Report on the evaluation of the transposition and impacts of the Framework Decision 2004/757/JHA on drug trafficking

Transcription

1 Report on the evaluation of the transposition and impacts of the Framework Decision 2004/757/JHA on drug trafficking Final Report March 2013 Justice

2 This document has been prepared for the European Commission however it reflects the views only of the authors, and the Commission cannot be held responsible for any use which may be made of the information contained therein. European Commission- Directorate-General for Justice More information on the European Union is available on the Internet ( Cataloguing data can be found at the end of this publication. Luxembourg: Publications Office of the European Union, 2013 ISBN doi: /72175 European Union, 2013 Reproduction is authorised provided the source is acknowledged.

3 Contents 1.0 Introduction Transposition of the Framework Decision 2004/757/JHA Implementation procedure Definition of drugs Trafficking in drugs Trafficking in precursors Incitement, aiding and abetting and attempt (Article 3 FD) Penalties Confiscation Jurisdiction Liability of legal persons Impact of the Framework Decision on national legislation Overall compliance of Member States legislation with Framework Decision 2004/757/JHA Application of the legislation transposing the Framework Decision Application of the Framework Decision provisions in practice Interpretation of the Framework Decision by courts Procedural data Penalties Jurisdiction Confiscation Summary Cooperation between Member States and Member States and EU bodies General aspects Involvement of EU bodies Main issues in cooperation between Member States in drug trafficking cases Summary Summary of the results General impact Transposition of the Framework Decision 2004/757/JHA Application of the Framework Decision

4 5.4 Cooperation between Member States and Member States and EU bodies Annex 1: List of interviewees... A1 Annex 2: Bibliography... A7 Annex 3: Questionnaires to national experts... A8 Annex 4: List of national experts... A15 List of tables Table 2.1 Overview on penalties Table 2.2 Maximum levels of sanctions (imprisonment) for trafficking in illicit drugs Table 2.3 Maximum levels of sanctions (imprisonment) for trafficking in precursors Table 2.4 Financial penalties in cases of trafficking in drugs and precursors Table 2.5 Aggravating and mitigating circumstances Table 2.6 Compliance of Member States legislation with Framework Decision 2004/757/JHA Table 3.7 Profile of cases per Member State Table 3.8 Penalties by Member State Table 3.9 Aggravating factors typically used in practice in cases of drug trafficking offences Table 3.10 Mitigating factors typically used in practice in cases of drug trafficking offences Table 3.11 Time in jail I Table 4.12 Total registered drug trafficking cases Table 4.13 Table N: Total requesting countries Table 4.14 Requested countries... 92

5 1.0 Introduction This report is a programme of research to evaluate the effectiveness and impact of the existing Framework Decision 2004/757/JHA laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking, which was adopted by the Council in It established minimum rules relating to the constituent elements of the offences of illicit trafficking in drugs and precursors, so as to allow a common approach at EU level to the fight against trafficking. The Framework Decision (FD) defines crimes linked to trafficking in drugs and precursors. The personal consumption is not covered by the definition of Article 2 FD 2004/757/JHA. Moreover the FD contains a provision on incitement, aiding and abetting and attempt (Article 3). Article 6 provides that Member States take necessary measures to ensure that legal persons can be held liable for all offences defined in the FD, if they are committed for their benefit. Member States are obliged to take measures necessary to ensure that the offences are punishable by effective, proportionate and dissuasive criminal penalties. Beside this general obligation, minimum maximum levels of sanctions are provided for (Article 4). Beside the basic offence, the large quantity of drugs, harm to health and the commission of the offences within the framework of a criminal organisation are provided for as aggravating circumstances (Article 4 (2), (3) and (4)). Member States may provide that under particular circumstances penalties may be reduced (Article 5). The 2009 Report from the Commission on the implementation of the Framework Decision on the implementation of Framework Decision 2004/757/JHA laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking (COM [2009] 669 final) indicated that implementation of the FD was not completely satisfactory. There were differences in the transposition of crimes linked to trafficking in drugs and precursors which were not implemented by all Member States to the full extent. This report is based on 27 Member States reports drafted by national experts in the Member States who are correspondents of the European Criminal Law Academic Network (ECLAN). Basis for these reports was a questionnaire sent to the national experts at the beginning of October National reports had to be finished until beginning of November. In December 2011 the national experts were asked to answer several additional questions (the questionnaires see in the Annex). These reports focused on identifying the national legal regimes regarding drug trafficking legislation, focusing particularly on the implementation of the FD, but also on the legal framework around the implementation legislation. This report summarises analysis undertaken across these country reports to provide an assessment of the: functioning and impacts of the current FD in all Member States and, extrapolating from this, at the EU level; legal provisions on trafficking in each Member State including identification of strengths and gaps; and functioning of judicial and law enforcement co-operation. This section focuses on providing an overview across the Member States. A number of additional information sources which provide the specific details of the situation in each Member State are accompanying this report. Specifically, overview tables summarising the situation in each country are provided and copies of the completed country reports are available as separate documents alongside this report. 1

