Country Profile - The Netherlands
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 'main' drug law in the Netherlands is the Opium Act. The first Opium Act of 1919 was the result of the participation of the Netherlands in the 1912 International Opium Convention in The Hague. A new Act came into force in 1928; the framework of this law is to a large extent still the basis for the present legislation.
The Act was fundamentally amended in 1976, determining the version currently in force. This amendment confirmed the distinction between 'hard' and 'soft' drugs, suggested in a 1972 report by a government 'Working Group on Narcotic Drugs'. This Working Group proposed to introduce a 'risk scale', based on medical, pharmacological, sociological and psychological data. Therefore, the 1976 Opium Act distinguished between drugs presenting unacceptable risks (unofficially called 'hard drugs') and cannabis products (unofficially called 'soft drugs').
The Opium Act includes also provisions against drug trafficking. In the Penal Code measures can be taken regarding the confiscation of illegal assets and the prevention and prosecution of money laundering activities. The Abuse of Chemical Substances Act enables the monitoring of the trade in precursors, implementing European Regulations 273/2004, 111/2005 and 1277/2005. Other laws applicable to health and welfare have a great relevance for drug use or drug users.
Arresting and criminalising users possessing small quantities for personal use of any drug is not regarded as a priority for law enforcement. This is specified mainly by guidelines issued by the Office of the Public Prosecutor [Guideline 1996, revised in 2005]. Other relevant laws with regard to drug use are: the Collective Prevention and Public Health Act; Primary Education Act, Basic Education Act for Secondary Education, the Care Institutions Quality Act, and the Act on Medicines. Legal measures include offering some of the users who come into contact with the police or judicial authorities the option of suspension of their detention on remand on the condition that they undergo treatment through the 'Suspension of detention pending trial'. A new law (Penal Care Facility for Addicts - Strafrechtelijke Opvang Verslaafden) came into force in April 2001, that enables the courts to commit addicts with a history of crime for at most two years to a special institution for intensive treatment. In 2004, the act 'Placement in an Institution for Prolific Offenders' (ISD: Plaatsing in een inrichting voor stelselmatige daders) came info effect. This act refers to all prolific offenders, not only addicts. Since 2004 the Penal Care Facility for Addicts is incorporated in the act 'Placement in an Institution for Prolific Offenders'.
Part of the national drug policy is decentralised to the local level. Dealing with drug related public nuisance, including the possibility of administratively close down premises where illegal drugs are sold, is part of the mayor's competence. The drug policy at the local level, which must comply with national guidelines, is co-ordinated in consultation between the mayor, the chief public prosecutor and the chief of police, in so-called tripartite consultations.
Illegal substances are annexed to the Opium Act and divided in two schedules: substances presenting unacceptable risks and other substances:
Schedule I, 'drugs presenting unacceptable risks' , is subdivided in a, b, c:
- Ia: including among others opiates, cocaine, cannabis oil;
- Ib: Codeine;
- Ic: amphetamines and LSD.
Schedule II is subdivided in a and b:
- IIa: includes tranquillizers and barbiturates;
- IIb: includes cannabis (without the qualification of unacceptability).
The division in schedules has a real impact in the prosecution of illegal offences: penalties for offences with regard to Schedule II are considerably lower than those for Schedules I.
Drug use and possession
The Dutch drugs legislation is based upon the principle of the separation of markets of cannabis (also known under the non-legal term of 'soft drugs') and other drugs ('hard drugs'). The penal provisions set in the framework of the drugs laws must be understood in this context.
Drug use does not constitute a crime in legal terms. However, there are situations when the use of drugs is prohibited, such as for instance schools and public transportation. It is up to the responsible authorities - which is not the national government - to regulate this.
By not criminalising drug use drug users are less hampered in looking for institutions responsible for prevention and care. Law enforcement priority and resources are given to the investigation and prosecution of production and (international) trafficking in drugs.
The possession of small quantities of drugs for personal use is accorded a much lower priority . Anyone found in possession of less than 0.5 grams of Schedule I (i.e. 'hard') drugs will generally not be prosecuted, though the police will confiscate the drugs and consult a care agency. As for cannabis a maximum of 5 grams will not lead to investigation or prosecution.
