Crimprev info n°29bis – (De)criminalisation of the use and possession of drugs (Deutschland, Italy, Spain)*Isabel Germán Mancebo
Table of contents
The third and final Seminar on The (de)criminalisation of the use and possession of drugs took place in San Sebastián on 24 and 25 October 2008, continuing on from those held in Brussels (October 2007) and Lille (March 2008). The aim of this seminar was to look in closer detail at the development of drug related policies and European legislative frameworks, as well as the way they are applied to drug-related phenomena, based on three cross-disciplinary core themes: the welfare state, the role of victims, and the role of public opinion, experts and human rights, which were also examined during previous work.
On this occasion, the drug (de)criminalisation processes was considered in the case of Germany with a speech by Nicole Krumdiek, in Italy with the participation of Stefano Fiore and Spain with the contribution of José Luis de la Cuesta.
In parallel, and with the aim of outlining all the contributions by the different countries, the main issues debated in the three seminars were set out by way of a conclusion, so as to find common points and to highlight the main differences in the way the (de)criminalisation of the use and possession of drugs is dealt with in each state, and the issues stemming from the application of respective legislations.
The countries which signed up to the 1988 United Nations Convention against illegal drug trafficking and psychotropic substances are obliged to deal with the issue of illegal drug possession for personal use, although they have the freedom to decide exactly which types of measures and policies are to be adopted.
European Union member states have interpreted and applied this freedom to design their own legal frameworks, taking into consideration their own specific characteristics, culture and priorities, although they have maintained a common prohibitive attitude. As a result there is a wide variety of viewpoints within the European Union concerning the illicit consumption of drugs and preparatory acts relating to the possession and purchase of drugs. In practice, this means that the way in which drug related offences are pursued in EU countries is heterogeneous.
Current German drug-related legislation is mainly based on a highly repressive system both for drug traffickers and consumers. These regulations contrast with the German Constitution which is not repressive with respect to drug use since it only condemns actions which harm third parties.
Present German drug related legislation forbids any activity related to personal consumption, such as possession, growing or buying, which almost amounts to a de facto ban on personal consumption, ignoring the constitutional mandate according to which individuals have the right to determine their physical and mental state.
German jurisprudence, which favours a rigid interpretation of drug related legislation, has toughened these regulations by specifying certain terms. By way of example, it does not differentiate between attempted and committed offences related to illegal drug trafficking, which removes the possibility of reducing sentences.
The apparent opening up to decriminalising small quantities of drugs, with the option of rejecting charges, is reduced to a mere theoretical disquisition, also with obvious differences in the way this option is applied in different federal states. The situation is more serious with regard to greater quantities of drugs, for which harsher sentences are envisaged.
The only exception in German legislation to repressing this behaviour can be found in a clause which enables the use of cannabis for therapeutical purposes, provided that it is authorised by the Federal Institute of Medical and Pharmaceutical Products with a medical aim or in the general interest. However, in practice this option is systematically refused.
Along the same line of reducing pain, the possibility of providing heroine assisted treatment has been studied. Following a successful trial, a bill was presented to provide for these programmes, although no decision has yet been taken in this respect.
Other options are also contemplated in relation to harm reduction with greater or lesser success and with unequal impacts on consumers. Thus, different actions have been carried out: needle exchange programmes, drug consumption rooms and substance testing programmes.
The gap between what is theoretically regulated and what actually happens in Germany is reflected by the small impact for consumers of current opinion in favour of decriminalisation and harm reduction.
Attempts to make German legislation more flexible with regard to drugs can be seen in proposals such as the recent proposal in which the decriminalisation of cannabis for personal use was envisaged by the Lower House of the German Parliament, but which nevertheless was unsuccessful. At present there does not seem to be the political will to move forward in this respect.
The repressive nature of German drug related legislation is based on the idea that the drug market can be reduced by controlling the offer and demand through strict legislative measures. Therefore, the German legislator justifies drug policies by obligations in the context of United Nations Conventions.
However, many of the statistics and reports about drugs emanating from the government do not reflect the real situation of drug consumers. This information is manipulated in an attempt to justify drug policies and their cost based on reports which conceal the risks and damage that prohibitionist policies themselves create. Both official reports and statistics seem to be a part of the « self-complacency policy » which, like in other places throughout the world, is maintained in Germany.
Despite having suffered changes throughout its development, Italian drug related legislation has over time maintained certain areas of criminal irrelevance in the framework of regulations characterised by heavy and increasing repression.
