Chapter 4.

FIVE LEGISLATIVE OPTIONS

Part B: The Netherlands:

LEGISLATIVE PROHIBITION WITH AN ADMINISTRATIVE EXPEDIENCY PRINCIPLE

Background

Between the mid-1960s and the mid-1970s in The Netherlands, the use of illegal drugs grew from 'almost non-existent to constitute a serious health and public order problem in urban areas' ([25]van Vliet 1990). Although the use of cannabis in The Netherlands came to public attention in the late 1950s, debate on drug policy only began in earnest when heroin use and the problems associated with it became increasingly visible between 1972 and 1975.

Amendments to the Opium Act were introduced in 1976 and can be seen as heralding a new era in drug policy. Until this time drug policy in The Netherlands was much like that of other countries ([26]Wijingaart 1990, p668, cited in [27]Wardlaw 1992, p16). Drug law and policy in The Netherlands The Opium Act of 1976 makes a clear distinction between 'drugs presenting unacceptable risks' (heroin, cocaine, LSD, amphetamines) and 'cannabis products'. The changes introduced in this legislation increased penalties for dealing in 'drugs presenting unacceptable risks' and decreased the penalties for possession and dealing in cannabis products.

The purpose of the legislation was to separate drug markets and user groups in an effort to prevent cannabis users from involvement in the 'hard' drug scene. Although the legislation falls clearly within a total prohibition framework, as Dutch commentators have pointed out 'law in practice is more relevant than law in books' ([28]Leuw 1991). A clause in The Netherlands Code of Criminal Procedure, known as the 'expediency principle', states that the prosecution office may decide whether or not to enforce certain laws, to prosecute or to initiate criminal investigation on the basis of whether or not such action would be 'in the public interest'. Using this clause, the Minister of Justice issued guidelines in 1976 for the enforcement of drug laws and the investigation and prosecution of breaches of drug laws.

Essentially it is these guidelines rather than legislation that determines drug policy in The Netherlands. [29]Marshall et al. (1990) have noted that the priorities in the guidelines correspond to the distinctions made between 'hard' and 'soft' drugs in the Opium Act. High priority is given to detecting the importation and exportation of drugs that are seen to represent an 'unacceptable risk'.

Investigation and prosecution of 'soft' drug violations, with the exception of the import and export of large amounts of such drugs, are assigned a low priority (Marshall et al. 1990). According to the guidelines, dealing, possessing or producing small amounts (30g or less) of marijuana, do not require police investigation, arrest or prosecution. A low priority is also given to the investigation and prosecution of retail dealing in cannabis, and police are only required to confront dealers when they advertise publicly or conduct their business in a provocative manner. As long as there is no sale to minors, no advertising, no sale of 'hard' drugs, and if the dealing takes place without causing a public nuisance, then (generally speaking) there will be no police intervention. Where there are breaches of the type outlined above, administrative measures, such as the withdrawal of permits to serve drinks and food, are imposed. If the parties involved persist in contravening the guidelines, they are issued with a warning. Confiscation of the drugs may be another consequence of continuing breaches of the guidelines. [30]Marshall et al. (1990) report that only very rarely is imprisonment the consequence of such violations. The extent to which the guidelines, or the Opium Act, are followed depends on local circumstances. Sanctions imposed may vary between different districts of The Netherlands.