ANNEX

ANNEX

8. Country profiles

The following information is derived largely from the study by Sandro Cattacin and Isabelle Renschler: Cannabispolitiken; ein vergleichender Überblick zum aktuellen Diskussionsstand [Cannabis policies: a comparative survey of the current discussion]; the information has been summarized, amplified and updated.

This part of the report consists of brief descriptions of a number of countries with different policies towards cannabis and aims to illustrate the relationships between policy and implementation. These descriptions provide information on the various ways in which the use of cannabis is approached and regulated 1 . The main focus here is the general attitude towards cannabis and the way trade and consumption (in some instances cultivation too) are handled, the penalties attached to violation of existing laws, and special regulations. The countries appear in alphabetical order.

In Austria dependence on drugs is perceived as a psychosocial disorder and a disease (Council of Europe 1994: 9). The Addictive Substances Act of 1951 (revised in 1971, 1980 and 1985) that was in force until the end of 1997 did not penalize possession of small amounts of illegal substances until 1985. The new Addictive Drugs Act (SMG) came into force on 1 January 1998, and Art. 27 (1) mandates imprisonment for up to six months for acquisition, possession, production, import and export of addictive substances. A new feature of the law is that the same acts involving psychotropic substances according to Art. 30 (1) SMG attract the same sentences. Offenses involving large amounts can be penalized with prison sentences of between three and five years. The quantity that comprises a "large amount" is determined separately for each addictive substance by the Federal Minister for Labor, Health and Social Affairs in collaboration with the Federal Minister for Justice with the agreement of the General Purposes Committee of the National Council (Art. 28 [6] SMG). This regulation on limits for addictive substances gives 20 grams of pure active substance as the lower defining limit for a large amount of tetrahydrocannabinol and its isomers. Art. 35 SMG allows the public prosecutor's office to temporarily defer prosecution under certain conditions for offenses involving a small amount of an illegal substance intended for personal consumption, and to impose a probationary period. Offenses involving the purchase or possession of cannabis are subject to less strict conditions (Art. 35 [4] SMG). According to Art. 6 (2) of the Addictive Substances Act (which corresponds to Art. 3 [2] of the old law), cultivation of hemp is only illegal in Austria if it is intended for the production of an addictive substance. However, irrespective of the Addictive Substances Act, Austrian seed legislation permits only seed of hemp varieties listed in the "common variety catalog of the EU" to be brought onto the market in Austria or the EU. Compliance with the Addictive Substances Act is monitored by the Ministry of the Interior and the executive authority using a system of random checks. If a hemp crop is found to have a high content of THC, this is not illegal under the Addictive Substances Act. However, the higher the THC content, the greater the potential for illegal use as a narcotic. In such cases the executive authority takes a closer look at the intended use of the crop in question. A license is not required to grow hemp, and growers do not have to sign a contract with a customer intending to buy the crop. However, growers are recommended to inform the local council and police of plans to plant hemp.

In France the general thrust of the drug policy can be described as medical, with a distinct separation between repressive instruments and therapeutic facilities (cf. Lucas 1995). The French legislation is based on international agreements (especially the Single Convention of 1961, the Vienna Convention of 1971 and the Convention of 1988). The use of illegal substances is viewed as pathological and criminal behavior. Trade in and consumption of substances defined in international agreements as illegal are forbidden. Under the current law dating from 31 December 1970, even private consumption may be penalized, although this goes beyond the provisions of the international agreements 2 . According to L 628 of the Public Health Code, unauthorized consumption of illegal substances of any type may be punishable with between two months and one year in prison and/ or a fine of FF 500 – 15,000; the transportation, possession and offering for sale of such substances can mean between two and ten years' imprisonment. This law makes no distinction between different types of illegal substance, the amount used or the frequency with which they are used. Accordingly, there are no specific formal or informal rules governing cannabis products. In practice the police and courts may proceed differently in different cases, but there is by no means any suggestion of differentiated treatment according to the type of product involved (Commission de réflexion sur la drogue et la toxicomanie 1995: 63). It is far more accurate to describe the dominant attitude of the authorities as behavior- oriented, with decisions based not on the product but on the nature of its use.

