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Please note that the information on this page is based on the EMCDDA Annual report 2010: the state of the drugs problem in Europe. Most statistical data relate to the year 2008 (or the last year available).

 
 

Annual report 2010: the state of the drugs problem in Europe
Policies and laws

Published: 10 November 2010

National legislation

Most European countries have examined or implemented distinctions between drugs in their legal frameworks. Recent examples are the new Czech Penal Code, in which offences of possession for personal use that involve cannabis, or its active component THC, attract a lower maximum penalty than those involving other substances. A similar option was discussed in Estonia in 2009, but ten of 13 experts interviewed by the Ministry of Justice were against substance-based differentiation of offences, and it was decided not to change the law. In the Netherlands, the government accepted the recommendation of the Advisory Committee on Drugs Policy to reconsider the number of schedules.

Legislatures in the European Union have a wide range of distinctions and control measures available, depending on the extent to which the substance is intended for licit marketing and sale due to its commercial, industrial or medicinal properties. A first set of options are controls outside of drug laws, which may be split into three categories: unrestricted sale, restricted sale without medical supervision, and restricted sale with medical supervision. In the first category, consumer protection law has been used to control the sale of certain goods; for example, arguably psychoactive substances by smart shops, or new and not yet controlled substances. The second category refers to restrictions such as age limits of the purchaser, and sometimes the user, or the licensing of sales outlets. This describes alcohol and tobacco control, but may also include cannabis sales in coffee shops in the Netherlands and sale of certain volatile substances in, for example, the United Kingdom. The third category encompasses laws regulating pharmacy sales, including over-the-counter cough and cold remedies, as well as prescription medication. In the last few years, the Czech Republic and the United Kingdom have introduced restrictions on the sale of cold remedies containing pseudoephedrine, as they are purchased to make illicit amphetamines. Medicines law was also used effectively in Austria to restrict the sale of Spice products without criminalising users (EMCDDA, 2009a).

Drug laws offer a second set of options to differentiate substances. These options can be presented in the form of a pyramid of distinctions (Ballotta et al., 2008). At its base is the system of distinction using classification by law. The penalty for a drugs offence officially varies according to the class or harmfulness of the substance involved, as defined by lists which are established in or directly linked to the laws. For example, in Bulgaria, Cyprus, the Netherlands, Portugal, Romania and the United Kingdom, the law instructs or requests the prosecuting authorities to distinguish between types of drugs for any offence; in Spain, Latvia and Malta, the penalty is only varied for a charge of drug trafficking. At the second level of the pyramid, drugs may be equally classified, but the law provides specific exemptions, in the form of lower penalties, for the possession of a small amount of cannabis for personal use, without aggravating circumstances, as in Belgium, the Czech Republic, Ireland and Luxembourg. At the third level, distinctions are made according to prosecutorial guidance or judicial precedent. In Denmark, for example, a State Prosecutor directive advises different fines to be requested for possession of different drugs; while in Germany, a Constitutional Court decision, noting the constitutional ban on excessive punishment, calls for less severe measures for minor offences of possession of cannabis for personal use.

The tip of the pyramid of distinctions is formed by prosecutorial or judicial discretion during the implementation of the law. Here, the nature of the substance is one of the criteria considered when deciding not to prosecute an offender or to give a lower punishment. Although the data were limited, the EMCDDA (2009b) found that sentences could differ even when drugs were viewed equally under the law. In the Czech Republic, where all drugs are classed equally by law, 44% of sentences for heroin offences were prison sentences, compared to 39 % for pervitin (methamphetamine) and 11% for cannabis. In the United Kingdom, for those given immediate custody, the average sentences for possession offences were five months for cocaine, seven months for ecstasy and ten months for heroin. The average sentences for trafficking offences (excluding import and export offences) were 29 months for ecstasy, and 37 months for cocaine and heroin. Yet these three substances are all in the same class. This suggests that judiciaries perceive differences in the levels of harm or seriousness associated with the various drugs other than any signalled by the legislation.

Threshold quantities that delimit offences, such as those seen for possession for personal use, are an additional element of distinction at all levels of the pyramid. The recent EMCDDA ‘Topic overview’ on threshold quantities identified significant differences in the legal basis and in the amounts of substances. These thresholds may be established in laws or government or ministerial decrees (e.g., Czech Republic, Greece, Italy, Cyprus, Lithuania, Hungary, Austria), or in prosecutorial guidelines (Denmark, Netherlands, Finland, Norway) or both (Belgium, Portugal), and even in sentencing guidelines (Finland). Thresholds can differ between countries for similar offences; for example, the start of criminal prosecution for possession of cannabis resin may be for any quantity in Lithuania or 6 grams in many German Laender. The thresholds also show no consistency in the relationship between drugs, with the weight threshold for cannabis varying from three times (Cyprus) to ten times (Netherlands) that of heroin. The weight threshold of cocaine may be equal to that of heroin (e.g. Denmark), or ten times heavier (e.g. Latvia).

Overall, it appears that distinguishing between drugs in EU Member States is not only a matter of formal classification under drugs laws. It also stems from the type of law used to control drugs, prosecutorial guidelines and judicial precedent, the relative quantity thresholds established, and the attitudes of the judiciary when implementing the law.

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Bibliographic references

Ballotta, D., Bergeron, H. and Hughes, B. (2008), Cannabis control in Europe’ in: A cannabis reader: global issues and local experiences, EMCDDA Monograph 8, Volume 1, Publications Office of the European Union, Luxembourg, pp. 97–117.

EMCDDA (2009a), Annual report 2009, the state of the drugs problem in Europe, Publications Office of the European Union, Luxembourg.

EMCDDA (2009b), Drug offences, sentences and other outcomes, EMCDDA Selected issue, Publications Office of the European Union, Luxembourg.

About the EMCDDA

The European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) is the reference point on drugs and drug addiction information in Europe. Inaugurated in Lisbon in 1995, it is one of the EU's decentralised agencies. Read more >>

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Page last updated: Monday, 25 October 2010