Drug Abuse

PART A. SUMMARY

Regulations on drugs are laid down in the Dutch Opiumwet (Opium Act). The Act draws a distinction between hard drugs (e.g. heroin, cocaine and Ecstasy), which pose an unacceptable hazard to health, and soft drugs (e.g. hashish and marihuana), which constitute a far less serious hazard. The use of these drugs is not a criminal offence. Only the use of these substances in public is sometimes criminalized under certain municipal by-laws (B.1). These local by-laws are often used in so-called 'sweep operations' to clear junkies, tramps etc out of certain parts of a town (B.1.1).

The use of drugs in a group is not criminalized in the Netherlands, nor is it an aggravating circumstance (B.1.2). But nuisance related to use could be defined as an aggravating circumstance. In addition to local by-laws, a more adequate juridical instrument has been developed. Since March 1997 a new law Wet Victoria (Victoria Act) makes it possible for a mayor to close down a house if behaviour in or from the house disturbs public order in the neighborhood. This new power is also given to the mayor in the presence of a'rnere threat of public nuisance (B.1.3).

Incitement to use drugs per se is not a punishable offence. The nearest offence to this is the criminalisation of every form of publication that promotes the selling, distribution or the supply of drugs (B.1.4).

The Dutch Opium Act permits the preparation, prescription, distribution and possession of drugs for medical purposes. Private physicians can make unlimited use of this regulation if they stay in compliance with the professional standards referred to in medical disciplinary rules (B.1.5).

The main aim of Dutch drugs policy is to reduce the risks of drug use to individual drug users and their immediate environment, as well as to society in general. The reduction of demand is also an important objective. With regard to the individual, the protection of health is the key aim. In this context, prevention and care are core policy issues. With regard to the protection of society as a whole, measures in the field of public order and safety are important aspects. Dutch drugs policy is therefore differentiated according to the seriousness of the potential damage to health caused by the use of the drug in question. Drug policy is aimed firstly at maintaining a separation between the market for soft drugs and the market for drugs that cany an unacceptable risk, and secondly at preventing drug users from ending up in an illegal environment where they are difficult to reach for prevention and intervention. The Dutch view is that the interests which have to be protected by criminal law are primary health interests (B.1.6).

The possession of drugs is a criminal offence according to the Opium Act. The possession of a small quantity of soft drugs for personal use (< 30 grammes) is considered a minor offence (B.2.1).

The expediency principle is applied in Dutch policy in the investigation and prosecution of Opium Act cases and is formalized in a prosecutor's guideline. The public prosecutor may decide not to institute prosecution proceedings if it is in the public interest. The possession of small quantities of drugs for personal use is accorded the lowest priority in the Opium Act guidelines. Anyone found in possession of less than 0.5 grammes of hard drugs will generally not be prosecuted, though the police will confiscate the drugs and consult a care agency (B.2.1).

The cultivation of drugs in plant form, even for personal consumption, is a criminal offence (B.2.2). Facilitation of or incitement to possession by others is not an autonomous criminal offence in the Netherlands but may result in a conviction for possession or supply (B.2.3-B.2.4).

The supply of drugs in the form of production and distribution are considered serious offences in the Netherlands for which heavy penalties can be expected. With regard to sentencing, the Opium Act guideline makes a distinction between categories of offenders: those involved in organised crime, dealers, small-scale dealers and users. Those involved in organised crime can expect a heavier penalty than the drug user involved in the production or distribution of drugs (B.3.1).
Special attention should be paid to so-called 'coffee shops'. Under strict conditions — no advertising, no sale of hard drugs, no nuisance, no sale to young people under the age of 18, and no sale of more than 5 grammes per transaction per person, per -day — no criminal proceedings will be instituted against people involved in the sale of soft drugs in catering establishments not licensed to sell alcohol (B.3.1).

In almost all cases in which trafficking is prosecuted, a second prosecution is startenecause the defendant is a member of a criminal organisation. In this case maximum penalties may be increased by one-third (B.3.2).

In the fight against organised crime, the penalisation of acts preparatory to trafficking in hard drugs was introduced in 1985 (B.3.2). Due to the obligation arising from the United Nations Convention against Illicit Traffic (UN 1988) and the Council of Europe Convention on laundering, search, seizure and confiscation of proceeds of crime of 1990 (CE 1990), article 416 Sr changed from an article criminalizing fencing (receipt of stolen goods) to an article which also criminalized money laundering.

The development of penal enforcement of the Opium Act has been dominated almost exclusively by the fight against organized crime, and this became the spear-head of police work in the 1980s and 90s. New methods of investigation (e.g. undercover work, sting operations, the use of informers, observation and surveillance of suspects, financial investigation), executed by multidisciplinary investigation teams, were specifically aimed at organized crime (B.3.3).
Drug users from all over the world come to the Netherlands to procure and/or use drugs. Those arrested for (small-scale) trafficking and as drug couriers during (combined) police actions in the Netherlands who are of Belgian or French nationality, or are resident in those countries, can expect deportation and a transfer of proceedings in criminal matters (B.3.4).

As a further consequence of UN 1988, CE 1990 and the 1991 European Union Money Laundering Directive (EU 1991) and given the existing national need to restructure financial investigation measures, a number of changes were introduced in Dutch criminal procedure, such as: the possibility of depriving a convicted person of unlawfully obtained profits; the creation of a 'criminal financial investigation' to determine the amount of the illegally obtained profits; Wet identificatie bij financiele dienstverlening (Act on Customer Identification for Financial Services); Wet melding ongebruikelijke transacties (Act on the Disclosure of Unusual Transactions); Wet op de wisselkantoren (Act concerning exchange-offices) (B.4).

In order to implement the Council of the European Communities Directive on the manufacture and the placing on the market of certain substances used in the illicit manufacture of narcotic drugs and psychotropic substances, and in relation to the Council's Regulation laying down measures to be taken to discourage the diversion of certain substances to the illicit manufacture of narcotic drugs and psychotropic substances, a new law Wet voorkoming misbruik chemicaliën (Act to prevent misuse of chemicals) came into force (B.5).

As a whole the Dutch Opium Act and related legislation fulfil all the requirements of international regulations although when practice is taken into consideration, to take the coffee shops as an example, this is not always the case (C.1)

The endowment of operational executive power for Europol — as proposed fri the Treaty of Amsterdam — in relation to the privilege and immunity protocol applying to that organisation, could lead to judicial problems in the future (C.2).

B.1.Drug use

B.1.1. Measures on drug use per se

(a)    Legal Measures

The Dutch Opiumwet (Opium Act)' does not prohibit drug use per se. Only during a short period of Dutch legal history, from 1953 until 1976, was recreational drug use prohibited.

After the Second World War, penal enforcement concentrated on the users of these substances. This derived from a drastic change in the international political situation. Decolonisation had deprived the Netherlands and other nations of their interests in the trade of opium and cocaine. This led to a worldwide consensus with the American prohibitive approach to drug problems which was clearly visible with the change in the terms of the Opium Act in 1953, when the use of drugs became a criminal offence.

In the 1960s the use of substances like hemp, LSD and amphetamine became popular, while in the 1960s and 70s the use of hemp set the framework for discussion on how to approach the drug problem. All these drugs became symbols of the anti-authoritarian movement of the 1970s.

Until the 1960s, recreational drug use and medical drug use existed but not to the point of causing a social problem for which a repressive penal approach was required. The low incidence of prosecution cases under the Opium Act confirms this. From 1928 until 1966 only 1010 Opium Act cases were prosecuted. ln 860 cases prosecution led to an irrevocable sentence.' In the 1960s this changed dramatically. The hippy culture and its recreational drug use brought new problems for the authorities. This was because hemp use was never medicalised, unlike that of morphine, heroin and cocaine, and it was only recreational, and furthermore because in the Single Convention on Narcotic Drugs of 1961 (UN 1961) the substance was placed on the list of substances with the highest risk to addiction which should be subjected to the highest form of control,' a repressive approach to its use was not debated. The total number of Opium Act cases increased ten-fold in a short time span. Whereas in 1966 only 74 Opium Act cases were prosecuted, in 1970 the number had risen to 1078. The police, public prosecutors and judges who were confronted with this problem for the first time, applied the law as ordained by international treaty. Many young users of hemp products were imprisoned.
In the late 1960s and early 1970s, people started to question the criminalisation clauses of the Opium Act. On the one hand questions arose about the purpose of penal enforcement of the Act and of criminalisation of the users of hemp products, and on the other hand it was felt that heavier penalties for the trade in heroin were desirable. The Ministry of Justice took the initiative. In the first place drug policies were to be elaborated by the Ministries of Public Health and Social Work. The penal approach was to be the ultimum remedium. In 1972 this approach was supported by a scientific task force.'

The modifications to the Opium Act of 1976 and the prosecution guidelines of 1976 and 1978 enacted this change. The so-called 'double two-way-approach' was created: in law and guidelines a distinction was made between substances with unacceptable risks and hemp products on the one hand, and between users and dealers on the other. The highest priority was given to the prosecution of a trafficker who dealt in drugs posing unacceptable risks to health, and such individuals faced the highest penalties. Drug users were not prosecuted and the use of drugs was legalised. Users of hard drugs were regarded as patients rather than criminals. Accordingly, a comprehensive, differentiated set of preventive measures and care facilities was established. The judicial authorities have always followed the principle that drug addicts should undergo medical treatment rather than serve a custodial sentence.'

Only in (some) municipal by-laws is the use of Opium Act-substances in public criminalized. The Municipal Council is empowered to make local by-laws in the interest of public order, public health and the living conditions of its citizens. In some of these by-laws the use of drugs has been prohibited in the interests of the living conditions of others, for example when drugs are used on the street, in public places or in public buildings. According to these by-laws the possession of objects and/or materials in aid of this use, like spoons, syringes, silver paper or a cigarette lighter, may be prohibited.

Activities in breach of this prohibition may be punished with a maximum detention of 3 months' imprisonment or a maximum fine of 5,000 NLG (article 154 Gemeentewet (Municipality Act).

(b)    Intensity of the Measure

This local by-law is often used in so-called 'sweep operations', in which a certain part of town is cleared of junkies, tramps, illegal foreigners etc. They are used when, for example, tension in a particular area of a town rises to an unacceptable level (see B.1.6 and B.3.4).

(c)    Judicial/Administrative Procedure Followed

Drug use in public as criminalized in certain local by-laws is a 'lesser offen9e% It must be prosecuted before a justice of the peace (kantonrechter). As this is a criminal procedure, despite the fact that it concerns a lesser offence, all rights described in article 6 ECHR are applicable. The procedure before the justice of the peace responds to level PF.iii.

(d)    Passage of the municipal by-law

The object of these municipal by-laws is to ensure a high standard of living conditions for citizens in the particular municipality.

(e)    International/EU Compliance

There are no relevant United Nations, European Union or other international requirements concerning the criminalisation of drug use per se.

B.1.2. Use in groups, gifts/exchanges of drugs

(a)    Legal measures in force

Drug use in a group is not criminalized in the Netherlands, nor does it create an aggravating circumstance. The exchange of drugs could be regarded as a form of supply and will be dealt with in B.3.

(b)    International/EU Compliance

There are no relevant United Nations, European Union or other international requirements concerning the criminalisation of the use of drugs in groups. As far as the exchange of drugs is considered a form of supply, it is dealt with in B.3.

B.1.3. Aggravated circumstances

(a)    Legal measures in force

Nuisance related to use or related to purchase drugs

The police and the municipal authorities, in particular the Mayor and the Municipal Council, are responsible for maintaining public order and tranquillity at municipal level. In principle the Council exercises all local authority powers, but some powers have been granted by law exclusively to the Mayor or to the Board of Mayor and Aldermen. The Council makes public order by-laws. Some municipalities have used these by-laws to criminalise drug use in public, as discussed in B.1.1. The Board constitutes the executive body of the municipality and is responsible to the Council for all its actions, with the exception of measures taken by the Mayor alone under the powers granted exclusively to him/her — for instance in relation to the maintaining of public order for which the Mayor alone is responsible to the Council. The Mayor then acts in his/her capacity as Chief of Police.

In order to enforce both state law and local by-laws the municipality has the power of administrative coercion (article 125 Gemeentewet (Municipality Act).6 Admini-strative coercion signifies the power given to the administrative body (e.g. the local government) to take substantive action to undo what has been done by an individual in contravention of a law or licence. The sealing of a building is an example of administrative coercion.

In addition to the above-mentioned local by-laws a more adequate juridical instrument has been developed. Since March 1997 a new law Wet Victoria (Victoria Act) makes it possible for a Mayor to close down a house if behaviour in or from the house disturbs the public order in the immediate neighbourhood. This new power is also given to the Mayor if there exists even the threat that a public nuisance may be created (article 174a Municipality Act).'

