Country Profile - France
Development of legislation
Drug use and possession
Trafficking and drug-related crime
Prosecution and practice
Prevention, care and treatment
Money laundering and confiscation
Development of Legislation
The law of 31 December 1970 constitutes the current legal framework concerning French policy on drugs. Its objectives are: to severely repress trafficking; to prohibit the use of narcotics yet also propose alternatives to the repression of use; to ensure free and anonymous care for users who seek treatment.
Two aspects, the repression of use and drug trafficking, are clearly distinguished in this law. Concerning the illicit use of drugs the law of 1970 has produced a lively debate between prohibitionists and anti-prohibitionists since its adoption. Three consecutive reports (Pelletier 1978, Trautman 1990, Henrion 1995) have been produced, at the demand of the governments, on the approach taken on drug policy and more specifically on the law of 1970.
While this law has not been modified since then, ministerial directives have been issued to harmonise the practical application of law enforcement authorities and health related services. In particular the Directive of 17 June 1999 concerning the judicial responses to drug addicts, recommends prosecutors in particular to base their actions against drug using offenders on health related principles. Indeed, this orientation constitutes one of the main issues of the French Action Plan on drugs adopted in 1999.
On the drug trafficking side the law has been modified several times, mainly increasing the severity of punishment or creating new offences.
For instance, a law passed on 17 January 1986 instituted offences for selling or supplying drugs for personal use. The object of creating this new offence was so that minor drug dealers and user-resellers could be immediately brought before justice. For technical reasons, it was necessary to create this new legal measure that carries a less severe sentence than trafficking.
Measures designed to strengthen the repression of drug trafficking were written into a law passed on 31 December 1987. This law also incriminates drug-related money laundering for the first time. Those who facilitate false justification of the origin of resources stemming from trafficking-related infractions may be sentenced up to ten years in prison. This law also makes provision for sentencing those who provide or supply drugs to minors in schools, or on administrative premises.
New legislation completed this anti-laundering system. A law passed on 23 December 1988 made money laundering a customs offence in cases when there are financial relations with a foreign country. A law passed on 12 July 1990, on the participation of financial organizations in the fight against trafficking-related capital, created obligations for bankers and comparable professions for detecting money-laundering circuits.
The new Penal Code that came into effect in 1994 (the law passed on 16 December 1992) reiterated most of the clauses written in the Law of 1970, (originally written into the Public Health Code) except those related to use. New provisions "criminalize" offences, such as leadership of criminal organisations involved in drug trafficking, with penalties up to life imprisonment. Prison sentences can also reach thirty years in case of production, fabrication, importation and exportation of narcotics for individuals who are part of an organised group.
A new law enacted on 13 May 1996 made laundering income from any criminal activity a general offence. This law was passed as a result of difficulties encountered in applying the law on trafficking-related money laundering. In order to get around the earlier law, the accused simply had to claim that the money came from a different offence. This was no longer possible once the new law was enacted.
This law also made provision to meet conditions necessary for applying the Council of Europe Convention (8 November 1990). It now became possible to carry out any research, identification, seizure and confiscation of money from any infraction committed on the territory of a State that had signed the Convention. The law also repressed drug trafficking by establishing two new offences (non-justification of resources for individuals maintaining a consistent relationship with dealers or drug users, and inciting a minor to use or traffic narcotics) and made it possible for anti-drug associations to take civil action in the framework of the criminal process.
A law was enacted on 19 June 1996 to regulate the control of precursors while on 29 April 1996 another law was passed covering the trafficking in narcotics on the high seas, authorising the boarding and inspection of any ship suspected of involvement in narcotics trafficking outside of territorial waters.
As said before, important Directives have also been issued to complete the legal mechanisms regarding drugs. The Directive of the Minister of Justice of 17 June 1999 concerning the fight against drug trafficking, asks prosecutors to coordinate the action of law enforcement services to intensify financial investigations aimed to attack more effectively the illicit revenues of drug traffickers. The Circular of 11 October 1999 from the Minister of Interior also concerns drug misuse and the intensification of efforts against local traffic. These two circulars from the Minister of Justice and the Minister of Interior come within the scope of policies defined in the three-year plan of June 1999. Finally, on 9 May 2001, the Minister of Justice adopted a new Directive to better tackle local drug trafficking.
Illicit substances are annexed to the Decree Law of 22 February 1990, included in 4 lists:
- List I: narcotic substances such as heroin, cocaine, cannabis, methadone, opium, etc.;
- List II: substances like codeine, propiram, etc.; (Lists I and II correspond to those in the Single Convention of 1961)
- List III: psychotropic substances of the 1971 Vienna Convention, such as: amphetamines, ecstasy (MDMA), LSD, etc; and
- List IV: substances not controlled at the international level, such as: MBDB, 4-MTA, Ketamine, Nabilone, THC, etc.
