Chapter 20 - Public Policy In Other Countries - France

France[1][3]

Different forms of logic

The new direction taken by the Law of 1970,[2][4] currently in effect, which penalizes drug use, is, in some respects, more apparent than real. Internal public policy had begun to change in the late nineteenth century, leading to the adoption of the great law on narcotics in 1916, providing criminal penalties for importing, trafficking, possession and use. That legislation, which was particularly strictly enforced for the time (up to three years in prison for narcotics offences) introduced the offence of "use in society". Its passage had been preceded by an intensive "public health campaign" in which narcotics were [translation] "accused by their detractors of being the root of most of society's ills, that is to say of comprehensively promoting depopulation, moral decadence and, even worse, violent and criminal acts".[3][5]

That law was supplemented by the Law of 1922 and the Executive Order of 1939, which stepped up and reinforced its prescriptions. The Law of 1922 required judges to order out of the country persons convicted of trafficking or facilitating use, while the Executive Order increased prison terms to five years. The Law of 1922 also authorized the police to enter homes without prior legal authorization. In Charras' view, "these various provisions made the French legislation one of the most draconian in Europe."[4][6]

The "therapeutic injunction", another factor causing tension in the 1970 legislation, is in some instances considered the very core of France's drug legislation. Under that provision, [translation] "an obligation of care may be imposed on every drug user at three points in the penal process:

-         upon entry into the judicial process, the prosecution may propose an alternative to trial;

-         during trial, the trial judge or juvenile court judge may impose medical supervision;

-         at sentencing, the court may impose a health measure either because the user has previously refused it or, on the contrary, to extend it if it commenced under the previous article.” [5][7]

 

Characterized as a [translation] "humanist counterweight to a repressive policy",[6][8] the therapeutic injunction has often been considered by various French observers as an awkward compromise between police powers on the one hand and medical powers on the other.[7][9]

However, in characterizing the French system as falling between repressing the user as an "offender" and treating him as a "patient", there is a risk of disregarding another aspect of the French approach to drugs at least until the 1970s: the country's foreign policy and the logic of its tax system.

 

[Translation] “The prohibition against drugs is a recent phenomenon. Unlike China, which, since the eighteenth century, has sought to prohibit the use of opium, European countries did not discuss prohibition until the twentieth century. Furthermore, prohibition did not actually become effective until after the 1950s, and there has been no real desire to provide medical care to users until the past 20 years. Before being prohibited or prescribed, narcotic use was taxed through opium and cannabis tax monopolies.” [8][10]

 

Bisiou identifies five known monopolies in the history of colonial France: India from 1864 to 1954, Indochina from 1864 until 1975, in Laos; Oceania from 1877 to 1922 and two cannabis monopolies operated concurrently with tobacco monopolies, one in Tunisia between 1881 and 1954 and the other in Morocco between 1914 and 1952. Another monopoly, the existence of which has not been confirmed, purportedly existed in Lebanon.[9][11]

These monopolies offered various advantages from a tax and policy standpoint. For tax purposes, they generated significant cash flows, making it possible to finance colonization; from a policy perspective, they were well accepted by the colonies to the extent they pre‑existed French colonization and were already well accepted by local populations. What is interesting is the moral character of the "vicious substances" which justified the system for the taxation of luxury products whose consumption authorities did not wish to encourage. Although abolished at decolonization and characterized by certain internal contradictions between the economic imperatives of profitability and health objectives, this policy, starting in the 1930s, also came under extensive criticism from the international community, whose orientations, as noted above, were increasingly prohibitionist. The history of state drug monopolies has nevertheless marked French history (as it did Dutch, British and Portuguese history) and was another factor in addition to domestic policy.

Thus it was not one single drug policy that France had in the twentieth century, but three often competing forms of logic on the issue. But it was not until the Mission interministérielle de lutte à la drogue et à la toxicomanie [Interministerial Mission on Anti-Drug and Addiction Activities] (MILDT) was reinforced in the mid-1990s that a trend emerged toward a more integrated and coherent overall policy.

 

An integrated public policy

MILDT was established in the early 1980s during the first seven-year term of French President François Mitterrand. Over the years, however, it either lacked leadership or did not have the resources to achieve its ambitions. It was not until Nicole Maestracci was appointed in 1995, under the socialist government of Prime Minister Jospin, that MILDT began to become more visible and take stronger public action. Its activities were directed in particular by the strong controversies and demonstrations conducted by stakeholders of various types (hospital physicians concerned by AIDS, members of NGOs, drug addicts, specialists and others) who criticized the scientific bases of the main objectives of France's drug policy. At the centre of the debate was a need for a harm reduction approach, focusing on reducing AIDS transmission by intravenous drug users and methadone treatment for drug addicts.[10][12]

In February 1994, only one small group of 77 addicts had access to methadone treatment, whereas there were 160,000 heroin addicts in France at the time. In 1998, medication substitution treatments were offered in France to a group of up to 70,000 addicts, the vast majority of whom received Subutex and methadone replacements.[11][13] This new development clearly shows that public authorities now consider harm reduction a fundamental component of France's drug policy.[12][14]

On June 16, 1999, the French government introduced a three-year plan clearly reflecting this paradigm shift since palliative and preventive measures became legitimate goals in the French policy context. As to criminal policy, the main legislative framework – the law of 1970–has not been amended and drug use is still considered an offence. However, in a circular, the Minister of Justice has asked prosecutors not to seek prison terms and to promote treatment in drug cases.