When the principle of 'separating the markets' between dangerous drugs and cannabis was codified in 1976, coffeeshops gradually emerged as the 'official/unofficial' sales channel for cannabis, albeit under strict conditions.
Coffeeshops are tolerated in the attempt to keep young people, who experiment with cannabis, away from other much more dangerous drugs. The sale of small quantities of cannabis in coffeeshops is therefore technically an offence, but prosecution proceedings are only instituted if the operator or owner of the shop does not meet the criteria issued by the Prosecutor General:
- no more than five grams per person may be sold in any one transaction and the coffeeshop is not allowed to keep more than 500 grams of cannabis in stock;
- no hard drugs may be sold;
- drugs may not be advertised;
- the coffee shop must not cause any nuisance;
- they are not allowed to sell alcoholic beverages;
- no drugs may be sold to minors (under the age of 18), nor may minors be admitted to the premises.
The Mayor may order a coffee shop to be closed when the criteria are being disregarded (article 13a of the Opium Act). The ultimate result may also be the prosecution of the offender (both the proprietor of the coffeeshop and/or the client).
Possession of cannabis or other drugs for commercial purposes is considered a more serious offence than possession, production and sale for personal consumption, and will be prosecuted. The maximum penalty for possessing cannabis not exceeding 30 grams is 1 month' imprisonment and/or a €3 350 fine.
If the substance is not cannabis the maximum penalty varies from imprisonment up to 1 year and/or a €6 700 fine for a small quantity (use quantity), to 8 years' imprisonment and/or a €67 000 fine for the production of these substances. The maximum penalties can be increased by one third if the same crime has been committed more than once.
Trafficking and drug related crime
A further distinction is made between drug users and traffickers.
Drug users are convicted when they have committed a crime such as selling, theft, robbery or burglary. A special law - Placement in an Institution for Prolific Offenders (ISD) - was introduced in 2004, formerly the Penal Care Facility for Addicts, meant for the treatment of criminal drug users in prison-like institutions.
In 2007 an amendment (article 13b) to the Opium Act came into effect. Local authorities can use article 13b of the Opium Act to close premises - both public and private ones - used for the sale of illegal drugs as an ultimate sanction in a chain of sanctions. The tolerated sale of cannabis in coffeeshops falls outside the scope of this article.
To conform with the EU framework decision laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking, in 2006 the maximum penalty for certain dealings with Schedule II drugs was increased from 4 to 6 years of detention or a certain fine.
Within the framework of the Opium Act importing and exporting of any classified drug is considered a serious offence. The penalty for hard drug trafficking can run up to 12 to 16 years.
In contrast, the maximum penalty for importing or exporting any quantity of cannabis is 4 years' imprisonment and/or a €67 000 fine. The Dutch drugs law does not explicitly mention 'trade' as a punishable act. Although the penalties for import/export on the one hand and sale on the other are different, all these acts must be considered to constitute 'trade'.
Prosecution and judicial practice
Officially, the police have no authority to dismiss a criminal case when they have obtained knowledge of it. However, there are a number of exceptions to this general rule. They concern the minor offences and specific and explicitly nominated offences like shoplifting. In practice the police can dismiss cases if the dismissal is regarded to be in line with the expediency policy of the Public Prosecution Service.
Prosecution policy in drug related cases is substantially determined by the directives issued by the Prosecutor-General. The directives, adopted in 1996 and amended and renewed in 2001 and 2005, indicate for each drug related offence how to proceed with regard to criminal investigation, prosecution and demanding penalties. Among the guidelines are those indicating the quantities to be considered as the concept of 'small quantity of drugs' for personal use, the conditions of running of the coffee shops and of course the guidelines for offences against the Opium Act.
In the Netherlands, criminal investigation and prosecution are mostly carried out under the so-called expediency principle (opportuniteitsbeginsel). This means that the Dutch Public Prosecution Service (which is the only body in the Netherlands authorised to prosecute) can decide on its own and with full authority to refrain from prosecution if this serves the general interests of society. This power of the Public Prosecution Service is used very frequently. In these cases, it is decided to impose a waiver of prosecution, which can be either conditional or unconditional. The paragraphs in the Code of Criminal Procedure that make this possible are the Articles 167 and 242 CCP. The Public Prosecution Service uses these possibilities in case of minor offences to create a wide berth for more important and more severe criminal cases.