Theoretically, personal consumption, and related behaviour, such as buying and possessing drugs, have no criminal relevance, and only behaviour which is not directly intended for one's own consumption is punished under administrative law. This has characterised Italian legislation in so far as, although the consumer is not criminalised, consumption is relevant if it is punished by administrative sanctions. Despite an apparent linear tradition in drug related legislation, Italian regulations in this matter have travelled a very windy path.
Currently, we can only cautiously say that in Italy using or possessing drugs for personal use are not subject to criminal sanctions. In 2006 new more repressive regulations were introduced, in which no distinction is made between « soft » and « hard » drugs, a maximum quantity is established which determines whether behaviour can be criminally or administratively sanctioned, and the repressive system was revised and reinforced with the introduction of new measures, and paradoxically contemplating the possibility or not of imprisonment for drug addicts.
The criminal response is increasingly severe, with greater punitive measures. It is becoming more obvious that both consumption and possession are considered illicit, with administrative sanctions being imposed whose content is close to a substantially criminal level. Furthermore, the consequence of approximation between administrative and criminal sanctions, which characterises current legislation, is that drug addicts are dealt with in the field of public safety.
The therapeutical option can be transformed into a « coercitive treatment » since it is not provided as a social alternative to deal with the issue effectively, but rather as a simple alternative to punishment, whether criminal or administrative.
The changes made in Italian drug-related legislation, especially in favour of more repressive attitudes, do not appear to have produced a real, tangible impact on the phenomenon, neither from a strictly criminal point of view or a social perspective. Nor have its possible effects been assessed.
Nevertheless, the most recent provisions satisfy public opinion which demands safety. These provisions which, although they are very useful during election campaigns, are completely inefficient in controlling the phenomenon since drug users, who are perfectly aware of the possible consequences of consumption, including possible sanctions, do not change their behaviour for this reason. Decisions by users about whether to take or stop taking drugs are not affected by legislative options or even by criminal policy.
On the other hand, we can see how prohibitionism increasingly marginalises drug consumers from the rest of the population, which considers drug addicts are, if not criminals, socially inadequate and dangerous people who need to be controlled.
In view of the above, it can be said that Italian drug related legislation is characterised by a total lack of interest for consumers since therapy and rehabilitation are only considered, with very little conviction, as the price to pay, forgetting that they are basic parts of an entire system for combating the problem. These very strict measures have proved to be highly inefficient and only randomly affect a small number for whom institutions show no interest.
The Spanish case is amongst those which has envisaged certain limits on criminal intervention, leaving both consumption and possession not intended for trafficking outside the remit of criminal law.
The Spanish penal code, completed with a progressively majority jurisprudential line, considers that shared consumption (or collective own consumption, supplying individual consumers without any potential distribution) and donations to drug addicts by family members or friends of minimum quantities, free of charge (for compassionate reasons or to help them stop) cannot be sanctioned under criminal law.
However, the absence of criminal sanctions for possessing or consuming drugs does not mean that these are considered as fully legitimate forms of behaviour. Under administrative law serious offences against public safety include consumption in public places, on the roadside, in public establishments or transport; illicit ownership, even if it is not intended for trafficking; abandoning in public places, on the roadside, in public establishments or transport tools or instruments used for consumption; and tolerance of illegal consumption and drug trafficking in public places and establishments or failure by owners, administrators or managers to prevent such behaviour.
In these cases, the Citizens' Safety Protection Act includes different sanctions and contemplates the possibility of suspending the sanction if the offender accepts detoxication treatment in a duly accredited centre or service.
Administrative regulations can be criticised since a restrictive interpretation of these provisions enables sanctions to be applied to those forms of behaviour which do not pose a threat to the safety of citizens. This makes it more difficult to apply risk and harm reduction programmes, which are an efficient form of intervention for certain drug addicts. The possibilities opened up in Spain by the jurisprudential line in terms of shared consumption and donation by relatives and close friends to help drug addicts stop, run the risk of being closed if the Citizens' Safety Protection Act is interpreted in a restrictive manner.
Faced with the criminalisation of drugs, there are major arguments in favour of « normalisation ». Thus, from a purely economic perspective, criminalisation entails high social costs - for the consumers themselves and their social environment, the criminal justice system, custody systems, the drugs market and the social system in general. From a political and criminal point of view, criminalisation is clearly reflected by functional delinquency. This creates a range of costs, mentioned above, which, in the event of normalisation, could be used for prevention, and risk and harm reduction programmes, or social rehabilitation treatments for consumers, who are the main victims of repressive policies.