6 2.0 Transposition of the Framework Decision 2004/757/JHA 2.1 Implementation procedure The implementation of the FD did not create major challenges for Member States. Article 9 FD provides that the provisions of the FD had to be transposed into national legislation by 12 May Twelve Member States (BE, DE, EE, FR, HU, IE, IT, LU, LV, MT, SI, UK) did not amend their drug trafficking legislation because of the FD, since their legislation was according to the opinion of the Member States in accordance with the minimum requirements of the FD. FR did not amend its law, although there is no criminal provision on trafficking in precursors (FR had already objected to the inclusion of the term precursors in the text of the FD). BG, CZ, ES and PT only introduced the liability of legal persons, for which not only the FD, but many other legal acts were the reason. Eleven Member States (AT, CY, DK, FI, GR, LT, NL, PL, RO, SE, SK) amended their national drug laws; in most of them only small amendments were made. In some Member States the provisions on drug trafficking were in compliance with the FD, but provisions on trafficking in precursors did not exist or did not comply with Article 2 (1) (d) (AT, CY, FR). Not all Member States which had to amend their laws managed to do so before 12 May 2006 (AT, CY, CZ, FI, GR, NL, PL, SK). In most of the Member States, amendments were made within weeks of the deadline. In EE, however, the Ministry of Justice is currently drafting a law to implement Article 6 (2) FD. Delays or difficulties in transposition were reported only in limited cases. Major issues in this respect were: Coordination between Government Departments: Since drug policy does not only concern criminal law, but also health law, in some Member States more than one ministry had to deal with this topic. The complexity of the internal administrative structure in Member States required coordination between the various Government Departments being responsible for drugs policy (AT, CY, PL). Limited resources in the Government Departments: In some Member States timely transposition of the FD was prevented due to resourcing, specifically, not enough qualified staff in the Ministry of Justice to draft the laws given the need for other European and international legal acts to be transposed (EE, GR). Lengthy parliamentary and political debates on how to implement the FD into national law (AT, LT). Tight transposition deadline set out in the FD (NL). Leniency with regard to the transposition of FDs as an instrument of the Third Pillar (PL). Liability of legal persons: The need to establish a liability of legal persons brought significant changes in some Member States legislation and caused long and fundamental debates not only with regard to drug trafficking (CZ, ES, SK). 2

7 2.2 Definition of drugs The definition of drugs in Article 1 FD refers to the United Nations Conventions, i.e. the 1961 Single Convention on Narcotic Drugs and the 1971 Vienna Convention on Psychotropic Substances. It also includes the substances subject to controls under Joint Action 97/396/JHA of 16 June 1997 concerning the information exchange risk assessment and the control of new synthetic drugs. Due to these other international obligations it could be expected that the definitions of most Member States would comply with the definition it the FD. In all Member States the definition of drugs does indeed correspond with the definition of Article 1 FD. In AT, BE, BG, CZ, DK, FI, HU, IE, LU, LV, RO, SE the definitions refer to the UN Conventions as the FD. Some of these Member States concretize these general definitions by listing the substances in governmental decrees. Other Member States (CY, DE, EE, FR, GR, IT, LT, MT, NL, PL, PT, SI, SK, UK) chose another way of transposing the definition and do not provide a concise definition of drugs, but instead foresee lists of prohibited substances, which are either amended according to international obligations by the parliament or by decrees of the government. In these lists all substances covered by the UN Conventions are contained. The Spanish Penal Code does not contain a definition of drugs, but only mentions toxic drugs, narcotics and psychotropic substances. This is interpreted by the Spanish courts that any of the substances covered by the International Conventions ratified by Spain shall be covered. Therefore also the Spanish legislation is in compliance with Article 1 (1) FD. It can be concluded that in all Member States the definition of drugs corresponds with the definition of Article 1 (1) FD. Even if not all national provisions refer to the UN Conventions from 1961 and 1971 and the EU Council Regulation, it seems that all laws comply with Article 1 (1) FD. 2.3 Trafficking in drugs Definition of offence Article 2 FD contains definitions of offences linked to trafficking drugs and precursors which list several activities concerning drugs. In all Member States the definitions of Article 2 (1) (a)-(c) have been transposed into national law. Most Member States laws already encompassed criminal offences as defined in the FD; therefore a transposition of the FD was not regarded necessary. In AT, FI, GR, LT, NL, PL and SE the law was amended to transpose Article 2 (1) to (3) into national law, but there were only minor changes in law. In BE, BG, CY, CZ, DE, DK, EE, ES, FR, HU, IE, IT, LU, LV, MT, PT, RO, SI, SK, UK it was not regarded necessary to amended legislation to implement the definition of offences. Not all Member States took all activities listed in Article 2 FD into their laws or used the same wording as the FD, but the existing definitions and terms imply these activities. In AT, BE, CY, FI, GR, HU, IE, IT, LU, LV, MT, NL, PT, RO, SE, UK the laws mention all or nearly all activities in their laws.bg does not mention the activities of preparation, offering, offering for sale, sale, delivery on any terms whatever, brokerage, dispatch, dispatch in transit, transport and purchase of drugs. The Czech legislation does not contain the manufacture, extraction, preparation, distribution, delivery on any term whatsoever and brokerage. The German law does not explicitly mention the cultivation of opium poppy, coca bush or cannabis plant, but these acts are considered punishable according to the German law. In DK the manufacture, extraction, preparation, offering, offering for sale, distribution, brokerage, dispatch and transport are not explicitly mentioned. In EE the terms of production, extraction and preparation are missing, but covered by manufacture, the terms offering, offering for sale, distribution, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation or exportation are missing are covered by the terms illegal trafficking and 3

