Possession of cannabis for personal use: Legal topic overviews

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Possession of cannabis for personal use: Legal topic overviewsPossession of for personal use: Legal topic overviews

 

Analysis

 

topic-overview-thumbnailThe legal status of for personal use is one of the most controversial policy issues in the European Union. Although is a classified narcotic drug placed under control by the United Nations and by all EU Member States, the measures adopted to control it at national level vary considerably, as shown in the table below.

extracts — marijuana, and oil — are classified as narcotic drugs under both Schedules I and IV of the 1961 United Nations Single Convention on Narcotic Drugs. 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…”. The active principles of , the THC and specifically dronabinol (delta-9-THC), are classified as psychotropic substances under Schedules I and II respectively of the 1971 United Nations Convention on Psychotropic Substances. Art 22 of this echoes the terms of the 1961 Convention above, 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… “. Finally, the United Nations 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 ELDD’s Legal Reports for example the EMCDDA thematic paper “Illicit drug use in the EU: legislative approaches”, section 1, and Chapter 7 of A Reader, EMCDDA Monograph 8; Control in Europe.

The EU Member States have transposed the UN precepts concerning the penal or administrative control of , and have applied them according to their own local or regional circumstances. This has resulted in a heterogeneous ‘legal map’ regarding offences: some countries or regions tolerate certain forms of possession and consumption; other countries apply administrative sanctions or fines; while still others apply penal sanctions. Those laws drafted not long after the UN Convention of 1961 may reflect its on , coca and opium as well as providing more general drug control measures for all narcotic substances.

Within the EU, the Council Resolution on adopted in 2004 (CORDROGUE 59) requests Member States to take measures to discourage personal use of , such as enhancing the communication with users especially the very young, to inform and train parents, teachers, media professionals, prison staff and police officers, and to promote networking among health and education professionals on -related issues. The Council also invites Member States to take measures against Internet sites providing information on cultivation and promoting use of .

The accompanying table outlines the legal status of when used or cultivated/possessed for personal use in the different countries, except where stated. Most information on trafficking can be found in the Topic overview on trafficking.

Despite the different legal approaches towards , a common trend can be seen across the Member States in the development of alternative measures to criminal prosecution for cases of use and possession of small quantities of for personal use without aggravating circumstances. Fines, cautions, probation, exemption from punishment and counselling are favoured by most European justice systems. It is of interest to note that in particular is frequently distinguished from other substances and given special treatment in these cases, either in the law, by prosecutorial directive, or by the judiciary. Nevertheless, police arrests for drug offences, mainly those involving and mainly use-related offences, are increasing in several countries – see the EMCDDA Statistical bulletin for further details.

For the legal status of medicinal , see also the 2002 report “Medicinal and derivatives: a legal analysis of the options, their limitations, and current practice in the EU” in the ELDD’s Legal reports section.

Comparative table by country

 

