Cannabis - Legal or not?

Author:Ovidiu - Horia Maican
Position:University Lecturer, Ph. D, Academy of Economic Studies, Law Department, Bucharest, Romania
Pages:102-118
SUMMARY

Since 1990, the aim of legislation has been to shorten or to eliminate prison penalties for minor cannabis possession offences. Primarily, legislative changes were applied to the caliber of penalty to ascertain that the sentences were consistent, their astringency corresponded with the health risks associated with different drugs, and to ascertain that rehabilitation (treatment) was given precedence ahead of penalization. No EU member state has removed all penalties nor have they made the supply of cannabis licit. More recently, decriminalisation or legalisation of recreational cannabis use is being debated among a number of EU member states. There is no uniform approach to targeting cannabis offences. In fact, considerable disparities were illustrated in how countries discern laws and penalties for cannabis sale or use. For legislative purposes, EU member states either treat all drugs identically, or view cannabis offences not so dangerous, or in some cases more astringent penalties are applied. Since 2000 aproximately 50% of EU member states altered legislation that targeted cannabis use. The impact on cannabis use is obscure, as no rigorous scientific evaluations were carried out to determine the efficacy of the legislative changes.

 
CONTENT
102 OVIDIU-HORIA MAICAN
EU HEALTH LAW
CANNABIS - LEGAL OR NOT ?
Ovidiu – Horia MAICAN,
University Lecturer, Ph. D, Academy of Economic Studies, Law Department,
Bucharest, Romania, ovidiuszm@yahoo.com
Abstract
Since 1990, the aim of legislation has been to shorten or to eliminate prison penalties
for minor cannabis possession offences. Primarily, legislative changes were applied to the
caliber of penalty to ascertain that the sentences were consistent, their astringency
corresponded with the health risks associated with different drugs, and to ascertain that
rehabilitation (treatment) was given precedence ahead of penalization. No EU member
state has removed all penalties nor have they made the supply of cannabis licit. More
recently, decriminalisation or legalisation of recreational cannabis use is being debated
among a number of EU member states.
There is no uniform approach to targeting cannabis offences. In fact, considerable
disparities were illustrated in how countries discern laws and penalties for cannabis sale or
use. For legislative purposes, EU member states either treat all drugs identically, or view
cannabis offences not so dangerous, or in some cases more astringent penalties are applied.
Since 2000 aproximately 50% of EU member states altered legislation that targeted
cannabis use. The impact on cannabis use is obscure, as no rigorous scientific evaluations
were carried out to determine the efficacy of the legislative changes.
Keywords
European Union, cannanbis, national legislations, European legislation
Introduction
The current legal and political straitjacket in Europe is very difficult to
reconcile with the request of local ascendant entities to efficaciously regulate the
supply of cannabis for recreational utilize as an alternative to the negative
consequences of the current restrictive arrangements. It would designate that
European states would have to infringe the UN conventions, just as Uruguay and
Law Review vol. IX, issue 1, January-June 2019, pp. 102-118
Cannabis: legal or not? 103
the federal US government have done. This is not infeasible, but would require
political will to do so. As in the US, different policies regarding personal use and
possession for personal use already subsist in Europe, from de jure
decriminalisation in Portugal and the Czech Republic to full preclusion in Sweden,
as well as intermediate de facto decrimi¬nalisation in countries such as the
Netherlands, Belgium, Luxembourg, Switzerland, Germany and Spain. The
question is why this could not be elongated to regulating cultivation practices.
1. General aspects
During 2017 in Italy the utilization of cannabis for therapeutic functions was at
the middle of the political and social discussion. 1
The Senate of Italy approved the Law Decree S.2947 “Provisions regarding the
cultivation and administration of medical cannabis” . The law regulates the
utilization of medical products of cannabis vegetable origin. The article two of the
legal provision explains that ‘medical use’ means that the administration of
cannabis-based medicines prescribed when an appropriate patient can receive
acceptable treatment. The prescription ought to conjointly report the date of issue,
the length of the individual treatment, that in any case cannot exceed 3 months, yet
because the signature and therefore the stamp of the doctor who issued it. 2
The use of Cannabis for therapeutic functions in European Union legislation is
inconsistent on the utilization, cultivation and possession of cannabis. The 3 UN
international conventions on medicine - to that the EU adheres authorize the
utilization of drugs just for medical or scientific functions. The 1988 Convention
considers “detention for private use” as against the law.