Contrary to the by-laws, the new article 174a gives the Mayor the power to seal off a dwelling completely if behaviour from the dwelling disturbs public order in the immediate neighbourhood. It is not exactly clear what is understood by 'disturbance'. The original law proposal mentions a severe disturbance of public order caused by trafficking in and using of drugs. According to deliberations in Parliament however, it is not the origin but the nature of the disturbance that is decisive. Nonetheless it should be noted that this new competence is intended primarily as an effective instrument in the fight against the nuisance caused by the trafficking in and the use of drugs.

The second section of article 174a gives the Mayor the power to close down a dwelling merely in the presence of a threat that a public nuisance may be created. The aim of this power is to prevent the same trafficker from continuing his trade in a new dwelling after the closing-down of a former one. In this way the law permits a form of proactive administrative coercion.

The range of this article, in combination with the lack of explicit criteria and procedural guarantees, certainly raises a number of questions.' To date however, municipalities (mayors) have seemed unwilling to exercise their new power and no jurisprudence is known.

In addition to the Victoria Act a new law proposal — Wet Damocles (Damocles Act) — is in preparation, by which the municipality will (finally) have the legal power to enforce the Opium Act.' The Mayor acquires the power to enforce administrative coercion C bestuursdwang') if, in an establishment open to the general public, Opium Act-substances are sold, delivered or dispensed or Opium Act-substances are possessed for those purposes. The sealing of a building is an example of such administrative coercion.
This new legal power might be of great importance if the municipal authorities decide that no coffee shops should be permitted in their municipality. The municipal standards would then have to be enforced and action would have to be taken against the sale of hemp products in coffee shops. In the present situation this requires a practical agreement between the municipal authorities, the Public Prosecutions Department and the police in so-called tripartite consultations. A problem arises if the Public Prosecutions Department decides that no criminal proceedings against coffee shops will be instituted. In the near future such disagreements or problems will be resolved by the Mayor's competence to enforce administrative coercion (see also B.3.1).

(b)    Intensity of Measure

Since this law has just entered into force and has not yet been applied, not much can be said about the intensity of the measure. When it is applied, the closing down of a house will certainly constitute a criminal sanction in the sense of article 6 ECHR and all the necessary guarantees will have to be given.

(c)    Judicial/Administrative Procedures Followed

A decision to close down a house by the Mayor is a decree, which means that the Algemene wet bestuursrecht/AWB (General Act Administrative Law) is applicable. This means that the guarantees of this Act must be met. Before closure, the persons involved must be notified. There is a right to appeal against closure by the Mayor and by the administrative court. Only in urgent cases can closure become effective at once.'

The procedure before the administrative judge responds to level PF.iii.

(d)    Passage of the Law

In the past most municipalities drew up a local by-law that allowed the administration to close down a dwelling on grounds of living conditions. This meant that no visitors except family-members or a doctor were allowed. The new law became necessary after a decision of the Administrative Judicial Division of the Council of State." According to this decision the closing down of a dwelling, used as such, is a restriction of the constitutional right of privacy (article 10 Grondwet (Constitution). Such a restriction can only be based on a law made by Parliament. A local by-law does not meet this requirement.

(e)    Intemational/EU compliance

There are no specific and relevant United Nations, European Union or other international requirements in this respect.

According to jurisprudence from the European Court and European Commission on Human Rights based on ECHR article 8, regulations that allow government to interfere with the right to privacy must contain: a clear description of how far this power may extend; a clear description of the category of people it may concern; a clear description of the kind of criminal activities being committed; a clear description of the grounds on which the power may be used; a clear indication of the maximum duration for use of the power. The power to interfere may only be applied when the conditions of proportionality and subsidiarity are met. The way in which the power to interfere has to be requested should be described by law. The authority that orders the implementation of the power should be described by law. The authority that executes the power should be described by law. The authority that supervises the execution of the power should be described by law. The way in which the use of the power must be accounted for should be described by law. The regulation should contain rules to ensure that any information gathered is, in its entirety and without impediment, imparted to both judge and defence. The regulation must establish the goal which it is hoped to achieve by using the power, and — in addition — has to contain rules ensuring that any information gathered may only be used for this goal. The regulation has to contain rules on how the obtained information should be gathered. The special counsellor-client relationship should be guaranteed in the regulation:2

Article 174a of the Municipality Act does not fulfil all these obligations. For instance with regard to the (maximum) duration of the sealing off, no explicit criteria have been given. According to deliberations in Parliament the sealing off can only be ended when the threat to public nuisance no longer exists. As a consequence, a restriction of residence might be of unlimited duration. Furthermore the criteria 'disturbing the public order' and 'fear of disturbing the public order' are so vague that the regulation does not give a clear description of the kind of behaviour to which it refers.

B.1.4. Incitement to use drugs

(a)    Legal Measures in force

Incitement to use drugs per se is not a punishable offence. The closest offence to this is the criminalisation of every form of publication which promotes the selling, distribution or supply of drugs (article 3b Opium Act). Publication in this respect means every method that makes the message easily available for others. This could be by newspaper, television, billboards etc. The maximum penalty is 4 years' imprisonment and/or a fine of 25.000 NLG.

(b)    Intensity of Measure

To date these activities have seldom led to prosecution. A prosecutor's guideline for these crimes does not exist because, given that the crimes are so diverse and because an advertisement could refer to different categories of drugs, general rules could not be given.'

The advanced policy paper 'Drug policy in the Netherlands' of 1996 indicates that one of the conditions for tolerating a coffee shop should be that no advertising takes place.

(c)    Judicial/Administrative Procedures Followed

Any advertising that promotes the selling, distribution or the supply of drugs is a criminal offence and therefore must be prosecuted before a district court. This means that the procedure corresponds to level PF.iii.

(d)    Passage of the Law

This activity was criminalized in 1976 without much parliamentary debate.

(e)    International/EU compliance

There are no relevant United Nations, European Union or other international requirements concerning advertising.

B.1.5. Any other legal measure on drug use

(a)    Legal Measures in force

Prescription of drugs by doctors

In accordance with UN 1961, the Dutch Opium Act permits the preparation, prescription, distribution and possession of drugs for medical purposes. The system of control over all stages of the legal drug economy which the Single Convention provides has two basic features: limitation of narcotic supplies of each country and territory to the quantities that it needs for medical and scientific purposes, and authorisation of each form of participation in the drug economy, that is, licensing of producers, manufacturers and traders, governmental authorisations of every import and export, and the requirement of medical prescriptions for consumption. Articles 5, 6 and 7 of the Dutch Opium Act contain administrative regulations for the licit trade in drugs. These legal transactions are, however submitted to strict regulations. The Opium Act offers a complex system of exemptions and permissions based on existing medical legislation, which reserves the prescription of drugs to those who are legally authorized to practice medicine:4 Private physicians can make unlimited use of this regulation if they stay in compliance with the professional standards referred to in medical disciplinary rules.'s

Under article 6 (2) and (3)(a) of the Opium Act the distribution of drugs prescribed by private physicians is exclusively reserved to pharmaceutical chemists, who are legally entitled to practice chemistry. Chemists may only administer the drug on production of a written prescription.' Under article 4 (1) of the Opium Act prescriptions have to comply with detailed requirements.''

Activities in breach of these conditions are a criminal offence and are dealt with in the Opium Act (article 10). The maximum penalty is a 6-month prison sentence and/or a fine of NLG 25,000.

Drug use and (administrative) licences

The WegenverkeerswetIWVW (Road Traffic Act) makes no distinction between being under the influence of alcohol or (other) drugs. In both cases a driver's licence may be revoked (article 179 WVW). The problem is that the state of being under the influence of drugs is hard to prove. There are no instruments available to measure which drugs have been consumed or the amounts taken. As a consequence, revocation of a driver's licence must be based on careless driving (due to drug taking) which is much harder to prove.

(b)    Intensity of Measure

When violation of the trust in the medical profession is apparent due to the fact that a practitioner prescribes all kinds of Opium Act-substances without proper justification, the following sanctions are possible: 1. a warning; 2. a reprimand; 3. a maximum fine of NLG 10,000; 4. a suspension from practising medicine for a maximum period of 1 year; or 5 and 6 (conditional). Denial of the right to practice medicine (article 48 Wet op de beroepen in de individuele gezondheidszorgIBIG (Act on the medical professions)."

It happens about every two years that a practitioner who prescribes drugs faces this type of sanction.' Although the prescription of drugs without proper medical justification is a criminal offence and could be prosecuted, this step is never taken.

Revocation of a driver's licence does not take place, probably due to the difficulty of proving that careless driving was caused by to drug taking.

(c)    Judicial/Administrative Procedures Followed

The procedure before the Medical Disciplinary Board is regulated in the Wet op de beroepen in de individuele gezondheidszorg (Act on the medical professions).
Medical disciplinary cases are judged by Regional Disciplinary Boards. These boards are composed of at least two lawyers — of whom one is the chairman — and three members of the medical profession (article 55 BIG). The cases dealt with arise from complaints. They try to resolve the issue of whether the behaviour complained of has undermined general trust in the medical profession, or if there Was ill treatment (article 47 BIG). An appeal is possible before a Central Medical Disciplinary Board that consists of at least three lawyers. Not everyone is entitled to file a complaint. A complaint may be filed by an interested party (patient, closest family member, insurance company); the board of directors of the institution in which the accused works; or a health inspector (article 65 BIG).

The revocation of a driver's licence on the grounds that the individual was driving under the influence of drugs would be a criminal sanction. Driving under the influence is considered a crime in the Netherlands. This means that the case is prosecuted before a district court. The procedure on this point corresponds with level PF.iii.

(d)    Passage of the Law

The system of drug distribution for medical purposes described above became effective in 1976 as part of the general amendment of the Opium Act in that year. One of the reasons behind this major amendment of the Opium Act was to provide for support programmes based on the concept of an integrated, multi-disciplinary treatment of drug users." In order to provide successful addiction programmes it was necessary to establish legal provisions for making the prescription of substitutes, such as methadone, subject to conditions that would guarantee an integrated treatment of the drug user. Article 6 (3) of the Opium Act introduced the possibility of specifying institutions where such treatment should take place.' This section also allows the institutions to prescribe substitutes such as methadone.

(e)    International/EU compliance

The procedure before the Medical Disciplinary Board must be regarded as a criminal procedure. The Act on the medical professions complies with all the guarantees mentioned in article 6 ECHR.

Article 38 of UN 1961 leaves room for the prescription of drugs as a form of treatment. The administrative regulations concerning prescription as laid down in the Opium Act fulfil United Nations requirements.

B.1.6. Policy in relation to drug users or drug possession (for personal use)

(a)    Legal Measures in force

Following the recommendations of the Working Party on Narcotics (1972)," the government introduced a policy based on the risks of the drug used. On the basis of scientific criteria, legislation in the Netherlands distinguishes between drugs which present an unacceptable risk to health and cannabis products, the risks arising from which are considered less serious (i.e. between hard and soft drugs). The Dutch view is that the interests, which have to be protected by the criminal law are primarily health interests. In the Netherlands drugs policy is therefore differentiated according to the seriousness of the potential damage to health which may be caused by the use or abuse of the drug in question.

Users of hard drugs are regarded as patients rather than criminals. Accordingly, a comprehensive, differentiated set of preventive measures and care facilities have been established. The judicial authorities have always followed the principle that drug addicts should undergo medical treatment rather than serve a custodial sentence.

The primary objective of Dutch drug policy is to minimize the risks of drug use for individual drug users and their immediate environment as well as for society at large. Dutch policy on hard drugs is based on the principles of harm reduction. This means that assistance to drug users is aimed at minimizing health risks without solely striving for drug abstinence. However, reducing the negative consequences of drug use upon the environment and society is equally important, and every effort is made to minimize drug-related nuisance and criminality. Reducing drug demand constitutes the third objective, which is realized by prevention activities directed at potential drug users and at discouraging drug use by experimentation.

Dutch policy on drug addicts aims to limit the risks and damage caused by drugs and thereby to ensure the integration of drug users in society. Prevention, outpatient care and residential care are all in the hands of experts who work within professionally managed organisations. The Netherlands spends approximately NLG 160 million per annum on the care of addicts (including clinics and out patient care).

