De Facto Legalization IE Prohibition With An Expediency Principle The Netherlands

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Cannabis possession is technically illegal and prohibited under the Dutch drug control law enshrined in the country's criminal code. Under the 'expediency principle' applying to criminal procedures, the prosecution may decide whether or not to enforce the law against certain offenses on the basis of whether this action would be 'in the public interest' (Chatwin, 2003; Duncan & Nicholson, 1997). This approach has resulted in a system of de facto legalization of cannabis use in the Netherlands, where personal cannabis use is actively tolerated within specific parameters, i.e. not followed by sanctions or interventions. These include the home, and also the unique institution of officially sanctioned and regulated so-called coffee shops existing in numerous Dutch municipalities, where cannabis can openly be consumed and small amounts of cannabis (e.g. up to 5g per day) for personal use can be purchased (Chatwin, 2003; MacCoun & Reuter, 1997; Van Dijk, 1998).

Cannabis use or sale outside of the regulated spaces of coffee shops are followed by police warnings or fines. In other words, personal cannabis use and supply to the end consumer in the Netherlands is regulated similarly to alcohol or tobacco use in many jurisdictions, and it has been suggested that this 'regulation' scheme applied may result in a tighter way of controlling where and how cannabis is used than punitive prohibition (Uitermark 2004).

One of the major benefits cited for the legally tolerated provision of cannabis through the coffee shop system is that it is effecting a 'separation of drug markets', i.e. that cannabis is largely traded in an environment not featuring the availability of so-called 'harder drugs', hence reducing cannabis users' possible exposure to them (Pakes, 2004; Reinarman & Cohen, 2004; MacCoun & Reuter, 1997; van Vliet, 1990). There are national guidelines about the running of the cannabis coffee shops, yet decisions about how they are implemented are made at the local level by a local board usually involving the mayor, the chief prosecutor and the head of police. This 'three pillars' system means that the details of local cannabis use control policy differ from area to area, and, at least in theory, is responsive to local community concerns and interests.

Whilst the guidelines for the retail of cannabis through the coffee shop, such as no sale to minors, no public nuisance and no sale or use of other illicit drugs, have been tightened over the years and appear to work without major problems, problems have been reported with the control of the wholesale supply to the vending outlets (Uitermark 2004; Polak, 1998). Often referred to as the 'backdoor problem' of Dutch cannabis policy, grower and supplier networks have formed to meet the existing cannabis demand, yet do not operate in a legally endorsed space or activity (de Kort & Cramer, 1999; Pakes, 2004).

This tenuous basis of the cannabis supply business is difficult for suppliers, in that they do not have access to loans or insurance or tax credits, and for regulators and enforcement, who find it hard to police a phenomenon that is necessary to respond to the tolerated personal consumption of cannabis, yet is illegal and violating standing law at the same time (Lenton et al., 2000a). Furthermore, the Netherlands has been subjected to pressure from some of its European neighbours, the European Union, the United Nations Drug Control Program, the USA, and other countries which adopt a more prohibitionist approach to cannabis, to change its drug policy (Lemmens & Garretsen, 1998; Chatwin, 2003; Boekhout Van Solinge, 1999; Chatwin, 2007). The pressure has been justified on the grounds that the Netherlands policy 'undermines domestic drug policy' (e.g. in the USA), stimulates cross-border drug tourism, and undermines international collaborative efforts to reduce illicit drug use, production and trafficking.

These pressures in recent years have also led to modifications towards considerably tighter regulations regarding the operation of coffee shops, a reduction in their numbers, as well as a more stringent enforcement approach towards cannabis use outside of the tolerated areas of cannabis consumption in the Netherlands. Furthermore, commentators have observed that the current model of Dutch cannabis control policy may not be tenable or desirable in the long run, since it is based on a fundamental disjuncture between normative law and control practice, and hence the law should either be revised to reflect the given liberal practice, or be enforced in the spirit of its prohibitive norms (Uitermark 2004).