8 mediation. The Spanish Code does not specifically mention offering, but it is seen as a kind of promotion. In FR the extraction, delivery, brokerage, dispatch and cultivation is missing, but thanks to a generic legal wording it has the same scope as the FD. In LT the terms manufacture, extraction, preparation, offering, delivery, brokerage, dispatch, importation and exportation are missing. In PL doubts remain whether the activities extraction and production are properly reflected in the national law. In SI the extraction, preparation, offering, distribution, delivery, dispatch, brokerage, importation or exportation, the cultivation of opium poppy, cocoa bush or cannabis plant and the possession or purchase of drugs with the view conduct any of the activities listed in Article 2 (1) (a) FD are missing, but should be covered by a general clause. In SK the activities offering and growing are not listed, but should be covered by other terms. Offering is prosecuted as an attempted offence. Now, the debate is ongoing considering future possible revision of the law as to widening the range of activities covered by this provision to eliminate its shortcomings. However, all of these Member States emphasize that the interpretation of the wording is so broad that all activities are covered. Concluding, the Member States did not take all activities into their national laws, but their terms seem to be broad enough to cover all activities listed in Article 2 (1)-(3) FD. In several laws the terms production, manufacture, extraction and preparation are not used all together, but the terms production or manufacture are used in a wider sense covering all of these activities. In the legislation of many Member States the term of possession is so far-reaching that it covers most of the activities mentioned in the FD, since the possession is a prerequisite for all of these activities Possession and personal use General aspects The FD explicitly excludes trafficking in drugs and precursors from the scope of the FD when it is committed by its perpetrators exclusively for their own personal consumption. In this respect, most of the Member States (AT, BE, BG, CY, DE, DK, FI, FR, GR, HU, IE, LT, LU, MT, NL, PL, RO, SE, SK, UK) go further and provide that also the possession of drugs is a criminal offence, even if it is intended for personal consumption. In some of the Member States lower penalties are foreseen for the possession for the personal use or this circumstance influences the concrete penalty or is a reason to drop the case. In CZ, EE, ES, IT, LV, PT, SI the possession for personal consumption is an administrative offence. Personal consumption as such is a punishable offence in BE, CY, FI, FR (by the Public Health Code), GR, IE, LU, RO, and SE. It is not a criminal offence in AT, BG, CZ, DE, DK, EE, ES, IT, LV, LT, MT, NL, PT, SI, SK, UK. This does not always mean that it is cannot be punished, however. In several States the consumption per se is not punishable, but the possession is and consumption is not possible without possession, therefore the consumer is punished due to the possession, as whether or not the possession of the drug is intended for personal is irrelevant. In some Member States the question of punishment of personal use is regulated in procedural law: e.g. in BE there is a guideline for prosecutors not to prosecute, if the perpetrator is an adult, does not cause any public nuisance, is not a problematic user and was found with a user quantity of cannabis. Some states provide lower penalties, if the personal use is intended (e.g. AT, CY, CZ, EE, FR, HU, NL, RO, SI, SK), or the fact that drugs are intended for personal use can influence the concrete penalty as a mitigating factor (e.g. BE, BG, DE, CY) Criteria for distinction between possession and drug trafficking The distinction between possession/personal use and drug trafficking is relevant for the implementation of the FD, which excludes activities according to Article 2 FD from the scope of the FD when they are 4

9 committed exclusively for the own personal consumption and refers for this distinction to the national laws. In Member States laws two criteria can be found to make this distinction. One group of Member States refers to the quantity or amount of drugs: In some Member States there are rules in the Criminal Code. In others such a statutory distinction between trafficking and personal use is missing, but relevant for the courts are the amount of drugs, moreover if customers are identified and if there is any organised crime group involved. In AT the amount of drugs and other circumstances (e.g. if customers can be found) are relevant. In BE a user quantity of cannabis can lead to a non-prosecution. In CZ the distinction is established by the Criminal Code which defines what is a quantity greater than small and makes a distinction between different types of drugs (e.g. cannabis 15 grams of dry matter, heroin 1,5 gram heroin, more than 4 tablets of ecstasy or more than 0,4 gram of powdery of crystalline substance). In DK according to an instruction of the director of public prosecutions the quantity of drugs is relevant. In EE the quantity is considered as large, if the quantity of a narcotic drug or psychotropic substance is sufficient for causing drug intoxication to at least ten persons. In FI it depends, if a person only has a small amount of drugs in his possession. In GR the distinction is established on the quantity of drugs possessed or used and it is a small amount he addiction of the offender. In IE the distinction is made according to the amount of drugs involved and their value. In LT the differentiation between possession and trafficking is mainly made on the basis of quantity (small, large, very large), and if the quantity is very large, this is a presumption that these drugs are not used for personal consumption. Also in LV, NL and PL it is possession for personal use, if it is a small amount. In PT the concept of possession for personal consumption is defined by law as a quantity not exceeding the quantity required for 10 days' average individual consumption. But even where it is assessed beyond doubt that the quantity kept by a person exceeds the one required for 10 days, it can be proven that it was for personal consumption only. In SE the offence definition covers everything from private consumption of cannabis to international trafficking of dangerous drugs; depending on the type and quantity of narcotics the penalties are lower. In SK the maximum quantity for personal use must not exceed three times the usual single dose for personal consumption. In UK the distinction between drug trafficking and possession/personal use is up to the judge and one relevant element is the quantity of drugs trafficked. The other criterion is the intention of the offender: In BG the criterion for the distinction is the existence or lack of intention of the offender to distribute the drugs. In CY and IT the aim of the possession is relevant. In ES the Penal Code only punishes the possession with the intention to traffic. Courts have elaborated the evidence that proves the intention, e.g. the possession of an important quantity of drugs, quantity that depends on the kind of substance, its purity, the usual quantity that the holder consumes, etc.; the possessor has not to be an addict or a habitual consumer. In RO the distinction is made strictly relying on the subjective element, that the perpetrator acts with the intent to use the drugs for personal consumption (which causes problems, that s why it is suggested to introduce another element as e.g. the quantity of drugs). In SI the relevant factor is the purpose to resell the drugs. In FR the distinction is based on both the intent of the offender and the quantity of drugs. In DE it depends on whether the drugs are consumed immediately. In MT the law does not specify the factors and it is decided by the courts on a case-by-case basis. In HU there is no distinction between consumption and trafficking, but a distinction between consumer type conducts (e.g. cultivation of drugs) and commercial type conducts (drug trafficking), which is made on basis of the criminal activities. Consumer type conducts attract a lower level of sanctions. In LU the distinction is made according to the respective gravity. 5