The plan is based on European and international data and on recent reports, interdepartmental consultations and scientific studies providing fundamental observations on France's policy on drugs and drug abuse. The emergence of new use profiles such as the use of numerous drugs (both legal and illegal), increased cannabis and alcohol use among young people and greater availability of synthetic drugs were the main concerns expressed. Information bases and systems have also come under criticism from various quarters concerning:

·               the lack of coordination among prevention programs and their limited accessibility (e.g., school drug prevention programs are offered to less than 40 per cent of students and those concerning alcohol and tobacco to less than 20 per cent);

·               the lack of social and professional support;

·               the fact that there is no ground for agreement among the various stakeholders (law enforcement, social welfare, education and public health);

·               the excessive importance attached to heroin addicts in the administration of specialized treatment at a time when use among the members of this addicted group has stabilized;

·               the difficulty in reconciling law enforcement with the public health strategy.[13][15]

 

Criminal law enforcement with respect to drug users has been constantly marked by the difficulties inherent in reconciling suppressive activities with public health imperatives. The number of users who have been questioned by authorities has doubled over the last five years, without the judicial system having permitted adequate and effective cooperation with physicians and social workers.[14][16]

Furthermore, observing the declining number of trafficking arrests at the local level since 1996, elected representatives and the general public find this hard to understand in view of the importance they feel should be attached to monitoring drug supply. Lastly, the shortage of reliable indicators has prevented any in‑depth, or even comprehensible, assessment of existing programs.

Based on these observations, the government has developed a three-year plan defining action priorities, objectives and measures that should be taken. Two key factors – integration and knowledge – are the watchwords of this effort. Integration is viewed from two standpoints: for the first time, France will have an integrated policy on all psychoactive substances, drugs, medications, alcohol and tobacco.

 

The fact that we were talking about alcohol, tobacco and medication at the same time as we were talking about drugs no doubt made everyone feel closer to the situation because everyone had the experience of consuming a product, be it legal or illegal. This was an important aspect that did not result in our saying that all of the products should come under the same legislative regime, but [that made it possible, regardless of the product used] to distinguish between occasional use and problem use. [15][17]

 

The other aspect of integration is a reinforced effort among the 19 departments that form the MILDT under the chairmanship of the Prime Minister.

The second watchword of this French effort is knowledge. As noted above, a certain number of observers had noted weaknesses in the knowledge apparatus, including reports commissioned by various authorities (discussed below). In the wake of the impetus given by President François Mitterrand to the creation of the European Monitoring Agency for Drugs and Drug Addictions, France, in 1993, established the French Monitoring Centre for Drugs and Drug Addictions. The mission of the French Centre, which is an "independent" agency, is to "develop the observation network in order to monitor recent trends in drug use, conduct regular epidemiological surveys on the public and implement a comprehensive public policy evaluation framework".[16][18] To do so, it organizes its work along three main lines: observation and improvement of indicators, monitoring of recent trends and policy evaluation. The Centre has a staff of 25 persons and a budget of 18 million French francs (approximately Cdn $3.5 million). It is also the national focal point in the network of the European Monitoring Centre for Drugs and Drug Addictions.

 

Legislative framework

French law related to illicit drugs is drawn from many sources including four codes: the Code of Public Health (code de la santé publique), the Penal Code, the Code of Penal Procedure, and the Customs Code. The main legislative framework is the law of 31 December 1970, which amended the Code of Public Health and created a legislative framework based on both the application of repressive measures and health-related dispositions. The objectives of the Law of 1970 were to severely repress trafficking, prohibit the use of narcotics, and yet propose alternatives to the repression of use, as well as to ensure free and anonymous care for users seeking treatment. [17][19] It must be noted that most articles of the Law of 1970 (originally written into the Public Health Code) have since been integrated into the new penal code that came into force in 1994 except for infractions related to drug use, which are still sanctioned through the Public Health Code. French law is also governed by international law since France has ratified the UN conventions related to drugs.

