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Criminal acts and the applicable penalties — drug traffickin...

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Summaries of EU Legislation

Criminal acts and the applicable penalties — drug trafficking

SUMMARY OF:

Framework Decision 2004/757/JHA — minimum rules in regard to drug trafficking offences and penalties

WHAT IS THE AIM OF THE DECISION?

Its aim is to combat drug trafficking so as to limit the supply and consumption of drugs (defined in ‘Key points’ below).

It lays down minimum rules to be observed and minimum penalties to be applied by EU countries.

It lists punishable acts relating to drug trafficking and obliges EU countries to take measures against those involved in such trafficking.

The Framework Decision has been amended by Directive (EU) 2017/2103 with a view to reducing the availability of new psychoactive substances* by introducing the means to take more effective action at EU level. The amendment becomes fully effective as of 23 November 2018.

KEY POINTS

Offences

The framework decision requires each EU country to take the necessary measures to penalise all intentional acts relating to the trafficking in drugs and precursors*.

The decision defines a ‘drug’ as a substance covered by the 1961 United Nations (UN) Single Convention on Narcotic Drugs, as amended by the 1972 Protocol, or by the 1971 UN Convention on Psychotropic Substances. Once the amendment of the Framework Decision becomes effective in November 2018, the definition of drugs will also include any of the substances listed in the annex of the amended decision.

Acts linked to drug trafficking include production, manufacture, extraction, sale, transport, importation and exportation. Possession and purchase with a view to engaging in activities linked with drug trafficking are also taken into account, as are the manufacture, transport and distribution of precursors. Incitement to drug trafficking, aiding and abetting such activity, and attempting to traffic in drugs are also regarded as offences.

However, this framework decision does not cover activities relating to the trafficking in drugs for personal consumption.

Inclusion of new psychoactive substances in the definition of ‘drug’ (applicable as of 23 November 2018).

Directive (EU) 2017/2103 introduces a procedure for including new psychoactive substances in the definition of ‘drug’. The European Commission is given the power to adopt delegated acts to add new psychoactive substances to the list in the annex. This will replace the current practice of scheduling new psychoactive substances through Council Implementing Decision (EU) 2017/2170 under Council Decision 2005/387/JHA.

When considering whether to add a new substance to the list, the Commission must take into account whether:

the extent or patterns of its use and its availability and potential for diffusion within the EU are significant; and
the harm to health its consumption may cause is life-threatening due to
- its acute or chronic toxicity and
- liability to be abused or potential to cause dependence.

In addition, the Commission must assess whether the social harm caused by the new psychoactive substance to individuals and to society is severe and whether criminal activities, including organised crime, associated with the new psychoactive substance are systematic, involve significant illicit profits or entail significant economic costs.

To support the Commission’s decision-making, the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) will prepare a risk assessment report which will address all these elements.

In parallel with the adoption of Directive (EU) 2017/2103, the EU adopted Regulation (EU) 2017/2101 which amends Regulation (EC) No 1920/2006 on sharing information and an early warning system and risk assessment procedures for new psychoactive substances. The regulation will becomes fully effective on 23 November 2018.

Liability of legal persons

EU countries must take measures to ensure that legal persons (for example, businesses) can be held to account for offences linked with trafficking in drugs and precursors, as well as for aiding and abetting, inciting or attempting such activity. The concept of legal persons as used here does not include states and public bodies in the exercise of their powers or public international organisations.

An organisation is liable if the offence is committed by an individual who has a leading position within that organisation. It is also held responsible for shortcomings in supervision or control. However, the liability of legal persons does not exclude criminal proceedings against individuals (natural persons).

Sanctions

EU countries must take the necessary measures to ensure that offences are subject to effective, proportionate and dissuasive penalties.

If an offence is committed in whole or in part within an EU country’s territory, that country must take measures, provided that the offender is one of its nationals or that the offence was committed for the benefit of a legal person established within its territory.

The maximum penalties for drug trafficking offences must be at least between 1 and 3 years’ imprisonment.

However, maximum penalties must be increased to at least 5 to 10 years’ imprisonment in cases where the offence:

involves large quantities of drugs;
involves those drugs that are most harmful to health;
is committed within a criminal organisation.

EU countries must also take the necessary measures to confiscate substances which are the object of offences.

However, penalties may be reduced if the offender renounces his illegal activities and provides information to the administrative or legal authorities that will help identify other offenders.

Sanctions for legal persons must include fines for criminal or non-criminal offences. Other sanctions may also be imposed, including placing the establishment under judicial supervision or closing it temporarily or permanently.

FROM WHEN DOES THE DECISION APPLY?

The decision has applied since 12 November 2004.

BACKGROUND

For more information, see:

EU’s response to drugs (European Commission).

KEY TERMS

New psychoactive substance: a substance in pure form or in a preparation that is not covered by the 1961 United Nations Single Convention on Narcotic Drugs, as amended by the 1972 Protocol, or by the 1971 United Nations Convention on Psychotropic Substances but may pose health or social risks similar to those posed by the substances covered by those Conventions.

Precursor: any substance listed in EU legislation giving effect to the obligations deriving from Article 12 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 20 December 1988.

MAIN DOCUMENT

Council Framework Decision 2004/757/JHA of 25 October 2004 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking (OJ L 335, 11.11.2004, pp. 8-11)

Successive amendments to Framework Decision 2004/757/JHA have been incorporated in the original text. This consolidated version is of documentary value only.

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