10 Trafficking to finance personal use The circumstance that drugs are trafficked to finance the personal addiction (street trafficking) is considered in some countries. In AT, BE, GR, HU and PT lower penalties are foreseen for this case. In CY and IE it is considered as a mitigating factor by the courts in sentencing; thereby the court takes also the quantity and other circumstances of the case into account; the burden of proof lies on the accused to demonstrate that he was committing the offence in order to finance his addiction. See also infra pp. 28, 71 ff. 2.4 Trafficking in precursors Article 2 (1) (d) FD obliges Member States to ensure that the manufacture, transport or distribution of precursors, knowing that they are to be used in or for the illicit production or manufacture of drugs, is punishable. All Member States except FR and MT provide for criminal provisions on precursor trafficking. In MT there is no specific concept of "precursor" chemicals. The law instead has a long schedule of banned substances on which the chemical appears or not. All Member States except FR and MT appear to define precursors as demanded in the FD (Article 1 (2) FD). 15 Member States (AT, BE, BG, CY, DE, DK, ES, FI, GR, HU, LV, PL, RO, SE, SK) provide for a general definition like Article 1 (2) FD. 10 Member States (CZ, EE, IE, IT, LT, LU, NL, PT, SI, UK) contain lists of substances either in the law or in governmental regulations. The Czech report mentions that the scope of the term precursor is unclear; it is particularly unclear whether it also covers medicine containing precursors (e.g. medicine containing pseudoephedrine). Concerning the offence of precursor trafficking, there are some Member States which treat precursor trafficking and the trafficking in illicit drugs in the same way by penalizing the same activities (BE, BG, CZ, IE, LU, SI, SK); other Member States provide special provisions on precursor trafficking (AT, CY, DE, EE, ES, FI, GR, HU, IT, LV, LT, NL, PL, PT, RO, SE). Problems are identified in the following Member States: A special situation is DK, where before a provision already existed before the FD which according to the opinion of the Danish government criminalized all types of offences defined in Article 2 (1) (d) FD. Therefore, it was not considered necessary to amend the provisions in Danish legislation. Danish law contains a broad provision on trafficking in drugs (Section 191 Penal Code), combined with the general provisions on criminal attempt and/or participation. It is required that the precursors are suited for manufacturing large quantities of illicit drugs or particularly dangerous drugs. The Commission s doubts that this system is not in line with the FD, particularly with respect to Article 3 which requires that the attempt of Article 2 (1) (d) is also punished, are not considered sensible by the national expert. Compared to Article 2 (1) (d) FD a limitation to the manufacturing of large quantities or particularly dangerous drugs is not foreseen in the FD. However, it is not totally clear whether Article 3 with regard to precursor trafficking is also totally fulfilled. In FR the manufacture, processing, provision or export of precursors is not a criminal offence. These activities are only allowed for persons with a "license" or special declaration issued by the Minister for Industry. A failure to comply with these obligations can lead to various sanctions, fines, penalties and license revocations, but no criminal punishment is foreseen. In IT the manufacture of precursors is not contained in the definition of offence and neither is it covered by the other mentioned activities. MT has no concept of precursor chemicals, but the law contains a long schedule of banned substances on which many of the precursor chemicals appears. For such substances a criminal provision on illicit selling and dealing exists. The activities of manufacture and transport are missing however. The Dutch legislation does not contain definitions of offences linked to precursor trafficking. But in the Act on Prevention of Abuse of Chemical Products a criminal offence for the breach of the Community Regulations 273/2004 and 111/2005 is foreseen. 6