Table: legal status of when used or cultivated/possessed for personal use in the different countries
Country Offences and penalties related to personal use Legislation Level of prosecution Distinguished from other substances? How? Notes
Belgium Possession of for personal use is prohibited, but receives a police warning if without nuisance. Offences causing public disorder receive 3 months to 1 year in prison. Loi 24 février 1921, Art 2ter; Arrêté royal de 31 décembre 1930, Art 28; Directive de 17 avril 1998; Directive ministérielle de 16 mai 2003 ; Directive commune de la Ministre de la Justice et des autorités judiciaires du 25 janvier 2005 2003 Directive says maximum for personal use is 3 g of or one plant. Distinguished by law (Law of 1921, Art 11) 2003 law stated that -related offences are specifically punishable by a police fine if non-problematic and for personal use, but this concept was annulled as unclear by the Constitutional Court.
Czech Republic As with all drugs, administrative offence if quantity is small, subject to police fine or warning. Possession of a quantity “greater than small” of or other substances containing THC is punished with up to 1 year imprisonment (possession of other drugs punishable by up to 2 years). Misdemeanour Act s.30(1)(j); Penal Code s.284(1). 15 g of dry matter for marijuana and 5 g of ; Decree n. 467/2009 effective from January 2010. Distinction by law for crimes of personal possession. Before January 2010, the old Penal Code made no distinction between and other substances.
Denmark As with all drugs, -related offences are punishable by a fine or imprisonment for up to 2 years Euphoriant Substances Act s.3 A fine is the standard response. For first offence possession of up to 10 g hash or 50 g marihuana, the Chief Public Prosecutor permits a warning in limited circumstances. Only distinguished in Prosecutor Directive; in limited circumstances, repeated warnings are permitted only for possession. In June 2004, the law changed to state that warnings for should only be given in limited circumstances; a fine would be the norm.
Germany As with all drugs, -related offences are punishable by up to 5 years’ imprisonment or a fine; punishment can be remitted in cases of ‘insignificant quantities’ for personal use BtMG s.29, s.31a; Constitutional Court decision of March 1994 The Constitutional Court stated that even if penal provisions for the possession of are in line with the constitution, the Länder should waive prosecution in minor cases when possession of is for personal use. Each Land has determined what it considers to be an ‘insignificant quantity’ of . Distinguished by Constitutional Court decision. Also judiciary; in practice, exemptions of BtMG are applied mainly for . Possession of a small quantity of all drugs is a criminal offence, but is not prosecuted or punished when:
  • there is no harm to third persons;
  • minors are not involved;
  • the substance is for personal use;
  • the offence involves an ‘insignificant quantity’
Estonia As with all drugs, it is a misdemeanour to use or handle a small quantity, punishable by police fine or 30 days’ administrative arrest. It is a criminal offence to possess more than a small quantity (a large amount), punishable by up to 10 yrs. Narcotic Drugs and Psychotropic Substances Act 1997, Art. 31, Art.151; Penal Code, Art.184 Since 1 July 2005, “large amount” is defined by the Narcotic Drugs and Psychotropic Substances Act (Art. 31) as a quantity of substance which is needed to intoxicate at least ten persons.

The Prosecutor’s Office guidelines of 22 July 2005 define it as more than 20 g of marihuana or 10 g of .

