EU gegen Kriminalisierung für persönlichen Gebrauch (2002-04-03)
Fight Against Drugs.
Council rejects bid to outlaw drugs for personal use.
Possessing illegal drugs for personal use should not be made a criminal offence EU-wide, according to a high level group in the EU Council of Ministers. The crime-specialising Article 36 Committee has moved to exclude drugs possession from the draft Framework Decision on drug-trafficking. The Council also looks likely to adopt a more flexible model for harmonising penalties than originally proposed by the European Commission.
Reconciling divergent national policies. At a meeting of the Article 36 Committee on February 21-22, it was clear that much work needs to be done in reconciling the EU Member States' positions. Removing drugs for personal use from the scope of the proposal would go some way towards bridging the gap between national drugs policies. The Commission had made no diffe-rentiation between the traffickers and the users. But new wording inserted by the Council would enable (although not oblige) each Member State to set a thre-shold below which drugs possession would not be outlawed (e.g. 10g, 50g). However, the Council makes no distinction bet-ween trafficking in hard and soft drugs, requiring both to be "punished when not legitimate". This rather clumsy phrasing is more ambiguous than the Commission's text, which makes it a "criminal offen-ce". But it may help to paper over the divergences between Member States over which drugs are penali- sed and which ones are tolerated or legal. It also cor-responds to the wording used in the draft Framework Decision on child sexual exploitation and pornogra-phy. However, France, the Netherlands, Portugal and Greece remain unconvinced by this formulation. The proposal covers all the drugs listed in the United Nations Conventions on narcotics of 1961 and 1971, including cannabis, cocaine, heroin, amphetamine, ecstasy and LSD. Chemical precursors used to make synthetic drugs, which are outlined in a 1988 UN Convention, also fall within its scope. The Council has spelled out clearly that drugs production encompasses growing opium poppy, or the cannabis or coca plant. Some Member States, notably Sweden and the Netherlands, question whether people who trade in chemical precursors should be classified in the same way as the other traffickers. France believes the pre-cursors racket should be considered as "aiding" drug-trafficking. The Netherlands is opposed to out-lawing "attempts" at drug-trafficking, as are Denmark, Sweden and Finland when the attempt relates to pre-cursors.
Less harmonisation of sanctions. The Spanish Presidency is currently devising a less rigid system for harmoni-sing sanctions. The Commission wanted all offences to be punished by a maximum sentence of at least five years, but several Member States urged more flexibili-ty. This clash transcends into other types of criminal penalties that the Commission has proposed to harmo-nise, such as human-trafficking and racism. The EU's Justice and Home Affairs Ministers agreed a new approach at their informal meeting in Santiago da Compostela on February 13-15. This involved a sys-tem of ranges e.g. 5-10 years in prison, which essentially will mean less harmonisation. Legal entities (companies, organisations etc) are criminally liable, according to the draft Framework Decision. The Commission suggests that if a compa-ny's lack of vigilance enables its employee to trade in illegal drugs, it would also be liable for prosecution. The United Kingdom is sceptical about this, noting that such a company would, under the current text, face the same penalties as one actively involved in trafficking. These sanctions range from being deprived of state aid, to judicial supervision, to permanent clo-sure and confiscation of assets.
Jurisdiction. The Council has changed the rules on jurisdiction to make Member States responsible for prosecuting drugs offences committed on ships flying their flag, or planes registered there. The other situa-tions where Member States have jurisdiction are if the act took place on its territory, was committed by one of its nationals or by a legal entity established there. The Council believes that if several Member States have jurisdiction, they should agree among themselves to centralise the prosecution in one Member State. The new rules on jurisdiction were designed specifically to be consistent with those contained in the recently adopted Framework Decision on terrorism.
The European Commission tabled a draft Framework Decision for a common definition of and sanctions against drug-trafficking on May 23, 2001. The European Parliament was due to adopt an Opinion on February 25, 2002, but was sharply divided and so decided to send the proposal back to Committee. Once the MEPs give their non-binding Opinion, the EU Council of Ministers can adopt it by the required unanimity.