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Country Profile - Belgium

Development of Legislation

The basic law relating to the traffic in poisons, soporific and narcotic drugs disinfectants and antiseptics dates back to 24 February 1921. This law was completely revised in 1975 by the Law of 9 July 1975 and again in 1994 by the Law of 14 July 1994. These amendments introduced a distinction in penalties between toxic substances, disinfectants and antiseptics on the one hand, and narcotics and psychotropic substances likely to cause dependence on the other hand. The laws of 4 April 2003 and 3 May 2003 (coming into force on 2 June 2003), as well as the implementing Royal Decree of 16 May 2003, created a legal distinction between possession of cannabis for personal use and all other types of offences.

Belgian drug law is based on three main domains: prevention, treatment and law enforcement. The main objective is to prevent and reduce drug use and to decrease the number of new drug users. The second priority is to protect the community and its members who are facing the drug phenomenon and its consequences. This concerns also the drug addicts who should be helped to guarantee them a better life despite their drug use. Finally the judicial approach, particularly imprisonment, should be the last resort' in order to deal with problematic use of drugs.

Controlled substances

The list is established by Royal Decree of 31 December 1930 on trade in soporific and narcotic drugs and by the Royal Decree of 22 January 1998 regulating the trade in certain psychotropic substances.  Both are constantly revised in order to stay up to date with new substances. Soporific and narcotic substances include opium, heroin, cocaine, morphine, methadone, cannabis and cannabis resin. Psychotropic substances include amphetamines, hallucinogens, pipradol and MDMA. A directive of April 1998, replaced by that of 16 May 2003, instructed judicial authorities to make a distinction between personal consumption of cannabis derivatives and other drugs, based on the health risks the drug use provoke. This was embedded in the change of law in May 2003 with separate penalties specified for non-problematic use of small amounts of cannabis products.

Drug use and possession

In January 2001 a Policy Note (programmatic policy document) was adopted by the federal government. This note expressed the intention to modify the law in order to reduce the penalty for non-problematic use of cannabis. Since 2 June 2003, Belgian law punishes possession of up to 3 grammes of cannabis or cannabis resin with a police fine of 75-125 euros. The same applies for possession of one cannabis plant in cultivation. Should the offender be found with cannabis again within one year, there will be a fine of 130-250 euros, and a third offence within a year of the second may result in imprisonment for 8 days - 1 month and a fine of 250-500 euros. Cannabis oil or cake cannot be interpreted as for personal use, no matter how small the amount. If there is an element of public nuisance, such as smoking in the presence of minors, near schools or army barracks, the penalty will be from 3 months to 1 year in prison and/or a fine of 5000 - 500 000 euros. If there is evidence of problematic use, the offender will be assigned a case manager by the prosecutor to receive appropriate therapeutic counselling.

Belgian law punishes possession of drugs other than cannabis by imprisonment for between three months and five years, and/or a fine. The term of imprisonment may be increased to fifteen or even twenty years in the event of specified aggravating circumstances (drug offences in relation to minors aged less than twelve, or committed in the course of a criminal organisation such as manager of a criminal organisation) [2] . Possession for personal use can give rise to a suspended sentence, either with a probation order or not. [3] The practical application of the law, especially concerning drug use and possession, has been the object of revision by the Federal Ministry of Justice which issued the following two policy guidelines in order to harmonise the practical enforcement of the law.

On 26 May 1993 a directive (circular) was addressed to public prosecutors setting out a number of general principles for the establishment of a uniform policy on handling drug offence cases. In the directive a distinction is made between occasional users, regular users and dealers. Regular users are to be given every possible opportunity to seek and obtain treatment. Addicts are usually regarded as sick persons who need to be protected from themselves and against whom society also needs protection. The gravity of the offence committed, the repetitive nature of the offence and the offenders intentions are taken into account when determining what happens to the offender in other words, whether the offender goes to prison or is given the opportunity to follow treatment. As a consequence of the differing application of the directive, a non-uniform drug prosecution policy remained in practice.