Despite this, the use of drugs and the activities surrounding it create acute social and administrative problems in the Netherlands. One of these is the problem of nuisance. Addicts who have committed a series of less serious criminal offences may expect a new criminal sanction in the future: a kind of forced treatment. They will have to participate in forms of care in a closed setting, where their social rehabilitation will be pursued through training and work experience. The legal grounds for this new form of care for problematic addicts who have committed offences can, for the time being, include the suspension of a custodial sentence subject to special conditions. This means that addicts are placed in a closed establishment on a voluntary basis as an alternative to spending a period of detention in a remand centre or prison. If they leave the programme early they will be arrested and sent to a remand centre. The municipality is responsible for providing treatment, training and work experience, both during the placement and once an addict has been discharged. Ideally, some prospect of actual employment at the end of it all should also be provided, and to this end the Ministry of Social Affairs and Employment is involved in the preparation of the experiment.

A more specific legal basis will be created. The Minister of Justice will put forward a bill on the introduction of an order under the criminal law for the care of addicts, analogous in part to the measure formerly used to place tramps, beggars and pimps in a state labour institution (article 432 Sr). According to the ministers responsible for drugs policy, the justification for placing addicts who continue to commit offences with great regularity does not derive from the seriousness of the individual offences committed but rather from the nuisance to the community that their crimes cause, and from the importance to drug addicts of receiving integrated treatment and training in a closed setting. For this reason the maximum length of such a placement will exceed the usual tariff for property offences, extending to a maximum period of two years.'

(b)    Intensity of the Measure

Generally users of drugs are left alone. Only when they cause nuisance will steps be taken against them. The so-called Victor-action in Rotterdam is an example of this (see B.3.4). Local by-laws can be used to tackle these problems. Additional by-laws — other than the prohibition of drug use in public already mentioned are: the prohibition of assembly of more than a given number of persons; the use of the public highway for purposes other than that for which it is intended (such as disturbing behaviour on or near the public highway and sleeping in cars, parks, under bridges etc.); disturbing behaviour in or near buildings; disturbing behaviour in public places; and prostitution.

Section 2 of article 172 of the Municipality Act gives the Mayor the power to end all violations of state law as well as of local by-laws concerning public order. When violation of the Opium Act results in an actual threat to public order the Mayor is entitled to take action against the trafficker who causes nuisance by, for instance, issuing a removal warrant.

The autonomous injunction competence of the Mayor (the so-called 'light' competence) is laid down in the third section of article 172. The purpose of giving the Mayor this facility was to prevent breaches of the peace, primarily with regard to assemblies of persons. It is within the power of the Mayor to issue a removal warrant for the duration of 8 hours. According to jurisprudence a removal warrant for the duration of 14 days is not allowed."

(c)    Judicial/Administrative Procedure Followed

When drug users commit petty theft or other criminal behaviour, they are judged before a district court (see 1.4). When they commit other forms of nuisance they will be judged by a justice of the peace (see 1.1). Both procedures correspond to level PFiii.

(d)    Passage of this law

It was evident as early as the 1970s that drug users were not criminals and that the criminal justice system should be only used as a last resort. The drug problem was in essence a health problem to which criminal justice could only give limited support.

(e)    International/EU Compliance

None of the international regulations oblige users of drugs to be criminalized. All international regulations stress the development and expansion of health care and health care institutions. See for instance the United Nations conventions: article 36.2 UN 1961, article 22.1(b) UN 1971, article 3(a), (b) and (c) UN 1988. The Dutch policy towards users is well within the obligations of international regulations.

B.2    Possession

B.2.1. Measures on drug possession

(a)    Legal Measures in force

The main legislation with respect to the possession of drugs can be found in a specific act: the Opium Act, which also defines the situation in relation to supply (See B.3.). The Act was passed in 1928 and has been amended often. Only the most important of these amendments are discussed below. The Act refers to two lists of 'controlled substances'. On the basis of scientific criteria," legislation in the Netherlands distinguishes between drugs which present an unacceptable risk to health and cannabis products, the risks arising from which are considered less serious (i.e. between hard and soft drugs). The Dutch view is that the interests that have to be protected by the criminal law are primarily health interests. In the Netherlands drugs policy therefore differentiates according to the seriousness of the potential damage to health that may be caused by the use or abuse of the drug in question.' Since 1993, barbiturates and tranquillizers have been listed on schedule II (a) following ratification by the Netherlands of the Convention on Psychotropic Substances (UN 1971). The maximum penalties for possession differs according to the place on the list.

Possession of substances on List I is a punishable offence but prosecution is very unlikely when it concerns possession for personal use. The maximum penalty is four years imprisonment and a fine of 100.000 NLG.27 In the case of possession of List I substances for personal use, the maximum penalty is one year of imprisonment and a fine of 10.000 NLG." In the case of List II substances the maximum prison sentence is 2 years." If possession concerns a small quantity for personal use of a substance mentioned in List II sub A (such as Barbital or Diazepam) the maximum penalty is only one month's imprisonment and/or a fine of 5.000 NLG.' The same maximum penalty is applicable when up to 30 grammes of hemp are involved. If the prosecutor's guidelines are applied, the intensity of these measures is even less because maximum prosecutor's demands are given in these guidelines. Judges are inclined not to exceed these demands, and the measures commonly applied fall well short of these legal possibilities.

(b)    Intensity of the Measure

As indicated above, the Dutch Opium Act draws a distinction between substances based on the risks that the use of these substances could represent to users. Dutch drug policy is aimed at maintaining a separation between the market for soft drugs (cannabis products such as hashish and marijuana) and the market for drugs that carry an unacceptable risk (such as the hard drugs, heroin and cocaine). Furthermore, the policy is also aimed at preventing drug users from ending up in an illegal environment, where they are difficult to reach for prevention and intervention.' The principal goal of the guidelines is that criminal intervention should not inflict more harm than actual drug use itself

The principle of expediency has been inserted into the Dutch Penal Code. This empowers the Public Prosecutor to refrain from prosecution of criminal offences if this is in the public interest. The guidelines for investigation and prosecution in Opium Act cases were amended on 1 October 1996.' These guidelines establish the priorities in the investigation and prosecution of Opium Act offences. Punishable offences involving hard drugs other than for individual use take the highest priority,, followed by punishable offences involving soft drugs other than for personal use. Investigation and prosecution of possession of hard drugs for personal consumption (generally 0.5 grammes) and soft drugs to a maximum of 5 grammes carry the lowest priority. The police must confiscate all drugs discovered, according to the guidelines.

According to the prosecution guidelines the detection of less than 0.5 grammes of hard drugs will lead to a police caution (politiesepot). Possession of 0.5 — 5 grammes could lead to a prosecution demand of from one week's probation to a two-month prison sentence. When someone is arrested in possession of an amount up to 15 grammes of a hard drug and there are indications of dealing activity, the prosecutor's demand would be starting from 6 months of imprisonment. Fifteen to 300 grammes would imply a prosecutor's demand for between 6 and 18 months of imprisonment. If more than 300 grammes are detected, the prosecutor's demand would be for a prison sentence of between 18 months and 4 years.

With regard to soft drugs, the prosecutor's demands for possession for personal use would be:

For possession to 5 grammes: police caution;
5-30 grammes:    fine of 50-150 NLG;
30-1000 grammes:    fine of 5 to 10 NLG per gramme.

In terms of the 'European Intensity Measure', comparative codes EIM.i for possession of' less than five grammes (List III)) or less than 0.5 grammes of a substances from List I Annex to the Opium Act, to EIM.iii for large scale possession.

(c)    Judicial/Administrative Procedure Followed

In the „(unlikely) event that someone was prosecuted for possession of a certain quantity of drugs the case is dealt with by the district court and because it concerns a criminal indictment, the highest level of procedural protection is applicable.
In terms of the comparative codes in use in this study, Dutch procedure on this point corresponds to level PF.iii.

(d)    Passage of this law

Possession of drugs was criminalized by the Opium Act of 1928 and was a direct result of the ratification of the Treaty of Geneva of 19 February 1925 (Stb. 1928, 356). In this treaty the legal possession of drugs was limited to medical or scientifical use only.

(e)    International/EU Compliance

The Dutch Opium Act and the prosecution guidelines comply with the United Nations and European Union regulations. Possession for recreational use is criminalized. An obligation to prosecute does not exist. See for example article 36.4 UN 1961, which states: "Nothing
"Nothing in these articles shall effect the principle that the description of the offences to which it refers is reserved to the domestic law of a Party and that such offences shall be prosecuted and punished in conformity with that law".

B.2.2 Means of achieving self-supply for personal use

(a)    Legal Measures in force

The cultivation of drugs, even for personal consumption, is a criminal offence (article 10 (3) and 11 (2)). The maximum penalty when hard drugs are concerned is 8 years' imprisonment and/or a fine of 100.000 NLG. For cultivation of soft drugs the maximum penalty is 2 years' imprisonment and/or a fine of 25.000 NLG.

(b)    Intensity of the Measure

Prosecution is unlikely and, even where prosecution guidelines exist, such as that concerning the cultivation of cannabis, non-prosecution is the proclaimed poliçy. For instance, the cultivation of up to 5 cannabis plants will only lead to confiscation and will eventually result in a police caution (EIM.i). Cultivation of 5 to 10 cannabis plants will lead to a prosecution demand for a fine of 50 NLG for each plantAction against home growing will only be undertaken after complaints of nuisance.'

(c)    Judicial/Administrative Procedure Followed

See 1.4.

(d)    Passage of this law

This point was never discussed in parliamentary debate.

(e)    International/EU Compliance

Every form of production should be limited exclusively to medical and scientific purposes (Article 1 (a) (ii) UN 1988 juncto Article 4 (c) UN 1961). However, because of the fact that the cultivation of drugs, even for personal consumption is criminalized in the Dutch Opium Act, the law is in accordance with the United Nations and European obligations. Prosecution, however, is unlikely, but this is still a matter of national concern (Article 3 11 UN 1988 and Article 36 4 UN 1961).

B.2.3 Facilitating possession by other

(a)    Legal measures in force

Facilitating possession by others is not an autonomous criminal offence in the Netherlands. But it could easily fall under the juridical definition of possession.

Possession should not be understood in a strict civil law sense. It is not necessary that the person charged actually possessed (in the civil law sense) the drugs or that they were at his disposal or that he was in command of the drugs (Supreme Court 15 September 1985, Dutch Jurisprudence 1985, 822). The drugs may merely be within his sphere of influence. For instance drugs that are found in his car (Supreme Court 15 September 1986, Dutch Jurisprudence 1987, 359) or in his house (Supreme Court 17 June 1980, Dutch Jurisprudence 1980, 579) are within his sphere of influence. Accordingly he can be convicted for possessing these drugs even when someone else was in possession (in a civil sense) of them.
In the guidelines of 1996, provision is made for so called 'user-rooms'. To avoid nuisance in the street, rooms are created in which users may consume drugs. A condition of such provision is that the supply of or the trade in drugs is not tolerated and action will be taken against such activities. User-rooms exist in nine municipalities."

(b)    Intensity of Measure

As indicated above, those who facilitate possession can and will be prosecuted as if they possessed the drugs themselves. This has proved a useful instrument against landlords and bar owners who were aware of drug dealing taking place from or within their premises but took no action against it.

(c)    Judicial/Administrative Procedures Followed

See 1.4.

(d)    Passage of the Law

This Point was never discussed in a parliamentary debate.

(e)    International/EC compliance

The procedure described above complies with the obligation of article 3.1(c) (iv) UN 1988 in which the obligation to criminalise facilitating can be found.

B.2.4. Incitement to possess

(a)    Legal measures in force

Incitement to possess is not criminalized in the Netherlands. See B.1.4. below.

(e)    1nternational/EC compliance

There are no relevant binding United Nations, European Union or other international requirements concerning the criminalisation of facilitating or inciting drug possession.

Although article 3.1(c) (iii) UN 1988 requires parties to criminalise 'public inciting or inducing others, by any means, to commit any of the offences established in accordance with this article or to use narcotic drugs or psychotropic substances illicitly' this is subject to Its constitutional principles and the basic concepts of its legal system'. Such an obligation would be contrary to a basic concept in our legal system that these kind of activities are only criminalized when they are committed with the object of taking the life or liberty of our Queen, of surrendering the Kingdom to a foreign power or of destroying or of unlawfully changing the constitutional form of government (article 96 Sr).

B.2.5. Any other measure on possession

Unknown.

B.3.    Supply

B.3.1. National measures on supply

(a)    Legal measures in force

The Opium Act regulates the production, distribution and consumption of "psychoactive" substances. The commercial distribution, production, import, export and the advertising, sale or distribution of any drug are punishable offences. In 1985 activities preparatory to trafficking in hard drugs were added. Certain activities relating to soft drugs and hard drugs for medicinal and scientific purposes are allowed, provided the Minister of Public Health (VWS) has granted special permission.

