Illegal possession of drugs
This Topic Overview concentrates on the act of illegal possession, which is the most common, if not universal, drug law offence. (Many laws also consider acquisition, storage, handling, etc, and there may be difficulties in translation that compound conceptual differences.)
The UN Single Convention on Narcotic Drugs of 1961, Art. 36, requests State Parties to “adopt such measures as will ensure that …possession… of drugs contrary to the provisions of this Convention… shall be punishable offences when committed intentionally, and that serious offences shall be liable to adequate punishment particularly by imprisonment or other penalties of deprivation of liberty.” The Convention on Psychotropic Substances of 1971, Art 22 echoes this, stating that “each Party shall treat as a punishable offence, when committed intentionally, any action contrary to a law or regulation adopted in pursuance of its obligations under this Convention, and shall ensure that serious offences shall be liable to adequate punishment, particularly by imprisonment or other penalty of deprivation of liberty. “ Finally, the Convention Against Illicit Traffic of 1988, Art. 3 requests establishment of a criminal offence for possession of drugs for the purposes of trafficking (Art. 3.1(a)(iii)), and for the possession for personal consumption (Art.3.2). This latter has been the subject of a wide range of interpretations and analyses; see for example the EMCDDA thematic paper “Illicit drug use in the EU: legislative approaches”, section 1.
The table below shows that each country has its own combination of some or many different factors that will comprise the legal offence of possession, which makes it difficult to directly compare offences or penalties. Possession itself might be a factor in use or trafficking offences – or these may be treated separately by the legislation. Therefore, some countries may have a maximum of 3 years’ imprisonment for possession, others may go up to 20 or 30, according to each country’s definition of a possession offence. Within the law(s), the factors may be listed in the definition of the offence, in the aggravating circumstances, or in the penalties.
Broadly, the factors considered across the EU countries are as follows:
Possession / of a certain amount / with intention / of a certain drug / by an addict.
· The factors of “amount” and “intention” may combine to create the factor “for personal use” or “with intention to supply/distribute”. This is clearly the most significant factor when sentencing, and is defined in the laws of most of the EU countries.
· The factors of “amount”, “intention” and “type of drug” may combine to create the factor “as a lesser/minor offence” or conversely “as a serious/significant offence”. Examples can be seen in the laws of Poland and Sweden.
· The type of drug may be named (usually cannabis) or described as “particularly” dangerous (as opposed to dangerous). Belgium, Ireland and Luxembourg have specific penalties for cannabis possession; Spain, Cyprus, Netherlands, Portugal and the UK have sentences directly linked to the type of drug involved. (See the ELDD Overview Table on Classification for further explanation.)
· Possession by an addict, when identified by a country’s laws, is usually treated more leniently; Greece and Hungary have specific legislation to address addicts.
Some laws specifically mandate heavier penalties for repeat offenders or aggravating circumstances such as the involvement of minors. Of course, all factors may also be taken into account by the prosecutor or judge – this table is a synopsis of the legal texts only.
In practice, a person accused merely of possessing drugs will not necessarily be sentenced, as can be seen in the EMCDDA study “Insights 5; Prosecution of Drug Users in Europe”. However, the discretionary power of the prosecutors and courts is quite wide — depending on the specific national law itself, the individual's circumstances (whether addicted or otherwise), the place where the offence was committed (urban or rural), the quantity of the drug held and the nature of the drug in question — so it is almost impossible to adopt common rules, even within a single country.
All penalty time periods refer to imprisonment, unless otherwise stated. All fines are converted to Euros for approximate comparison purposes.
A detailed analysis taking into account any threshold quantities, sentencing guidelines, and alternatives to prison or prosecution, can be found in the thematic paper “Legal status of drug use in the EU”. Fuller information for each country can be found in the ELDD “Country Profile”, under the heading “Use and Possession”.
The Council Framework Decision 2004/757/JHA of 25 October 2004 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking. Article 2(1)(c) requests punishment of the possession of drugs with a view to trafficking them.
The Framework Decision specifically excludes possession committed exclusively for the offenders’ own personal consumption as defined by national law.
Art. 4 sets out the penalties, Art.5 lists mitigating circumstances.
Basic possession offences and penalties (imprisonment)
· Maximum of at least 1-3 years.
· When there are large quantities of drugs, OR involvement of drugs which cause the most harm to health or has resulted in significant damage to the health of a number of persons: maximum of at least 5-10 years.
· If committed within the framework of a criminal organisation: maximum of at least 10 years.
· When precursors are involved, and the offence is committed within the framework of a criminal organisation or intended to be used for production or manufacture of drugs: maximum of at least 5-10 years.