Cannabis is unlawful in France, Italy, Poland, Bulgaria, Cyprus, Denmark,
Croatia, Finland, nice United Kingdom, Luxembourg, Malta, Romania, Sweden,
Austria, Latvia, Slovakia, Slovenia, Lithuania, Belgium, Hungary. 3
It's legal within the European Union only in Netherlands and it's
decriminalized in Germany, Portugal, Spain, and Estonia
Since the last thirty years, cannabis has been the foremost studied plant within
the field of drugs for its therapeutic properties during a big selection of medical
conditions,. 4
The European Parliament launched 2 commissions to analyze the totally
different approaches toward illicit medicine, with a read to determine a european
position. The results of each commission, however, were inconclusive 5
1 See S Zaami, A. Di Luca, N.M. Di Luca, G Montanari Vergalo, Medical use of cannabis .Italian and
European legislation, European Review for Medical and Pharmacological Sciences, nr. 22/2018, p. 1165
2 See S Zaami, A. Di Luca, N.M. Di Luca, G Montanari Vergalo, Op. Cit, p. 1165
3 See S Zaami, A. Di Luca, N.M. Di Luca, G Montanari Vergalo, Op. Cit p. 1166
4 See S Zaami, A. Di Luca, N.M. Di Luca, G Montanari Vergalo, Op. Cit p.1166
5 See C. Chatwin, Mixed Messages from Europe on Drug Policy Reform: The Cases of Sweden a nd the
Netherlands, Journal of Drug Policy Analysis, nr 11(1)/2016, p. 2
104 OVIDIU-HORIA MAICAN
2. The situation of Sweden and Netherlands
In Sweden, with its robust state and long-established strict alcohol policy, drug
policy is control-oriented and moral, in operation as a cross-political party issue
wherever the policy is supported by wider society in its totality. 6
The final aim is to attain a drug free society, that has resulted during a stricter
policy than that of most differentEuropean countries. National drug laws don't
create a distinction between soft and arduous medicine looking on harm. Cannabis
use is treated seriously because itis taken into account a “gateway” to the
utilization of different medicine. Policing ways make sure that drug users are
targeted with the maximum amount vigor as drug dealers and traffickers.
Membership of the European Union currently needs that minimum levels of
damage reduction measures (needle distribution/exchange programs and
maintenance treatment programs) toward drug users are offered. the amount of
those programs on the market. 7
In Netherlands, meanwhile, since the late Sixties, national drug policy has
accepted the certainty of some drug use among society and has thus aimed to
normalize the users of illicit substances, instead of to eradicate them from society.
As such, damage reduction and low threshold services are prioritized.
Netherlands is commonly thought of as being at the forefront of drug policy
reform because of its distinctive ways that aim to separate the markets between
cannabis and different medicine that are thought of a lot of harmful. 8
Since the Seventies, the utilization and sale of tiny amounts of cannabis has
been tolerated within Netherlands below the principle of advantage.
That means whereas the sale and possession of cannabis stay illegal , within
the public interest to prosecute wherever comparatively tiny amounts are
concerned; this can be an endeavor to control among the reach of international
organization conventions on illicit medicine.
This policy distinction has allowed a system of business premises, wherever
the sale and open use of cannabis product is tolerated, to emerge organically. 9
These premises are called “coffeeshops” and are regarded by several as having
been sure-fire in “separating the market” for cannabis from the illegal markets in
additional harmful illicit substances, like diacetylmorphine or crack hard drug.
Over the years, coffeeshops are subjected to increasing rules. As an example,
cannabis will be sold solely to those aged eighteen and over, restrictions are placed
on the number of cannabis that may be sold to a private client at just the once (5
grams) which will be unbroken during a coffeeshop (500 grams), and coffeeshops
6 See C. Chatwin, Op. Cit, p. 2
7 See C. Chatwin, Op. Cit, p. 2
8 See C. Chatwin, Op. Cit, p. 3
9 See C. Chatwin, Op. Cit, p 3
Cannabis: legal or not? 105
aren'tallowed to advertise themselves, to cause undue nuisance, or to allow the
sale of any illicit medicine apart from cannabis. important inconsistencies stay,
however, as there's no provision for the availability of cannabis to coffeeshops. 10
Whereas “front door” sales are legitimized, the “backdoor” cultivation of
cannabis remains entirely part of the illegal market. The coffeeshop policy has long
attracted external criticism and is currently subject to internal tries to more limit
the change cannabis. Aas an example, this government has created tries, although
not entirely sure-fire ones, to limit the sale of cannabis to Dutch voters in a trial to
curb drug business enterprise, and has expressed its intention to proscribe sales of
cannabis that have a 15 percent or higher psychoactive drug (THC) content.