In German law, cannabis-related offences - like all offences relating to illegal psychoactive drugs - are prohibited by the country's federal narcotics control law, and punishable by a fine or up to 5 years imprisonment. However, following the so-called 'cannabis decision' of the German Constitutional Court in 1994, subsequent to an appeal citing the disproportional approach of criminalizing cannabis use next to the legal availability of alcohol and tobacco, Germany embraced a predominant approach of de facto legalization of cannabis use. The main basis for this approach are chief prosecutors' directives in most of Germany's states - based on the so-called 'opportunity principle' enshrined in the German legal system - for non-prosecution of small amounts of personal cannabis possession under the drug control law. As a result of these developments in Germany, police have increasingly abstained from proactive cannabis use enforcement, even though German law obliges them to consistently enforce the law as written, and only the prosecutor holds the formal discretion to decide against prosecution (Bollinger, 2004).

While the drug control law is a matter of federal jurisdiction, the states ('Länder') are responsible for the administration of justice, and there is a considerable variation between jurisdictions in the guidelines defining how minor cannabis offences are processed under the new non-prosecution practices (Pacula et al., 2005). Recent research has furthermore documented that the application of these differential guidelines has been producing rather heterogeneous outcomes (Aulinger, 1997; Schafer & Paoli, 2006). For example, while the maximum amount of cannabis eligible for non-prosecution for possession ranges from 3 grams (BadenWürttemberg) to 30 grams (Schleswig-Holstein), several states' directives require non-prosecution for these amounts, whereas in the majority of states this is optional and at the discretion of the prosecutor's office on a case-by-case basis. On these grounds, it has been found that the proportion of cannabis possession cases which continue to be prosecuted despite being eligible for non-prosecution has ranged from 10% to 60% across states in Germany (Schafer & Paoli, 2006). The decision as to whether prosecution should take place has been found to be most strongly influenced by the offender's criminal record, the number of previous offenses, substance amounts involved, and other circumstances of the offense (Schafer & Paoli, 2006). The proportion of cannabis possession cases which are not prosecuted without any further requirements (e.g. treatment orders etc.) also varied widely, ranging from 26% to 73% across the states. The authors thus conclude that a "consistent application" of current cannabis non-prosecution practices in Germany only exists in a small minority of very specific case scenarios where the offender is "at least 20 years old, has no criminal record and the offense was not characterized by aggravating circumstances" (Schafer & Paoli, 2006).


In Austria, similarly to Germany, cannabis possession is, in technical terms, criminally prohibited by the narcotics control law. However, on the basis of prevention and treatment clauses introduced into the drug law, prosecution will not take place, especially if the person has not previously come to police attention for cannabis use and is not seen as in need of treatment. This renders personal cannabis possession largely legal on a de facto basis (European Database on Drugs, 2004a).


In Spain, possession or consumption of illegal psychoactive drugs - including cannabis - is technically prohibited by law, yet does not result in enforcement or punishment, especially when involving small amounts and/or use in private places (van het Loo et al., 2003). Possession and use in a public place is subject to administrative sanction (e.g. suspension of driver's licence) or a fine (EMCDDA European Monitoring Centre for Drugs and Drug Addiction, 2007). According to Gamella and Rodrigo (2004), this is the result of changes introduced in 1983 which decriminalised the use of all drugs and established a two-tiered legal system for production and supply of illegal drugs based on their perceived harmfulness, with cannabis in the 'softer drug' tier. However, since 1992 those carrying cannabis in public run the risk of being apprehended by police and fined. This is thought to be a key driving force behind the increasing popularity of home cultivation of cannabis since the mid-1990s (Gamella & Rodrigo, 2004).

