Last month, the city council of Bern, Switzerland, approved the start of a pilot project to legalise the sale of cocaine for personal use. The city currently employs a repressive drug policy that drives drug trade and use underground, making control and preventive measures difficult. Although Bern is open to legal cocaine trade, it is not certain whether the Swiss city will be allowed to start the pilot project, as the Swiss government has not yet given permission. However, Bern has been granted permission to begin legal sales of cannabis this year.
In the Netherlands, the sale of cannabis is tolerated. How does this policy work? Could this policy also work for soft and hard drugs? And is it possible to legalise or regulate drug use and trade? Joost Verbaan, scientific lecturer in Criminal (Procedure) Law at Erasmus School of Law, explains.
What is the legal definition of 'drugs'?
"There is no legal definition of drugs", answers Verbaan. "The Opium Act refers to 'opium' and other narcotic substances. International treaties refer to psychotropic substances and narcotic drugs. The Dutch Opium Act has two appendices that include lists of substances that can be classified as drugs", explains the Scientific Lecturer.
Substances can be included in the Opium Act if the legislature deems them to pose an unacceptably large risk to public health. "That means it can be harmful to the mental or physical health of the user of the said substance", says Verbaan. The legislature can then add these substances to the lists of the Opium Act.
How does the current tolerance policy work legally?
Although the Opium Act stipulates that the import, export, production, cultivation, trade, and possession of drugs are illegal, the Netherlands currently employs a tolerance policy for soft drugs. This means that in certain cases, the authorities choose not to prosecute. Verbaan emphasises that the tolerance policy is connected to the opportunism principle of the Public Prosecution Service (OM). "This principle determines that the OM can prosecute if it deems it opportune. The tolerance policy provides guidance on when prosecution is deemed opportune", explains Verbaan.
Verbaan explains that the choice for the tolerance policy is related to developments in the 1960s. "At that time, young people engaged in technically illegal actions that brought limited societal harm. The tolerance policy was developed to prevent all these cases from being brought before the courts", he explains.
What could the legal aspects of drug legalisation or regulation look like?
Verbaan states that the legal aspects of drug legalisation and regulation are relatively straightforward. "But socially, it has significant consequences", he adds. "Deleting provisions from the Opium Act or adding unlawfulness as an element already constitutes forms of legalisation or regulation. However, a government would never take such steps without accompanying policies. Without them, it would lead to chaos. So, there is still a major legal hurdle."
Moreover, the Netherlands is bound by several international treaties and cannot simply decide to legalise or regulate drugs. Verbaan mentions a few examples: "Netherlands is bound by various UN treaties, including the Single Convention on Narcotic Drugs, the Convention on Psychotropic Substances, and the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances".
What are the legal advantages and disadvantages of legalising or regulating drugs?
"That depends, firstly, on the manner of regulation", Verbaan begins. "Full legalisation means no longer pursuing criminal cases for drug import or production but will require the implementation of regulations that need to be followed, just like with alcohol. Furthermore, if it happens on a national level, exporting drugs will raise new legal issues." Verbaan emphasises that regulation does not immediately eliminate illegal trade: "Illegal drugs may become cheaper, for example. From a legal standpoint, it likely means that legal drug providers could face legal cases for insufficiently warning about harmful effects", argues the Scientific Lecturer.
How could the legalisation and regulation of drugs burden the criminal justice system?
"Legalising or regulating drugs would indeed relieve the criminal justice system in terms of investigations into drug cartels, but at the same time, legalisation would lead to more nuisance and tensions", Verbaan explains. He gives examples such as export to countries where drugs are illegal or the commission of offences by individuals under the influence of drugs. "Think of driving under the influence of drugs, but also more serious crimes", Verbaan points out.
Is widespread legalisation conceivable?
"Anything is conceivable", Verbaan responds. "It also seems important that the Netherlands does not proceed with legalisation on its own. Besides the question of whether treaties would need to be terminated, it could also create tensions at the borders with neighbouring countries. Legalising drugs seems more conceivable only if there is a widespread adoption".
What is your stance on the legalising or regulating of drugs?
In his opinion, Verbaan indicates that legalising drugs is not the most desirable form. "We have just fought for years to restrict tobacco and alcohol use", he says. Verbaan emphasises that drug use carries enormous societal costs, such as drug users' health and addiction treatment costs.
Verbaan suggests that he is more inclined towards drug regulation. "This could start with providing hard drugs on prescription to addicts while simultaneously working on their recovery. Perhaps, for some drugs, the threshold could be lowered if it is scientifically accepted that long-term use does not cause harm", concludes Verbaan.
- Assistant professor