whereas recognizing the issues inherent within the Dutch approach, and despite
recent tries from the govt to extend controls, the bulk of the general public favors
extending the regulation of the cannabis market.11
These temporary shows of illicit drug policy in Scandinavian nation and
therefore Netherlands demonstrate the emergence of 2 distinct paradigms of drug
management in Europe, the liberal, pragmatic policy of Netherlands with the first
aim of damage reduction for the users, and therefore the a lot of moral and
restrictive policy of Sweden that aims to eradicate drug use from society. A
historical exploration of drug policy reveals a established and enduring
commitment to national drug policy within the 2 countries, that sit at either finish
of the drug policy spectrum among the EU. These factors create it nearly not
possible for the EU to adopt a typical position on the desirability of drug policy
reform. 12
Swedish authorities have systematically reported a comparatively low
prevalence of illicit drug use among the final population. within the most
up-to-date figures, fifteen per.cent of the final population reported having used
cannabis a minimum of once in their lifetime. The swedes stay below the EU
average (21,7 percent). Earlier figures for different substances show equally low
levels of prevalence. it's price noting here, however, that drug users are a
considerably stigmatized in Sweden and motivation levels to participate in surveys
on prevalence rates is also rather low. Apparently, whereas several European
countries have reported a decline in overall drug use over the previous few years,
and significantly in cannabis use, Scandinavian nation has seen tiny will increase
in these areas. 13
Knowledge from Sweden shows that (unusually for Europe) the primary drug
related to dependence and injecting is stimulant. The amount of dependent users
(most recent estimates recommend around 30.000 people) and injecting users (most
10 See C. Chatwin, Op. Cit, p. 3
11 See C. Chatwin, Op. Cit, p. 3
12 See C. Chatwin, Op. Cit,.p. 3
13 See C. Chatwin, Op. Cit, p. 4
106 OVIDIU-HORIA MAICAN
recent estimates recommend around 8000 people) in Sweden are quite high
considering the low range of individuals who have tried medicine normally. this
implies that a reasonably high proportion of individuals who strive medicine
likediacetylmorphine and amphetamines persist to become problematic in their
use. 14
The number of drug-related deaths reported in Sweden (62,6 per million
people) is over thrice the EU average (17,1 per million people), and therefore the
most up-to-date knowledge shows that drug-related deaths are increasing. Levels
of HIV are stable, however hepatitis B and C are relatively high, with one supply
describing a recent epidemic of viral hepatitis among injecting drug users in
Stockholm, and numerous studies conducted throughout the last fifteen years
showing terribly high levels of viral hepatitis among injecting drug users a lot of
loosely though the whole range of reported cases is decreasing,.
Perhaps unsurprisingly, Sweden records a comparatively high range of
offenses against the drug law compared with the EU average. 15
Proponents of Swedish drug policy are fast to purpose to the low prevalence of
drug use within the country as proof of its sure-fire nature normally.
Data on the prevalence of drug use within the Netherlands records that twenty
five percent of the final population reported having used cannabis a minimum of
once in their period of time, that is slightly on top of the EU average (21,7 percent).
Historical knowledge demonstrates that levels of cannabis use have enhanced
since the introduction of the “separation of the markets” (coffeeshop) policy,
however that these will increase are in line with European trends. most up-to-date
estimates of period of time prevalence of ecstasy use within Netherlands are 6,2
percent, that is almost double the EU average (3,2 percent). Despite the high levels
of ecstasy use, some supporting proof for the success of the “separation of the
markets” policy comes from a survey within which simply fourteen p.c of cannabis
users within the Kingdom of The Netherlands report that different medicine are on
the market from their usual cannabis supply (compared to 52 percent in Sweden).16
In 2013, the amount of problematic narcotic users was calculated at 14000 (3,1
per thousand people), that suggests a decrease of 21 percent compared to the
previous estimate for 2009. These rates are not up to those of the many different
European countries. Moreover, the info demonstrates an ageing of the dependent
individual population, that indicates that fewer youngsters have become keen
about medicine. the amount of injecting drug users is additionally declining within
theKingdom of The Netherlands, with recent figures suggesting that solely seven
p.c of narcotic users have recently injected the drug, the lowest rate all told of
Europe. These results give clearer proof of success of the “separation of the
14 See C. Chatwin, Op. Cit, p. 4
15 See C. Chatwin, Op. Cit, p. 4
16 See C. Chatwin, Op. Cit, p. 5
Cannabis: legal or not? 107
markets” policy, that aims primarily to stay the cannabis market detached from the
marketplace for a lot of harmful medicine like diacetylmorphine.17
The number of drug-related deaths within Netherlands remains low (10,2 per
million individuals). Mortality comparisons should be created cautiously as a
result of drug-related death is outlined otherwise across Europe; but, these figures
are low in terms of European averages (17,1 per million people). 18
A decreasing shareof the deceased were aged twenty five years and younger.
Levels of HIV, hepatitis B, and viral hepatitis infections also are usually low within
Netherlands with solely 5 percent of HIV infections related to injecting drug use,
and a really low (0,4 per million people) incidence of HIV among injecting drug
users. Recent knowledge indicates a considerable increase within the range of
individuals seeking medical treatment for ecstasy-related emergencies, and
suggests a rise within the average methylenedioxymethamphetamine concentration
in ecstasy tablets in recent years. 19
Recent analyses of Dutch illicit drug treatment knowledge show no clear
trends over the past few years. From 2002 to 2010, the annual range of latest
shoppers applying for facilitate at drug treatment services varied between 8,000
and 11,000 people. Since the late 60 “s, the Dutch government has invested with in
comprehensive health and social services that aim to cut back the number of
individual and social damage caused by illicit drug use. Low threshold treatment
services, maintenance treatment programs, needle exchange programs and, a lot of
recently, safe consumption rooms all proliferated earlier within the Netherlands
than in most different European countries and currently get pleasure from a better
coverage than in most of Europe. 20
Although the range of controlled substance Act cases restricted by the police,
prosecuting attorney, and courts enhanced in 2012, arrests and convictions for
possession of illicit medicine are terribly low within Netherlands compared to
different European nations. Arrests leading to criminal records for cannabis
possession are extraordinarily rare within Netherlands.