Precursors are listed and controlled under Decree Law n°96-1060 of 5 December 1996.
The French criminal system does not make a distinction between narcotic substances. Theoretically, an offence such as illicit possession would be prosecuted and judged in the same way regardless if the object of the offence would be cannabis, heroin or LSD. However, judicial authorities have the right to judge according to the principle of opportunity. The nature of the substance seems to be one of the criteria (together with the quantity and the previous criminal records) to prosecute, reduce the charges, or non-prosecute an offender.
Drug use and possession
The Law of 1970 makes public or private use punishable by one year in prison and a fine of €3 000 .
Prohibition and punishment of mere drugs use has provoked a strong debate in France for decades. In June 1999 the Directive of the Ministry of Justice asked prosecutors to prioritise treatment approaches for small offenders both related to drug use or to other small crimes. Particularly concerning problematic drug users, the recommendation of the Directive is to apply to the largest extent possible therapeutic alternatives to prisons, while "the imprisonment of drug users not having committed other related offences must be the last resort" .
In practice, mere users are mainly dealt with by therapeutic alternatives. However, the 'therapeutic order'  to avoid penal action is not the only one to be applied. In most cases, mere drug users receive a warning which may be accompanied by a request to contact a social or health service, without obliging the person to undergo treatment or counselling ("no further action" with orientation ).
The new law of 23 June 1999 provides a legal base to the alternatives to prosecutions (art.41-1 penal procedural code). A new instrument, the 'penal agreement' , increases the possibility of waiving prosecution in case of certain minor offences, particularly related to mere drug use. The prosecutors have now a various range of measures by which, if accepted and duly accomplished, they can end prosecution. These measures include the voluntary payment of a fine or the execution of non-remunerated work useful to society.
It appears that, concerning prosecution of drug use, the number of legal cases against drug users is diminishing. One survey shows that only 10% of all persons arrested by the police for drug use are actually prosecuted , and prison sentences just for drug use exist, but remain a minority .
Possession of illegal drugs is a criminal offence. The law does not distinguish between possession for personal use or for trafficking. Indeed, possession can be tried as a trafficking offence (art. 222-37 PC). In practice, however, based on the quantity of the drug found and the elements of the act, the prosecutor can opt for a charge of use or traffic accordingly.
If the offender is charged with mere use, he faces a maximum prison sentence of one year and a fine of up to €3 800, but he would probably receive "no further action", or one of the alternatives to proceedings (cf supra). In this case the prosecutor rescales the charge to exclude possession and therefore trafficking charges.
If the offender is prosecuted despite this, art. 222-37 of the Penal Code foresees imprisonment for up to ten years and a fine of up to €7 600 000.
All cases of supply of narcotics even without remuneration are punished as traffic, although they are punished less severely when supply is destined to personal consumption (art.222-39 new Penal Code) . Jurisprudence shows that this softer provision is only in fact applied when the dealer is himself a user .
Trafficking and drug related crime
Import, export, transportation, possession, supply, delivery, acquisition etc. attract penalties of up to 10 years and up to €7 600 000 fine under art. 222-36 and 222-37 of Penal Code. In case of particularly serious offences penalties can go up to life imprisonment.
The legal means available to police confirm the severity with which drug trafficking is considered. A trafficking suspect can be detained by the police with time limits for custody that range from 48 hours to four days, and searches may be conducted during the day or night.
It should also be noted that trafficking in narcotics might also be punishable as a customs offence (contraband and similar offences). This offence is not specifically for narcotics as in the Law of 1970. It is punishable by a maximum three-year sentence and by fines equalling two-and-one-half times the value of the illegal merchandise (value is estimated using underground market prices) under art. 414 of the Customs Code. Customs authorities will open a Customs procedure for drug trafficking in all cases of importation of drugs. Customs prosecutions do not exclude penal prosecution and indeed it is possible that customs fines are added to the penal sanctions. Only in case of very small quantities of drug is a financial transaction proposed to end the customs prosecution.
Prosecution and judicial practice
The objective of police, prosecutor and courts is to stop drug use by giving a penal response, which can take the shape of treatment and/or social care, and to be tough with drug traffic. However, it is reported from various sources that implementation of the laws on drug issues is not uniform. It varies from metropolitan to rural area or from court to court.
Legally drug users arrested by the police could be held in the police station (guarde à vue) up to 48 hours. However, it happens in practice that the majority of drug users stopped spend few hours in 'garde à vue' before being released. The Directives of the Ministry of Justice and Ministry of Interior of 1999 on this issue recommend to avoid the custodial measure of 'garde à vue', and to finish the case with a warning to the person.