Another directive was then issued on 8 May 1998. Resulting from the report of a parliamentary working group, this new directive revises the directive of 1993 focussing on the prosecution policy in the field of possession and retail sale of drugs for personal consumption. With this directive possession for use of cannabis was distinguished from possessing other drugs, and prosecutors are asked to apply the lowest penal priority to the punishment of this offence.

Trafficking and drug related crime

Drug trafficking is not defined in Belgian law as such. The law prohibits the production, import, export, manufacture, transport, possession, sale etc., and the basic penalties include imprisonment for a period of three months to five years and/or a fine. Depending on the gravity of these crimes penalties can be increased up to 10, 15 or 20 years in case of involvement of minors; up to 15 in relation to the consequences of the crime for third persons: an incurable disease or death; and up to 20 in relation to large scale trafficking implications.

The directive of May 1998 also introduced a new element in the regulation of sale and trafficking offences. While the law of 1921 and modifications did not foresee the concept of selling drugs to finance ones own personal consumption, the directive of May 1998 asked prosecutors to be strong in the case of retail sale but to take into consideration (by reducing the punishment) the case in which the only purpose of the sale was to finance ones own addiction. This directive was replaced on 16 May 2003 by a directive of the Ministry of Justice on the prosecution policy regarding possession and user-dealing of illicit drugs. It explains that, on the basis of the laws of 4 April and 3 May 2003, as well as the Royal decree of 16 May 2003, there are three categories of offences:

1st category; import, acquisition, possession, cultivation of cannabis for personal use;

2nd category; offences of the 1st category committed with aggravating circumstances;

3rd category; all other offences foreseen in the law, as well as for all substances other than cannabis.

Prosecution and judicial practice

The directive of May 1998 has a strong impact on the redefinition of the work of judicial authorities towards drug use and possession related crimes, and this has now been enshrined in the laws entering into force in June 2003. The possession of cannabis for personal use remains an offence. In case of unique or occasional use of cannabis, without aggravating circumstances, a police registration is made, the offender will be fined and the drug may be seized. Each month, a global report of these registrations will be sent to the prosecutor, without mentioning the names of the offenders. Regarding the retail sale, the judicial prosecution to be taken will be differentiated according to the intent: either sale to provide for funding its own use, or with the intention to make profit. As far as the sentencing level is concerned, the 2003 directive repeats the recommendation of the circular of May 1998, to avoid that drug users, except those who committed serious forms of (drug related) crime, end up in prison. In general, prison sentences should even more than for other categories of delinquents be the last resort for persons with addiction problems.

Scenario 1: possession of heroin for personal use by an adult offender.

When a person is arrested for possession/use of a small quantity of an illicit substance (other than cannabis) such as heroin, the police will proceed to a physical search, seizing the drug and searching the eventual vehicle and house (the latter with the perpetrators agreement). Then the police report will be sent for action to the public prosecutors office. However, instead of bringing the case to court it is possible for police forces (in collaboration with the prosecutors) to order a treatment in a specialised centre.

If a report is transmitted for action to the prosecutor, he/she will analyse the case and propose one of the various instruments - monetary fines, conditional dismissal, probation order, charge and sentencing that he has at his disposal. The modality of mediation can be seen as frequently applied in the settlement of such drug offences, which means dropping the case in exchange for certain conditions: the obligation to repair the damages, or undergo a treatment or the prohibition to visit certain places. The treatment period may not exceed six months. Nevertheless, it is reported that public prosecutors appear to be rather prudent in applying this form of settlement (1).

Scenario 2: property crime committed by a drug user to finance her/his drug addiction.

The police force arresting the person will transmit the report to the prosecutors office. Most likely the case will be transmitted to court, and probably the court will apply a probation order either sentencing and suspending the application of the sentence, or suspending the pronunciation of the sentence waiting for a full rehabilitation. It is reported that most drug users frequenting a drug assistance service have often long criminal records somehow related to drugs, and are benefiting from a court probation order (1). 

Scenario 3: small-scale distribution of drugs by a drug user to finance her/his drug addiction. 