Supporters of Dutch drug policy purpose primarily to its successes in 2 areas.21
One is the low range of dependent drug users, the low range of injecting drug
users, the low range of drug-related deaths, the low levels of HIV and different
infectious diseases found among the drug exploitation population, and therefore
the ageing of the dependent drug exploitation population.
The second is the effective nature of the “separation of the markets” policy,
citing statistics that show low average cannabis use levels among the final
17 See C. Chatwin, Op. Cit, p. 5
18 See C. Chatwin, Op. Cit, p. 6
19 See C. Chatwin, Op. Cit, p .6
20 See C. Chatwin, Op. Cit, p. 6
21 See C. Chatwin, Op. Cit, p. 6
108 OVIDIU-HORIA MAICAN
population (both in absolute terms and relative to several countries that don't use a
coffeeshop system), yet as low levels of dependent drug use. The low levels of
arrests and criminal records associated with the possession of illicit medicine have
conjointly been recommended. Current issues embrace the amount of ecstasy use,
the strength of ecstasy found among The Netherlands, the involvement of Dutch
within the cultivation of cannabis and therefore the production of artificial drugs—
including for export to different countries—and the general public nuisance and
drug business enterprise related to the coffeeshop system. 22
Coffeeshops are focused in giant cities within the north of the country and
attract several non-Dutch guests, significantly in border regions. There also are
considerationsregarding the involvement of criminal organizations in cannabis
cultivation and wholesale provide (which stay illegal within Netherlands, despite
the lawmaking of use). restricted on the market proof suggests, however, that these
aren't significantly violent markets. As an example, the dutch murder rate has
remained stable at regarding one per a 100,000 individuals over the last ten years,
an occasional level compared to world and regional rates. 23
Since 1995, the EMCDDA (European Monitor on Drugs and Drugs Addiction)
has been aggregation and diffusing statistics on the character of the illicit drug
downside in several EU member states.
This knowledge collected by the EMCDDA isn't perfect
Given these 2 totally different paradigms of illicit drug policy operative, it's
been systematically troublesome for European establishments to engender a
harmonized European drug policy or to gift a alliance in world debates regarding
drug policy reform. 24
Despite the variations printed on top of, there are some vital similarities in
swedish and dutch drug policy that also are shared by most European countries. as
an example, political corruption and extreme drug market-related violence tend to
not be important problems; drug production tends to be confined to cannabis
cultivation and therefore the production of artificial drugs; and drug traffic is
treated severely, a minimum of in Western terms.
But the Swedish and Dutch approaches to the management of illicit drug use
and drug users are basically incompatible. Instead, the previous has compete a
guiding role in developing a framework among that national drug policy has
developed and therefore the latter has powerfully inspired and affected the
analysis of individual drug management measures, the convention of
cross-national networks of consultants, and therefore the sharing of best practices.
Below this guiding framework, several terribly totally different responses to the
drug downside (the intolerance approach of Sweden, the coffeeshops of
22 See C. Chatwin, Op. Cit, p. 6
23 See C. Chatwin, Op. Cit, p. 6
24 See C. Chatwin, Op. Cit, p. 7
Cannabis: legal or not? 109
Netherlands, the lawmaking of possession for private use of all medicine in
Portugal, and therefore the cannabis clubs that began in Spain) are allowed to
bloom in a trial to search out effective responses to the utilization and provide of
illicit medicine. 25
In recent years, several voices from round the globe have challenged the
continued validity of the prevailing international organization drug conventions,
significantly in lightweight of cannabis regulation systems rising within the U.S.
states of Colorado and Washington, and in South American nation. This section
examines the swedish and dutch positions on the reform of international
organization conventions and therefore the implementation of a completely
regulated cannabis market. 26
The read from Sweden is comparatively simple. Drug policy remains a
cross-party political issue and therefore the prevailing feeling, supported by the
UNODC (United Nations Organization on Drugs and Crimne) report Sweden’s
sure-fire Drug Policy, is that there's no reason to amend the comparatively
restrictive policy ways that are used thus far. every of the most political parties is
in agreement that the final word vision of “a drug free society” ought to stay.