This Framework-Decision must be implemented by 12 May 2006.
Basic possession offences and penalties (imprisonment)
Possession of drugs is a crime under the Law of 1921 Art. 2bis, but Art.11 and the Royal Decree of 1930, Art. 28(2) specifically allow the police to fine those found with a small amount of cannabis a first or second time, provided there is no evidence of problematic or nuisance use. Problematic use will result in a referral for health advice; use of cannabis causing a disturbance will be punished with imprisonment. A Ministerial Directive to Prosecutors clarifies details.
· Cannabis for own use: prosecutor (non-criminal) fine
· Cannabis as disturbance: 3 mths – 1 year and fine
· Other drugs; 3 mths – 5 yrs and/or fine.
Czech law distinguishes between possession of a small amount of drugs for own use, which is an administrative offence under the Misdemeanour Act s.30(1)(j), and possession of a quantity greater than this small amount, which is a criminal offence under the Penal Code 40/2009, Art.284. Possession for a third party is prosecuted as trafficking under Art.283.
· Small amount for own use: administrative (non-criminal) fine.
· Quantity greater than small: up to 1 year or fine (cannabis, other substances containing THC); up to 2 yrs or fine (other substances)
· In case of aggravating circumstances (regardless of substance type): 6 months-5 years, 2-8 years.
Executive Order No. 698 of 1993 s.27(1) penalises violations of handling provisions such as possession, unless covered by the Penal Code s.191, which addresses offences involving large quantities of drugs and other aggravating circumstances. The Prosecutors’ Circular 35/2004 includes the latest guidelines for possession for personal use.
· Basic: fine or up to 2 years. Warnings generally cannot be used.
· Aggravating circumstances: up to 10 yrs.
· Large quantities of a more dangerous drug – up to 16 yrs.
Section 29 (1) of the drug law (BtMG) prohibits possession.
s. 29 (5) BtMG specifically allows the court to refrain from imposing punishment if the quantity is insignificant and is for personal use
s. 31a BtMG allows the public prosecutor to refrain from prosecution if the quantity is insignificant, if it is for personal use, if there is no public interest in prosecution and if the offender's guilt is minor.
Neither s.- 29 nor 31a BtMG specify any drug. They are related to all kinds of drugs. However, in practice they are applied mainly for cannabis. Application of s. 31a BtMG varies considerably according to different rules and practices in the Länder.
· Basic: up to 5 yrs or fine.
· Insignificant quantity for personal use: possibly no prosecution or punishment.
· Significant quantities: at least 1 year.
Art 151 of the Narcotic Drugs and Psychotropic Substances Act (NDPSA) considers (simple) possession of drugs as a misdemeanour. Possession of small quantities of drugs with intention to supply is an offence under Art.183 of the Penal Code. For possession of large quantities, it does not matter whether or not there is intention to supply (Art.184 Penal Code).
· Handling: up to 200 fine units (about €770) or 30 days’ (non-criminal) detention.
· Small quantities with intention of trafficking:
· Large quantities:
Under the Codification of the Drug Legislation CDL (Law 3459/2006) Arts 29-30, drug offenders are assessed as either dependent or non-dependent. The law distinguishes between possession for personal use or commercial use by way of quantity thresholds. A personal use offence is not recorded on the offender’s criminal records on condition that they do not commit a relevant offence for a five year period (CDL, art. 29, par.4).
· Small quantities of drugs for personal use, also cultivation of cannabis: up to 1 year prison and fine for non-addicts (CDL, art. 29, par.1). Addicted offenders may be admitted to a special treatment unit or a special prison department operating under the auspices of lawfully-recognised agencies upon the order of the investigating judge (CDL art.30).
· Large quantities; punished as drug trafficking.
In Spain, illicit possession that is not for trafficking is punished by administrative sanctions, according to Art.25-28 on the Law 1/1992 on the protection of public safety. Sentencing for possession for trafficking depends on how dangerous the substance is, considering Art.368-70 of the Penal Code. Higher sentence ranges are given for large quantities.
· Not for trafficking: Administrative fine of €301– €30 000 and/or suspension of driving license.
· For trafficking purposes: 3-9 years for very dangerous substances and fine, 1-3 years and fine for other substances.
· If there are huge quantities of drugs involved: from 9 to 13 years and 6 months of prison and fine; from 3 years and one day of prison and fine to 4 years and 6 months of prison and fine.
The Misuse of Drugs Act 1977, ss.27-28 (as amended by Misuse of Drugs Act 1984), distinguishes between possession and possession for the purpose of selling or supplying. Penalties for possession (not to supply) depend on the type of drug, with fines given for the first and second offence of cannabis possession.