No distinction The new article in the Act defining a quantity (of any drug) does not take into account the amount of pure substance in mixtures (e.g, tobacco+marihuana), but only the estimated number of doses (e.g, cigarettes) which could have been prepared from the given amount of confiscated substance.
Greece As with all drugs, -related offences of purchase, possession, as well as cultivation for exclusive personal use, are punishable by up to one year’s imprisonment. Reduction/suspension or conversion of the penalty is foreseen in case of small quantity. Law 3459/2006 Art.29(1), (4)   2.5g, herbal 20g – Law 3727/2008 Art 15. Distinguished in law: cultivation of only may also be included as an offence of personal possession  There will be no entry in the criminal record if there is no same offence within 5 years (Art 29(2)).
Spain As with all drugs, -related offences, such as possession and use in public places, are punishable by administrative sanctions Law 1/1992, Art 25-28. Judicial practice suggests that punishable possession comprises amounts exceeding 40 g of . No distinction
France As with all drugs, use is punishable by a fine or imprisonment for up to one year. From 2007 a drug awareness course (stage de sensibilisation) may be ordered, for which the user might have to pay up to 450 Euro if required by the judge or prosecutor. Code de la santé publique Art.L.3421-1; Penal Code Art. 222-37; R 131-35 and on. Ministry of Justice Circular of 9 May 2008 In case of occasional consumers (no problematic drug addicted) and small quantities of illicit substances, the drug awareness course should be the main penal response to inform about the risks and social consequences of drug use, as underlined in the Circular of 9 May 2008. No distinction. But the Circular 2008 underlines the necessity to take into consideration the kind of drug when sentencing. French law does not officially recognise the motives for possession. But the Circular 2008 underlines the necessity for a systematic and differentiated penal response, taking into consideration the type of drug, consumption (occasional or problematic), supply, family situation, age etc.
Ireland Specifically, possession of for personal use is punishable by a fine on the first or second conviction. From the third offence onwards, the offender can incur prison sentences of up to 1 year (summary) or up to 3 years (on indictment), or a fine, or both. Misuse of Drugs Act ss.3, 27(1)(a) The fine follows a criminal conviction in court. Distinction by law
Italy As with all drugs, -related offences (such as possession for personal use) are punishable by administrative sanctions from the second offence onwards. DPR 309/90, Art. 75. No distinction. A warning is possible only in case of a particularly minor violation and on the first occasion, with the presumption that the offender does not intend to repeat the offence in future – DPR 309/90, art. 75 (14).The warning is always given in case the other administrative sanctions are not applicable.
Cyprus is a Class B substance – life imprisonment is possible for use and maximum 8 years for possession (maximum 2 yrs for first offence for under 25 yr old). The Narcotic Drugs And Psychotropic Substances Law of 1977, s.6 (offence), s.30A (quantities), Third Schedule (penalties) 3 plants or more, or 30 g or more of products, are presumed to be for supply. Distinction by law In practice, warning may be given to a minor first offender.
Lithuania As with all drugs, misdemeanour to possess a small quantity without intent to supply, punished by fine up to 6500 litas (approx €1800), arrest of 10-45 days, or restriction of freedom 3 mths-2 years.  Crime to possess more than a small quantity without intent to supply, punished by fine up to approx €3700, arrest of 15-90 days, or up to 2 years’ prison. [Code of Administrative Offences Art. 44, overruled by Penal Code Art 259(2)]; Penal Code, Arts.259; Order of the Minister of Healthcare regarding the approval of the list of narcotic and psychotropic substances (6 January 2000 No 5, as amended; Order No V-314 of the Minister of Healthcare of 23 April, 2003 (quantities) Less than 5 g of herb, 0.25 g of is a misdemeanour. No distinction
Latvia As with all drugs, administrative offence to use or possess a small quantity. Punished by a fine up to LVL 75 (EUR 110) or administrative arrest for up to 15 days. Under the Criminal law, possession of small amounts without the purpose of sale, or use repeated within one year, may be punished by up to 2 years. Code of Administrative Offences, para.46; Criminal Law s.253. Up to 5g s, 1g herbal , 0,1g . No distinction
Luxembourg Specifically -related offences, including use, without aggravating circumstances are punishable by fine from €250 to €2500 Law 19 February 1973 modified by law 27 April 2001, Art.7 Using in front of a minor, a school or in the workplace can lead to prison sentences (from 8 days to 6 months), use with a minor also participating can lead to prison sentences from 6 month to 2 years and/or is punishable by fine from EUR 500 to EUR 25 000 Distinction by law The distinction for was made in 2001 (Art7 A: other drugs, and B: and products). Before this, all drugs were treated equally.
Hungary As with all drugs, misdemeanour to possess a small quantity, punishable by up to two years’ prison, or, if by an addict, up to one year’s imprisonment, community service or a fine. There may be exemptions from punishment if the offender takes part in a treatment programme. Penal Code (Act IV of 1978), s.282, s.282/C; Statutory rule 5/1979 s. 23 Up to 1g of THC as active principle No distinction
Netherlands Possession of any controlled drug is a criminal offence, with possession of up to 30g of legally punishable by imprisonment for one month and/or a fine of €3350. Opium Act, Arts. 3C, 11(1); Opium Act Directive The Directive states that investigation and prosecution of possession of for personal use (up to 5g) have the lowest judicial priority; the sale of up to 5g of per transaction in ‘s’ is generally not investigated (a transaction includes all sales and purchases made by a single in the same day with the same buyer). Distinction by law Sale, production and possession of up to 30 g of are punishable by imprisonment for one month and/or a fine of €3 350; for more than 5 s, the maximum penalties are 6 years’ imprisonment.
Austria As with all drugs, -related offences are punishable by up to six months’ imprisonment. If certain conditions are fulfilled, reports must be withdrawn in cases involving small quantities. According to the law, the conditions for withdrawal of reports in connection with ‘first consumers’ of are easier to fulfil (no health report is necessary). SMG, s.35(4) Distinction by law
Poland As with all drugs, possession is criminal offence, punishable by up to 3 yrs’ imprisonment.  In a case of “lesser gravity”, the punishment is imprisonment for up to one year, limitation of liberty or a fine. Act on Counteracting of 29 July 2005, Art.62.1 offences are likely to be interpreted as of “lesser gravity”. No distinction as far as the Act is concerned. Distinction possible by court decision when interpreting “lesser gravity”.
Portugal As with all drugs, -related offences such as use, acquisition and detention may receive an administrative sanction. Law 30/2000, Art.2, n.º 1 Cases are assessed and decided at a Commission for Dissuasion of Drug Dependence (Law 30/2000, Art. 5, nº 1). Treatment is offered for situations involving problematic use/abuse of and administrative penalties for up to 10 daily doses, ie up to 25g of marijuana or 5 g of may be applied (Law 30/2000, Art. 2, nº2 and al Decree 94/96) Distinction by law – the administrative sanction varies according to the class of drug (Law 30/2000, Art. 15, nº4 c) and Art.16)
Slovak Republic As with all drugs, possession for personal use is a criminal offence, punishable by up to up to 3 years’ prison, or up to 5 years for a larger amount. Home imprisonment or community service of 40-300 hours are also possible. Penal Code, s.171, s.135 Amounts are defined as up to 3 doses, or up to 10 doses for a “larger amount”.