Therefore, there exists no legitimized discussion on the relief of cannabis laws
within thestyle of the lawmaking of possession for private use, the allowance of
alittle range of plants cultivated for private use, or the introduction of cannabis
clubs or collectives wherever medium-scale cultivation of cannabis is tolerated, as
has been determined in different European countries. 27
The situation within Netherlands is a lot of sophisticated as opinions aren't
universal and intrinsically, no formal stance on the reform of the international
organization conventions has been expressed. In terms of the cannabis market, the
recent Dutch reforms and projectedreforms to the coffeeshop system (the partial
implementation of the limitation of cannabis sales to Dutch voters who are
registered as members of a specific search, and therefore the plans to limit sales of
cannabis with a psychoactive drug content bigger than fifteen percent), yet because
the decreasing range of coffeeshops seen recently within the Netherlands
normally, have light-emitting diode some to believe that the Dutch are undergoing
a modification of cannabis policy. This has been attributed to the very fact that the
Dutch have skilled a high degree of drug-related business enterprise that, among
different factors, has contributed to a cut tolerance for the general public nuisance
that may be caused by a preferred coffeeshop or by a liberal national drug policy
normally. 28
25 See C. Chatwin, Op. Cit, p. 7
26 See C. Chatwin, Op. Cit, p. 8
27 See C. Chatwin, Op. Cit, p. 8
28 See C. Chatwin, Op. Cit, p. 8
110 OVIDIU-HORIA MAICAN
Despite these progressively restrictive measures that are mostly enforced
below a right government and a conservative medicine minister, the proof
suggests there'simportant support by the final public and native government for a
lot of radical cannabis policy reform. whereas Netherlands already operates a
national cannabis policy that has long been viewed together of the foremost liberal
within the world, it's become progressively evident that a regulation of the
utilization, possession, and small-scale sales of the drug doesn't create abundant
sense whereas the availability of cannabis to coffeeshops remains illegal (i.e., the
“backdoor” problem).
The new public opinion surveys within the Netherlands have cited increasing
levels of support for the total group action of cannabis. The two terribly totally
different views on drug policy reform explored here—both in terms of reform of
the international organization conventions and of cannabis market regulation—
illustrate the deep divide in Europe over these problems. Despite representing
opposite ends of the ecu drug policy spectrum, neither Sweden nor Netherlands is
totally isolated in their national drug ways and each are comparatively assured of
the deserves of their several positions. Presenting a united
European position on matters of drug policy reform thus becomes a really
troublesome issue. 29
From a world perspective, the character of the illicit drug state of affairs within
Netherlands and Sweden nation is comparatively similar. eachcountries are
primarily shopper countries. Both expertise illicit drug use among the final
population yet as dependent drug users with the attendant issues of death, disease,
and crime; and neither are beset by extraordinarily violent drug markets or
drug-related political corruption skilled in places like geographic region. Sweden
has adopted a cross-political party inhibitory and negative stance on drug use all
told its forms, and works toward the final word goal of a sober society. Plans to
show a lot of tolerance toward the utilization of cannabis and/or cannabis markets
normally are nonexistent and support for the prevailing international organization
conventions is high. 30
The Netherlands has long operated a national drug policy thought of to be
among the a lot of radically liberal, that accepts the certainty of some drug use in
society and which works toward reducing the damage skilled by drug users.
considerably, Netherlands has long adopted a semi-regulated cannabis market in a
trial to separate the markets between cannabis and different medicine. There's
some proof to recommend this technique is presently being subjected to new
restrictions, however a radical examination reveals robust support from the final
public and native level politicians for extending the regulation of the cannabis
market to conjointly cover wholesale provide.
29 See C. Chatwin, Op. Cit, p. 9
30 See C. Chatwin, Op. Cit, p. 9
Cannabis: legal or not? 111
Small increments toward harmonization are achieved. As an example, the
introduction of minimum-maximum penalties for drug traffickers, and therefore
the introduction of minimum commonplace damage reduction measures across
European member states. These achievements, however, don't stand to contribute
toward debates over whether or not laws per cannabis markets ought to be relaxed
or whether the prevailing international organization conventions must be
redrafted. 31
Only if no country within the world has been fully, or perhaps considerably,
sure-fire in eradicating illicit medicine and their attendant issues from society, the
assembly of a spread of responses to the illicit drug downside will be viewed
during a positive lightweight. Whereas no technique of drug management has
been judged to be ultimately sure-fire, it doesn't add up to limit the response
choices on the market, significantly wherever totally different world geographical
locations expertise terribly different expressions of the matter. 32
The success of a world drug policy that permits “many flowers to bloom”
needs the liberty of individual countries to be ready to opt for the national drug
policies most suited to their own experiences of illicit medicine and to their own
politics contexts. It also, however, needs the supply of a framework among that
totally different world drug ways will be evaluated, and a network across that the
results of these evaluations will be shared.