The maximum sentence for the sale or production of a maximum of 30 grammes of hemp is one month's detention and/or a fine of 5000 NLG, while import or export is punishable with one year's imprisonment and/or a fine of 100,000 NLG. The maximum penalty for the possession of hard drugs in 'consumer amounts' is one year of imprisonment and/or a fine of 10,000 NLG and 12 years' imprisonment and/or a fine of 100,000 NLG for the import or export of hard drugs.

The production, cultivation, sale and transport of hard drugs is punishable with 8 years of imprisonment, while the production of more than a consumer amount of hemp products is punishable with 2 years' imprisonment.

The maximum penalties may be increased by one-third if the offence has been committed more than once.

(b)    Intensity of Measure

The fundamental aspects of the prosecutor's guidelines as modified in 1996 are the distinction between so-called hard drugs and soft drugs and a distinction between dealers and users. With regard to sentencing, the guidelines make a distinction between categories of offenders: those involved in organised crime, dealers, small-scale dealers and users.' It is not easy to detect from the guidelines the category into which an offender falls, and in most cases this is indicated only by the amount of the drugs detected.

If a person sells hard drugs' on the street or from a house for a period of up to one month, he/she can expect a prison sentence of up to 6 months; between 1 and 3 months: 6 — 18 months' imprisonment. The selling of hard drugs for more than 3 months will lead to a prosecutor's demand starting from an 18-month prison sentence. If the offence involves selling to minors or to psychiatric patients a demand for the next higher categmy of sentencing will be made.

Retail trade up to 1000 grammes will lead to a prosecutor's demand for 1 — 2 years' imprisonment. More than a kilo will lead to a demand staffing from 2 years' imprisonment. Wholesale trade — 5 kilos or more — will lead to a prosecutor's demand for 6 — 8 years' imprisonment. Production up to 1000 grammes will lead to a demand for 1 — 2 years' imprisonment; of more than 1 kilo, a demand starting from 2 years. Production of more than 5 kilos will lead to a demand for 6 — 8 years' imprisonment. International trafficking of hard drugs will lead to a demand for up to 3 years if the amount is less than 1 kilo and from 3 to 12 years' imprisonment if more than 1 kilo is involved.

In terms of the comparative codes used in this study, Dutch sanctions in relation to hard drugs correspond to EIM.iii.

The intentional supply of soft drugs will lead to the following prosecutor's demands:
up to 5 grammes:    police caution;
5-30 grammes:    fine of 50-150 NLG;
30-1000 grammes:    fine of 5 to 10 NLG per gramme;
1-5 kilos:    fine of 5.000-10.000 NLG and/or 2 weeks'imprisonment per kilo;
5-25 kilos:    3-6 months' imprisonment and a maximum fine of 25.000 NLG;
5-100 kilos:    6-12 months' imprisonment and a maximum fine of 25.000 NLG;
more than 100 kilos: 1-2 years' imprisonment and a fine of 25.000 NLG.

In cases of recidivism, the maximum demand will be increased by 1/4. When soft drugs are supplied to minors or to psychiatric patients a higher category and a minimum penalty of at least a fine of 750 NLG are indicated.

International trafficking of soft drugs will lead to a demand which is double the demand indicated for ordinary supply.

In terms of the comparative codes in use in this study, Dutch sanctions in relation to soft drugs correspond to EIM.i and EIM.iii.

Particular attention must be paid to coffee shops. Coffee shops are catering establishments in which hemp is sold. Dutch policy on the use of cannabis is based on the assumption that people are more likely to make the transition from soft to hard drugs as a result of social factors than because of physiological ones. Tolerance of relatively easy access to quantities of soft drugs for personal use is intended to keep the consumer markets for soft and hard drugs separate, thus creating a social barrier to the transition from soft to hard drugs.

In time the practical result of this principle was that the judicial authorities came to tolerate the sale of soft drugs in youth clubs by bona fide house dealers (Guideline 1978). This was followed by the establishment of coffee shops where soft drugs are sold commercially. Coffee shops have proved to be of assistance in keeping the retail markets for soft and hard drugs separate. However, both the number of coffee shops and the problems they engender have increased.

Criminal justice policy is set out in the Opium Act policy guidelines. Under strict conditions — no advertising, no sale of hard drugs, no nuisance, no sale to young people under the age of 18, and no sale of more than 5 grammes per transaction, per person — no criminal proceedings will be instituted against people involved in the sale of soft drugs in catering establishments not licensed to sell alcohol.

Local policy with regard to coffee shops is a matter for the local authorities. The Public Prosecutor, the Mayor and the Chief of Police confer on these policies (the 'Tripartite deliberation'). In 1996, the Public Prosecution Department laid 'down guidelines that form a new basis for the tripartite deliberation. Since then many local councils have been developing their own coffee shop policy. Most municipalities have chosen a 'zero policy' (no coffee shops) within their municipality, and most regions have chosen a 'concentration model' — by which coffee shops were accepted in the bigger municipalities of the region but not in the smaller municipalities. Some problems arose from the fact that a few municipalities chose a 'zero-policy' in contrast to a regional agreement by which these municipalities would allow a few coffee shops. The public prosecutor's office had already stated that penal enforcement of coffee shops established in those municipalities would not have a high priority.

According to a governmental report, administrative measures to regulate the establishment of coffee shops can also be taken under the terms of local by-laws and regulations on nuisance, the Besluit horecabedrijven (Catering Establishments Decree),' local non-licensed hotel and catering regulations, and local by-laws and regulations on the living and working environment. Planning regulations can be used to combat the establishment of coffee shops in unacceptable places (opposite schools, clubhouses and neighbourhood centres).

Measures to regulate the running of establishments can be taken in a manner similar to those under the Drank- en Horecawet (Catering Establishments Act),4" under local by-laws, and under the terms of local non-licensed hotel and catering regulations. A number of municipalities have also concluded voluntary agreements with coffee shop proprietors.'

Nowadays there is a perceptible trend towards the use of special 'terms-of-use licences' for coffee shops. For instance in Rotterdam, according to a new municipal guideline, a specific licence is compulsory for the owners of a coffee shop. These differ from normal terms-of-use licences in the sense that duration is limited to one year and specific conditions must be met which are comparable to the (criminal justice) policy guidelines on investigating coffee shops, namely: prohibition to sell alcoholic beverages; prohibition to advertise; prohibition to sell hard drugs; no public nuisance in the immediate surroundings; prohibition to sell to minors (under 18 years); a maximum transaction of 5 grammes; a total trade stock not exceeding 500 grammes." Selling hemp products without a special terms-of-use licence is prohibited and it is no longer possible to appeal to criminal justice policy guidelines.

Criminal justice policy guidelines deal with criminal proceedings, whereas municipal guidelines deal with public order and the protection of living conditions. By article 174, subsections 1 and 3 of the Municipality Act, the Mayor has the duty to regulate establishments. It is within his competence to require a special terms-of-use licence. This licence does not allow the dealing of hemp, but allows only the utilization of a specific catering establishment, that is, an establishment where it is possible to appeal to the criminal justice guidelines (which state that coffee shops are tolerated within strict limitations).

New policy guidelines exist for the prosecution of the professional growing of hemp. Hemp growing is a form of cultivation and is criminalized in the Opium Act. The maximum penalty is 2 years' imprisonment and/or a fine of 25.000 NLG. Law proposal 25 325 proposes to increase the prison sentence to 4 years. The guidelines lay down a number of criteria for assessing the commercial nature of cultivation, such as the use of customised facilities.'

Growing small quantities for personal use has no prosecution priority if adults are involved, but cultivation by a minor will always be prosecuted (according to the guidelines, there being no case law to date).

The Guidelines indicates that when 10 — 100 plants are found the prosecutor will demand as punishment a fine of 125 NLG and/or half a day's imprisonment for each plant. One hundred — 1000 plants will lead to a prosecution demand for 2 — 6 months' imprisonment and a maximum fine of 25.000 NLG. The identification of more than 1000 plants will lead to a demand for 6 months' — 2 years' imprisonment and a fine of maximum 25.000 NLG.

(c)    Judicial/Administrative Procedures followed

See 1.4.

(d)    Passage of the law

The major change of the Opium Act of 1976 was the outcome of a political compromise between the Social Democrats (PvdA), who wanted to decriminalise the use of and trade in hemp as much as possible, and the Confessional parties (KVP and ARP), which were opposed to any form of decriminalisation and wanted higher penalties for all prohibited activities. The Minister of Justice, Van Agt (KVP) warned the Confessional parties that if they did not agree with the proposed compromise — legalisation of the use and decriminalisation of possession of quantities for personal use on the one hand, and heavier penalties for trafficking on the other — the law proposal would be withdrawn, which would mean that the introduction of higher penalties for trafficking would be out of the question as long as he was Minister of Justice. With this letter the last reservations against the law proposal disappeared."

In the explanatory memorandum which accompanied the law proposal it was stated that the illegal trade in hard drugs was increasingly in the hands of organised crime. To fight organised crime, a drastic increase of the maximum penalties for national and international trade was proposed. The memorandum also stressed that these crimes inflicted severe harm on individuals and that the maximum penalty should be a reflection of this.' The maximum penalty for national trade went from a maximum of 4 years' imprisonment and/or a fine of 10.000 NLG to a maximum of 8 years' imprisonment and/or a fine of 100.000 NLG. The penalty for international trade was increased from a maximum of 4 years' imprisonment and/or a fine of 10.000 NLG to a maximum of 12 years' imprisonment and/or a fine of 250.000 NLG. The considerable increases were justified by stressing the international character of these crimes. The maximum penalties were to be aligned with those of neighbouring countries which, according to the Minister, were much higher. The considerable increase in the maximum penalty for international trade was based on the presumption that the Dutch policy should not damage the international legal order."

(e)    International/EC compliance

The Dutch Opium Act criminalizes all activities mentioned in the United Nations treaties, and is therefore in accordance with United Nations and European obligations. But if day-to-day practice is taken into account one could question whether the existence of coffee shops is in compliance with the obligations of UN 1961 and UN 1988. Article 4 of UN 1961 obliges parties to take such legislative and administrative measures as may be necessary to give effect to and carry out the provisions of this Convention within their own tenitories. One of the main provisions is that the production, manufacture, export, import, distribution of, trade in, use and possession of drugs is limited exclusively to medical and scientific purposes.

B.3.2. Other criminal offences

(a)    Legal measures in force

Article 140 Wetboek van StrafrechtlSr (Dutch Penal Code)
In almost all cases in which trafficking is prosecuted, a second prosecution is started because the defendant is a member of a criminal organisation (article 140 Sr).

Participation in an organisation that has as its object the commission of serious offences is punishable by a term of imprisonment of not more than five years and/or a fine of 25.000 NLG. With regard to founders or directors (leaders) the terms of imprisonment may be increased by one-third, and a fine of 100.000 NLG may be imposed.

In the case of a concurrence of acts (Opium Act and article 140 Sr, which are considered to be separate crimes) the maximum punishment shall in the case of imprisonment not exceed the maximum of the most severe penalty by more than one-third."

Membership of a criminal organisation engaged in drug trafficking is very easy to prove once trafficking is proven. A criminal organisation exists if a person actively takes part in a structured association whose aim is to commit crimes (Supreme Court 16 October 1990, Dutch Jurisprudence 1991, 442). This means that when two or more people work together for a prolonged period and they make work arrangements to commit Opium Act offences, they are members of a criminal organisation, even if the actual crimes have not (yet) been committed.

Article 10a Opiumwet (Opium Act)

The criminalisation of acts preparatory to trafficking in hard drugs was introduced in 1985 in the fight against organised crime. The maximum penalty for this offence is 6 years' imprisonment and/or a fine of 100.000 NLG."
Article 10a summarises a number of preparatory acts concerning the criminal activities mentioned in article 10 (3) and (4) of the Opium Act. It criminalizes the intentional preparation of the production, selling, delivering, transporting, import and export of hard drugs." These activities are explicitly not criminalized when they concern soft drugs.

The criminalisation of preparatory activities was also introduced in order to have a more efficient instrument with which to proceed in Opium Act cases. By criminalizing preparatory activities a crime is ascertained more quickly, which means that investigative methods may be used at an earlier stage than was previously possible.

However, because most preparatory activities take place abroad, Dutch jurisdiction was extended accordingly: anyone who committed preparatory acts abroad for the illegal trade in hard drugs to or from the Netherlands could also be pursued in the Netherlands (article 13 (3) Opium Act).

Laundering (article 416 Sr)

Due to the obligation arising from UN 1988 and CE 1990, article 416 Sr changed from an article which criminalized fencing (receipt of stolen goods) to one which also criminalized money laundering, another form of favouring.
A person who obtains, has at his disposal or transfers property or who vests a right in personam or in rem in property or who transfers such rights, knowing, at the time the property was obtained or came under his control or at the time the right was vested, that the property had been obtained by means of a serious offence, is guilty of intentional favouring and liable to a term of imprisonment of not more than four years and/or a fine of 100.000 NLG. This punishment is also applicable to a person who intentionally derives advantage from the proceeds of any property obtained by means of a serious offence.

