Europa
Press releases RAPID

IP/09/1902

Brussels, 10 December 2009

Criminal acts and applicable penalties for drug trafficking: European
legislation brings mixed results

The Framework Decision laying down minimum provisions on the criminal
acts and the penalties applicable in the field of drug trafficking has
helped to establish a common core, but has not brought all of the
results expected.

Commission Vice‑President Jacques Barrot, in charge of Justice, Freedom
and Security, said: 'European citizens rightly view combating
international drug trafficking as a priority for the European Union, and
this instrument indeed constitutes a first step towards a common
approach in combating drug trafficking. Yet, the real progress made in
this area on certain points has been diminished in particular by the
lack of response by Member States.'

The Framework Decision defines the offences of trafficking in drugs and
precursors and provides for effective, proportionate and dissuasive
penalties in all Member States. For drugs, the maximum penalties,
depending on the seriousness of the offence, must range from
imprisonment for at least a year (for a standard offence) to at least
ten years (for a serious offence committed as part of a criminal
organisation).  In establishing a common area of freedom, security and
justice, enhanced cooperation between Member States is based on a set of
shared principles and goals and thus essentially depends very largely on
national measures of implementation being brought into line with each other.

The first thing to emerge from the report is that, five years after the
entry into force of the instrument, its transposition has not yet been
completed: six Member States either provided no information to the
Commission, or informed it that reforms were under way (Cyprus, Greece,
Italy, Malta, Spain and the United Kingdom). The results for the
remaining 21 Member States were mixed: as far as defining the offence
and the level of penalties are concerned, the degree of transposition
was satisfactory overall, thanks principally to the compliance of
pre‑existing legislation. There is, however, still some ambiguity, and
certain provisions which do not comply with the instrument remain. As
for penalties, compliance with the levels laid down by the Framework
Decision gives no indication of judicial practice. Indeed, it is
apparent from the contributions from the European Judicial Network and
Eurojust that, while solid progress has been made in judicial
cooperation on drug trafficking in recent years, the link between this
improvement and any approximation brought about by the Framework
Decision is difficult to prove.

It can therefore be concluded that, while the Framework Decision laid
the first stone of a common approach to combating drug trafficking at
European Union level, significant progress still needs to be made.
----------------------

To download the report in different languages:
COM/2009/0669 FIN
REPORT FROM THE COMMISSION on the implementation of Framework Decision
2004/757/JHA laying down minimum provisions on the constituent elements
of criminal acts and penalties in the field of illicit drug trafficking
http://www.ipex.eu/ipex/cms/home/Documents/doc_COM20090669FIN
---------------------

MEMO/09/548
Brussels, 10 December 2009

Commission report on the implementation of Framework Decision
2004/757/JHA laying down minimum provisions on the constituent elements
of criminal acts and penalties in the field of illicit drug trafficking.

The Commission today adopted the report on the implementation of the
Framework Decision on drug trafficking, which sets out to establish
minimum rules on the constituent elements of the offences of illicit
trafficking in drugs and precursors and the penalties incurred.

Legal context

Article 9 of the Framework Decision calls on the Commission to submit a
report to the European Parliament and to the Council on the functioning
of the implementation of the Framework Decision, including its effects
on international judicial cooperation in the field of illicit drug
trafficking.

Policy context

The Framework Decision is part of the EU's overall anti-drug strategy
which aims to strike a balance between measures to reduce demand and
measures to combat supply.

The third of the five sections of the EU Action Plan on Drugs 2009-2012
covers reducing supply: this report is fully in line with Objective No
12, which involves enhancing judicial cooperation in the area of
trafficking of drugs and precursors.

Issue at stake

Drug trafficking is a cross-border threat against which cooperation
between Member States' law enforcement authorities is essential. In
order to be effective, this cooperation must first be based on a common
approach to the threat.

The Framework Decision accordingly provides a basic common framework for
the definition of offences and penalties.

Conclusions

The report has highlighted the similarities between national laws as
regards the definition of offences involving the trafficking of drugs
and precursors. However, ambiguities remain which inevitably jeopardise
judicial cooperation.

The core of the system is the scale of penalties established by Article
4 according to the gravity of the offence. The report shows that the
maximum penalties in the Member States are all at least the same as, if
not much higher than, those stipulated in Article 4. Member States take
account of factors such as large quantities, harm to health or criminal
organisation to varying degrees.

Most Member States have clarified their penalty reduction system and six
of them have a specific system for offenders cooperating with the
authorities.

The liability of legal persons in the context of drug trafficking
remains a problem:  leaving aside those Member States which have no
legal framework establishing such liability, several others provided
insufficient information to check the compliance of their provisions.

At a practical level, Eurojust analysed the drug trafficking cases that
it recorded between 2004 and 2008 and found that there has been a marked
increase. This reflects clear progress made on judicial cooperation.
However, in the light of the replies provided by the contact points of
the European Judicial Network in ten Member States, it is difficult to
establish any link between this progress and implementation of the
Framework Decision.  It is also clear from these replies that the tools
needed for an objective assessment of how this cooperation has developed
do not exist.

In short, the Commission notes that although the Framework Decision does
mark the first step towards a common EU criminal law approach to drug
trafficking, it has not brought about a substantial approximation of
national laws. Furthermore, since criminal law is involved, there is
always the problem of the gap between legal texts and judicial practice.
--
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Transnational Institute (TNI)
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http://www.tni.org/drugs
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