The EMCDDA has created commendable efforts in these areas. Lessons from
Europe thus indicate that existing international organization drug conventions
mustn't be planned as obstacle to permitting individual countries to develop the
drug policy responses they feel most acceptable (but ought to be reformed if they
become such an obstacle). International bodies like the international organization
even have a vital role to fill in terms of providing a framework among that national
drug policy ways will be evaluated.33
3. The situation of Portugal and Germany.
Portugal itself has been the main target of the many researchers considering
the trail it's taken to curb the utilization of illicit medicine. 34
Portugal decriminalized all medicine effective in 2000, which means that there
have been no criminal penalties connected to possessing and exploitation illicit
medicine, unless there was suspicion of trafficking. This applied each to arduous
31 See C. Chatwin, Op. Cit, p. 10
32 See C. Chatwin, Op. Cit, p.10
33 See C. Chatwin, Op. Cit, p. 10
34 See S. Anderson, European Drug Policy: The Cases of Portuguese Republic, Germany, and therefore
the Kingdom of The Netherlands, The Eastern Illinois University Political Science Review: Vol. 1 : Iss. 1 ,
Article 2., p. 3
112 OVIDIU-HORIA MAICAN
(cocaine, heroin) and soft (cannabis) medicine. it absolutely was thought of a
daring try to cut backdrug use, and really totally different from the policies of
different Western European nations.
Germany was conjointly coping with the program of enhanced drug use.
however till recently, restricted medicine with a strict prohibition policy, causing
those condemned of possession into the jail system. As Germany has shifted its
focus from treating drug use as a criminal issue to a public health issue, a lot of
focus has been placed on causing offenders to court approved treatment programs.
However, a lot of serious offenders, like in Portugal will be sent through the court
system. Deutschland has developed what's called their “Action arrange on
medicine and Addiction” from the German Federal Ministry of Health. 35
This lays out the German governments arrange do handle dependence each
for legal and illicit drug use.
This distinction ends up in the actual lawmaking of cannabis and different soft
medicine.
There are solely prosecutions for serious offenses, together with like the
mercantilism of huge amounts to one user, to a child, or making a public
disturbance. this can becombined with treatment for addiction whereas cracking
down on drug traffic and arranged crime. whereas different nations were laid low
with increasing use of medication throughout the 1990’s, it absolutely was
reported that Netherlands had a number of very cheap rates of each arduous and
soft illicit drug use in Europe
Drug law reformers typically purpose Netherlands as a model example as the
simplest to handle drug usage and addiction. 36
Taken together Netherlands, Portugal, and Germany all target the flexibility of
drug addicts to hunt treatment, whereas at the identical time imposing laws to
forestalldrug traffic. The distinction in polices typically relate to the speed of social
control and level of attention to soft and arduous medicine.
Information on the drug laws of EU Member States and statistics on drug law
offences are collected and printed by the EMCDDA for over 10 years. Since 1995,
member states are coverage the amount of drug law offences and therefore the
stage at that Associate in Nursing offense for possession or trafficking is first
registered by the police or prosecution. 37
The international organisation spends a good deal of your time analyzing the
trafficking and use of illicit medicine around the globe. The international
organisationworkplace of medication and Crime free a report on world drug use,
except for the needs of this paper solely the areas referring to Europe are
examined. .
35 See S. Anderson, Op. Cit, p. 4
36 See S. Anderson, Op. Cit, p. 5
37 See S. Anderson, Op. Cit, p. 6
Cannabis: legal or not? 113
Portugal’s call to allow drug possession for each soft and arduous medicine
came as a results of their Commission for a National Drug Strategy, that issued a
report in 1998 deciding that the simplest technique to handle the growing drug
downside meant following a damage reduction strategy.38
The requirement for strategy was superimposed by the urgency that one
amongst the quickest growing medicine of alternative happened to be
diacetylmorphine. In 1999, there have been between 60,000 and a 100,000
individuals were reported to be dependent, while, the arrest rate for
diacetylmorphine possession enhanced 250% between 1991 and 1998. Despite the
report vocation for lawmaking, Portugal’s legislative assembly approved of the
report and made legislation to match the report’s recommendations fully. 39
One of the central themes of Portugal’s National Drug Strategy is to treat drug
addicts not as criminals, however a lot of like patients laid low with a malady. It
ought to be processed that trafficking and producing illicit medicine are still
punishable by criminal sanctions. For people who are caught with illegal
substances, they're brought before a panel consisting of medical and legal
consultants to see if the person shows signs of addiction. If not, and therefore the
wrongdoer has no previous convictions, the hearing is suspended.
If there's a previous conviction, it may end up during a verbal warning, a fine,
or in some cases loss of professional licenses. The hearing is suspended if the
wrongdoer agrees to follow treatment. 40
Netherlands, well-known for its tolerance of the utilization of sentimental
medicine, differs therein the by the law, the controlled substance Act of 1976 still
criminalizes the possession of arduous illicit substances (EMCDDA). However, in
observe, possession of cannabis ranks so much lower on the police’s list of
medication that cause substantial damage, with arduous medicine like hard drug
and diacetylmorphine the most important focus of enforcement..
The policy of basically ignoring cannabis whereas focusing efforts on more
durable medicine has been effective in 1976, with slight will increase within the use
of cannabis among the period of time of the whole population population whereas
different controlled substance use and cut.