For a conviction it is sufficient that the offender knew that the proceeds came from a crime, not necessarily an Opium Act offence.

(b)    Intensity of Measure

In almost all cases concerning the national or international trade in drugs, article 140 Sr is also prosecuted. This is especially the case when the illegal trade in hemp products is concerned because the maximum penalty for being a member of a criminal organisation is higher (5 years) than the maximum penalty for international trade (4 years) or national trade (2 years).'
The greatest use of article 10a of the Opium Act is not made in the fight against organised crime but in the fight against public nuisance. It became a useful instrument in the prosecution of drug couriers (for instance Supreme Court 23 April 1996, Dutch Jurisprudence 1996, 549).

(c)    Judicial/Administrative Procedures followed

See 1.4.

(d)    Passage of the Law

Because article 140 Sr is a direct translation of the French penal code that was imposed on the Netherlands during the French occupation by Napoleon, no mention was made of drugs or the fight against organised crime in the drugs trade. But law proposal 25 638, in which an increase of the penalty of article 140 is proposed (from 5 years' imprisonment to 6 years' and/or a fine of 25.000 to 100.000), is a direct result of the frustration that public prosecutors felt when they prosecuted the leaders of a criminal organisation trading in hemp products. The existing maximum penalty for these leaders was 7 years and 3 months' imprisonment (5 years + 1/3 of 5) + 1/3) and will be 10 years and 8 months' imprisonment (6 years + 1/3 of 6 years) + 1/3).
In the explanatory memorandum of the law proposal in which article 10a of the Opium Act was introduced it was stated that the criminalisation of preparatory acts was envisaged as an instrument in the fight against the international trade in hard drugs. It should not be seen as a new instrument to fight drug use and drug users.5' As explained above, the actual use of the article is mostly directed at drug couriers and not against those higher in a criminal organisation.

(e)    International/EC compliance

Article 140 Sr is in compliance with article 3.5(a) UN 1988 which obliges Parties to ensure that their courts have jurisdiction in case of involvement in the offence of an criminal organisation.

There is also compliance with the Joint Action on making it a criminal offence to participate in a criminal organisation in the Member States of the European Union.

None of the treaties explicitly demands criminalisation of preparatory acts in this field or the criminalisation of conspiracy. The establishing of criminal offences such as those mentioned in article 36 UN 1961 and article 3 UN 1988 is subject to the constitutional principles and the basic concepts of the legal systems of the National Parties. Accordingly this regulation is in compliance with international regulations.
It is questionable whether article 416 Sr fulfils all obligations, especially those of the European Convention of 1990. Article 6 of this Convention demands the criminalisation of intentional:

•    conversion or transfer of property, knowing that such property is proceeds, for the purpose of concealing or disguising the illicit origin of the property or of assisting any person who is involved in the commission of the predicate offence to evade the legal consequences of his actions;

•    concealment or disguise of the true nature, source, location, disposition, movement, rights with respect to, or ownership of, property, knowing that such property is proceeds;
and subject to its constitutional principles and the basic concepts of its legal system:

•    acquisition, possession or use of property, knowing, at the time of receipt, that such property was proceeds;

•    participation in, association or conspiracy to commit, attempts to commit and aiding, abetting, facilitating and counselling the commission of any of the offences established in accordance with this article.

It is questionable whether article 416 Sr fulfils all these obligations

B.3.3    Policing in relation to supply

(a)    Legal measures in force

The development of the penal enforcement of this Act has been dominated almost exclusively by the fight against organised crime. Chief of Police Sirks was the first to recognise the importance of this phenomenon.' In national and international fora he stressed the fact that organised crime was behind the illicit trade in drugs; by doing so he was able to professionalise the fight against drugs within a short time span. Even in the 1930s the illegal trade was depicted as being in the hands of unscrupulous people, against whom the opponent — with his limited funds, material and legal means — was no match. The traffickers were professional criminals belonging to international organized gangs, which had links with each other. At that time there was also a permanent call for more funds and investigative tools. (Only in the 1950s and 60s was the penal enforcement of the Opium Act not dominated by the fight against organised crime.)

In the summer of 1972 great quantities of heroin were launched on the black market and again stories emerged that organised crime was behind the traffic. Attention shifted from the hemp user towards the heroin dealer. In the 1970s and 80s the focus of criminal justice was on the large-scale international illicit trade in drugs, a synonym for organised crime. New branches of the police – narcotic squads and intelligence branches – emerged, and new methods of investigation were introduced. The fight against organised crime became the spearhead in the 1980s and 90s. New methods of investigation, carried out by multidisciplinary investigation teams, were seen as the solution to organised crime.

Soon after the activities relating to drugs were criminalized it became clear that drug law enforcement differed from that relating to other forms of crime. It was because of the victimless nature of these crimes, that from the start enforcers had to use special investigative methods such as undercover work, sting operations, informers, observation and the surveillance of suspects. It was recognized that proactive investigation was indispensable. The real or imaginary threat of organised crime served to legitimise the development of 'new' investigative methods.

Infiltration is a typical consequence of penal enforcement of the Opium Act. This concept covers undercover work, sting operations, controlled delivery, 'allowing to pass'-operations and storefronts. At present the power to infiltrate is based on case law (Tallon-caser and guidelines, but more characteristically, 'case law' or 'magistrates' law'. Judges were forced by practice to decide whether investigative methods which were not provided for by written law were justified in a given case. The criteria evolved in this jurisprudence were laid down in guidelines and constituted `law' in the sense of article 99 Wet op de Rechterlijke Organisatie/RO (Act on juridical organisation)."

Observation is another investigation method that is used frequently in enforcing the Opium Act. In almost all drug cases some type of observation has been applied. The power to systematically observe persons or homes has no legal basis and can be seen as a breach of law. Also the systematic use of an observation unit has no legal basis. The 'power' to observe directly, as in the so-called 'Shadow' cases," is, according to the Supreme Court, based on article 2 of the Politiewet (Police Act)56 or possibly on article 141 or 142 of the Wetboek van StrafvorderinglSv (Penal Code of Procedure).' However, these articles are merely a description of the task of the police and do not create a competence for them.

The investigation of telecommunications is considered to be an indispensable tool in enforcing the Opium Act. Often this power is used in combination with other methods like surveillance, search of premises, infiltration, sting operations and the use of informers. Telephone interception is a standard method in the identification of relationships within criminal organisations. Electronic bugs and other methods of eavesdropping are often used in sting operations, meetings with informers and other encounters.

Currently the interception of telecommunications is only lawful (article 125g Sv) when a crime has already been committed. But there is a tendency to use this power in the proactive phase: by basing the demand for a preliminary judicial investigation on criminal preparation (article 10a of the Opium Act) many problems can be circumvented because in such cases the mere agreement to commit an Opium Act offence suffices.

When the dismantling of criminal organisations was introduced as a central goal, financial investigation started to develop. The development of financial investigation is inextricably connected with the enforcement of the Opium Act (see B.4). -

(b)    Intensity of Measure

With the policy document 'Organised crime in the Netherlands' of 1992, attention on the penal enforcement of the Opium Act reached a peak." According to this paper the structure of organised crime had changed dramatically because of the illicit trade in drugs. New methods of investigation had to be introduced to fight this organised crime. The starting point of a criminal investigation should no longer focus on specific cases or suspects but on the analysis of networks of people. This type of detective work should be carried out by a multi-disciplinary investigation team. Dis-mantling criminal organisations became the prime objective of these teams. The expression 'proactive research' became en vogue.

These developments led to a remarkable attitude among policemen: everything was allowed in fighting organised crime. The resulting stretching of competencies and the approval of methods which were not laid down in the law inevitably led to a crisis — the so-called IRT-scandal, which caused the setting up of a parliamentary commission of inquiry. The commission came to the conclusion that the investi-gation process was in a state of crisis, characterised by the absence of norms, poor organisation and problems in relationships of authority. It was suggested by the commission of inquiry that the law concerning all investigative methods should be codified, in the hope that by strictly regulating these methods, future problems could be prevented. Law proposal 25 403 will legalise some of these methods.

(c)    Judicial/Administrative Procedures Followed

See 1.4.

(d)    Passage of the Law

Most of the investigative techniques discussed above do not have a legal basis. Law proposal 25 403 will legalise investigation methods which have already been introduced, such as surveillance, undercover work, sting operations, controlled delivery, store fronts and `peep-in' operations.

(e)    International/EC compliance

The important national development towards financial investigation was strongly supported by international initiatives such as UN 1988 and European initiatives like CE 1990 and EU 1991 which constitute the first steps taken at international level to deprive traffickers of profits made by their trade in drugs.

Apart from financial investigation, only controlled delivery has a treaty basis. Article 11 of UN 1988 and article 73 of the Schengen Agreement mention this method in the fight against the international drugs trade.

In the Convention on mutual assistance and cooperation between customs administrations (Naples II), drawn up on the basis of article K.3 of the Treaty on European Union, the following special forms of cooperation were introduced: hot pursuit (article 20); cross-border surveillance (article 21); controlled delivery (article 22); covert investigation (article 23) and joint special investigation teams (article 24). At time of writing this convention had not come into effect.

The implementation of law proposal 25 403 will put an end to the peculiar situation whereby police investigative techniques which interfere with the right to privacy, as laid down in article 8 ECHR, do not have a legal basis (see also B.1.3).

B.3.4. Any other measures

(a)    Legal measures in force

Drug tourism

Drug users from all over the world come to the Netherlands to procure and/or use drugs. Drug tourism occurs in various municipalities along the eastern and southern borders of the Netherlands and in a number of towns further into the interior of the country. Some of these people use the drugs they have bought in the Netherlands, others take them home for themselves or others. Hard-drug tourism often goes hand-in-hand with aggressive recruitment methods (drug couriers) and with intolerable nuisance in residential areas and town centres. In 1995 an integrated offensive against the nuisance caused by drugs, code-named Victor, was started by the Rotterdam authorities. This resulted in the sealing of many premises and in the arrest of several hundred foreign drug tourists and drug couriers. This repressive policy aimed at discouraging foreign drug tourism will be continued in the years ahead. The obvious measures that can be taken when foreign addicts commit criminal offences in the Netherlands — including small-scale trafficking and acting as drug couriers — include detection, prosecution and sentencing or transfer of criminal proceedings, immediate deportation and, where possible, declaring those concerned to be persona non grata (article 21 of the Vreemdelingenwet (Aliens Act))." In exceptional circumstances it might also be possible to deport EU citizens immediately (article 100, subsection 4, of the Vreemdelingenbesluit (Aliens Decree)).'"

According to the Dutch government, drug tourists from neighbouring countries who commit criminal offences and who as a result cause breaches of the peace must take into account the likelihood that they will be deported immediately under the terms of the Aliens Act.

On 20 April 1998 France and the Netherlands signed a bilateral agreement on mutual assistance and cooperation in police and safety matters.' Mutual assistance and cooperation in this respect means more coordinated and joint actions on the Hazeldonk route and more actions like code-name Victor (see also B.1.6).

(b)    Intensity of Measure

Drug tourism mainly occurs in municipalities along the eastern and southern borders of the Netherlands such as Arnhem, Venlo, Heerlen and Maastricht, and in a number of bigger towns, such as Rotterdam, further into the interior of the country. A repressive policy aimed at discouraging foreign drug users was started in 1995, especially in Rotterdam, with the code-name Victor. This repressive policy has been continued and has lead to 8000 arrests. 1200 persons were deported.

Activities against drug tourism on the Hazeldonk route (a border crossing between the Netherlands and Belgium), which runs from Lille to Rotterdam, is being carried out in cooperation with the French and Belgian authorities. The first combined action of 14 March 1997 resulted in the stop and search of 11,500 cars and 22,500 persons. Four kilos of hemp, 300 grammes of heroin, 20 grammes of cocaine and 619 Ecstasy pills were confiscated. The second combined action resulted in the stop and search of 8,710 vehicles and 16,000 persons, and the confiscation of 8.8 kilos of hemp and 3 kilos of heroin. In Holland 53 coffee shops were searched and 27 kilos of cannabis were confiscated on the grounds that the quantity exceeded the permitted trading stock.

(c)    Judicial/Administrative Procedures Followed

Those arrested during the aforementioned joint police actions in the Netherlands and who are of Belgian or French nationality or are residents of those countries, can expect a transfer of proceedings in criminal matters. The procedure of the transfer of proceedings is speeded up and simplified by accepting the use of a fax and standard translations in these matters.