A basic change in strategy with regard to normalisation does not mean relinquishing any possibility of controlling drugs since it is not an attempt to remove all controls. The aim of normalisation is for drugs to be subject to the necessary controls with a view to preventing consumption, through measures which are inspired by the principle of proportionality, and taking into account the risks for public and individual health inherent to each specific substance. It is not therefore about « legalising » but rather « normalising », which entails substituting punitive treatments for others with legal characteristics similar to those applied in the event of substances of the same nature and which are likely to produce similar effects (tobacco, alcohol, medicines, etc.), guaranteeing that addictions are treated criminally on an individual basis.
In a state with social welfare and the rule of law not all offences should be dealt with under criminal law since it should be inspired by the principle of minimum intervention, acting only in the face of the most serious forms of conduct against the most important legal assets. Only offences which endanger, at least potentially, the life and /or safety of citizens, in addition to attacks against the most vulnerable people and groups, should be subject to criminal intervention. This should affect neither consumers nor possession for personal use. These forms of behaviour could be subject to significant controls, but their sanctions should depend on the fields of administration and health and not on criminal legislation or the Citizens' Safety Protection Act.
The most suitable thing would be to progressively normalise, beginning with the least dangerous substances, depending on their effects of physical dependency and tolerance, applying controls and with an intensive follow-up.
The assumption of international agreements, which establish general obligations, means internally developing legislative measures, including in the field of criminal repression, in the face of certain activities. In most cases it is international pressure which has led to the reforming of internal criminal laws.
However, these international agreements cannot always be interpreted in an identical manner since there are significant differences between the legislations of each country and their specific application. In the European Union markedly prohibitionist drug related policies, which contemplate severe sentences for consumption and possession, co-exist with less repressive policies which have depenalized the consumption and possession of drugs and which can only be sanctioned under administrative law.
Although there are various different possibilities for combating the drug phenomenon, differences in the way it is dealt with by the law in the different countries are based on a question of grade and in the different national systems the criminal response continues to play a decisive role.
The way in which illegal drugs are treated by the law is mainly covered by criminal legislation, which international conventions has influenced in a basic way. These international declarations require states to incriminate and punish certain drug related forms of behaviour, and states, in view of this requirement, have responded by incriminating and punishing with very severe sentences, in addition to drug trafficking, consumption and possession – although with certain exceptions where criminal intervention is not aimed at consumption or possession for personal use.
The insatisfaction created by the legal treatment of drug trafficking and consumption in modern societies is constant in the different countries studied. The treatment of illegal drugs is envisaged from a punitive perspective despite the fact that experts highlight both the system's perverse effects, especially from the point of view of criminal justice, and the almost lack of incidence of this repressive policy in combating the damage resulting from consumption.
The punitive approach's lack of satisfactory results and even its perverse effects require the opening up of other means of intervention to combat the drug phenomenon. It has been demonstrated that strictly criminal means are inefficient, justified by the attempt to fight against drug trafficking and criminal organisations, and that they end up being applied to small drug traffickers and addicts. Harm and risk reduction programmes are thus created, focussing on consumers, and potential consumers, to achieve their recovery and social integration.
Thus, together with an increasingly prohibitionist basis, in Europe harm and risk policies are beginning to be drafted, although with very disparate results and intensity. However, the application of harm and risk reduction strategies is not always going to be covered by the internal law of states and will be relegated in most cases to programmes for reducing harm to those who have been criminally sentenced. Even forms like suspended sentences, admitted in some criminal (and even administrative) legislations, will have to overcome true obstacles in order to be applied.
In any case, the absence of any provision in relation to United Nations risk reduction programmes signifies great difficulties for the development of risk reduction policies internationally.
And although provisions in relation to consumption are not as repressive as those aimed at drug trafficking, and although harm and risk reduction programmes are beginning to emerge within states, the interpretation of Conventions highlights the small amount of room for manoeuvre, if there is any at all, in the face of normalising drugs. This is all in the light of the widely identified need for a change in this matter: a rupture with current drug related policies in favour of normalisation.
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* Traduit par Phillip Basterra.
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To cite this document
Isabel Germán Mancebo. Instituto Vasco de Criminología, Universidad del País Vasco, Avda. Ategorrieta 22, 214 San Sebastián (España), 34 943 1 74 65 . E-mail : firstname.lastname@example.org