Since the directive of 1998, retail sale to finance a drug addiction is a mitigating factor during prosecution of such an offence. This means that when the prosecution and conviction of drug offenders are necessary they should have the benefit, to every possible extent, of a probation order and recourse to treatment. However, to apply probation it is important that the activity of dealing in small quantities of drugs is proven to be just for personal use. The existence of previous criminal records, if it can attract heavier penalties, is not considered as an obstacle to probation.

Prevention, care and treatment

Prevention is receiving increasing attention in Belgium. The law enforcement authorities are embedded in a crime prevention philosophy. In the field of treatment some medico-social relief centres were set up in 1997. These centres should have a low admittance level and are located in nine cities.  Existing therapeutic communities and crisis intervention centres received expansion of their capacity. In the Communities and Regions a growing effort is made towards a global prevention: the focus is mainly health and welfare oriented. Treatment is well defined in law as an option for drug addicts who have committed small drug offences. A judicial contract la probation prtorienne dating back to the 50s is still the principle under which to treat the drug addiction of small crime offenders instead of judicial proceedings. It aims to stop the enforcement of justice if the user agrees to change his behaviour (not to use any drug, not to refuse urine test, to look for a job, to have active leisure time, to get in treatment aiming to definitely stop with drug use with a provision of its proof,..). If the user decides to agree, the deputy public prosecutor transmits the file directly to the responsible health service. In 1994 a new law offered new, different ways to terminate the prosecution for drug user offenders: reparation (apologies, indemnity), work for the benefit of the community or the order to enter treatment for those needing it ('injonction th rapeutique'). If the offender agrees and completes the treatment, the judicial file is destroyed after 6 months, but contrary to the 'judicial contract', the respect of the terms of the agreement automatically results in the definite and complete closure of the case by the public prosecution.

The package of laws in 2003 changed the title of the royal decree of 1930 to include the terms risk reduction and therapeutic advice, with the new Chapter II bis explaining this in detail. The title of the royal decree of 22 January 1998 was similarly modified, with a new Chapter IV bis to provide the explanations. The objectives of the federal plan are mainly to reduce the physical and psychosocial problems that may accompany drug abuse. It also foresees reduction of the negative consequences of this for society.

To this end, the Royal Decree creates the principle of therapeutic advice, to allow those persons to whom the procedure is directed to follow treatment if necessary.

The laws in 2003 established the new concepts of the case managers for judicial and health matters, to be appointed by the federal ministries of Justice and Health respectively. Their roles are established in the royal decree, to follow the case and give the judge or prosecutor advice as necessary on whether the offender requires therapeutic help, and if so, the most appropriate method. The case managers assist the prosecutor mainly in the choice of therapeutic advisers. When a magistrate considers that the usage is problematic, he can, for certain offences, pass the case to a case manager for judicial matters, who can refer it to a therapeutic adviser for appropriate advice.

When the magistrate imposes one of the following measures closure of the dossier, probation pretorienne (conditional dismissal), closure on payment of costs or a mediated amount - the judicial case manager checks, when the person does not already have proof, that the recommendations or conditions have been suitably followed. They have responsibility for cooperation with the social sector, namely to implement constant and structured communications between the sectors concerned judicial cases, the aid network and the social sector) to ensure the social assistance.

According to the 2003 directive, a case for possession of drugs other than cannabis may be closed by the prosecutor with referral to a service for assistance of addicts.

Precursors

The subject of precursors is regulated by the Royal Decree of 26 October 1993, as modified by the Royal decree of 16 May 2003, establishing measures to block the diversion of certain substances for illicit manufacture of narcotic or psychotropic substances.

The Royal Decree of 26 October 1993 was implemented under the Law of 24 February 1921 concerning the traffic of toxic, narcotic, disinfectant or antiseptic substances. Precursors are considered as toxic or poisonous substances. Regarding intra-community trade, since the 2003 legislation the crimes concerning precursors are subject to the penalties specified in Art.2 quater of the Law. This means that non-compliance with documentation rules will be subject to a fine of 1000 - 5000 euros and/or 8 days - 3 months in prison, and crimes regarding import, export, possession, manufacture, sale or offering may result in imprisonment for 2 - 5 years and/or a fine of 3 000 - 10 000 euros. Penalties for improper trade outside the community are laid down in articles 231 and 261 of the General Law on Customs and Excise, so the sanctions available to the Director General of Customs. Under Art. 231, any use contrary to the conditions of use or authorisation may be punished by a fine to the value of the goods concerned, and they shall be confiscated. Art. 261 states that general breaches of the Council Regulation, and the General Law on Customs, if not covered by another sanctions, may be subject to a fine of 125 - 1250 euros and confiscation of the goods.