· Possession for personal use:
Cannabis or cannabis resin:
For first offence
- Summary – fine up to €381
- indictment – fine up to €635
For second offence
- summary –fine up to €508
- indictment – fine up to €1,270
For third and subsequent offence
– summary – fine up to €1,270 and/or prison up to 1 year
– indictment – fine as court considers appropriate and/or prison up to 3 years
- summary – fine up to €1,270 and/or prison up to 1 year
- indictment – fine as court considers appropriate and/or prison up to 7 years
· For the purpose of supply (all drugs including cannabis);
- summary – fine up to €1,270 and/or prison up to 1 year
- indictment – fine as court considers appropriate and/or prison up to life
|France||Illegal possession of drugs is a criminal offence. The law does not distinguish between possession for personal use or for trafficking (art. 222-37 PC). 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.||Use: max 1 year prison sentence. Fine of up to 3 750 euros. The offender can probably receive "no further action", or one of the alternatives to proceedings. This may include a drug awareness course, for which the user may be ordered to pay up to 450 euros.|
Under the DPR 309/90, Art.73-75, possession for personal use is punished by administrative sanctions (withdrawal of driving licence etc), though for lists II-IV (incl. cannabis) the prefect will drop the case with a warning.
Any other possession will be punished according to the quantity and the nature of the substance.
· Basic: Lists I, III; 8 - 20 years. Lists II, IV; 2- 6 years.
· Quantity for personal use: For substances in lists I, III, administrative sanctions for 2-4 months; for substances in lists II, IV (incl. cannabis) administrative sanctions for 1-3 months.
The law distinguishes between possession of small amounts (Administrative Violations Code, para.46), possession of not small amounts, and possession of large quantities (Criminal Law s.253). The law also distinguishes between possession with or without intention to supply.
· Small amounts: police (non-criminal) fine up to approx €130, or 15 days’ administrative arrest.
· Small amounts repeated within a year: up to 2 years.
· Not small amounts: up to 5 years.
· For the purpose of sale: 5-10 years.
The Code of Administrative Offences, Art.44, and the Penal Code, Arts. 259-260, distinguish the type of possession by the factors of “amount” and “intention”. If a person possesses a small amount of drug, without intent to distribute and supply, he will be punished for committing a misdemeanour, but if this amount is larger than the small amount then he might be sentenced to imprisonment. Possession of any quantity for distribution will result in imprisonment.
[Code of Administrative Offences:
· Possession of a small amount without intent to distribute or supply: fine up to approx €290 with confiscation of drugs, or administrative arrest up to 30 days with confiscation of drugs. However, this overlaps with the Penal Code Art 259 part 2, which takes precedence.]
· Possession of a small amount without intent to distribute or supply: public works up to 240 hours, or restriction of freedom 3 months - 2 years, or fine up to approx €1800, or arrest of 10-45 days.
· Possession without intent to distribute or supply: fine of up to approx €3700, or arrest (15-90 days), or imprisonment up to 2 years.
· Possession with intent to distribute or supply: 2-8 years imprisonment.
· Possession with intent to distribute or supply large amount: 8-10 years.
· Possession or distributing very large amount: 10-15 years.
Under the modified Law of 19 February 1973, Arts.7-10, possession for personal use of cannabis or cannabis resin does not carry a possible prison sentence, but a fine. Possession of other drugs for personal use carries a possible prison sentence.
· For personal use: 8 days – 6 mths.
· For personal use of cannabis and cannabis resin: (non-criminal) fine of €251 - €2500.
· Any substance in view of use by another: 1-5 years.
The Penal Code ss.282 and 282/C define the type of punishment by the quantity, if there is any intention to sell, and if the person is an addict or not. There may be exemptions from punishment if the offender takes part in a treatment or prevention programme.
· Basic; up to 5 yrs (for addicts: up to 2 yrs)
· Small quantity: up to 2 years (for addicts: up to 1 yr or fine)
· For profit; 2-8 years (for addicts: up to 2 yrs)
The Opium Act Arts. 2C and 3C establish limits to possession of drugs in lists I and II. Under those limits the possession is still illegal, but if it is a small quantity for personal use (cannabis) it might not be punished according to the Opium Act Directive. Above the limits defined by the law, the possession is considered with intention to supply. The Opium Act Directive gives guidance to police, prosecution and sentencing for different quantities or different substances.
List I: 6 years and/or fine of €67 000.