11 Some Member States provisions require the intent or the knowledge that the precursors will be used for production or manufacturing of illicit drugs (AT, ES, FI, GR, LV, PT, SE) for them to apply. In other Member States it is sufficient that the activity related to precursors is carried out without seeking to obtain a license or without notifying the competent authorities in the Member State (e.g. Ministry of Health) (BE, HU). Some Member States go further than the provisions in the FD: Several Member States provide for additional activities related to precursors than foreseen in the FD. The following activities are included: Import (BE, DE, EE, GR, HU, IE, PT, RO), Export (BE, DE, EE, HU, IE, PT, RO), Possession (CZ, DE, GR, PT, RO, SI, SE), Storage (BE, LV, LT) Buying or getting control in other ways over precursors (DE). This is explained partly as some States treat precursors and drugs the same. On the other hand political will in the Member States result in additional provisions, even if there is no international obligations, since the UN Conventions provide the same activities as the FD. In general it can be said that the impact of Article 2 (1) (d) FD has not been very important, since most Member States already had similar provisions. In some Member States the provisions were amended, but there are several Member States which go further than the FD regarding activities concerning precursors. 2.5 Incitement, aiding and abetting and attempt (Article 3 FD) Incitement, aiding and abetting According to Article 3 FD each Member State has to take the necessary measures to make incitement to commit, aiding and abetting or attempting one of the offences referred to in Article 2 a criminal offence. Regarding incitement, aiding and abetting, there are different systems in the various Member States which are regulated in general criminal law provisions and which are not specifically designed for drug and precursor offences. In principle there are two different systems. On the one hand, some systems differentiate between principal offenders and accomplices (e.g. DE, EE, and LU), other countries meanwhile operate a system where all participants to the criminal offence are perpetrators who are in principle treated equally (AT, DK, FI, IE, IT, SE). The FD does not require certain prerequisites, Member States just have to apply their own system of incitement, aiding and abetting to the offences of drug and precursor trafficking. In all Member States the rules on incitement, aiding and abetting contained in the general criminal law provisions (general part) are applied to the offences of trafficking in drugs and precursors. Therefore all Member States laws are in compliance with Article 3 FD concerning incitement, aiding and abetting. 7

12 2.5.2 Attempt The FD requires that the attempt of offences referred to in Article 2 FD shall be a criminal offence. Member States may, however, exempt from criminal liability the attempt to offer or prepare drugs referred to in Article 2 (1) (a) and the attempt to possess drugs referred to in Article 2 (1) (c). There are differences between legal systems in the Member States in how they deal with attempt. In some Member States the rules of attempt, which are provided for in general criminal law provisions (general part), apply to all criminal offences. In other States they only apply to certain criminal offences which are explicitly foreseen. Problems can arise in states which do not automatically criminalize attempt (if this attempt fulfills certain prerequisites provided by the law), as attempt is only punishable in the case of serious offences. AT, BG, CZ, DK 1, EE, ES, GR, HU, LT, LU, LV, MT, NL, PL, SK provide rules on attempt that are applicable to all criminal offences, therefore they are automatically applicable to drug and precursor offences, too. The situation in other counties is as follows: In BE, DE, FR, IT attempt to commit a felony is always punishable, but in the case of misdemeanors the attempt is only punishable if this is foreseen in the applicable offence. In BE this is not the case for drug offences, whereas it is foreseen for offences regarding precursors. There may be cases, therefore, where Belgian law does not fully comply with Article 3 FD, if drug trafficking offences are not crimes. In DE for offences mentioned in drug law it is strictly stipulated that the attempt of these offences is punishable. It is also stipulated that the attempt of trafficking in precursors is punishable. Thus, German law is in accord with Article 3 FD. In FR the law states that the attempt of drug trafficking offences is punishable. In IT the provisions on attempt are not applicable to misdemeanors, but all offences of drug and precursor trafficking are felonies. In PT and SI attempt is only punishable, if the corresponding full offence is punishable with imprisonment of more than three years or if there is a provision explicitly providing for the punishment of attempt. Most drug and precursor offences are punishable with imprisonment for more than 3 years. For traffickerconsumers or cases where there is an abuse of role by a physician or a pharmacist, attempt is explicitly criminalized. However, where the trafficking is of a lesser gravity, incitement, and cultivation of certain plants is for personal consumption attempt is not criminalized. As far as personal consumption is concerned this is legitimate in the light of Article 2 (2) FD, but it seems inevitable to conclude that Portuguese law does not fully comply with the FD. In SI this is no problem with drug trafficking offences, since the penalties foreseen are higher than three years. In CY, IE, SE and UK the punishability of the attempt of drug and precursor offences is foreseen in the drug laws. In FI Article 3 of the FD concerning attempt led to changes in the Criminal Code. Attempt now has the same sentencing guidelines as a completed offence and it is considered as one form of a drug related criminal offence. Finland established an entirely new provision (CC 50:4a), according to which abetting or attempting to abet an aggravated drug offence is considered a criminal act. FI also criminalized attempt to cultivate, attempt to transport or to have transported drugs, attempt to manufacture and attempt to abet drug related offences, in order to make the criminalisation in relation to attempt more coherent. In RO attempt is punished only when the law provides it. It is provided that all attempts regarding drug trafficking offences are punishable, but in crimes linked to trafficking in precursors the attempt is not punishable. 1 Concerning the problem of precursor trafficking see supra p. 6. 8