(d)    Passage of the Law

None

(e)    International/EC compliance

These proceedings are in compliance with the European Convention on the transfer of proceedings in criminal matters (Strasbourg, 15 May 1972). Dual punishability (article 7) will almost always exist in drug cases. According to article 21 of the European Convention on mutual assistance in criminal matters (Strasbourg, 20 April 1959) the criminal file will be sent by diplomatic channels from the Minister of Justice of the Netherlands to the Minister of Justice in France. The file will contain the request to take over the proceedings in the criminal case. Article 15 of the Convention allows the use of the fax to transfer the criminal file and other documents necessary to comply with the regulations of the Convention.

B.4.    Other Measures, applied in national law in response to international or European agreements

As a result of UN 1988," CE 1990' and because of an existing national need to re-organize financial investigation measures a number of changes were introduced.' The most important were: the creation of a 'criminal financial investigation' to determine the amount of illegally obtained profits; the introduction of the seizure of the suspect's property as security, to ensure that upon conviction the high monetary fine or amount required to compensate for illegally-obtained profits is paid (a maximum prison sentence of six years may be imposed in those cases where there is no possibility of redress on property); the separation of the procedure to determine guilt or innocence from the procedure to determine the amount of profits (in the latter procedure the burden of proof is based on a 'balance of probabilities'); the possibility of seizing anything that has been illegally obtained in any way, regardless of the charges and convictions.

(a)    Legal Measures

(i) Criminal financial investigation/Strafrechtelijk financieel onderzoek (sfo)

Criminal financial investigation was introduced as a new type of investigation aimed at determining the extent of the advantage illegally obtained by the suspect with the view to depriving him of it. This type of investigation is conducted under the supervision of the public prosecutor and may be instituted only when the following conditions are met: on the basis of a motivated application by the public prosecutor to the examining magistrate for authorisation to institute an sfo; if there are grounds for suspecting that offences designated by law as serious (offences for which a fifth-category fine may be imposed) have been committed;° if there are grounds for suspicion that a substantial advantage was obtained by the offence.

During the criminal financial investigation, ultimate responsibility for its progress and outcome rests with the public prosecutor. On the basis of a general authorisation from an examining magistrate, the public prosecutor is empowered to seize goods with a view to recovering a fine or to make a confiscation order to be imposed in the future. The public prosecutor also determines whether the examining magistrate should be asked to exercise powers specifically vested in him, such as the power to order a non-urgent search of premises. The examining magistrate may not exercise such powers ex officio, but only in response to an application by the public proseGutor.

The enforcers of the criminal financial investigation are entitled to order any relevant persons to produce for inspection all documents, papers or records which could give an indication of the financial state of the person against whom this investigation is directed. This makes it possible for a policeman to conduct research in banks and financial institutions to ascertain the financial position of the defendant.

(ii) Deprivation of unlawfully obtained profits

As a direct result of UN 1988 and CE 1990, a new penal sentence was introduced into the Dutch Criminal Code. It became possible to impose, as a penal sentence, the obligation on a person convicted of a criminal offence to pay a sum of money to the State to deprive that person of unlawfully obtained profits. If the person is convicted for a serious offence" this obligation may also include profits unlawfully obtained by any means, regardless of the charges and convictions in that specific case (article 36e Sr). In the judgement which orders a person to pay a sum of money to the State to deprive him of unlawfully obtained profits, the judge may order detention as a substitute penalty. This substitute penalty may not exceed a period of six years in the event that neither payment in full nor full recovery follows. This sentence 'deprivation of unlawfully-obtained profits (ontneming van wederrechtelijk verkregen vermogen) may only be imposed when a second criminal procedure has taken place, whose sole purpose is to determine the amount of the unlawfully-obtained profits, in order to establish the sum of money that has to be paid to the State.

(iii) Act on Customer Identification for Financial Services

UN 1988, CE 1990 and EU 1991" not only oblige Member States to criminalise money laundering and to fight money laundering with instruments of the Criminal Code, but also oblige Member States to introduce various laws aimed at making money laundering more difficult. The Wet identificatie bij financiêle dienstverle-ning1WIF (Act on Customer Identification for Financial Services) is such a law. The aim of this law is two-fold: to combat money laundering and to uphold the integrity of the financial system.

Financial institutions, like banks, investment institutions, securities brokers, investment managers, life insurance companies and life insurance agents and other professions, companies or institutions that are 'particularly suitable for money laundering purposes'" have a duty to register and verify the identity of a customer before entering into any qualifying transaction with such customer or providing a qualifying financial service to such customer (article 2). Such a service may not be provided in the event that the identity has not been verified and registered (article 8). Registration will be mandatory for the following financial transactions concluded in or from the Netherlands: (1) establishing a long term business relationship with a customer (for instance the opening of current accounts, securities accounts, precious metal accounts and deposit accounts and providing safety deposit facilities); (2) taking custody of securities, bank notes, cash, precious metals and other valuables; (3) cash collections in respect of coupons (dividend or interest), bonds and similar negotiable instruments; (4) entering into a life insurance contract if the premium payable exceeds NLG 2,500 (for annual premiums) or NLG 5,000 (for single premium contracts) and brokering such agreements; (5) making payments in connection with life insurance contracts exceeding NLG 25,000; (6) individual transactions if the bank has reason to believe that the transaction forms part of a larger transaction and various financial institutions are involved; (7) individual or related transactions above NLG 25,000; (8) any transactions in which the amount of money involved is not clear; (9) any transactions of 'an unusual nature' which must be notified pursuant to the Act on the Disclosure of Unusual Transactions (see below); (10) a number of services commonly provided by casinos; (11 ) and issuing

credit cards (article 2).

The forms of identification are limited. For individuals it must be a passport or a driving licence (or, in case of non-residents, any document that such a person must possess under the Vreemdelingenwet (Alien Act). Legal entities incorporated or having their registered address in the Netherlands must identify themselves by a certified extract from the Commercial Register where such entity has been registered or a notarial deed drawn up by a Dutch public notary and containing the information designated by the Ministry of Finance. Legal entities incorporated and having their registered address abroad must identify themselves by a notarial deed drawn up by a public notary (or equivalent) in a Member State of the EU or the EEA or drawn up by a Dutch public notary if the entity is not established in such a Member Sate, provided the deed contains the information designated by the Ministry of Finance (article 3).

Financial institutions have to register the following information and arrange for it to be available for inspection: the name and address of the client; the nature, the number and the date and place of issue of the document used for the identification of the client; the nature of the bank transaction; and detailed information about the (market) value of the instruments deposited, a description of the account opened, etc (article 6). The financial institutions are required to keep the records for five years and this information must be available to the competent judicial authorities upon their request (article 7).

The maximum sentence for breach of mandatory identification (and of the five year record-keeping obligation) is two years' imprisonment and/or a maximum fine of NLG 25,000 if the crime is committed intentionally. If failing to ask a person for identification can only be considered negligence, the maximum penalty is six months' imprisonment and/or a fine of NLG 25,000.

(iv) Act on the Disclosure of Unusual Transactions

The Wet Melding Ongebruikelijke TransactiesIMOT (Act on the Disclosure of Unusual Transactions) is the second law deriving from international obligations to make money laundering more difficult. It obliges a financial institution to notify a central disclosure office (Meldpunt Ongebruikelijke Transacties) of any transaction that it considers an 'unusual transaction'.

An unusual transaction is defined as one that meets one or more of a number of official designated indicators. Unusual transactions are divided into 'manifestly unusual' (objective indicators) and 'other transactions' (subjective indicators).

Banking indicators are: (1) cash transactions over NLG 1 million; (2) cash transactions over NLG 25,000: (a) where a change into larger denomination bank notes takes place; (b) concerning a change into another currency; (c) concerning a purchase of (travellers) cheques; (d) in which securities are involved; (e) that fulfil two or more of the following criteria: are uncounted; in foreign currency; not paid to the client's own account or that of his employer; or are instructed to be transferred to a foreign account; (3) giro transfer transactions by non-clients over NLG 25,000 intended for a foreign country; (4) and physical import and export of securities with a value over NLG 25,000 unless they are to or from credit institutions, securities firms or central custody institutions, or they have a value of less than NLG 1 million and are physically imported or exported by a client for the purpose of crediting or debiting his own (securities) account.

Disclosure is also compulsory if the financial institution considers that the following subjective indicators apply: (1) transactions or proposed transactions which are suspected to be connected to money laundering; (2) new accounts that fulfil two or more of the following criteria: (a) non-resident client; (b) problems of identification; (c) unusual terms proposed by client; or (d) unusual number of accounts; (3) cash transactions where: (a) the client displays a preference for conducting transactions under the threshold amount of NLG 25,000 (i.e. potential 'structuring' or `smurfing'"); (b) the transaction amount is above NLG 25,000 and the transaction has two or more of the following characteristics: (a) problems of identification; (b) unusual terms proposed by client; (c) the transaction is atypical for the client; (d) small note denominations; (e) unusual wrapping; (0 frequent deposits by non-account holders; (g) inexplicable nervousness of the client; (h) client is accompanied and supervised; (i) the client is acting as a figurehead; (j) no explicable legal objective or no clear relation to any business activity; (k) striking turnover or notable changes in account balance; (1) or incoming amounts are small, whilst outgoing amounts are large; (4) giro transfer transactions above NLG 10 million that fulfil two or more of the following criteria: (a) from a foreign country; (b) to a foreign country; (c) striking number of accounts; or (d) no relation to any business activity.

Those persons or entities who either conclude life insurance agreements, or are intermediaries in that respect, are subject to separate disclosure indicators. Any application for life insurance that is notified to the police or the prosecutor's office in connection with money laundering must also be notified to the MOT Centre. The same applies if the first premium or payment under the policy is paid in cash and exceeds the sum of NLG 100,000.

Disclosure is also compulsory if the financial institution considers that the following subjective indicators apply: (1) any application for life insurance which is suspected of being connected with money laundering; (2) life insurance products for which the first premium or payment made exceeds NLG 25,000 and which also fulfil three or more of the following criteria: (a) the client is resident outside the EU or EEA; (b) the client does not provide a regular address; (c) payment of the first premium or endowment takes place from a bank account outside the EU or EEA; (d) the policy has a duration of three years or less; (e) the premium or payment exceeds a total amount of NLG 500,000; (f) the client has already taken out three or more policies against cash payments with the insurance company during a calendar year or has, in the case of intermediaries, taken out such policies through the intermediary in any calendar year; (g) payment takes place in small denominations, uncounted money, in unusual wrapping, in foreign currency, with bills of exchange, cheques or other negotiable instruments; (h) identification was problematic; (i) the insurance is unusual for the client in that it deviates strongly from what would be normal for such a client taking all circumstances into consideration; the client accepts very disadvantageous terms that have no relation to health or age; or (k) the client cannot explain the interest he wishes to insure.

Unusual transactions which have been completed or are being proposed must be disclosed by the financial institution involved.

The disclosure should contain the following information: (1) the identity of the client; (2) the nature and number of his identity card; (3) the nature, time and place of the unusual transaction; (4) the monetary volume of the transaction; (5) in case of the debiting or crediting of an account, the origin and destination of the monies, securities, metals or other valuables involved; and (6) the circumstances on the basis of which the transaction was regarded as unusual (article 9).

Disclosure must be made to the MOT Centre, which is empowered: (1) to require further information from the entity providing the financial service (this information must be provided forthwith in writing or orally when it is an urgent matter); and (2) also to promulgate regulations concerning the format in which the mandatory disclosure should take place (article 3).

Regardless of the duty to disclose, a financial institution may commit the criminal act of negligent or reckless receipt of the proceeds of a felony (article 417bis Criminal Code). Proper and timely disclosure under the MOT will, however, not lead, in the normal situation, to criminal prosecution against the financial institution for 'receipt of stolen goods'. This is not only because the authorities are likely to take the MOT disclosure into account when deciding whether or not to prosecute. Another reason is the protection afforded by the MOT to those entities that fulfil their mandatory reporting obligations. The MOT (article 12) provides a limited form of exculpation from criminal prosecution for financial institutions that have complied with their mandatory reporting obligations, by stating that the information which has been notified to the MOT Centre cannot be used (as a basis) for a criminal prosecution (nor as evidence in court) either against the institution in question or its personnel on account of eitheD,intentional or negligent receipt of criminal proceeds. However, this does not mean that an institution (or its personnel), which notifies an unusual transaction, cannot be guilty of intentional or negligent receipt. The prosecuting authorities will need to produce evidence other than the information that has been notified (e.g. information obtained from the criminals themselves) or prosecute for a different offence." The maximum criminal penalties for negligent money laundering are one year's imprisonment, or a maximum fine of NLG 100,000 (or NLG 1 million in the case of a corporate legal entity). For intentional money laundering the maximum prison sentence is four years and the maximum fine is the same as for culpable money laundering.