 

Classes of drugs

French law does not distinguish between illicit substances and thus, an offence such as drug use is prosecuted and judged in the same way regardless of the illicit substance involved. However, judicial authorities may take into consideration the nature of the substance, the quantity and any prior criminal records in their decision to prosecute, reduce the charges or not prosecute an offender. Illicit substances are listed in an annex to Decree Law of 22 February 1990 and include the following:

 

List I: narcotic substances such as heroin, cocaine, cannabis, methadone, opium, etc.;

List II: substances such as codeine, propiram, etc.;

List III: psychotropic substances such as amphetamines, Ecstasy, LSD, etc.; and

List IV: synthetic drugs such as MBDB, 4-MTA, Ketamine, Nabilone, THC, etc.[18][20]

 

Offences and penalties

Public or private drug use in France is prohibited and criminalized by the Law of 1970 (article L3421-1 of the Code of Public Health). The penalty for illicit drug use is up to one year in prison or a fine of 25,000 French Francs, or diversion to a court-ordered treatment program (therapeutic injunction–in French, "injonction thérapeutique"). This article of the Code of Public Health applies to all users without any distinction as to the type of illicit substance used.

The Code of Public Health also provides for the monitoring of drugs users by health authorities (article L3411-1). Prosecutors may not undertake legal action against an offender if that person can provide medical certification that he has undertaken some form of therapy or has submitted himself to medical supervision since the commission of the infraction. However, if the offender does not supply a medical certificate to that effect, prosecutors may request that an individual who has made use of illicit drugs follow a drug addiction treatment program or be placed under medical monitoring (article L3423-1). The involvement in a court-ordered treatment program suspends legal proceedings and these will not be pursued if the individual completes the detoxification program.[19][21] It is not uncommon for a repeat offender to be subjected to more than one court-ordered treatment program as more repressive measures are rarely used for simple drug use, particularly cannabis use.

As mentioned above, the Ministry of Justice – in a directive dated June 1999 – asked prosecutors to prioritize treatment over incarceration for small-time offenders and problematic drug users. Practice has shown that therapeutic alternatives are used mainly for simple users and that most cases of simple drug use receive a warning with the request to contact a social or health service. When legal proceedings are undertaken, the magistrate may also force, and not simply order, the accused to undertake a detoxification program but in this case, judicial authorities take charge of the case rather than health authorities. In these cases, if the user completes the treatment, no penalties may be imposed on the individual but the use of such measures are extremely rare. [20][22] As well, a detoxification treatment may be a condition attached to a conditional prison sentence, parole or judicial supervision. In France, the delinquent user is thus seen mostly as a sick person to whom therapy must be offered. [21][23]

On the drug trafficking side, the Law of 1970 has been modified on several occasions, creating new offences such as the selling or supplying drugs for personal use (17 January 1986) and drug-related money laundering (31 December 1987), or enacting new procedures such as the confiscation of drug trafficking profits (14 November 1990) to comply with Article 5 of the United Nations Convention (19 December 1988).[22][24] Currently, trafficking offences include selling or supplying drugs for personal use with a penalty of up to five years and a fine of up to 500,000 F (articles 222-39 of the Penal Code) and a more serious offence for transportation, possession of, supply, sale and illicit purchase of narcotics with a penalty of up to 10 years and a fine up to 50 million F (article 222-37). Illicit imports and exports of narcotics are also punishable by 10 years’ imprisonment and a fine up to 50 million F but when the offence is committed by a criminal organization, the penalty increases to 30 years of imprisonment (article 222-36). Furthermore, trafficking in narcotics might also be punishable as a customs offence (contraband and similar offences) with a maximum sentence of three years’ imprisonment and fines equalling two-and-one-half times the value of the illegal merchandise. Prosecutions under the Customs Code do not exclude penal prosecution, and customs sanctions can be added to penal sanctions.[23][25]

Other offences include the illegal production or manufacturing of narcotics punishable by 20 years in prison and a fine of 50 million F. Here again, when a criminal organization commits the offence, the penalty increases to 30 years’ imprisonment (article 222-35). Drug-related money laundering defined as "facilitating by any means, false justification of the source of assets or revenues of the author of an infraction to narcotics legislation" is punishable by 10 years imprisonment and a fine of 5 million F (article 222-38). Incitement to drug use or to commit any offence sanctioned by articles 222-234 to 222‑239 of the Penal Code or to present these offences in a favourable light is punishable by five years in prison and a fine of 500,000 F (article L3421-4 of the Code of Public Health). This offence is aimed at the media and literary or artistic works. Inciting a minor to use narcotics is punishable by five years’ imprisonment and a fine of 700,000 F and in the case of a minor under the age of 15 years or if the offence is committed in or around an educational establishment, the penalty increases to 7 years in prison and a fine of 1 million F (article 227-18). Finally, heading or organizing a group engaged in the production, manufacturing, import and export, transportation, possession, supply, sale, purchase or use of narcotics can lead to a life sentence and a fine of 50 million F (article 222-34).