13 In conclusion, not all of the Member States completely fulfill the FD regarding attempt of drug and precursor trafficking offences, which is caused by the different systems of attempt. AT, BG, DK 2, EE, GR, HU, IT, LV, LT, LU, MT, NL, PL, SK, ES provide that the rules on attempt are applicable to all criminal offences, therefore, they are automatically applicable to drug and precursor offences, too. Each of the other Member States has its own, slightly different approach on the conditions for criminalization of attempt. Generally speaking, they foresee that in cases of misdemeanors the law has to explicitly foresee the criminalization of the attempt. In BE and RO this leads to a situation where an attempt of drug and precursor trafficking is not punishable in all cases and in PT attempt in cases of trafficking of a lesser gravity and concerning incitement are not criminalized. 2.6 Penalties General aspects Special problems had already been identified in the report from 2009 referring to penalties. In this respect, remarkable differences between Member States legislations and between FD s provisions and Member State provisions can be identified. According to the FD each Member State shall provide for effective, proportionate and dissuasive penalties. For the crimes linked to trafficking in drugs and precursors criminal penalties of a maximum of at least between one and three years of imprisonment shall be provided for (Article 4 (1) FD). If a drug trafficking offence involves large quantities of drugs or the offence either involves those drugs which cause most harm to health, or has resulted in significant damage to the health of a number of persons penalties of a maximum of at least between 5 and 10 years of imprisonment shall be foreseen (precursors are excluded) (Article 4 (2) FD). If the such an offence is committed in the framework of a criminal organisation, penalties of a maximum of at least 10 years of imprisonment shall be provided for (Article 4 (3) FD). If the offence of trafficking in precursors is committed within the framework of a criminal organisation, Article 4 (4) FD provides for a maximum penalty of at least between 5 and 10 years of deprivation of liberty. In (nearly) all Member States the penalties foreseen in the law in principle comply with the provisions of the FD. The Belgian report indicates that the penalties provided for cannabis offences could not be in compliance with Article 4 (1) FD, since they are too low. Since several Member States have not transposed all aggravating circumstances, there are Member States provisions on penalties which are not all over in compliance with Article 4 (2)-(4) FD (for more details see infra). As the 2009 Report indicated, most of the Member States provide significantly higher penalties than the FD. Moreover the system of criminal penalties in most Member States is more differentiated than the one in the FD. In most States there are various levels of sanctions depending on different activities and different factors. The great differences between the Member States sanctioning systems can be seen in the very different penalties foreseen in the Member States. In this respect it must also be considered that legislation is difficult to compare, since it is not enough to only take into account the sanctions foreseen for the specific offences, but also other provisions (e.g. suspended sentences, conditional release, measures of diversion) and penalties which are imposed in practice. It is known that there are big disparities in sentencing practice (see chapter 3). If we only look at the maximum sanctions, for which the FD provides for minimum levels, the differences are obvious. These are differences which certainly do not only exist concerning drug trafficking, but which are caused by different criminal law systems and policies. 2 Concerning the problem of precursor trafficking see supra p. 6. 9

14 Regarding drug trafficking the following maximum possible penalties (including also aggravating circumstances foreseen in national laws) are foreseen: Life imprisonment: AT, CY, EE, FR, GR, HU, IE, LT, LU, MT, SK, UK more than 20 years: IT, PT, RO years: BE, CZ, DK years: BG, DE, ES, LV, NL, PL, SI 10 years or less: FI, SE Regarding precursor trafficking the following maximum penalties are foreseen: Life imprisonment: GR, LT, SK, UK years: DK, IT, LU, PT years: BE, BG, DE, IE, SI 5-10 years: CZ, EE, ES, FI, HU, LV, NL 5 years or less: AT, CY, PL, RO, SE No provisions on precursor trafficking: FR, MT Table 2.1 Overview on penalties MS Drug trafficking Aggravating circumstances Precursor trafficking AT Imprisonment: - 1 year (psychotropic substances)/-5 years (drugs) Fines: max. 1,8 Mio (day fines) Large quantity: - 15 years Crim. Org.: years, life imprisonment Imprisonment: -1 year Large quantity: - 5 years BE Imprisonment: 3 mths - 5 yrs. Fine: Cannabis offences: less stringent (not in compliance with FD) Harm to health: 5-10 years, fine Crim. Org.: - 20 years (at least 10 years) (against minors: years) Imprisonment: 2-5 years Fine: Crim. Org.: 5-10 years Other aggravating circumstances: -15 years BG Imprisonment: 2-8 years (high risk drugs), 1-6 years (risk drugs), installations, materials for production: 3-12 years Fines up to Across the border: - high risk drugs: years, fines max risk drugs: 3-15 years, fines max Crim. Org.: 5-15 years Imprisonment: 3-12 years, fines Crim. Org.: 5-15 years, fines CY Class A, B: Imprisonment up to life imprisonment Class C: imprisonment -8 yrs. Classes of drug depending on harm to health: imprisonment up to life imprisonment Crim.org.: particularly serious offence, not other penalties Imprisonment: - 2 years Fine: max CZ Imprisonment: 1-5 years Fines: max. 1, (day fines) Substantial extent: 2-10 years Large extent: 8-10 years Harm to health: 8-12 years Serious bodily harm: years Crim.Org.: years Imprisonment: up to 5 years Fines: max. 1, (day fines) More serious forms: 2-10 years DE Imprisonment: - 5 years Fines: max. 1,8 Mio (day fines) Commission for gain: 1-15 yrs. Health danger: 1-15 yrs. Death, gangs etc.: 2-15 yrs. Crim. Org.: 2-15 yrs. Imprisonment: - 5 yrs. Fines: max. 1,8 Mio (day fines) Crim. Org.: 1-15 yrs. DK Imprisonment: -10 years Fines: no max. penalty (day fines) Quantity: - 16 yrs. harmful drugs: -16 years Fines: no max. penalty Imprisonment: -10 years Fines: no max. penalty Other aggravat. circumst.: -16 yrs 10

