Country Profile - Portugal
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
In Portugal, the main law on control, use and traffic of narcotic drugs, psychotropic substances and precursors is the Decree Law 15/93, of 22 January 1993, altered by Decree Law 81/95, of 22 April 1995, and Law 45/96, of 3 September, and partially revoked by the Law 30/2000, of 29 November. The Decree-Law 15/93 regulates several aspects regarding penalties, medical prescriptions, authorisations, certification and control activities, as well as responsibilities concerning treatment, prevention, criminal investigation and money laundering, making a clear distinction between crimes of traffic and crimes of use.
Other important laws are: the Decree Regulation 42/93, of 27 November, concerning the certification and control of NGOs working in the area of treatment; the Decree Law 43/94, of 17 February, and the Decree Law 67/95, of 8 April, concerning the establishment of the Directorate on Prevention and treatment of Drugs Addiction (SPTT); Decree Law 313/93, of 15 September and the Law 5/2002, of 11 January, on money laundering; and Decree Law 193/96, of 15 October, establishing the National Drug Abuse Prevention Programme.
The year 1999 was a turning point in the Portuguese drug policy. With the Decree Law 31/99, of 5 of February, the Portuguese Institute for Drugs and Addiction (IPDT) was created and, with the Resolution of the Council of Ministers 46/99 of 26 May, the government approved the National Strategy for the Fight Against Drugs covering the period until 2008. As a consequence, a series of legislative modifications took place during 2000. The Decree Law 89/2000, of 18 May, created the Coordination Board for Drugs and Drug Addiction, while the Decree Law 88/2000, of 18 May, created the National Board for Drugs and Drug Addiction. It is also important to mention the alterations to the functions of the IPDT introduced by Decree Law 90/2000, of 18 May, and the adoption of the Action Plan on drugs by implementing the drug strategy with the identification of 30 objectives to be achieved by 2004.
Moreover, in 29 November 2000 the Law 30/2000 modifying the main drug law of 1993 introduced a regime of decriminalisation of use and possession for use of all illicit drugs. This law entered into force in July 2001 following the adoption of its operational Regulation Decree Law n.º 130-A/2001, of 23 April.
Controlled substances are annexed to the main drug Decree Law 15/93 included in 6 lists, regularly updated by decree laws. List 1 is divided into opiates; coca derivatives; Cannabis and derivatives. List 2 is divided into Hallucinogenic; Amphetamines; Barbiturates. List 3 contains preparations with controlled substances; List 4 tranquillisers and analgesics and lists 5 and 6 contain precursors.
The difference between lists have an impact on the punishment of drug related crimes.
Drug use and possession
Until July 2001 drug use was considered a criminal offence punishable with imprisonment up to 3 months or a fine. If the quantity of illicit drugs found in possession exceeded 3 daily doses, the penalty could go up to 1 year or a fine. The law envisaged the suspension of the sentences for occasional users. Possession of drugs was also considered a criminal offence punishable according to the motivation behind the offence: whether the drug was for personal use, for retail, or for trafficking.
As stated, the legal situation has changed after the adoption of the Portuguese strategy on drugs in 1999 and the consequent Law 30/2000 decriminalising use and possession for use of all illicit drugs.
The new law in force from July 2001 maintains the status of illegality for all drugs and for using them without authorisation. However, the punishment of illegal drug use has changed.
From now on for anyone caught in possession of a modest quantity of drugs for personal use (established by law, this shall not exceed the quantity required for an average individual consumption during a period of 10 days), the police having no further suspicions or evidence that more serious offences are involved (sale, traffic), the drug will be seized and the case transmitted to a local Commission composed of a lawyer, a doctor and a social assistant. The Commission meets the person charged with illegal drug use/possession, in order to evaluate his/her situation with the aim of treating eventual addictions and rehabilitating the person; sanctioning, even if possible, is not the main objective in this phase. Control of sale of drugs for commercial purposes still remain one of the objectives of law enforcement authorities.
Trafficking and drug related crime
Drug traffic is defined by chapter III art. 21 of the Decree Law 15/93: ‘traffic and other illicit activities’. Producing, offering, selling, preparing or cultivating illicit drugs are, among others, the classic offences constituting drug traffic. It must be mentioned that the same article expressly excludes drug use offences foreseen by article 40 of the same decree law.
Portuguese law differentiates prosecution of drug traffic according to several criteria. The nature of the substance is one of the main criteria. Trafficking in substances included in the lists I to III attract a sentence of between 4 and 12 years of imprisonment, while substances in list IV (tranquilliser and analgesic) may be punished by between 1 and 5 years in prison.
The state of addiction of the trafficker is also taken into account by art. 26 of Decree Law 15/93. If the user sells drugs to finance his own consumption (‘addict-trafficker’), the penalty is reduced: Lists I, II, III up to 3 years (instead of 4-12) - list IV up to 1 year (instead of 1-5).
The ‘traffic of minor importance’, being defined by article 25, is also considered at the prosecution. In cases in which the crime can be defined as minor, according to the circumstances, modalities of the crime, quantity and nature of the substances, the penalties will be substantially reduced; between 1 and 5 years’ imprisonment (lists I to III) and up to 2 years or fine (list IV).