The Minister of Public Health has the powers to rescind an agreement or registration of a company if he considers this an appropriate sanction. Other authorities with the competence to control precursor trade are defined in Art. 20 of the Royal Decree of 26 Oct 93; without prejudice to the powers of the officers of the judicial police, the agents of Customs and Excise, as well as inspectors and deputy inspectors of the General Pharmaceutical Inspectorate of the Ministry of Public Health, are empowered to exercise their functions in the control of precursors.

Money laundering and confiscation

The penal code, modified by the law of 7 April 1995, punishes the laundering of goods of any illegal origin, with imprisonment of 15 days to 5 years and/or fine of 130 to 5 000 000 euros. Participation and the attempt to launder money are also punishable.

Moreover, the Law of 11 January 1993 transposes into Belgian law the European Directive 91/309. This law, among others, is applicable to laundering linked to illegal traffic of narcotics, aiming to impose certain obligations on financial bodies, such as the identification of clients and the communication of any suspicions of laundering to the responsible authorities. Following the modification of this law of 10 August 1998, these control provisions are also applicable to notaries, bailiffs, company auditors accountants and casinos.

New developments

In January 2001, the Belgian Government adopted a Policy Note in which it expressed the intention to modify the main drug law in order to reduce the penalty in the case of non-problematic use of cannabis. The main lines of the laws of 4 April and 3 May 2003, in force from 2 June 2003, are thus:

Belgium is moving towards a policy of normalisation. This in no way means a policy of tolerance or legalisation of certain substances. It is based upon the following key points:

Sanctions for illicit production or trafficking are strengthened;

Possession or cultivation of cannabis remains an offence. In cases of personal use (ie possession of a quantity of cannabis which can be consumed in one time only, or at maximum in 24 hours, namely 3 grammes), a simplified police report (place, date and time of facts, type and use) will be made. In case of problematic use, the prosecutor will be notified and may recommend treatment. A case of public nuisance will be passed to the prosecutor. Problematic use would mean a degree of dependence which prevents the user from controlling his consumption, shown either by physical or psychological symptoms. Public nuisance would mean possession of cannabis in prison, in an educational establishment or in the building of a social service, as well as in their immediate surroundings or in other places frequented by minors that may be of an educational, sporting, or social nature.

Dissuasion of all drug use, including recreational use by adults;

No illicit drugs in any circumstances for minors. Indeed, even recreational use by adults in the presence of minors will be prosecuted in the most severe manner.

Prohibition of driving under the influence of drugs, including cannabis;

An integrated policy for the problematic user: at each step of the penal procedure, investigation, prosecution, passing and execution of the sentence, the magistrate has legal means to send problematic users to a drug treatment service.

Links

www.just.fgov.be is the site of the federal Ministry of Justice. Among other information, the full text of Belgian legislation is retrievable.

References

Text revised by Mr.Claude Gillard

Scientific Institute of Public Health Brussels, Reitox National Reports 1996 - 2000;

Study on the legislation and regulation on drug trafficking in the European Union Member States, European Commission 2001; 

De Ruyver, Van Impe, Vander Beken in Prosecution of drug users in Europe: varying pathways to similar objectives, EMCDDA 2001.


[1] Directive commune relative la politique des poursuites commune en mati re de dtention et de vente au d tail de drogues illicites, 17 April 1998
[2] Section 2bis of the Act of 24 February 1921 on poisons, soporific and narcotic drugs, disinfectants and antiseptics, as amended by the Acts of 9 July 1975 and 14 July 1994.
[3] Drugs Act 1921, Section 9, as amended by the Act of 14 July 1994.
 

 

 

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Page last updated: Monday, 19 March 2012