As a results of this policy, Germany, compared to Portugal and Netherlands,
has the strictest of the drug connected social control policies. Germany begin to
pursue a damage reduction strategy throughout the 80 ‘s. 41
The Federal Constitutional Court of Germany stipulated in 1994 that
criminalisation of controlled substances was constitutional, however started out
new standards in charging those with possession. Prosecutors have discretion,
38 See S. Anderson, Op. Cit, p. 7
39 See S. Anderson, Op. Cit, p. 7
40 See S. Anderson, Op. Cit, p. 7
41 See S. Anderson, Op. Cit, p. 9
114 OVIDIU-HORIA MAICAN
with court approval, on whether or not, wrongdoer will face charges born in cases
of possession of tiny amounts of illicit medicine.
This can be basically Germany’s style of creating positive the social control fits
the crime. the foremost abused illicit drug is cannabis, with up to 2 million
individuals exploitation frequently, with some 200.000 laid low with addiction. 42
In the thirty years since the Narcotics Act was passed, Germany has invested
with heavily in hindrance and addiction treatment, borrowing ideas from
neighboring countries to continually improve on its own damage reduction
strategy. Yet, different aspects embraced by neighboring countries are slow to
require hold.
4. European evolutions
Three European nations have abstracted penalties for possession of small
quantities of any psychoactive substance; Italy (since 1973), Spain (about1980) and
Portugal (2001). 43
Each did this for a different reason.
The Italian regime adopted the legal provision pragmatically to ascertain that
there would be no licit barrier to avert heroin users from seeking treatment; it was
sparked by the early stages of a heroin epidemic in that country.
Spain adopted the quantification as a component of the repudiation of the
highly intrusive state that had been engendered in the Franco regime; it was not
concretely a drug policy decision. 44
Portugal was concerned with over-criminalization of drugs and marijuana was
an target of this effort.
There are vital variations within the nature of the regime that has been created.
As an example, in Portugual cannabis possession remains an arrestable
offense. The arrested person meets with a 3 person commission that decides
whether or not the suitable response may be a fine or treatment.
In Italy a primary offense produces simply a warning however a second
offense can result suspension of driver’s license. 45
The implementation of those laws has been characterised by a struggle
regarding what constitutes a “small quantity” per the law’s intent to differentiate
between dealers and users.
The implementation of the choice was sophisticated by the very fact that the
law itself may be a federal statute however the administration of criminal justice is
that the responsibility of the ‘Länder’ (equivalent to U.S. states).
42 See S. Anderson, Op. Cit, p. 10
43 See P. Reuter, Marijuana Legalization: What will be Learned from different Countries?, Rand
Working Paper WR-771-RC ,July 2010, p. 6
44 See P. Reuter, Op. Cit, p .6
45 See P. Reuter, Op Cit., p. 8
Cannabis: legal or not? 115
The police don't have any in essence no discretion however should arrest
anyone detected violating a criminal statute. but laender prosecutors do have
discretion. therefore implementation has taken the shape of pointers for
prosecutors proscribing penalties for those in remission with tiny amounts of
marijuana.
The result has been quite varied rules across Lander as an example, whereas
the utmost quantity of cannabis eligible for non-prosecution for possession ranges
from three grams (Baden-Württemberg) to thirty grams (Schleswig-Holstein),
many states’ directives need non-prosecution for these amounts, whereas within
the majority of states this can be nonmandatory and at the discretion of the
prosecutor’s workplace on a item-by-item basis. 46
The proportion of cannabis possession cases still being prosecuted around
2003 despite being eligible for non-prosecution has ranged across states in
Germany. Prosecution choicesare found to be most powerfully influenced by the
offender’s list, the amount of previous offenses, substance amounts concerned, and
different circumstances of the offense. Whereas it's sometimes taken with no
consideration that body penalties are advantageous for the wrongdoer, these
penalties, specific the suspension of the driving licence, is also skilled by the
offenders as a lot of onerous than lightweight criminal penalties, like fines and
should be thought of by each the police and therefore the offenders themselves as
an efficient substitute for criminal penalties. 47
Several European countries have established some form of
exceptional/compassionate use programme or other special access scheme to
allow access to cannabis preparations for the treatment of a narrow range of
medical conditions. Countries that currently have such programmes include
Croatia, Denmark, Finland, Norway, Poland and Sweden. Four European
countries have an established access programme: Czechia, Germany, Italy and the
Netherlands. Both Luxembourg and Portugal passed laws on the medical use of
cannabis in 2018.48
We are speaking here aboutc three United Nations conventions, considered as
the basic framework for controlling the production, trade and possession of over
240 psychoactive substances (most of which have a recognised medical use). These
treaties were signed by all EU member states. 49
The 1961 Convention classifies narcotic drugs in four categories.
The 1971 Convention is dividing psychotropic substances in another four
categories.
46 See P. Reuter, Op. Cit, p. 9
47 See P. Reuter, Op. Cit p. 9
48 European Monitoring Centre for Drugs and Drug Addiction, Medical use of Cannabis and
cannabinoids. Questions and answers for policymaking, 2018, p. 26
49 European Monitoring Centre for Drugs and Drug Addiction, Cannabis Legislation in Europe. An
overview, 2018, p. 9
116 OVIDIU-HORIA MAICAN
Some substances are mentioned twice in the 1961 Convention. Cannabis and
heroin (as well as 15 other substances) for instance are placed by the 1961
Convention in category (group) I, as substances whose properties give rise to
dependence and which present a serious risk of abuse.