A particular form of waiver of prosecution is the possibility of transaction. All criminal offences that are penalised with less than six years of imprisonment (in current practice this means 90% of all criminal cases) and additionally all minor offences can be processed and settled by the Public Prosecutor by offering the suspect to redeem the case. This means that the Public Prosecutor proposes to the suspect to pay a certain sum of money or to fulfil certain other conditions. In exchange the Public Prosecutor will not bring the case to court. The amount of money asked for by the Public Prosecutor cannot exceed the fine set for the criminal offence.
Scenario 1: possession of heroin for personal use by an adult offender.
According to the Public Prosecutors Guidelines the possession of heroin for personal use can be sentenced with a maximum of 1 year imprisonment and/or a fine of about €6 700. However, the Guidelines grant low priority to the investigation and prosecution of such cases.
The main response is to confiscate the drug and to provide treatment and assistance. In practice, cases involving the possession of 0.5 grams or less will be dismissed by the police. Sentences may increase with the possession of quantities over 0.5 grams and when there is suspicion of dealing with intent.
Scenario 2: property crime committed by a drug user to finance her/his drug addiction.
This case - property crime by drug addicts - fall under the scope of the Dutch criminal law and is a conduct covered by the umbrella term 'drug-related nuisance'.
Since 1993 a nationwide policy has been introduced to reduce drug-related nuisance by passing administrative measures to promote public law and order (e.g. to tackle nuisance surrounding coffee shops, dealing houses, etc.). This kind of nuisance is being reported though, as usually this kind of offence would attract about a 6 months prison sentence when property representing a small pecuniary value is involved.
In a Guideline issued in 1999 from the Public Prosecutor Service  adopted a system to tackle this kind of offences. In case of 'simple theft' a calculation-system was introduced. Points are given to the criminal act and to the situation in which it is committed the crime according to certain criteria, for example: value of the stolen goods; recidivism; modus operandi (i.e. crime committed alone or with other offenders) etc. Depending on the number of points that can be allocated to a criminal act, a dismissal or a transaction can follow or a prosecution is started with a penal demand as formulated in the guideline. A similar system is used in cases of burglary and in case of shoplifting.
Scenario 3: small-scale distribution of drugs by a drug user to finance her/his drug addiction.
This scenario falls under the scope of the Opium Act which considers selling drugs as a serious offence. If the drug sold is cannabis not exceeding 30 grams, up to 1 month imprisonment can be possible or at least a fine. If the substance is not cannabis the penalty can go up to 1 year and/or a €6 700 fine. Recidivism increases the penalty. However, the guidelines issued by the General Prosecutor will play a central role in this case. They maintain the differences in the approach towards Schedule I and Schedule II drugs, and make a clear distinction between users and traffickers. So, in the case of small dealing in small quantities of drugs, investigation takes place followed by detention at a police-station and pre-trial detention. In this pre-trial detention special attention is given to early intervention for treatment and rehabilitation.
Prevention, care and treatment
The national government creates conditions for the development, implementation and evaluation of prevention programmes. Regarding the legal framework of drug prevention in schools three laws can be mentioned.
The Primary Education Act declares that the promotion of healthy behaviour is an obligatory task of primary schools (article 9.1.h WBO). Municipalities and their health care services are responsible for the implementation of collective prevention measures concerning health-risks for young people in the Collective Prevention and Public Health Act.
The Basic Education Act for Secondary Education creates conditions for a broad and modern education, containing health promotion issues. The Healthy Schools and Substances project is developed within this legal framework.
On April 1, 1996 the Care Institutions Quality Act came into effect. This law set in motion a process of care innovation, which has received a significant impetus from the government's policy on nuisance. The ability of the existing facilities to reach addicts who cause nuisance is inadequate. Addicts causing nuisance must be reached more effectively in two ways: by setting up 'nuisance facilities' with the appropriate care objectives, and by improving the effectiveness of the existing addiction care system and making better use of the available capacity. The following key concepts must be employed to achieve the goal of improved effectiveness: opportunities for clients to move from one facility to another, and follow-up facilities where the (new) treatment objectives are in line with the results of the previous treatment.