According to the Penal Code, the court shall conditionally waive a penalty shorter than 2 years for any offence, if the offender and his prior behaviour and other circumstances gives assurance that the purpose of a penalty will be fulfilled without the offender’s staying in prison

No distinction
Slovenia As with all drugs, possession is a minor offence coming under the Misdemeanours Act, punishable by a fine of SIT 50 000-150 000 or up to 30 days’ imprisonment. Possession of small quantities for one-off personal use is a lesser offence punishable by a fine of EUR 42-208. Production and Trade in Illicit Drugs Act, Art 33 No distinction In line with the Misdemeanours Act, imprisonment for minor offences has been abolished.
Finland As with all drugs, -related offences, such as use, possession or cultivation, are punishable by a fine or up to two years’ imprisonment.   Possession of a small amount for personal use is punished by a fine or up to 6 months’ imprisonment. Penal Code Chapter 50:1 and 50:2a No distinction Finnish law recognises the concept of a ‘very dangerous drug’, which refers to a narcotic drug that may cause death by overdose or serious damage to health. This definition is not normally applied to
Sweden As with all drugs, -related offences, such as use, are punishable by imprisonment for up to 3 years. If judged petty, according to the nature of the substance etc, up to six months or a fine. Narcotic Drugs Punishments Act (1968:64), ss.1-2 Users are usually fined. No distinction.
United Kingdom -related offences, such as possession, are punishable by up to five years’ imprisonment. For adults, police may warn or issue a penalty notice for disorder instead of prosecuting, as part of a three-point escalation process for possession for personal use. Misuse of Drugs Act 1971 s.5; ACPO Enforcement Guidance Whilst arrest is always the first presumption, an adult offender is likely to receive a warning for a first possession offence, and a penalty notice for disorder for a second offence. A third offence will result in arrest and consideration of likely further action including caution, conditional caution or prosecution. All subsequent offences are likely to result in arrest. If any aggravating factors are present the police will escalate the response accordingly. Ultimately, decisions as to the most appropriate disposal for an offender are made by the police and prosecution service. Distinction by law (class of substance) and police guidance (specific to ) In January 2009 was reclassified to Class B.
Croatia As all the other drugs, the possession of is punished as administrative offence with a fine (from €140-14 000) and by the Criminal Code with a maximum penalty of one year in prison. Law on Combating Drugs Abuse, Criminal Code (art. 173(1)) In cases of smaller quantities of drugs for personal use (and if it is a first criminal offence), according to the Article 28 of the Criminal Law, on the decision by State Attorney the criminal charge can be dropped and minor offence proceedings initiated. In this case, punishment can be fine, warning, or treatment. Use in public is punishable by administrative sanctions, fines € 55 to € 200. No distinction.
Norway Cultivation, possession and use of are regarded as criminal offences Act on Medicinal Products, ss.24 and 31 (2), Regulation Relating to Narcotics etc. s.4 and Civil Penal Code s. 162. Based on a directive from the Director of Public Prosecutions, fines are usual for use and for possession of max. 5 g . Larger quantities or repetition of similar offence within short time (3 months) are normally prosecuted. No distinction
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