For cannabis use, there might be no further action in most of the cases. The procedure could end with a summonds of police or of the delegate of the prosecutor  under the supervision of the prosecutor. Penal proceedings will be undertaken only if the user has already been arrested before or if another offence has been committed at the same time.
For other drugs like heroin, the first arrest will lead to diversion from proceedings into medical detoxification (art. L.3423-1 PHC). If the user refuses, or if he fails in the treatment, penal action can be undertaken against him. The same solution will probably be chosen if the user has already been arrested in the past. Medical detoxification can be part of the sentence pronounced by Court, mostly as a condition of deferment of imprisonment.
When drug use is associated with another drug offence like possession, transportation, retail sale, etc. Prosecutor and Court will choose in most cases the highest qualification. If the user is sharing his drug with others, he will be very often classed as a trafficker. The same will happen if he goes abroad to purchase a drug, even if it is only for his own consumption. Generally a previous arrest will greatly increase the sentence.
Scenario 1: possession of heroin for personal use by an adult offender.
When the police discover a user, he/she will be arrested, because the priority for the police is to control and safeguard the public area and peace.
In practice, drug use is not an offence which the police investigate. Most arrests will be done at the occasion of another police action, such as identity control particularly to check for illegal immigrants, overt street crime, traffic control checks, investigation of trafficking, etc.
If there are no indications of drug trafficking and the quantity possessed is very little, the person will probably be considered as a user and some kind of diversions or therapeutic measures will be proposed. In this case the person will be prosecuted for illicit use of drugs. Nevertheless, the quantity of the drug apprehended and the previous records are determinant in the choice of charges brought (use or trafficking) and the formulation of the sentence.
Scenario 2: property crime committed by a drug user to finance her/his drug addiction.
There is no concession for people who due to their addiction steal from a shop or from a third person to buy the drug they need.
In practice drug use is primarily an aggravating circumstance in acquisitive offences, even if no specific legal basis exists for that. Most of the time, when drug use is mentioned in a theft or a shoplifting case, it is only as a second offence. Procedure is ordered firstly for the property crime. Nevertheless, a double prosecution can occur if the prosecutor wants to mention the use of drugs to keep the information in the file, in case of a future arrest of the offender, or if he wants the court to be more severe.
At court level, the sentence is mainly imprisonment between 92% and 96% of the times depending of the nature of the property crime. Fines and alternative punishments represent only 3% and 2,5% respectively of the sentences. 75% of those sentences are ordered without deferment .
Scenario 3: small-scale distribution of drugs by a drug user to finance her/his drug addiction.
Most of the time this kind of offence will be qualified as traffic and consequently punished, and very rarely considered as a drug use offence. The case will be transmitted to court where prosecution for drug trafficking will follow.
However, the Penal Code foresees an intermediate punishment for retail sale. In effect, trafficking is punished by up to ten years imprisonment (art. 222-37 PC) but selling drugs to a user for personal consumption is punished only up to five years (art. 222-39 PC). Theoretically, this offence covers all kinds of retail sale but the Supreme Court seems to consider that this offence is applicable only when the trafficker is also a user. The sentence of retail sale by a user will be, indeed, lower than when the seller is not a user. But, even with this way of reducing charges, imprisonment will be ordered in most of the cases for an average duration of more than ten months.
Prevention, care and treatment
In the French legal system drug user offenders may avoid penal action by spontaneously seeking treatment. The provisions for anonymity guarantee that the law will not ask for any explanations after treatment.
The law of 1970, mainly dedicated to regulating drug use and drug trafficking, introduces the 'therapeutic order' (injonction thérapeutique), that stipulates that the offender must enter and complete a drug rehabilitation programme to avoid prison. The programme must be accepted by the drug user. From that moment the health authorities are responsible for the choice, organisation and control of the execution of the treatment programme most appropriate to the needs of the person. They must inform the prosecution in cases where the user refuses to continue the programme. In such cases, the prosecutor recovers the power to re-open the criminal proceedings.
Over the last 20 years the penal system has developed a considerable variety of measures as alternatives to imprisonment, besides the 'therapeutic order': probation, community work, postponement of the pronouncement, etc.
These measures enable the prosecutor, or the judge, in cases of criminal proceedings, to pass an obligation, or a 'strong invitation' to offenders, including drug users, to care for their health or social problems in view of a full rehabilitation . Therefore, theoretically nothing impedes that the perpetrator of a small infraction to the drug law, for other reasons other than use, will benefit from an alternative to prosecution or an alternative to imprisonment at the time of the judgment.