Of course the law foresees also aggravating circumstances by which the minimum and maximum penalties for traffic can be increased by ¼ in all cases. Criminal association envisages 10-25 years. Traffic of precursors attract penalties up to 12 years of imprisonment and the abandonment of syringes is fined or punished by up to 1 year of imprisonment.
The Decree-Law 43/2002, of 2 March, creates the system of marine authority (SAM), establishes its ambit and attributions, and defines its co-ordination structure. This law aims to increase the capacities of the organisms and security force, to implement the objectives of the government in the matter of illicit drugs traffic.
Prosecution and judicial practice
The change of the law in 2001 (Law 30/2001, of 29 November) is having an impact on the work of police and magistrates in their daily practice.
The Prosecutor also is obliged by law to hold an inquiry whenever he/she is informed about a crime. In the case of drug use/possession, the Prosecutor, before the change of July 2001, would investigate, confirming the evidence of the crime and charging the persons. In cases in which the defendant was proved to be a drug addict, the Prosecutor usually would ask for a fine. Occasionally, the belief that medical treatment would be more effective than repressive responses would lead Prosecutor to suggest diversion measures in which the subject could follow a treatment. However the Prosecutor would rarely use the waiving of penalty or the provisory suspension of the process. This happened only in cases when the defendant was a first offender, having little fault.
The new regime introduced in 2001 is expected to change this radically, bringing more coherence between the punishment of traffickers and the treatment of addicts.
Prevention, care and treatment
The drug Decree Law 15/93 especially provides for the involvement of the health services in the enforcement measures (Chapter IV).
The drug addict is considered a sick person rather than a criminal and Portuguese legislation includes a comprehensive legal system in support of drug addicts. Although the legislation foresees various therapeutic alternatives to prison, the limited availability of facilities in the past created rather long waiting lists, with the tendency to apply the punishment measures instead of the treatments.
Nevertheless, the new recently adopted drug strategy prioritises the treatment and rehabilitation of drug addicts as a fundamental pillar of the Portuguese drug policy, and the recent change in legislation gives a very strong and concrete signal in the direction of treatment instead of punishment.
The public prosecutor is now substituted by a Commission (Comissão para a Dissuasão da Toxicodependência) present in each district, composed of three civil servants whose objective is to deal with non-violent drug use offenders in order to provide treatment and full rehabilitation (Decree Law n.º 130-A/2001 of 23 April).
The legal basis for harm reduction measures in Portugal is the Decree Law no.183/2001 of 21st of June 2001, which provides for a normative framework of programs and social and health structures, targeting on the one hand awareness and referral to treatment of drug users and, on the other hand, prevention and reduction of risk attitudes or behaviours and minimization of individual and social harm caused by drug use. In accordance with this legislation, several structures were implemented: Drop-in centres for drug users without social or family support; Refuges; Shelters; Contact and information units; Mobile centres for the prevention of infectious diseases; Low threshold substitution programmes; Syringe exchange schemes; Street teams; Programmes for supervised drug use. Methadone maintenance and needle exchange programs can be implemented in all of these structures. According to this text together with Decree-Law 15/93 of the 22nd of January 1993, medical doctors are allowed to prescribe substitution treatments and such treatments shall be restricted to adult persons addicted to opiates. Provisions on take-home doses of substitution substance don’t exist in the law but exist in the clinical guidelines “Manual of Standards Guiding Therapeutic Programs with Opioid Agonist” (awaiting formal approval, as at Dec 2011). In some Portuguese prisons, methadone maintenance and methadone detoxification treatments are available.
Syringe exchange schemes are clearly regulated by Arts 50-57 of Decree-Law 183/2001 of 21st of June 2001. This includes provisions on management, access rights, working hours and procedures, premises and location (including the possibility of dispensing machines), coordination with other bodies and assessment. Under this text, injecting drug users are allowed to carry sterile injecting material. The National Commission for the Fight Against AIDS, in cooperation with the National Association of Pharmacies, implements the national syringe exchange programme since 1993. Order no. 22 144/2007 of the 21st of September 2007 approved the specific regulation for a syringe exchange pilot project in selected prisons and is currently implemented at Lisbon and Paços de Ferreira prisons.
Money laundering and confiscation
The decree law 15/93 and decree law 313/93, of 15 September, integrated the EC Directive 91/308 on money laundering into Portuguese law, criminalising the act of laundering capital or assets of illegal origin. This law has been revoked by the Law 5/2002, of 11 January. This new law establishes measures to fight against organized, and economic and financial criminality. The Law 5/2002 altered the Law 36/94, of 29 September (this law already altered by the Law 90/99, of 10 July) and the Decree-Law 325/95, of 2 December (altered by the Law 65/98, of 2 September, by the Decree-Law 275-A/2000, of 9 November, and by the Law 104/2001, of 25 August).
The database of Portuguese drug law is available at http://www.idt.pt/PT/Legislacao/Paginas/LegislacaoNacional.aspx
This text has been revised by the IDT.
IDT Reitox National Reports 1997 - 2010;
Study on the legislation and regulations on drug trafficking in the European Union Member States, European Commission 2001;
Jorge Quintas and Ernesto Paulo Fonseca, in Prosecution of drug users in Europe, EMCDDA 2002.