illicit drug use in the eu: legislative approaches - EMCDDA - Europa

EMCDDA thematic papersIllicit drug use in the EU: legislative approachesOther typologies of approaches towards the possession of drugs for personal useIn other countries, certain provisions of the drugs laws are directly relevant to the subjectmatter in this chapter, although in a less distinctive way than the countries mentioned above.Their description is certainly relevant but a categorisation with the above would have not beenappropriate.In the following countries’ laws, prosecution policy, circulars or other legal instruments allowpublic authorities a wider discretion. In others prison penalties for drug use possession havebeen reduced.In Austria, the Law on Drugs (BGBl. I 112/1997), which took effect in January 1998 givesthe public prosecutor more freedom (than before) not to impose a penalty for the purchase orpossession of a small quantity of drugs for personal use (Article 35(1)). The law simplifies theprocedure for offences involving cannabis, as the opinion of the health authority no longer needsto be obtained before the decision as to whether or not to prosecute is made (this opinion mustbe obtained for all other substances) (Article 35(4)).In Germany, the Law on Drugs, as amended on 26 January 1998 (Federal Law Gazette Part I p.160), provides that the public prosecutor may decide not to impose a penalty (imprisonment fora term of up to five years) if the offence can be deemed minor – that is, if a criminal prosecutionwould not be in the public interest and if the offender cultivates, produces, imports, exports,carries in transit or purchases drugs for his or her personal use only, in other words, obtains orpossesses insignificant quantities. Together with this law it is important to recall also the 1994judgment of the Federal Constitutional Court of Karlsruhe, which drew attention to ‘the prohibitionof excessive penalties inherently provided for in the German Constitution’. Since then, cannabispossession should not result in prosecution if the following conditions are satisfied: (a) personaluse; (b) small quantity; (c) occasional use; (d) no harm to other people ( 50 ).In the United Kingdom in 2002, following a two-year inquiry by a Parliamentary Committee,the Government announced its intention to transfer cannabis from Class B to Class C under theMisuse of Drugs Act 1971. Psychoactive substances are placed in three categories (A, B andC) in the UK according to the degree of danger they present: Class A: methadone, morphine,MDMA, LSD, opium, heroin, etc.; Class B: codeine, cannabis (until 29 January 2004),amphetamines, etc.; Class C: sedatives, benzodiazepines, anabolic steroids, etc. The severityof the penalties imposed depends on the class of drug. Despite the transfer of cannabis fromClass B to Class C, the police have retained the power of arrest. They may, as a minimum,simply confiscate the substance and warn the offender unofficially provided that there are noaggravating circumstances (if there are aggravating circumstances, arrest and prosecution mayfollow and a custodial sentence of up to two years may still be imposed). The reclassificationtook effect in January 2004.( 50 ) Böllinger, L., Symbolic Criminal Law without Limits, Commentary on the Cannabis Decision of the German FederalConstitutional Court.16