15 MS Drug trafficking Aggravating circumstances Precursor trafficking EE Small quantity: imprisonment -3 years Fines: max. 500 daily rates ES FI FR GR Imprisonment: 1-3 years, Fines: up to 3 times the value of drugs Imprisonment: -2 years Fines: no max. penalty (day fines) Drug trafficking: - 10 years, fines: max Production: -20 years, fines: 7, Imprisonment: at least 10 yrs. Fines: Large quantity: - 10 years Crim. Org.: 6-20 yrs, life imprisonment Other crim. offence: 6-20 yrs, life imprisonment Harm to health: 3-6 years Severe harm to health: 6-9 years Crim. Org.: 10-15, severe harm to health: 9-12 years Super aggravating circumstances: 6-13½ years Fines: up to 4 times the value of drugs Large quantity: 1-10 years Crim. Org.: 1-10 years Fines: no max. penalty Crim. Org.: -30 years, life imprisonment Fines: max. 7,500,000 _ With other crimes: at least 15 yrs, fines, etc.: Crim. Org.: at least 10 yrs. Habitually and professionally acting: life sentence, fine Imprisonment: - 3 yrs/ 5 yrs By a group: 2-10 yrs. Fines: max. 500 daily rates Imprisonment: 3-6 years (crim. Org.: 6-9 years) Fines: up to 3 times the value of precursors Imprisonment: - 2 years Fine Crim. Org.: 4 months-6 yrs. --- Imprisonment: at least 10 yrs. Fines: HU IE IT LT LU Consumer typed conduct: imprisonment: - 5 years Commercial typed conduct: imprisonment 2-8 years Fines: max (day fines) Possession, importation: - life imprisonment Use, cultivation, supply etc.: - 14 years Fines: unlimited Imprisonment: 6-20 years Fines: Imprisonment: 2-8 years Fines: Imprisonment: 1-5 years Fines: 500-1, Substantial quantity: Consumer typed c.: 5-10 yrs Commercial typed c: 5-20 yrs, life imprisonment Crim. Org.: - 20 years Fine: max High value of drugs: minimum sentence of not less than 10 years Harm to society: minimum sentence of not less than 10 years Fines: unlimited Quantity and harm to health: -30 years Crim. Org: at least 10 years; promotion, direction, organisation of Crim. Org: at least 20 years Fines: up to Large quantity: 8-10 years Very large quantity: years Crim.Org.: -life imprisonment Fines: Harm to health: 5-10 years, fine , Crim. Org.: years, fines: , Death of minor: -life imprisonment Imprisonment: - 5 yrs Fine: max Crim. Org.: -10 yrs. Imprisonment: - 14 yrs. Fines: unlimited Imprisonment: 4-16 years/3-8 years/-4 years (depending on category of substance) Fines: / / Imprisonment: - 4 years Large quantity: 3-6 years Crim.Org.: -life imprisonment Fines: Imprisonment: 1-5 years Fines: 500-1, Crim. Org.: years, fines: , LV Imprisonment: -5 years/-10 Large amounts of drugs: 8-15 yrs. Imprisonment: 1-3 years 11

16 MS Drug trafficking Aggravating circumstances Precursor trafficking years Fines: max community service MT Possession: imprisonment 1-10 years; transfer/sale/manufacture: 4-30 years Cultivation: -life imprisonment Fines: max NL PL Hard drugs : selling/supply: imprisonment - 8 yrs. Import/export - 12 years Soft drugs : - 2 years/- 6 years Fines: max Manufacture etc.: - 3 years, Import etc.: - 5 years Placing on market: 6 mths-8 yrs Fines: max (day fines) PT Imprisonment: 4-12 yrs. (5-15 yrs., if acted contrary to authorisation) Fines: max (day fines) RO Risk drugs: Imprisonment: 3-15 yrs. High risk drugs: yrs. International drug trafficking: risk drugs: yrs, high risk drugs: yrs. SE Imprisonment: - 3 years Fines: max (day fines) Serious consequences: 8-15 yrs. Crim. Org.: 8-15 years To minors: 5-10 years Caused death: years, life imprisonment Harm to health: 5-10 years, fines , Crim. Org.: - 8 yrs. Fines: max Considerable quantity: -12 years Fines: max (purpose of sale: 3-10 years) Fines: max Group of persons: 5-10 years No specific provision on precursor trafficking If chemical is on a list of banned substances: imprisonment: -life imprisonment Imprisonment: - 6 years Fines: max Imprisonment: -5 years Fines: max Crim. Org.: max. 25 years Imprisonment: 2-10 years (3-12 years) Crim. Org.: max. 25 years Harm to health: extension of penalty by max. 5 years Gross narcotic offence: 2-10 years Fines: max SI Imprisonment: 1-10 years Under aggravating circumstances: 3-15 years Crim. Org.: 3-15 years SK UK Imprisonment: 4-10 years Fines: max Imprisonment: class A: max. life imprisonment, Class B, C: - 14 years Fines: unlimited Community penalties Aggravating circumstances (e.g. grievous bodily harm): years/20-25 years and life imprisonment Dangerous grouping: years or life imprisonment Fines: max Large scale importation: 7 yrs. and above Value more than 1 Mio : years Fines: unlimited Imprisonment: 1-5 years Imprisonment: - 2 years Fines: max Imprisonment: 1-10 years Under aggravating circumstances: 3-15 years Crim. Org.: 3-15 years Imprisonment: 4-10 years Dangerous grouping: years or life imprisonment Fines: max Crim. Org.: Imprisonment: - life imprisonment Fines: unlimited 12