To ensure effective, good quality care, it is therefore important to achieve a high degree of coherence between the different care sectors and to ensure compatibility between their ways of working.
Drug addicts who have committed a small offence are increasingly pressured to participate in treatment programs. Arrested drug addicts may opt for treatment by suspension of preventive custody, provided they enter clinical treatment and complete the program, they will be granted permission by a judge to leave the prison to be admitted to an addiction clinic as soon as they have served at least half their sentence, up to a maximum of six months (Article 47 Prison Regulation). Moreover, part of a prison sentence be substituted for alternative sanctions: socially useful work that must be fulfilled in a certain number of hours. The performance of such work is supervised by probation agencies.
Moreover, the prison system has Addiction Counselling Departments where assistance is offered to drug addicts in order to stimulate their motivation for further treatment. The East Netherlands Institute for Addiction Care (IVON) is charged with setting up and running the Forensic Addiction Clinic (FVK) for problematic addicted delinquents who have committed several crimes and undergone a number of failed clinical treatments. The FVK has been fully operational since the summer of 1998.
Another concept is the 'Placement in an Institution for prolific offenders (ISD)', formerly the Penal Care Facility for Addicts (SOV). The ISD is applicable for prolific offenders, of whom the majority are hard drug users. The aim is to safeguard society from offences committed by prolific offenders for a maximum of two years. The measure also offers options for behaviour interventions to reduce criminal recidivism, and in the case of addiction and/or psychological problems, these problems can be dealt with. Offenders are placed in a regular penitentiary institution. Central elements are a personal approach and cooperation between justice and care.
The current law in the Netherlands, dealing with the trafficking in chemical substances that may be used in the production of drugs (Preventing Abuse of Chemicals Act, Wet Voorkoming Misbruik Chemicaliën), came into force in 1995. This law addresses international regulations and provides for a comprehensive licensing system for the manufacture and the trafficking of registered chemicals. A breach of this law constitutes an economic offence and is subject to a maximum penalty of 6 years' imprisonment, and fines of up to €670 000 per illegal transaction or shipment can be incurred. Profits thus acquired may be confiscated.
The FIOD-ECD (investigation service) of the Ministry of Finance is responsible for law enforcement in the field of precursors and oversees the implementation of the Act. It is therefore designated as the competent national authority. The customs has the domestic supervision of trade in and the production of chemical substances and has a close collaboration with the chemical industry. The chemical industry is obliged to report suspicious transactions.
In 1997 it was decided that several relevant national services in the field of synthetic drugs and precursors, such as Police, Customs, FIOD-ECD, Criminal Investigation Service, etc, would combine efforts and co-operate in a joint national unit, the Unit Synthetic Drugs (USD) of the National Crime Squad. The main objectives are to improve the national collation of relevant information and to support and initiate investigations related to synthetic drugs.
To improve the policy response to national and international issues regarding chemical precursors, the representatives of Ministries (Health, Economic Affairs, Justice, Foreign Affairs, Treasury) and executive public agencies such as the FIOD-ECD, the USD and Customs) meet regularly within the context of the National Co-ordination Committee for Precursors (Nationale Coördinatiecommissie Precursoren). The committee started its work in 1999.
Money laundering and confiscation
The Netherlands has introduced or changed laws to meet the EU directive on money laundering, making it more difficult for criminal organisations to retain the proceeds of their illegal activities. The so-called Confiscation Legislation (Wet Ontneming wederrechtelijk verkregen voordeel) came into force in 1993.
In the same year the Act on Transaction of Execution of Penalties (Wet Overdracht tenuitvoerlegging strafvonnissen) was expanded to make it easier to deprive criminals of illegally gained profits.
However, the outcome of five years (1993-1998) of applying confiscation measures did not meet the original expectations. The Treasury counted on €50 million but only one-fifth of that amount was secured. Public prosecutors have a hard time proving what criminals have gained their profit from illegal activities. Court procedures are tedious and particularly charges against the 'big fish' appear to be difficult to substantiate. Eight out of every ten charges awarded by court amounted to confiscation of €55 000 at most. Results may improve with further experience with legal procedures and investigations.