Germany pursues a repressive drug policy at federal level; use of illegal substances in any form is a punishable offense, and cannabis is no exception. The Christian- Liberal coalition in power from 1981 took little more than symbolic action on drug policy. The federal system of government means that the implementation of the German Narcotic Drugs Act is in fact the responsibility of the federal states, which in turn take a very heterogeneous approach depending on their degree of urbanization and cultural composition (cf. Reuband 1992: 17ff; Cattacin et al 1995). In the 1990s, in particular, some federal states started to tolerate the use of cannabis. A decision by the Federal Constitutional Court on 9 March 1994 means that the purchase and possession of small amounts of cannabis for personal consumption is not necessarily penalized in practice. The legal position after two amendments of the German Narcotic Drugs Act in 1984 and 1986 is that possession of illegal substances, but not consumption, is a punishable offense. However, where the substances are intended for personal consumption, the judge may not necessarily impose a penalty. The same law mandates that narcotic substances may only be used with permission from the authorities. Serious offenders (trafficking and possession of large amounts of any type of illegal substance) face up to 15 years in prison. In other words, with the exception of the decision by the Federal Constitutional Court, German legal practice does not distinguish between different forms of drugs 3 . However, there is now an increasing tendency for the police to take a more permissive attitude towards the supplying of drugs and, in particular, the consumption of illegal substances if the substance in question is a cannabis derivative 4 . Cannabis (marijuana) is a non- marketable narcotic substance except in seed form, or for use as a barrier strip in beet fields (when it must be destroyed before it flowers), or when it is sold (but not cultivated) so that the fibers can be extracted or processed for industrial purposes (Annex 1 to Art. 1 [1] of the German Narcotic Drugs Act [BetmG]). Accordingly, the cultivation of hemp – including as an exception to the exception the cultivation of cannabis for commercial purposes – is forbidden in Germany by the Narcotic Drugs Act (Art. 30 BetmG). Only certain agricultural organizations are permitted to grow industrial grade hemp under certain conditions governed by EU regulations. All hemp cultivation must be notified to the authorities (Art. 18 BetmG). Cultivation of hemp varieties not conforming to EU specifications is illegal according to the Narcotic Drugs Act or requires a special permit from the Federal Institute of Drugs and Medical Products (Federal Opium Office). A special permit is granted only if the cultivation serves a scientific or other purpose which is in the public interest (Art. 3 [2] BetmG). It is also illegal to grow hemp for sale as an ornamental plant.

Italy, too, takes a medical approach. Like the United Kingdom, Italian legislation distinguishes between different types of drug, specifically between cannabis and heroin/ cocaine/ LSD, but also between dealers and users. Offenses involving cannabis use and small- scale dealing attract only an administrative fine. However, Italy regularly wavers between a product- oriented policy and a behavior- oriented policy in response to the relatively strong political pressure brought to bear on the way offenses against drug legislation are handled (Pisapia 1991). Although the expediency principle has applied to users of illegal substances since the successful referendum in 1993 (which depenalized possession of small amounts of illegal substances for personal consumption) (Decamps 1994), spectacular events repeatedly show that the police have difficulty in applying this principle. The youth riots that erupted in Riccione in the summer of 1995, after police confiscated cannabis, and their devastating consequences, show how difficult it is to apply the expediency principle in everyday practice. It should also be mentioned that a strong political group which formed part of the government for several months in 1994 has been lobbying for the legalization of cannabis for years and has initiated a referendum on this subject.

The Netherlands are making a conscious effort to pursue a pragmatic drug policy designed to minimize risks 5 . The principle of discretionary prosecution is implemented with the aid of a clear distinction between cannabis and heroin/ cocaine/ LSD on the one hand and between users and dealers on the other. This product- oriented policy inspired by the principle of harm reduction has led to the de facto legalization of cannabis. The substance is viewed as legally and socially acceptable, and only dealing in cannabis is prosecuted. The Dutch Narcotic Drugs Act also draws a clear distinction between "hemp products" and substances whose use "is associated with unacceptable risks" (Linder 1995: 219). Tolerance of cannabis thus does not impede repression of the use of heroin/ cocaine/ LSD or trafficking in drugs (Cattacin et al 1995). The Opium Act, amended in 1976, regulates the production, supply and consumption of psychoactive substances. Possession, supply, outside advertising, production and export of all illegal substances is prohibited except for medical or scientific purposes. However, use is not forbidden by law. In general, possession of illegal substances for commercial purposes represents a more serious crime than possession for personal use. Possession of large quantities of cannabis attracts a prison sentence of up to two years and/ or a fine. The penalty for importing or exporting cannabis is a maximum of four years' imprisonment and/ or a fine (Albrecht/ van Kalmthout 1989: 433). Dealing in cannabis for personal consumption is tolerated in so- called coffee shops provided that five state- imposed conditions 6 are met: no outside advertising, no dealing in heroin/ cocaine/ LSD, no disturbance of the neighborhood, no selling to minors under 18 years of age, no selling of quantities larger than 5 grams 7 (Hug- Beeli 1995: 230). The maximum quantity that coffee shops may store at any one time is 500 grams, although individual communes may prescribe smaller quantities. Depending on the specific problems encountered locally, the communes have attached special conditions, such as no parking in front of coffee shops, or making coffee shops close at 10.30 pm. Communal coffee shop policy is regulated by the local authorities and determined in regular discussions between the police, public prosecutor's office and the local administration. In 1996 the public prosecutor's office established new guidelines for the tripartite discussions, and since then many communes have developed their own coffee shop policies. It was also agreed in 1996 that alcohol must not be served in places where cannabis is sold. 8 In the Netherlands, cultivation of hemp is permitted only for agricultural or horticultural purposes or to create windbreaks. A draft amendment to the exception granted for the possession of hemp for agricultural purposes is currently being written. In future, it will be an offense to grow hemp indoors and to cultivate certain types of hemp without permission. The maximum penalty for growing hemp plants has been increased from two to four years' imprisonment and HFL 100,000. The current directive on investigation and prosecution for the public prosecutor's office expressly mentions the illegal nature of advertising aimed specifically at foreign purchasers. The attention of the public prosecutor's office is directed particularly at coffee shops which sell cannabis for export, whether in quantities intended for commercial or personal use 9 .