'De jure' legalization United States

In 1975, the Alaska Supreme Court ruled that the state constitution's privacy protections barred the state from criminalizing adults possessing and consuming small amount of marijuana in the privacy of their homes. The legal decision thus stipulates a form of spatially restricted 'legalization' of personal use within this context. In the long legal and legislative struggle which has ensued, the courts have not strayed from this position, despite a voters' initiative to overturn it in 1991 and 2006 legislation to recriminalize possession. The issue is again back before the state Supreme Court in 2008. (


In Colombia, the personal possession of small quantities (e.g. <20 grams) of any psychoactive drug is legal by law, following a Colombian Supreme Court ruling in May, 1994 that the law infringed on a person's constitutional right to self-development and expression. However, as in Alaska, the political process moved to limit the effects of the decision, passing "a series of decrees banning drug use later that same month...The decrees ban drug use almost everywhere except in the home" (Gouvis Roman et al., 2005:69).


In Switzerland, the currently existing federal narcotics law makes cannabis possession and use a criminal offense. The law's enforcement with regards to cannabis use differs between cantons, yet in recent years has become more restrictive, with increasing numbers of charges for personal use/possession (Eidgennossische Kommission fur Drogenfragen, 2008; van het Loo et al., 2003). In 2006, more than 33,000 arrests for cannabis use offences have been reported, constituting approximately 70% of all arrests under the narcotics law (Bundesamt für Polizei, 2007).

A government proposal for a comprehensive reform of the narcotics control law was to introduce de jure changes exempting personal cannabis possession and use from any penalties and also to allow some cultivation and trade for personal use under certain conditions (Schweizer Bundesrat, 2001). This proposal was introduced into the Swiss Parliament in 2003 (van het Loo et al., 2003) (Kapp, 2003), but rejected in 2004 (Geiser, 2007).

This proposed initiative for the reform of legal control of cannabis use in Switzerland may be considered unique in Western countries, in that it provided for an explicit framework that sheltered personal cannabis use from any punitive consequences by law (Fischer et al., 2003). However, the initiative in the end did not find the necessary political and public support, in a situation with some indications of rising cannabis rates, e.g. among Swiss teenagers, over the period of the past decade (De Preux et al., 2004).

More recently, the Swiss 'Hemp Initiative' - an effort mainly driven by NGOs and diverse interest groups in the drugs field in Switzerland - drafted a proposal which again proposes to legalise personal cannabis use as well as to create a system of government-regulated cannabis distribution. Under the unique Swiss political system, this proposal needed to be put before a parliamentary vote and a public referendum. In March 2008, the initiative was barely defeated by both chambers of the Swiss parliament, and it is also expected to be rejected by the Swiss public in the upcoming referendum (NZZ Online 2008; Geiser, 2007).

In response to the Hemp Initiative's cannabis law reform proposal, the Health Committee of the Swiss National Council (federal government) announced a counter-proposal in January 2008, which also intended to stipulate that personal cannabis possession and use for adults without risk to others to be exempt from any penalties, i.e. proposing a framework of de jure legalization for personal cannabis use (NZZ Online, 2008). However, this proposition also did not find sufficient support within the government, and hence did not go forward. These various failures of initiatives for cannabis law reform in Switzerland mark a decade-long period of such reform efforts without concrete successes, and commentators suspect that material reforms are unlikely to come in the near future (NZZ Online 2008).


There are long traditions of use of cannabis in various forms in India for religious and medical as well as sociable purposes. The 1961 Single Convention provided for a 25-year grace period by which time nonmedical use was to be discontinued, and accordingly the Indian Narcotic Drugs and Psychotropic Substances Act of 1985 outlawed customary use of cannabis, with the exception that drinks made from cannabis leaves (bhang) were allowed (Charles et al., 2005). Use of such drinks is particularly associated with the celebration of the festival Holi in March and Baisakhi in April (Wikipedia, 2008). Bhang is sold in a number of Indian states; travel guides list the states of Uttar Pradesh, Rajasthan, Madhya Pradesh, Uttarakhand and Orissa (Wikitravel, 2008). Bhang lassi, a yogurt- or milk-based drink, is the most common form, but cookies, chocolate, curries and a smokable form can also be found on sale in shops marked as "Government-authorized bhang shops". As with alcohol shops in some Indian states, authorizations to run these shops are periodically sold by auction as a control measure and source of state revenue.

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