17 2.6.2 Imprisonment In 12 Member States life imprisonment is provided for the most severe cases, but there are differences in which cases this is. In nine of these countries this is the case when the offences are committed in the framework of a criminal organisation (AT, CY, EE, FR, GR, IT, MT, SK, UK), in six Member States this is foreseen for trafficking of large quantities of drugs (CY, GR, HU, IE, SK, UK), in three if drugs cause most harm to health, in one for habitually and professionally acting (GR), in one if drug trafficking comes together with other criminal offences (EE) or if it causes the death of a minor (LU). Regarding the basic offence of Article 2 FD, Article 4 (1) FD provides for a maximum penalties of at least one to three years. The Member States provisions vary regarding maximum penalties between less than one year and life imprisonment. Only one Member State (BE) does not fully comply with these requirement, since it provides sanctions lower than one year for certain offences of cannabis trafficking. Six Member States (AT, EE, ES, FI, PL, SE) provide for maximum penalties between one and three years, nine Member States (AT, BE, CZ, DE, HU, LU, LV, NL, PL) up to five years, in twelve (BG, CY, DK, FR, HU, LT, LV, MT, NL, PL, SI, SK) up to ten years, in five (IE, NL, PT, RO, UK) up to 15 years and in eight (CY, FR, GR, IE, IT, MT, RO, UK) more than 15 years (see table 2.2.). 3 For trafficking in precursors (Article 2 (1) (d)), all Member States which have provisions on precursor trafficking the penalties 4 comply with the FD. Although the level of penalties in the Member States is in general lower for precursor trafficking than for trafficking in drugs (the FD provides the same penalties for the basic offences), 19 Member States provide for higher imprisonment penalties than foreseen in the FD. Eleven Member States (BE, CZ, DE, EE, HU, IT, LT, LU, PL, RO, SK) provide maximum imprisonment penalties up to five years, five Member States (DK, IT, NL, PT, SI) up to ten years, three Member States (BG, IE, PT) up to 15 years and three Member States more than 15 years (see table 2.3 on maximum levels of sanctions for trafficking in precursors). Since the FD only contains minimum maximum levels of sanctions, higher sanctions are admissible. Few Member States had to raise their penalties to bring their legislation in compliance with the FD. As penalties in many Member States were higher before the adoption of the FD, this was not a reason for them to amend their legislation with regard to the level of imprisonment sentences. As a consequence legislative disparities between the Member States remain and the FD does not have an approximating effect, since most Member States have not amended their penalties after the adoption of the FD. The Member States reports also show how difficult or nearly impossible an approximation of penalties is, since the principles and concepts not only of drug law, but also in criminal law are very different in the various Member States. Regarding drug law, there are Member States which foresee high penalties in their criminal provisions (e.g. GR), others have lower penalties, but all of them report that their system works well (e.g. PT). Therefore the Member State reports do not allow any conclusion that penalties in drug law are too high or too low in the Member States to combat drug trafficking successfully. It must be considered that criminal law systems are very different and that the pure penalty provided in the law are not the only relevant factor how harsh the sentences imposed by the national courts are. 3 Several Member States are mentioned more often than once, since they have transposed the activities of Article 2 FD in more than one provision and different penalties are foreseen (e.g. if different actions are treated differently as possession and selling or if soft drugs and hard drugs are treated differently). 4 In FR trafficking in precursors is no criminal offence; in MT there are no specific provisions on precursor trafficking, but depends on if a chemical is on a list of banned substances. 13

18 Table 2.2 Maximum levels of sanctions (imprisonment) for trafficking in illicit drugs Drug trafficking (basic offence Art. 2), (FD: min/max of at least 1 to 3 years) Yrs. < > 15 Large quantities of drugs (FD: min/max 5 to 10 years) < > 20 Harm to health (FD: min/max 5 to 10 years) < > 20 Criminal organisation (FD: min/max of at least 10 yrs) < > 20 < 10 Other aggrav. circumstances > 20 AT X X X X X X X* X BE X 9 X X X X X X X BG X X X X CY X X* X* X X* X* X X CZ X X X X X X X DE X X X X X DK X X X X EE X X X* X X* ES X X X X X FI X X X X X FR X X X* X GR X* X* X* X* X* HU X X X X* X IE X X X* X IT X X X X X LT X X X X* LU X X X X X X* LV X X X X X X X MT X X* X* NL X X X X X X X PL X X X X X 5 Not in compliance with Article 4 (1) FD. 6 Not in compliance with Article 4 (2) (a) FD. 7 Not in compliance with Article 4 (2) (b) FD. 8 Not in compliance with Article 4 (3) FD. 9 Only regarding certain offences of cannabis trafficking. 10 Harm to society which includes harm to health. 11 Only to be taken into account when determining the sentence. 14