Use and possession of illegal substances for personal use has not been prosecuted in Spain since 1967. Production, cultivation, dealing, incitement to use and facilitation of use, on the other hand, are punishable offenses. Sentences are also determined by whether the offense involves cannabis or heroin/ cocaine/ LSD. Since the amendment of the Narcotic Drugs Act in 1988, which represented Spain's attempt to realign itself with the international community, dealing in cannabis has been a serious offense (Bole- Richard 1994). Administrative fines have been levied since 1991 against anyone found consuming any form of illegal substance in a public place or possessing illegal substances 10 . Spain, another country that follows a medical approach to cannabis, is often cited as the pioneer country in terms of decriminalizing cannabis. However, Cattacin/ Renschler feel that Spain should rather be considered as the anti- model since it has not actively sought to come to grips with the problem of illegal substances, and the fact that the police have for a long time not intervened in the consumption of illegal substances owes more to chance than to political volition.

Drug policy in Sweden is part of a global social policy that outlaws drugs of any kind (including alcohol) and aims to create a drug- free society (Cattacin et al 1995; Council of Europe 1994: 186). This approach meets with a broad consensus in the population, so it is hardly surprising that the Swedish Minister for Health is confident enough to comment on his policy in a completely unequivocal way: "There are no serious advocates, either at the individual or the organizational level, of the idea that narcotics should be legalized or that possession of drugs should be decriminalized. This also applies to cannabis,” (Swedish Ministry of Health and Social Affairs 1994). The 1968 Narcotic Drugs Act, revised in 1985, governs prosecution for the production, supply, sale and possession of illegal substances. All forms of non- medical use of illegal substances are forbidden 11 . Sweden distinguishes only between minor, simple and serious drug offenses (against the Narcotic Drugs Act), irrespective of the drug involved. There can thus be no doubt that prosecution is determined by the behavior of individuals who use illegal substances (some cities such as Stockholm and Gothenburg do, however, deviate from this practice and no longer intervene systematically where possession and consumption of cannabis are concerned).

The United Kingdom also takes a medically- oriented approach (Pearson 1991; Bless et al 1993: 77). The Misuse of Drugs Act came into force in 1971 and is based on the Single Convention of 1961 (and its amending protocol of 1972), the Vienna Convention of 1971 and the Convention of 1988. The manufacture, aiding and abetting in the manufacture, sale or offering for sale and possession of large quantities of illegal substances are major offenses. Consumption of such substances is not illegal, although individuals found using illegal substances can be charged with possession (cf. Council of Europe 1994: 218). The punishment for such offenses varies according to the class of illegal substance involved (Class A, B or C). Cannabis is in Class B, alongside amphetamines and barbiturates, and the punishment ranges from a minimum of three months up to five years in prison or a corresponding fine. Sometimes only a warning is given to cannabis users. The United Kingdom thus distinguishes clearly between different product types in its drug policy. Offenses involving cannabis are dealt with less severely than similar offenses involving other illegal substances. It must be added, however, that offenses involving cannabis are pursued intensively, even though they attract less severe punishment. Over 90 percent of the 40,000 or so individuals stopped by the police every year, most of whom subsequently appear in court, are cannabis users (cf. also Pearson 1991: 197f. and Zecchini 1994).