The Disclosure of Unusual Transactions (Financial Services) Act (MOT Act) (Wet Melding Ongebruikelijke Transacties) and the Identification (Financial Services) Act 1993 (WIF) (Wet identificatie bij financiële dienstverlening 1993), both dating from 1993, should be seen in the same light. Both laws aim to prevent and combat money laundering and were the result of the 40 recommendations of the FATF (Financial Action Task Force) and the EU directive of 10 June 1991 (91/308/EEC). The MOT and WIF oblige the financial institutions to establish the identity of its clients. Using objective and subjective indicators, unusual financial transactions should be made known to the Meldpunt Ongebruikelijke Transacties (Office for the disclosure of Unusual Transactions the MOT), an administrative institution.
Since 1994 the Netherlands have an Asset Recovery Office (Bureau Ontnemingswetgeving Openbaar Ministerie (BOOM), Public Prosecutors Bureau for Asset Recovery). The range of duties and the size of BOOM has expanded over the years. At this moment BOOM employs 75 people. BOOM is a national operating organisation and forms a part of the Dutch Public Prosecutors Office (PPO).
In May 2001 the Minister of Justice presented a memorandum called "Samenspannen tegen XTC" (Conspiring against XTC) which sets out a comprehensive €90 million plan for the duration of five years (2002-2006) to intensify the criminal investigation, prosecution and overall handling of XTC-related activities. Police forces and the Public Prosecution office have since then been reinforced with extra personnel. In 2007 the government decided to continue the intensified action against synthetic drugs. Prosecution of cases involving synthetic drugs gains a high priority. The already existing Unit Synthetische Drugs (Unit Synthetic Drugs) of police and the Public Prosecution office play a pivotal role in this process and become the national expert centre on the topic. Customs are involved to increase border control on the import of precursors and illegal imports and exports of synthetic drugs. The spearheads of the intensified action against synthetic drugs are a greater emphasis on the investigation and prosecution of precursors, initiatives on prevention and drug eduction, and intensification of the international (operational) cooperation.
By late 2007 the government presented a new action plan directed against organised crime (Policy Programme for the Strenghtening of Combating Organised Crime and Financial-Economic Criminality). The programme addresses, among other things, the illegal production of cannabis by organised crime groups. Small scale production is generally, more successfully addressed by administrative and civil law interventions. The programme will result in the intensified investigation and prosecution of this kind of serious offences. No direct change of laws is foreseen under this programme.
In a court ruling of 2002 it was established that only mushrooms "processed in some way" fall under the provisions of the Opium Act. After the occurence of a number of incidents, in 2008, the Opium Act has been amended to also forbid fresh hallucinogenic mushrooms and to place them under Schedule II of the Opium Act. Processed hallucinogenic mushrooms fall under Schedule I.
Text revised by Ms Jeannette de Quartel
- Nationale Drugsmonitor, The Netherlands Drug Situation 2007; Report to the EMCDDA, by the REITOX National Focal Point, Trimbos Instituut/European Monitoring Centre for Drugs and Drug Addiction
- Ministry of Justice, Plan of action for drug trafficking at Schiphol, 2002
- Ministry of Health, Welfare and Sport, ministry of Justice and ministry of the Interior and Kingdom Relations, Cannabis letter, 2004.
- Ministry of Justice, Policy programme for the strenghtening of combating organised crime and financial-economic criminality, 2007.
- Ministry of Justice, Continuation of the approach to synthetic drugs as of 2007.
- Study on the legislation and regulation on drug trafficking in the European Union Member States, European Commission, 2001.
- Anton van Kalmthout & Jack Derks in Prosecution of drug users in Europe: varying pathways to similar objectives, EMCDDA 2001.
- De Ruyver in Drug Policy in the European Union, European Commission, 1995.
- Drugs Policy in the Netherlands, ministry of Health, Welfare and Sport, The Netherlands, April 1997
1. Reitox National report 1996 (back)
2. Drugs Policy in the Netherlands, Ministry of Health, Welfare and Sport, The Netherlands, April 1997 (back)
3. Staatscourant 1999, p. 117. (back)