The maximum sentence for breach of mandatory disclosure is two years imprisonment and/or a maximum fine of NLG 25,000 if the crime is committed intentionally. If failing to disclosure can only be considered negligence, the maximum penalty is six months' imprisonment and/or a fine of NLG 25,000.

(v) Act concerning exchange offices

Because many small exchange offices were being used for money laundering purposes a new law was established: the Wet inzake de wisselkantorenIWWK (Act concerning exchange-offices). The law provides for a registration requirement and a prohibition on working without being registered. The professional antecedents of the managers and those in charge of the exchange office must be provided and will be checked by the National Bank to see if these persons are trustworthy. Exchange offices may be struck off the register if there are reasons to believe that the aforementioned persons commit or may commit crimes of fencing (article 6 WWK).''

(b)    Intensity of Measures

In 1997 1,424 demands to deprive someone of unlawfully obtained profits were put forward by public prosecutors. 30 per cent concerned Opium Act cases. According to the Proceeds and Crime Office (BOOM) the prosecutor's office and the defendant came to an agreement in 54 cases, by which 5.7 million NLG was collected. In 990 cases a deprivation order resulted. The total value of these deprivation orders was 51.7 million NLG. Only 1.1 million NLG was collected.'
From 1993 (the implementation of the law) to 1997 only 20 million NLG was collected as the revenue of the deprivation orders. The total costs of the implementation of the law in the same period was 123.5 million NLG.71
Only in 10 per cent of the deprivation cases had a criminal financial investigation been ordered and implemented.

(c)    Judicial/Administrative Procedures Followed

A demand made by a public prosecutor to deprive a convicted person of his unlawfully obtained profits must be addressed to the court within two years after conviction for the principal offence (article 511b, lid 1 Sv). This maximum period is given because of the fact that investigations of finances are very complicated and two years is the maximum period which is still 'reasonable' as intended by article 6 ECHR.
The judge may make an estimate of unlawfully obtained profits on the basis of a balance of probabilities. The public prosecutor has to make it plausible that a certain amount of unlawfully obtained profits must exist. If the convicted person cannot show the legitimate source of this amount it may be confiscated.

(d)    Passage of the law

In (a) and (b) above, it is striking how little attention was given to the international treaties and their obligations in the explanatory memorandum accompanying the law proposal which introduced the criminal financial investigation and the sanction of deprivation of unlawfully- obtained profits:4

In (c) and (e) below, when passing these laws a direct reference was made to international legal obligations.

te)    lntemational/EC compliance

b) This regulation is a sophisticated version of the regulation proposed in article 5.7 UN 1988. The article indicates that each party to the convention may consider reversing the onus of proof regarding the lawful origin of alleged proceeds or other property liable to confiscation.

According to the ministers responsible, the balance of probability requirement is not in breach of the presumptio innocentiae of article 6 ECHR. When there is reasonable doubt about the lawful origin of the assets of a person convicted of a serious crime and concerning which a criminal financial investigation has indicated to the judge that these assets are of criminal origin, there is no reason not to include unexplained wealth in the deprivation order.
c-e) These laws are well in compliance with United Nations and European regulations and sometimes over-fulfil the requirements of European regulations. For instance the identification requirements are more strict than necessary according to the Council Directive 91/308/EEC. The same can be said about the notification requirements.

B.5.    EC measures having direct effect

Act to prevent misuse of chemicals

To implement the Council of the European Communities Directive 92/109/EEC of 14 December 1992 on the manufacture and the placing on the market of certain substances used in the illicit manufacture of narcotic drugs and psychotropic substances (PbEC L 370), and in relation to the Council's Regulation no. 3677/90 of 13 December 1990 laying down measures to be taken to discourage the diversion of certain substances to the illicit manufacture of narcotic drugs and psychotropic substances (PbEC L 357), a new law Wet voorkoming misbruik chemicalien (Act to prevent misuse of chemicals)" came into force. In this law strict regulations are given for the manufacturing of and the trade in specific chemicals.

All transactions leading to the placing on the market of scheduled substances in categories 1 and 2 of Annex I of the Directive must be properly documented (article 7)." This documentation must contain: the name of the scheduled substance; the quantity and weight of the scheduled substance and the name and address of the supplier, distributor and of the consignee. The documentation must further contain a declaration from the customer that shows the specific uses of the substances.

Operators shall keep these detailed records for a period of not less than three years from the end of the calendar year in which the operation took place, and they must be readily available for inspection by the competent authorities upon request."

Activities in breach of these conditions constitute an economic offence and are dealt with in the Wet op de economische delictenIWED (Act of economic offences)." This could mean a maximum prison sentence of 2 years and/or a fine of NLG 25,000 when committed intentionally or a maximum imprisonment of 6 months and/or a fine of NLG 25,000 when committed unintentionally.

Because of the legal obligation to report unusual transactions, considerable information has been gathered, but not much has been done with it. In the two years since the Act on the Disclosure of Unusual Transactions came into force, 966 notifications were made. Only 11 notifications led to a new investigation. In addition, 126 notifications added to existing investigations.'

C.1.    Reflection on present laws

Because none of the UN treaties or European regulations obliges drug use per se to be criminalized, there is total room for manoeuvre. Less room for manoeuvre exists with regard to the possession of drugs. Possession for personal use must also be criminalized. The room for manoeuvre exist in not applying the criminal justice system to the problems that occur as a result of drug consumption. All the treaties leave room for a non-penal approach (see explicitly article 36.4 UN 1961 and article 3.11 UN 1988). The treaties oblige parties to do something about these problems, but what the national states do about them is to large extent up to the states themselves. The situation on supply differs, especially when organised crime is involved. In this respect UN-treaties and European regulations leave almost no room for manoeuvre. A criminal justice response is compulsory. In relation to supply for personal use, even commercially, the Netherlands has used the room for manoeuvre given in the international regulations. When and how they act against supply is still up to the national states. In the Netherlands this has led to the tolerance of coffee shops under strict conditions.

Most joint actions leave enough room for national manoeuvre because they are drawn up in a non-demanding format such as : 'Member States shall endeavour ...'

EC Directives leave almost no room for manoeuvre. Member States 'shall ensure' legal implementation and Member States 'shall take' legal action. The only room for manoeuvre is given in the area of determining the penalty to be applied for infringement of the provisions adopted in implementation of the Directives (e.g. article 8 Council Directive 92/109/EEC).

Regulations are binding in their entirety and are directly applicable in all Member States, thus no room for manoeuvre for individual states exists in the areas addressed by them.

C.1.2. Summary on Accordance with International/EU Requirements

The Dutch legislation is well within the obligations of UN and European obligations, with the odd exception of the criminalisation of money laundering. The effective national implementation of (especially European) obligations over-fulfils these obligations — see for example the criminal financial investigation, the deprivation of unlawfully obtained profits, the Act on Customers Identification for Financial Services, the Act on the Disclosure of Unusual Transactions, the Act concerning exchange-offices. The regulations concerning identification requirements and the notification of unusual transactions are strict — sometimes to the degree that implementation is impossible.

When day-to-day practice is taken into consideration it is questionable whether the tolerance policy towards coffee shops in some municipalities meets conventional obligations. The issue of coffee shop licences by some municipalities oversteps the line because these licences allow the selling of small quantities of cannabis. These licences should only allow the utilization of a specific catering establishment, namely an establishment where one can appeal to the criminal justice guidelines (by which coffee shops are tolerated within strict limitations).

C.2    Present debates, future changes

The Treaty of Amsterdam will change some aspects of 'European drug policy'. One of the major changes is in the field of police cooperation. Article K.2 regulates Comh,jon action in the field of police cooperation. This includes: operational cooperation between the competent authorities, including the police, customs and other specialised law enforcement services of the Member States in relation to the prevention, detection and investigation of criminal offences; the collection, storage, processing, analysis and exchange of relevant information, including information held by law enforcement services on reports on suspicious financial transactions, in particular through Europol, subject to appropriate provisions on the protection of personal data; cooperation and joint initiatives in training, the exchange of liaison officers, secondments, the use of equipment, forensic research; the common evaluation of particular investigative techniques in relation to the detection of serious forms of organised crime. Europol should have an important place in this. Article K.2.2. states that within a period of five years after the date of entry into force of the Treaty of Amsterdam, Europol should be able to facilitate and support the preparation, and encourage the coordination and carrying out, of specific investigative actions by the competent authorities of the Member States, including operational actions ofjoint teams comprising representatives of Europol in a support capacity; measures must be adopted to allow Europol to ask the competent authorities of the Member States to conduct and coordinate their investigations in specific cases and to develop specific expertise which may be put at the disposal of Member States to assist them in investigating cases of organised crime.

Although the Declaration accompanying article K.2 indicates that action in the field of police cooperation under article K.2, including activities of Europol, shall be subject to appropriate judicial review by the competent national authorities in accordance with rules applicable in each Member State, this Declaration cannot prevent the possibility that a Europol employee will refer to his immunity in individual cases which will make judicial control an illusion.

A second major change is the integration of Schengen into the European Union. The combination of the expansion of operational police joint action on the one hand and the integration of Schengen and its operational cross-border powers on the other may lead to juridical problems, especially when these operations are carried out by or initiated by Europol employees. The privilege and immunity protocol of 19 June 1997 gives Europol employees almost complete immunity. Article 8 of the protocol states that members of Europol enjoy immunity from legal process of any kind in respect of words spoken or written, and of acts performed by them, in the exercise of their official functions. In addition, they enjoy inviolability of all their official paper and documents and other official materials. Though article 12 of the protocol stresses that this immunity is not granted for the personal benefit of the individuals themselves and that this immunity can be waived by the director, these limitations are insufficient. When Europol employees execute the new powers given to them by the Amsterdam Treaty there is no judicial national authority to control them. This could lead to a new affaire, similar to the 1RT-scandal, which could lead to a new crisis in criminal investigation.

1 Opiumwet, Wet van 12 mei 1928, Stb, 167, tot vaststelling van bepalingen betreffende het opium en andere verdoovende middelen, zoals deze laatstelijk is gewijzigd bij Wet van 6 november 1997, Stb. 510.

2 T. Blom, Drugs in het recht, recht onder druk, Gouda Quint, 1998, part 1, p. 58 and 77.
3 Single Convention on Narcotic Drugs, United Nations, 1961. Article 2 sub 5 juncto Annex Schedule IV.

4 Werkgroep Baan, Achtergronden en risico's van drugsgebruik, Den Haag 1972 (Working Party on Narcotics, Background and risks of drug use, The Hague, 1972).

5 Drugsbeleid in Nederland, Continuïteit en verandering (Drugs policy in the Netherlands; Continuity and change), TK 1994-1995, 24 077, nrs. 2-3 (Lower House of the States General; I*994-1995 session, 24 077, nrs. 2-3).

6 Gemeentewet, Wet van 14 februari 1992, Stb. 96, houdende nieuwe bepalingen met betrekking tot gemeenten (Gemeentewet), zoals laatstelijk gewijzigd bij de wet van 18 december 1997, Stb. 737.

7 Wet van 13 maart 1997 tot wijziging van de Gemeentewet, houdende opneming daarin van de bevoegdheid van de burgemeester om woningen, niet voor het publiek toegankelijke lokalen of bij die woningen of lokalen behorende erven te sluiten bij verstoring van de openbare orde (Stb. 1997, 132).

8 Blom, T., Khan, A.H., 1997, 'Victoria: te vroeg gekraaid?', Tijdschrift voor Politie, volume 59, issue 6, pages 14-18.

9 Wetsvoorstel tot wijziging van de Opiumwet in verband met het creeren van de mogelijkheid voor de burgemeester om bestuursdwang toe te passen ter handhaving van de artikelen 2 en 3 van de Opiumwet in voor publiek toegankelijke lokalen en daarbij behorende erven (TK 1996-1997, 25 324).
10 Jurisprudence shows that judges do not accept this urgently-call easily (President of the District C.ourt of Utrecht, 7 April 1994, 94/685 and President of the District Court of Groningen 11 Augustus, 1995, 95/1520, Jurisprudence Administrative Law 1995, 281.