Consumption of cannabis was legal in the United States in the 1930s, but by the 1970s illegal substances had advanced to the status of "public enemy number one” (Wisotsky 1989: 409). Richard Nixon's plan to eradicate cannabis is widely considered to be a good example of how repressive measures can backfire. Following Operation Intercept, a powerful illegal cannabis industry developed in the USA, and this supplied the market with cannabis products more systematically than had been the case under the relatively unsophisticated conditions of the "cultural revolution" in the years preceding Nixon (cf. Levine/ Reinarman 1993: 172). Nonetheless, the 1970s were an experimental period during which 11 federal states followed the National Commission of Marihuana and Drug Abuse's recommendation to decriminalize the possession of small amounts of cannabis. War was again declared on illegal substances in the early 1980s: "We are making no excuses for drugs - hard, soft, or otherwise. Drugs are bad and we are going after them," was Ronald Reagan's comment in 1982 on national radio. Dealing in and possession and consumption of drugs became illegal. The Anti- Drug Abuse Act of 1986 mandates minimum sentences of between five and ten years' imprisonment depending on the substance and quantity involved (Wisotsky 1989: 416). The death penalty was even introduced in some states for serious drug offenses (Albrecht/ van Kalmthout 1989: 436). The general policy toward drugs has not changed much since then. No distinction is made between different products, and behavior involving drugs is punished. The general approach is repressive, but the policy cannot be implemented. Once more, the United States has produced astonishing yet interesting regulations for cannabis, as for many other areas of policy. For instance, the death penalty introduced for serious drug crimes would be more at home in an integralistic state like Iran than in a modern pluralistic society; or the experiments with approving the use of cannabis carried out in some states which were aborted less because critical evaluation deemed them to be ineffective (for, in fact, although the evaluations were sorely lacking, they did conclude that decriminalization has no effect on the rate of consumption, while rigorous prosecution leads to a marked increase in cannabis consumption – cf. the studies cited in Reuband 1992) than because they were politically unviable in a country that had declared war on illegal substances 12 . The attempts by some states to decriminalize the use of cannabis could not be continued because they violated federal laws (cf. also Bühringer et al 1993: 17).

1 It should be noted that certain cannabis policies in countries which do not distinguish between different types of drugs have been omitted from this section.

2 Bless et al (1993: 25): In 1991 approximately half of all arrests for violation of the Narcotic Drugs Act resulted from use and possession of cannabis.

3 However, the Federal Constitutional Court observed that this decision does not constitute approval, and issued the following statement: "There is no basis to reports that the Federal Constitutional Court has approved the use of hashish. The Federal Constitutional Court has declared the prohibition of this drug and all the types of offense submitted to it for review to be constitutional. In trivial cases, however, punishment may be inappropriate. The prosecutors must refrain from prosecution if hashish is acquired in small quantities for occasional personal consumption and this represents no danger to third parties" (announcement by the press office of the Federal Consitutional Court 19/ 1994).

4 The national regulations listed in Annex II by way of illustration demonstrate this tendency. Cf. also Bühringer et al 1993: 7ff.

5 However, this must not be equated with a laisser faire attitude, as the Ministry of Welfare, Health and Cultural Affairs (1994) has stated: "Although the risks to society must of course be taken into account, the government tries to ensure that drug users are not caused more harm by prosecution and imprisonment than by the use of drugs themselves."

6 These criteria, referred to as AHOJ- G criteria, were introduced nation- wide by the public prosecutor's office in 1991.

7 There has since been a marked reduction in the number of "coffee shops". The Dutch Drug Policy of 1995 reduced the permissible quantity of cannabis from 30 to 5 grams and instigated measures to eradicate domestic cannabis production and drug tourism in response to pressure from the Schengen Agreement; no major changes were made to the Dutch policy towards cannabis. Coffee shops are monitored strictly, and the intention is to reduce their overall number, not least in the interests of regulative policy (cf. Swiss Embassy 1994).

8 Cf. Dutch Alcohol and Drug Reports, Fact Sheet 7: Cannabis policy, Trimbos- Institut, Utrecht, 1997. 9 Progress report on drug policy by the Dutch government, 16 September 1997

10 "The penalities can be imposed on individuals but also on owners of public facilities where drugs are used” (Council of Europe 1994: 93).

11 Prior to 1 July 1993, consumption of illegal substances was punished only with a fine, but nowadays a prison sentence can also be imposed (Council of Europe 1994: 189). The penalty ranges from fines and a maximum prison sentence of six months for minor drug offenses to prison sentences between two and ten years for serious drug offenses. Production and dealing are serious drug offenses; consumption, possession and sometimes selling small amounts of drugs, on the other hand, are classified as minor offenses if the perpetrator has no prior convictions for violation of the Narcotic Drugs Act (Solarz 1989: 347).

12 Cf. particularly Wisotsky 1990 for the failed prohibition policy pursued in the 1980s.