Lastly, it is important to mention other legal measures relating to the obligation of treatment that were provided for in the Law of 1970. These measures empower the judge and court to order a user to undergo detoxification treatment. If the user completes treatment, the judge may no longer inflict punishment. These measures are extremely rarely used. The courts prefer to use common law measures that are not specifically aimed at drug users but are often used when dealing with them. They may also be pronounced by the court within the framework of a suspended sentence with probation, or in the framework of a community work for the society with the obligation to follow a health-care programme.
After the adoption of the three year French Action Plan in 1999, almost all courts have set up justice-health conventions which have helped in the reflection on the measures to apply to drug using offenders and on the crucial relation between health and law enforcement authorities.
The law no. 96-542, issued on 19 June 1996, implements monitoring of the precursors listed in decree no. 96-1060 of 5 December 1996. Another decree no. 96-1061 of 5 December 1996 enacts the obligations of the producers, users and traders for each category of precursors.
An interdepartmental order, of 11 March 1993, created the Mission Nationale de Contrôle des Precurseurs Chimiques (MNCPC) - the National Office for Control of Chemical Precursors - within the Ministry for Economy, Finance and Industry. It answers directly to the Minister of Industry who decides the administrative sanctions in case of infringement of the law no. 96-542; fines of up to €1 500 per breach, and fines of €150 to 750 per day in case of non-transmission of information or refusal of supervision. The MNCPC delivers agreements and authorisations to the operators, carries out on-site checks, proposes changes to precursor legislation, and gathers declarations of suspicion from operators which it transmits immediately to Customs and Police for further investigation. In case of divertion of precursors for illegal drug production, the Customs may use their control and sanction powers under the Customs Code, and the police may apply the provisions of the Penal Code on drug traffic.
Money laundering and confiscation
The law of 31 December 1897 has introduced into French law the incrimination of money laundering related to drug trafficking. The regulations governing money laundering are in the Penal Code (art. 324-1 for the general offence, and 222-38 for laundering related to drug trafficking).
The punishment for laundering can be up to 5 years imprisonment and a fine of €381 000. These penalties can be doubled when the laundering is linked to drug trafficking. The fines applied can further surpass these maxima and can reach half the amounts involved in the laundering. Finally, the prison sentences can be further increased when the laundered money originates from a drug trafficking offence (eg leading an organisation for the producton of drugs, art 222-34; lifetime in prison).
The TRACFIN is the body at the Ministry of Finance to which financial institutions, insurance companies, money exchange bureaux, casinos etc, must report all suspicious transactions that could come from drug trafficking or other illicit sources .
The website of the Interdepartmental Mission for the Fight against Drugs and Drug Addiction (MILDT) can be found at www.drogues.gouv.fr
Text revised by Mrs. Charlotte Trabut, judicial authority ("magistrat"), officer in charge at MILDT.
- OFDT, REITOX National Reports 1996 - 2000;
- Study on the legislation and regulation on drug trafficking in the European Union Member States, European Commission 2001;
- Usage de Stupéfiants: Politiques Européennes, Maria Luisa Cesoni 1996;
- Yann Bisiou in Prosecution of drug users in Europe: varying pathways to similar objectives, EMCDDA 2001;
- L'incrimination de l'usage de stupéfiants dans sept legislations européennes, Maria Luisa Cesoni, 2000;
- Drug Policy in the European Union, De Ruyver for The European Commission, 1995
1. Article L-3421-1 of the public health code (back)
2. Minister of Justice NOR JUS A 9900148 C, 17 June 1999 (back)
3. In French 'injonction thérapeutique' (back)
4. "classement avec orientation" (back)
5. la composition pénale art. 41-2 du CPP (back)
6. Statistics of Ministry of Interior (OCRTIS) and Ministry of Justice 1999 (back)
7. Survey realised in the penitentiary establishments updated at 1st November 2000: 197 convicted (0,4 % of the total prison population) were serving a sentence of imprisonment for use of drugs only. (back)
8. L'incrimination de l'usage de stupéfiants dans sept legislations européennes, Maria Luisa Cesoni, 2000 (back)
9. Charlotte Trabut note to Country Profile text (back)
10. délégué du procureur (back)
11. Yann Bisiou in prosecution of drug users in Europe : varying pathway to similar objectives, EMCDDA 2001 (back)
12. cf supra Decree of the Ministry of Justice of 17 June 1999 concerning the fight against drug trafficking and law of 23 June 1999: new article 41-1 of the Criminal Code of procedure according to which, the public prosecutor can decide to orientate the criminal towards a health, social or professional structure, before any decision on the public action, every time such a measure seems able to contribute to the rehabilitation of the offender. (back)
13. law 12 July 1990, modified by law 29 January 1993, 13 May 1996 and 15 May 2001. (back)