List II: 5g-30g for personal use; penalties up to 1 mth imprisonment and/or fine of up to €3350. More than 30g; 2 years and/or fine.
· Small quantity for personal use: List I: 1 year and/or fine. List II: punishment does not apply (up to 5g).
The Narcotic Substances Act 1997 ss. 27-31 has separate rules for narcotic drugs and psychotropic substances. The elements of these offences differ between simple possession, possession of a large quantity with the intention of putting it on the market, possession for gain and other qualifications. Under ss. 35-37 temporary withdrawal of the charge or the criminal proceedings may take place following a health report from the district administrative authority. In the case of possession of cannabis in small quantities for personal use this health report is not required.
· Basic: up to 6 mths or fine.
· Large quantities and other qualifications in connection with narcotic drugs: up to 3 years
· Large quantities in connection with psychotropic substances: up to 2 years.
The Act on Counteracting Drug Addiction prohibits possession under Art.48. It permits lower sentences in cases of lesser gravity, and higher sentences in cases involving a considerable quantity.
· Basic: up to 3 years.
· In a case of lesser gravity up to 1 year, limitation of liberty or a fine
· If a considerable quantity: up to 5 years
Possession may be for personal use, or not. If a limited quantity, possession for personal use is an administrative offence under Art 2 of the law 30/2000, and will be settled with treatment, counselling or a fine, as a last resort for non addicted users, or non-pecuniary penalties for addicted users. The law also recognises the specific case of user-dealers. Punishment for traffickers under the Decree-Law 15/93 Arts.21-26 depends on the substance.
· For personal use (less than 10 daily doses): administrative offence, with treatment or counselling, or a fine.
· In cases other than the above: tables I to III, 4-12 yrs; table IV, 1-5 yrs.
The Production and Trade in Illicit Drugs Act Art.33 specifies the offence of possession, and the lesser offence of possession of small quantities for personal use. The Penal Code Art.196 criminalizes the possession of drugs with a view to resale.
· Basic: Fine of approx €208-625, or up to 30 days prison.
· Small quantities for personal use: Fine of approx €42-208 or prison up to 5 days.
· Keeping drugs with a view to reselling them: 1-10 years.
Possession is forbidden by ss.171-172 of the Penal Code. S.171 addresses possession for personal use (defined as a quantity of no more than three times a one-shot dose, or no more than ten times for a "larger amount"), and s.172 for trafficking.
· For personal use (3 times a one-shot dose): up to 3 yrs.
· Larger amount for personal use (10 times a one-shot dose): up to 5 yrs.
· Keeping a drug: 4-10 years
· Aggravating conditions: 10-25 years or life sentence
Unlawful possession is a narcotic drugs offence according to the Narcotic Drugs Punishments Act (1968:64), ss.1-3. The offence is either judged as ‘petty’, 'ordinary' or 'serious'.
· Petty: fine or up to 6 mths.
· Ordinary: up to 3 yrs.
· Serious: 2-10 years.
In the Misuse of Drugs Act 1971 s.5 there are two possession offences: Possession, and possession with intent to supply. Punishment is linked to the class of drugs involved (A, B, C, with A being the most harmful), and whether sentencing is by a Magistrate’s Court (summary) or in a Crown Court (on indictment).
· Basic: Class A drugs: up to 6 months and/or a fine (summary); up to 7 years (on indictment);
Class B: up to 3 months and/or a fine (summary); up to 5 years (on indictment);
Class C: up to 3 months and/or a fine (summary); up to 2 years (on indictment).
· With intent to supply: Class A drugs: up to 6 months and/or a fine (summary); life (on indictment);
Class B: up to 6 months and/or a fine (summary); up to 14 years (on indictment);
Class C: up to 3 months and/or a fine (summary); up to 14 years (on indictment)
|Croatia||Illegal possession of drugs is prohibited by the administrative offence proceedings under the Law on Combating Drugs Abuse and by the Criminal Code (Par. 1 Art. 173).|| |
Administrative offence, fine from 140 – 14.000 Euro.
Under the Criminal Code; fine or up to 1 year.
Possession of smaller amounts is addressed by the Act on Medicinal Products, s. 24. If it is more than a certain time in possession of someone, it will be considered storage, not for personal use but for selling, so punished more severely according to § 162 of the Civil Penal Code. Possession of a user dose in an approved injection room is under certain conditions exempted from punishment according to the provisional Act on Drug Injection Rooms, s. 2.
· Small amounts: fine or up to 6 mths.
· If storage: fine or up to 2 years.
· If aggravated: up to 10 years.
· If a very considerable quantity: up to 15 years
· If especially aggravating circumstances: up to 21 years