11 Section Administrative Jurisprudence of the Council of State 28 August 1995, Aministrative Decisions 1996, 204.

12 T. Blom, Drugs in het recht, recht onder druk, deel 3, Gouda Quint, 1998, p. 233. These obligations are based on the following Strasbourg jurisprudence: Case of Klass and others, Judgement of 6 September 1978, Publ. ECHR, Series A, Vol. 28; The Sunday Times case, Judgement of 26 April 1979, Publ. ECHR, Series A, Vol. 30; Malone case, Judgement of 2 August 1984, Publ. ECHR, Series A, Vol. 82; Leander case, Judgement of 26 March 1987, Publ. ECHR, Series A, Vol. 116; Chappell case, Judgement of 30 March 1989, Publ. ECHR, Series A, Vol. 152; Kruslin case, Judgement of 24 April 1990, Publ. ECHR, Series A, Vol. 176-A; Huvig case, Judgement of 24 April 1990, Publ. ECHR, Series A, Vol. I 76-B; Case of Liidi v. Switserland, Judgement of 15 June 1992, Publ. ECHR, Series A, Vol. 238; Case of Niemietz v. Germany, Judgement of 16 December 1992, Publ. ECHR, Series A, Vol. 251-B; Case of Funke v. France, Judgement of 25 February 1993, Publ. ECHR, Series A, Vol. 256-A; Case of A. v. France, Judgement of 23 November 1993, Publ. ECHR, Series A, Vol. 277-B; Case of Murray v. the United Kingdom, Judgement of 28 October 1994, Publ. ECHR, Series A, Vol. 300-A; Case of Halford v. the United Kingdom, Judgment of 25 June 1997, ECHR 73/1996/692/884.

''13 Guidelines Opium Act, Stcrt 1996, nr. 187, p. 12.

14' Wet op de Geneesmiddelenvoorziening (Prescribing Opium Act substances by doctors), Staatblad/Stb. (State publication), 1958, 408); Besluit voorschrijven Opiumwetmiddelen (Provisions on the prescription of drugs), Staatscourant/Stcrt. (State newspaper) 1976, 201.

15` Article 47 Wet op de beroepen in de individuele gezondheidszorg (Act on the medical professions), Stb. 1993, 655.

16 Besluit afleveren Opiumwetmiddelen op recept (Provision on the supply of prescribed drugs), Stb. 1976, 508.

17' Provisions on the prescription of drugs (Stcrt. 1976, 201).

18 Wet op de beroepen in de individuele gezondheidszorg, Wet van 11 november 1993, Stb. 655, laatstelijk gewijzigd bij Wet van 12 maart 1998, Stb. 154.

19 For instance HR (Supreme Court), 3/3/95, NJ (Dutch Jurisprudence) 1995, 414. In most parts of the country Opium Act substances like methadone are only prescribed through special drug clinics. In other parts of the country, for instance in Amsterdam, general practitioners may prescribe these substances. "

20 Achtergronden en risico's van drugsgebruik (Background and risks of drug use), TK 1971-1972, 11 742, nr. 2.

21' Wijzigingen in de Opiumwet en aanverwante artikelen in andere wetten (Change of the Opium Act and some adjoining articles in other acts), TK 1974-1975, 13 407, nr. 7, p. 25.

22 Working Party on Narcotics, Background and risks of drug use, The Hague, 1972.

23" Strafrechtelijke opvang verslaafden (Penal Care for Addicts), TK 1997-1998, 26 023, nrs. 1-2.

24" Arrondissementsrechtbank (District Court) Amsterdam 19 Januari 1996, 95/8114.

25 This 'risk scale' is based on medical, pharmacological, socio-scientific and psychological data.

26 Drugs policy in the Netherlands; Continuity and change, TK 1994-1995, 24 077, nrs. 2-3, p. 2.

27 In a country in which the maximum legnth of prison sentence is 15 years (Article 10 Sr). In terms of the 'National Intensity Measure' (NIM code), the ratio is almost 28%.

28 The NIM ratio is 7,5%.

29 The NIM ratio is 13 %.

30 In terms of the N1M code the ratio is 0,6 %.

31 Change of the Opium Act and some adjoining articles in other acts, TK 1974-1975, 13 407, nr. 3, p. 19.

32' Richtlijnen opsporings- en strafvorderingsbeleid strafbare feiten Opiumwet (Guidelines Opium Act), published by the Procurators-General in 1996, Stcrt. (Netherlands Government Gazette, 1996, no. 187).

33 Guidelines for the detection and prosecution of Opium Act crimes 11-9-1996, Subsection C. See the section on Supply for the cultivation of more than 10 plants.

34  Final Report Working group Evaluation Guidelines Opium Act, March 1998, p. 7.

35 The municipalities are: Amsterdam, Utrecht, Arnhem, Nijmegen, Terneuzen, Heerlen, Maastricht, Venlo and Rotterdam.

36These categories are only used when possession and national supply are concerned. International trafficking is excluded from categorisation.

37 Hard drugs are in this respect heroin, cocaine and synthetic drugs. Methadone is not included. Deals with methadone are treated differently. The possession of methadone (not for personal medical prescribed consumption) will lead to a demand of from 1 week's probation up to 1 month's imprisonment. Possession indicating trade will lead to a demand of 1-6 months' imprisonment.

38  Final Report of the Working group Evaluation Opium Act Guidelines, March 1998, p. 10.

39 Besluit van 3 juni 1992, houdende regels voor horecabedrijven, Stb. 298.

40 Wet van 7 oktober 1964 tot regeling van de uitvoering van de bedrijven en de werkzaamheid, waarin of in het kader waarvan alcoholhoudende drank wordt verstrekt, Stb. 386.

41 Drugs policy in the Netherlands: Continuity and change, TK 1994-1995, 24 077, nrs. 2-3, p. 27-31.

42 Cqffeeshops met beleitt Het Rotterdamse coffeeshopbeleid (Coffeeshops with policy, The Rotterdam coffeeshop policy), Municipality of Rotterdam, 18 March 1997.

43 Indications of professional growing are: artificial light with automatic timeswitchers; a central irrigation system; greenhouse; isolation (daylight and temperature); ventilation; thermostat heating; hydroculture etc. (Annex C, Guideline Opium Act).

44 T. Blom, Drugs in het recht, recht onder druk, Part 1, Gouda Quint, 1998, p. 85-86.

45 Change of the Opium Act and some adjoining articles in other acts, TK 1974-1975, 13 407, nr. 3, p. 13. '

46 Change of the Opium Act and some adjoining articles in other acts, TK 1974-1975, 13 407, nr. 3, p. 18. A comparison was made with Belgium (10-20 years' forced labour), Germany (1-20 years' imprisonment), France (10-20 years' imprisonment), England (12 months' imprisonment (summary conviction) or 14 years' imprisonment (on indictment), Denmark (6 years' imprisonment) and Sweden (1-10 years' imprisonment).

47 This means that the maximum imprisonment for the import or export of hemp by a criminal organisation would be 6 years and 8 months (5 years + 1/3 of 5 years). When the import or export of heroin, cocaine or Ecstasy is involved this could mean a maximum prison sentence of 16 years (12 years + 1/3 of 12).

48 The criminalisation of conspiracy to a crime (in general) was not considered. This would be too broad according to the Minister because in that case every intention to commit a crime would be enough to convict someone (Nadere wijziging van de Opiumwet (Further change in the Opium Act), TK 1982-1983, 17 975, nr. 5, p. 9.

49 The law indicates what could be considered a preparatory act: to try to induce someone to commit a crime (either individually or jointly with another), or to provoke a crime, to provide assistance during the commission of the crime or to provide the opportunity, means or information necessary to commit a crime; to have in stock objects, means of transport, money or other currency which an individual knows or has serious reason to suspect are to be used with the aim of committing a crime.

50 Some examples are the cases against Zwolsman (Supreme Court 19 December 1995, Dutch Jurisprudence 1995, 249), Rommy (Court of Appeal Amsterdam 1 December 1994, Dutch Jurisprudence 1995, 159, Hakkelaar (District Court Amsterdam 7 Februari 1997, N.IB 1997, p. 363-366), Kobus L. (Court of Appeal `s-Gravenhage 11 Februari 1997, NJCM-Bulletin 1997, p. 442-448), Juliet (District Court Breda 15 May 1997, Dutch Jurisprudence 1997, 587).

51 Further change in the Opium Act, TK 1982-1983, 17 975, nr. 3, p. 4.

52 Chief of police of Rotterdam in the 1930s.

53 HR (Supreme Court) 4 December 1979, NJ (Dutch Jurisprudence) 1980, 356.

54 Wet van den 18den April 1827, Stb. 20, op de zamenstelling der Regterlijke magt en het beleid der Justitie, zoals laastelijk gewijzigd bij de wet van 23 februari 1998, Stb. 120.

55 HR (Supreme Court) 14 October 1986, NJ (Dutch Jurisprudence) 1987, 564 en NJ 1988, 511.

56 Politiewet 1993, Wet van 9 december 1993, Stb. 724 tot vaststelling van een nieuwe Politiewet, zoals deze wet laaststelijk is gewijzigd bij Wet van 9 september 1998, Stb. 535.

57 Wetboek van Strafvordering, Wet van 1 januari 1926 zoals deze wet laaststelijk is gewijzigd bij Wet van 24 juni 1998, Stb. 375.

58 De georganiseerde criminaliteit in nederland. Dreigingsbeeld en plan van aanpak (Organised crime in the Netherlands.    )  TK I 992-1993, 22 838, nrs. 1-2.

59 Wet van 13 januari 1965, Stb. 40, houdende nieuwe regelen betreffende: a. de toelating en uitzetting van vreemdelingen; b. het toezicht op vreemdelingen die in Nederland verblijf houden; c. de grensbewaking (Vreemdelingenwet), zoals laatstelijk gewijzigd bij de wet van 4 december 1997, Stb. 580.

60 Besluit van 19 september 1966, Stb. 387, tot uitvoering van de Vreemdelingenwet (Vreemdelingenbesluit), zoals laatstelijk gewijzigd bij het besluit van 22 december 1997, Stb. 764.

61 Akkoord betreffende samenwerking op het gebied van politie en veiligheid tussen de regering van de Franse Republiek en de regering van Nederland, Scrt. 1998, nr. 81, p. 5.

62' This treaty was ratified on 7 December 1993 (Tractatenblad/Trb. (Dutch Treaty Journal), 1993, 140) and is binding on the Netherlands from that date.

63Dutch Treaty Journal/Trb. 1990, 172.

64 The regulations that were introduced to fulfil the requirements of these international obligations became known as the 'Squeeze them-legislation'.

65 The condition 'offences for which a fifth-category fine (100.000 NLG) may be imposed' is met in almost all Opium Act cases, even an otTence penalised with a maximum fine of the fourth category (25.000 NLG). Article 12 of the Opium Act gives the possibility of raising the maximum fine by one category if the value of the confiscated drugs is higher than 1/4 of the maximum fine, which is almost always the case.

66 Crimes that may be fined with NLG 100,000.

67 91/308/EEC, Plnr. L166 of 28 June 1991, p. 77.

68 Article 1. It now also applies to currency exchange offices, casinos and credit card companies.

69 The term 'structuring' stands for the cutting of a large amount of money into smaller amounts to stay under the threshold. The tenn `smurfing' is used when different people are used to conduct these transactions.

70 Graaf, F.G.B., In: W.C. Gilmore (ed.) International money laundering law and practice, p. 134.

'71 The laundering of unlawfully obtained gains is a fencing offence in the Netherlands (article 416 Criminal Code).

72 Annual report Public Prosecutors Office, 1997.

73 J.M. Nelen and V. Sabee, Het vermogen te ontnemen. Evalztatie van de ontnemingswetgeving-Eindrapport, WODC, 1998, p. 4.

74 Wijziging van het Wetboek van Strafrecht en het Wetboek van Strafvordering en enkele andere wetten ter verruiming van de mogelijkheden tot toepassing van de maatregel van onmeming van wederrechtelijk verkregen voordeel en andere vermogenssancties (Change in the Penal Code and Penal Provisions Code in order to widen the opportunities to deprive someone of unlawfully-obtained profits) (TK 1989-1990, 21 504, nr. 3).

75 Wet van 16 maart 1995, houdende regelen met betrekking tot de vervaardiging, het in de handel brengen en de in-, uit- en doorvoer van bepaalde chemicalien ter voorkoming van misbruik, Stb. 258.

76 These are for instance: Ephedrine, Ergometrine, Ergotamine, Acetic anthydride.

77 In this case the competent authority is the Belastingdienst/Douane centrale dienst voor In- en Uitvoer (Fiscal Service/Custom Central Service Import and Export).

78 Wet van 22 juni 1950, houdende vaststelling van regelen voor de opsporing, de vervolging en de berechting van economische delicten, Stb. 258.

79 G.J. Terlouw en U. Aron, Twee jaar 1140T, een evaluatie van de uitvoering van de Wet Melding Ongebruikelifice Transacties, WODC, 1996, p. 90-91.

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