g | Any | Custody up to 2 years can be conditional, custody from 2 to 4 years can be partly conditional |
| Court |
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| Compulsory | Placement in an Institution for prolific offenders, Criminal Code Art 38m | Recidivist addict and other prolific offenders committing serious offences | Serious offence where pre-trial custody is allowed | Ordered | Court | This is the sentence, rather than an alternative to it. Treatment takes place in a special closed treatment institution. | ||||
| Probation | Placement in an institution for prolific offenders, Criminal Code Art 38p | Recidivist addict and other prolific offenders committing serious offences | Serious offence where pre-trial custody is allowed | Ordered | Court |
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| Quasi-compulsion during imprisonment | Prisons Act s.43 | Offenders who need (extra)care | Any |
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| This is the sentence, rather than an alternative to it. Treatment takes place in prison. | ||||
Portugal | Voluntary Treatment | Decree-Law 15/93, art. 44º | Problematic drug user confirmed after medical exam | Any crime | Treatment takes place with consent of the offender but it is ordered by the Court | Court | Suspension of the sentence execution in accordance with general law. | ||||
| Submission to treatment | Law 30/2000, art.12 (technically not “alternative”, as no prison/ prosecution is possible) | Problematic drug user as assessed by a Commission for the Dissuasion of Drug Use (CDT) | Use or possession for own use | Consent | CDT | Suspension of proceedings is obligatory if treatment option is agreed by the offender. | ||||
Romania | Medical-psychological-social care programme | Law no. 522/2004, Art. 19 (1, 2) | User | Drug possession for personal use | Consent | Prosecution | Art 19 of Law no.522/2004 cannot be enforced until the new Criminal Procedure Code is adopted | ||||
Slovenia | Compulsory treatment | Penal Code, Art 66 | Addicts | Any offence committed by addict | Ordered | Court | Prison may be a treatment setting if judged appropriate | ||||
| Voluntary treatment | Production of and Trade in Illicit Drugs Act, Art.33; Misdemeanours Act | Any | Possession of small quantity for one-off personal use | Consent | Court |
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Slovakia | Protective treatment | Penal Code - Section 73 and 74 “Protective treatment” | Addict/user | Any offence perpetrated under the addictive substance influence or offender has diminished responsibility | Ordered by court decision | Prosecution/ court | Court takes into account the principle of proportionality, the need for protection of society and the need for persons treatment | ||||
Sweden | Probation; in addition provisions about e.g. medical or other care or treatment, or treatment in accordance with a personal treatment plan may be imposed. | Penal Code, chapter 28 and 30 | If probation can be presumed to help an offender not to commit crimes again | Offences where the penalty must be harder than a fine | Probation as such does not presuppose consent. Consent is needed when deciding some provisions of treatment. | Court | This is part of the sentence, rather than an alternative to it | ||||
| Coercive Treatment | Act on the Treatment of Alcoholics and Drug Misusers (1988:870), s.4 | Continuous user endangering health of self or others | No offence necessary | Ordered | Court | This is the sentence, rather than an alternative to it. Treatment setting is an "LVM home" | ||||
United Kingdom | Drug Interventions Programme (DIP) - This is not treatment as such but a gateway to treatment and support | Various, including Criminal Justice And Court Services Act 2000 and Criminal Justice Act 2003 | Any drug misusing offender, with priority given to those committing crime to fund Class A drug use and those who have tested positive for certain Class A drugs. Some elements only apply to those 18 and over. | Drug testing on charge applies only to specified trigger offences (mainly acquisitive crime) and instances where a police officer of Inspector rank or above is satisfied that Class A drug use was relevant to offence being committed. Other interventions within DIP apply to any offence. | Consent | Police / court / drug worker depending on specific intervention | DIP is an integrated set of interventions which use drug using offenders' contact with the criminal justice system to engage them in treatment and related support. Treatment / engagement with Programme is not compulsory but refusal to engage fully with certain interventions, (such as drug testing after charge, restrictions on bail or drug rehab condition attached to a conditional caution), can result in prosecution. Engagement is not an alternative to due process but complementary. | ||||
| Community Order or suspended sentence order - drug rehabilitation requirement | Criminal Justice Act 2003 s.177, 190, 209 -211 | Aged 16 or over who has dependency or propensity to misuse drugs | Various, including property crime | Court ordered if offender consents to treatment | Court | This is the sentence, rather than an alternative to it. | ||||
| Drug Treatment and Testing Order | Introduced under Crime and Disorder Act 1998 ss.61-64. Since replaced by Powers of Criminal Courts (Sentencing) Act 2000 s 52-58. | Aged 16 or over who has dependency or propensity to misuse drugs | Various, including property crime | Court ordered if offender consents to treatment | Court | This is part of the sentence, rather than an alternative to it. | ||||
Croatia | Quasi-compulsion during prosecution | Criminal Procedure Act, Art.175; Juvenile Court 2007 Act, Art.64 | Addicts and “experimental” drug user | Any offence with sentence of imprisonment of up to 3 years; if a minor, any offence with sentence of imprisonment of up 5 years | Consent | State Attorney | If a criminal offence is related to possession of drugs or dealing of small quantities for personal use, State Attorney can conditionally postpone the criminal proceedings and send offender to the treatment program (usually in the Centre for Drug Addiction prevention or NGO). If treatment is successfully completed, the criminal charge will be dropped. | ||||
| Compulsory treatment - protective measure
| Penal Code, Art.71 | Addict and “experimental” drug user | Any offence punishable by up to 5 years imprisonment | Order | Court | If a criminal offender is an addict or “experimental” drug user, beside conditional sentence, the court can order protective measures of drug addiction treatment in health institution or therapeutic community. This is part of the sentence, rather than an alternative to it. | ||||
| Compulsory treatment during non-criminal offences sentence (misdemeanours) | Act on Combating Narcotic Drugs Abuse, Art 52-61 (The Law on Combating Drugs Abuse, prohibits unauthorised drug cultivation, possession, trade, production. Those are non-criminal offences and the punishment is fine from 140 Euro up to 14000 Euro.)
| Addict and “experimental” drug user | Only for offences based on the Law on Combating Drugs Abuse | Order | Court | If offender is an addict or “experimental” drug user, beside the fine the court will order obligatory addiction treatment program (usually in the Centre for Drug Addiction prevention or NGO) from 3 months up to 1 year. If program is successfully completed, fine will not be paid. If it involves first time offender, there will be no fine, only an order for treatment.
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Norway | Community ordered | General Civil Penal Code, section 28 a | Over age 15 and sentence less than 6 years | Drug use or minor crime | Consent | Court |
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| Suspended sentence | General Civil Penal Code, s.53, no.6 | Dependency on drugs | Drug related crime | Consent | Court |
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| Therapy instead of punishment | Corrections Act s. 12 | This option can be applied whenever the offender needs "special treatment or care” | Can be applied to all types of offences | Consent |
| Treatment takes place in a specialised treatment facility | ||||
