EMCDDA Home
  • EN
Search

Please note that the information on this page is based on the EMCDDA Annual report 2011: the state of the drugs problem in Europe. Most statistical data relate to the year 2009 (or the last year available).

 
 

Annual report 2011: the state of the drugs problem in Europe
Policies and laws

Published: 15 November 2011

National legislation

Personal possession of drugs: ten years of penalty changes in Europe

In the last ten years, 15 European countries have made changes to their penalties for possession of small amounts of drugs. The 1988 UN Convention against illicit traffic of drugs, Article 3(2), requires each state to establish possession of drugs for personal use as a criminal offence, subject to its constitutional principles and the basic concepts of its legal system. In Europe, this has been implemented in different ways. Possession for personal use of any illicit drug may be a criminal offence, a non-criminal offence, or non-criminal sanctions may apply to cannabis, while possession of other drugs remains a criminal offence.

Three broad types of penalty changes can be identified in the last ten years: those changing the legal status of the offence (criminal or non-criminal); those changing categories of drugs, when the category determines the penalty; and those changing the size of the maximum penalty available. Most of the countries that have altered their penalties for possession have used a combination of these types of change, complicating any concise analysis.

Changing the legal status of the offence is perhaps the most significant step for legislators, and this has happened in Portugal, Luxembourg and Belgium. In Portugal, the law from July 2001 decriminalised possession of all drugs for personal use. This reduced the maximum punishment for possession of small amounts of drugs from three months' imprisonment to an administrative fine given by the new 'commissions for dissuasion of drug abuse', which prioritised health solutions over punitive sanctions (1). In Luxembourg, in May 2001, personal possession of cannabis was newly established as a separate offence with a lesser punishment, incurring only a fine for the first offence, without aggravating circumstances. At the same time, maximum penalties for personal possession of all drugs other than cannabis were reduced from three years in prison to six months. A similar change took place in May 2003 in Belgium. The possession of a small amount of cannabis for personal use, without aggravating circumstances, was previously punishable by up to five years in prison, but it now attracts the lowest prosecution priority, leading to a police fine.

Moves towards 'decriminalisation' were also made in Estonia and Slovenia. In Estonia, before September 2002, a second administrative offence of drug possession within 12 months of the first was a criminal offence punishable by up to three years' imprisonment. The new Penal Code deleted this, so a second offence is, like the first, considered a misdemeanour punishable by fine or administrative detention for up to 30 days. In Slovenia, the Misdemeanours Act from January 2005 removed prison penalties for all misdemeanours, one of which is possession of drugs for personal use. In this way, the maximum penalty was reduced from 30 days in prison, or five days for a small quantity, to a fine.

Without changing the legal status of the offence, six countries made changes to the way different drugs are categorised, with the category determining the penalty. In Romania, the law of 2004 divided substances into high-risk and risk categories. The penalty for high-risk substances continued to be two to five years' imprisonment, while substances in the risk category are now subject to a lower penalty of six months to two years' imprisonment. In Bulgaria, the 2006 Criminal Code introduced specific penalties for offences not related to distribution, namely one to six years' imprisonment for high-risk drugs (down from 10-15 years) and up to five years for risk drugs (down from three to six years); it also specified that minor offences could be punished with a fine. In the Czech Republic, from January 2010 the new Penal Code applied a lower maximum punishment for cannabis (one year in prison) than for other drugs (unchanged at two years) for personal possession of a quantity 'greater than small'. Conversely, at the end of 2006, Italy removed the sentencing distinctions between illicit drugs, while increasing the maximum duration of administrative sanctions, such as withdrawal of driving licence, to one year for any illicit drug. In the United Kingdom, cannabis was reclassified from Class B to Class C, in 2004, lowering maximum penalties for personal possession from five to two years' imprisonment, and national police guidelines were issued not to arrest but to give an informal warning, if there were no aggravating circumstances. In January 2009, cannabis was reclassified from Class C to Class B, raising maximum penalties to five years' imprisonment once again. Revised national police guidelines continued to advise an informal warning for a first offence.

A third group of countries changed the penalties for personal possession without addressing legal status or relative harms. Penalties for personal possession for all drugs were simply changed in four countries, and effectively also in Slovakia by redefining the offence. In Finland, in 2001, an amendment to the Penal Code reduced the maximum penalty for a minor narcotics offence from two years in prison to six months, allowing the prosecutor to deal with the majority of cases with a fine. In Greece, in 2003, the maximum penalty for use or possession of small amounts for own use by a non-dependent user was reduced from five years to one year in prison. This offence will not be entered in the criminal record if there is no re-offending during a five-year period. In Denmark, a guideline for prosecutors in May 2004 set out that the normal response for minor drug possession offences should be a fine, not a warning. In 2007 this was established in the law. In France, a 2007 law widened the range of possible judicial options to include a 'drug awareness course' aimed at occasional drug users and juveniles. The cost of the course is to be paid by the offender. In 2005, a change of the Slovak Criminal Code widened the definition of 'possession for personal use' from one to three doses of any illicit substance, while leaving the maximum punishment unchanged. Two new penalties can also be given to those offenders: monitored home imprisonment for up to one year, or community service of 40 to 300 hours. The change also introduced a new offence of 'possession of a larger amount for personal use', defined as up to ten doses, punishable by up to five years in prison. Previously, this would have been a trafficking offence punishable by two to eight years in prison.

Motives for change are complex and vary between countries. For example, laws have been changed to access addicts (Portugal), to simplify punishment (Belgium, Finland, United Kingdom in 2004), to harmonise misdemeanour penalties (Estonia, Slovenia), and to indicate levels of harm (Bulgaria, Czech Republic, France, Italy, Luxembourg, Romania, United Kingdom in 2009).

In terms of an overall European trend in penalties for personal possession of drugs, it could be said that penalties were reduced in the first half of the decade, but increased in the second half. Yet, it is more significant that although the majority of countries have retained the possibility of prison as a sanction (Figure 2: Penalties in laws: possibility of imprisonment for possession of drugs for personal use (minor offences)), no country has introduced criminal penalties or increased prison sentences over the ten-year period. In this respect, there are signs of convergence in Europe towards lower penalties for personal possession of drugs.

Footnotes

(1) A detailed analysis of the effects of decriminalisation in Portugal was published recently (Hughes, C.A. and Stevens, A. (2010), 'What can we learn from the Portuguese decriminalization of illicit drugs?', The British Journal of Criminology 50, pp. 999-1 022.).

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 >>

Contact us

EMCDDA
Praça Europa 1, Cais do Sodré
1249-289 Lisbon
Portugal
Tel. (351) 211 21 02 00

More contact options >>

Page last updated: Friday, 28 October 2011