The conventions specify that unauthorised actions, such as possession,
acquisition, distribution or offering for sale and so on, must be punishable offences,
and that serious offences should be punished by the deprivation of liberty. The
1961 and 1971 Conventions largely set out terms and mechanisms for
(international) trade, so it was debatable how much they required punishment of
possession only for personal use. However, the UN Convention of 1988 (United
Nations, 1988) specifically requested countries “ subject to constitutional principles
and basic concepts’ of countries’ legal systems, to establish ‘as a criminal offence
[…] the possession, purchase or cultivation of drugs […] for personal consumption
”. Given the first part of this requirement, the different national interpretations of
‘a criminal offence’, and the possibility to provide for alternatives to conviction or
punishment, there has been a wide variety in responses across Europe. 50
The conventions do not say clearly that drug use itself should be a punishable
offence, although each country can establish simple drug use as a specific offence if
it chooses to do so.
The 1988 Convention is demanding countries to take appropriate measures to
prevent illicit cannabis cultivation and to eradicate cannabis plants on their
territory.
We can not speak about a harmonised EU law on cannabis use. 51
This is the obligation of EU member states, to impose administrative and
criminal penalties.
According to article 168 of the Treaty on the Functioning of the European
Union (TFEU), ” The Union shall complement the Member States’ action in
reducing drugs-related health damage, including information and prevention ”.
European Union does have legislative competence to set - up minimum rules
concerning “ the definition of criminal offences and sanctions in the areas of
particularly serious crime with a cross-border dimension “, including illicit drug
trafficking (article 83, TFEU). 52
A 2004 EU Framework Decision (2004/757/JHA) is specifying minimum
provisions on the constituent elements of criminal acts and penalties in the field of
illicit trafficking in drugs and precursors, to allow a common approach at EU level
to the fight against trafficking. Possession for personal consumption was is not
included this framework decision.
50 European Monitoring Centre for Drugs and Drug Addiction, Op. Cit, p. 9
51 European Monitoring Centre for Drugs and Drug Addiction, Op. Cit, p. 9
52 European Monitoring Centre for Drugs and Drug Addiction, Op. Cit, p. 9
Cannabis: legal or not? 117
Member states have the obligation to take 10 measures necessary to ensure that
the offences were punishable by ” effective, proportionate and dissuasive “
criminal penalties. Besides this general obligation, minimum and maximum levels
of sanctions are mentioned.
The framework decision had little effect on national legislation. 53
Conclusion
European Union cannabis policy could best develop along the lines of
“multi-level governance”, an emerging style of governance in the EU (in particular
regarding social policies) in which multiple actors on multiple levels are engaged,
and concrete details of governance are decentralised and may diversify under EU
guidelines. In this model, practical decisions are made at the local level,
emboldening more preponderant involution from citizens (a guiding principle in
the EU).
Given the already wide diversity of drug policies in Europe, different cannabis
regulation regimes would then no longer be an arena of multi-lateral, or even
national, contention, but would be judged on their efficacy and leave the desired
room for manoeuvre for local authorities.
After the changing of World Health Organization recommendation in favour
of marijuana and cannabis, the European Parliament adopted on 13 February 2019
a resolution, advising the member states to make cannabis available for
pharmaceutical purposes, in order to ‘define the conditions required to enable
creditable, independent scientific research based on a wide range of material to be
conducted into the use of cannabis for medicinal purposes’. Furthermore, the EU
supports the use of marijuana and hemp for the treatment of several diseases and
conditions.
The problem of legalizing the use of cannabis in some conditions was
discussed in Romania in the last 2 – 3 months.
In order to have the best solution, is maybe necessary to adapt in some aspects
the European context to our particular conditions.
In the same time, because is a very important topic, we need a well – based
and cross – party approach, not fasteningt the adoption of regulations only to to
fulfill European legal provisions.
REFERENCES
[1] European Monitoring Centre for Drugs and Drug Addiction (2018), Medical
use of Cannabis and cannabinoids. Questions and answers for policymaking, 2018
[2] European Monitoring Centre for Drugs and Drug Addiction (2018),
Cannabis Legislation in Europe. An overview,
53 European Monitoring Centre for Drugs and Drug Addiction, Op. Cit, p. 10
118 OVIDIU-HORIA MAICAN
[3] Zaami, S, Di Luca, A, Di Luca, N. M, Montanari Vergalo, G, (2018)Medical
use of cannabis. Italian and European legislation, European Review for Medical and
Pharmacological Sciences, nr. 22/2018,
[4] Chatwin, C. (2016), Mixed Messages from Europe on Drug Policy Reform: The
Cases of Sweden and the Netherlands, Journal of Drug Policy Analysis, nr 11(1)/2016
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[6] Reuter, P (2010) Marijuana Legalization: What will be Learned from different
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