Preparatory study for an impact assessment on a new legislative instrument replacing the Council Framework Decision 2004/757/JHA on illicit

drug tracking
Final Report March 2013

Justice

This document has been prepared for the European Commission however it reflects the views only of the authors, and the Commission cannot be held responsible for any use which may be made of the information contained therein.

European Commission- Directorate-General for Justice More information on the European Union is available on the Internet (http://europa.eu). Cataloguing data can be found at the end of this publication. Luxembourg: Publications Office of the European Union, 2013 ISBN 978-92-79-28898-2 doi: 10.2838/73545 European Union, 2013 Reproduction is authorised provided the source is acknowledged.

Preparatory study for an impact assessment on a new legislative instrument replacing the Council Framework Decision 2004/757/JHA on illicit drug trafficking
Final Report
March 2013

Developed by

Contents
1.0
1.1

Introduction ........................................................................................... 1
Structure of the report ............................................................................................... 3

2.0
2.1 2.2 2.3 2.4

Context for the study............................................................................. 4

Competency of the EU ............................................................................................... 4 EU anti-drugs policy................................................................................................... 4 United Nations Conventions ..................................................................................... 5 Framework Decision 2004/757/JHA and its rationale .............................................. 6

3.0
3.1 3.2 3.3 3.4 3.5

Problem definition ................................................................................. 8

The problem of major Illicit drug trafficking ............................................................ 8 Main drivers of the problems .................................................................................. 16 Who is affected by the problems and how?........................................................... 22 How would the problem evolve in the baseline scenario ..................................... 25 Right to act and subsidiarity ................................................................................... 26

4.0
4.1 4.2

Rationale, Objectives and Intervention Logic for a New EU Legislative Instrument......................................................................... 27

Rationale ................................................................................................................... 27 Objectives and intervention logic ........................................................................... 27

5.0
5.1 5.2 5.3 5.4 5.5 5.6 5.7 5.8 5.9 5.10 5.11 5.12 5.13 5.14

Policy options ...................................................................................... 29

Discarded options .................................................................................................... 29 Legal basis and decision-making procedure ......................................................... 32 Consistency of the options with EU policies and fundamental rights................. 33 Assessment criteria ................................................................................................. 33 Cluster A scope for action .................................................................................... 33 Cluster B definition of offences ........................................................................... 45 Cluster C level of sanctions (Imprisonment) ...................................................... 48 Cluster D financial penalties ................................................................................ 55 Financial penalties for legal persons...................................................................... 61 Cluster E aggravating and mitigating circumstances ........................................ 66 Cluster F jurisdiction............................................................................................. 75 Territorial jurisdiction .............................................................................................. 76 Cluster G judicial and law enforcement co-operation ........................................ 81 Cluster H Data and statistics ................................................................................ 87

6.0
6.1 6.2 6.3 6.4 6.5 6.6 6.7 6.8 6.9 6.10

Comparison of the options and identification of the preferred option ................................................................................................... 89

Comparison of impacts of the policy options ........................................................ 89 Scope for action ....................................................................................................... 89 Definition of offences ............................................................................................... 90 Level of sanctions .................................................................................................... 91 Financial penalties ................................................................................................... 92 Aggravating and mitigating circumstances ........................................................... 93 Jurisdiction ............................................................................................................... 94 Judicial and law enforcement cooperation ............................................................ 95 Data and statistics .................................................................................................... 95 Outline of the preferred policy option .................................................................... 96

7.0

Monitoring and evaluation .................................................................. 99 Annex One: List of interviewees ........................................................ A1 Annex Two: Research Materials ......................................................... A8 Annex Three: Summary Tables ........................................................ A15 Annex Four: Detailed Cost Analysis ................................................ A29

1.0 Introduction
This is the final report of study commissioned by DG Justice from Ecorys and the European Criminal Law Academic Network (ECLAN) in August 2011. Its objective is: "to provide the European Commission with the elements necessary to draft an impact assessment of possible options to replace the 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" (p.1 TOR). The Council Framework Decision (2004/757/JHA) on illicit drug trafficking was adopted in 2004. A 1 Commission report published in 2009 reported on the transposition of the Framework Decision and concluded that it had been inadequately implemented. This study sought to further examine the functioning of the Framework Decision to inform the Commissions decision making and development of options for potentially replacing this earlier Framework Decision. It will provide the necessary evidence to support the 2 Commission to submit any new instruments to the rigorous impact assessment process. Specifically, the study has involved the following elements: 1) An assessment of the current drug trafficking situation in the EU in quantitative and qualitative terms, identifying main problems, drivers and affected target groups, and estimating costs and harms caused by this activity drawing upon the available literature on the subject and a range of expert consultations. 2) An evaluation of the functioning of the Framework Decision across Member States and at the EU level. This has involved: Analysis of the impact and added value of the Framework Decision on the national legislation of Member States, identifying problems and drivers, informing an overall assessment of the functioning of the Framework Decision at the EU level. Overview of the 27 Member State legal regimes regarding drug trafficking starting from their implementation of the Framework Decision and including all other legal provisions on drug trafficking and identification of their respective strengths and gaps. Evaluation of the implementation of the Framework Decision in the Member States, considering legislative gaps, drivers and obstacles. Assessment of the functioning of the judicial and law enforcement cooperation among Member States and with other EU bodies, focusing particularly on mutual legal assistance and horizontal tools. This evaluation has been based primarily on reports for each of the 27 Member States prepared by members of the ECLAN network and incorporating findings from interviews with key stakeholders in each Member State (a full list of interviewees is provided at Annex 1 and the research materials at Annex 2). The full findings of the evaluation of the Framework Decision are available as a separate report (Kert and Lehner, 2012) and only a summary assessment is incorporated in this report (more detailed information on the legal situation in individual Member States is available in Annex 3).

Report from the Commission on the implementation of Framework Decision 2004/757/JHA laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking (SEC(2009)1661).
2

As described on the Commission's website: http://ec.europa.eu/governance/impact/ia_key/ia_key_en.htm.

3) Consultation with stakeholders across Member States and at the EU level. This has involved external consultation including: A minimum of 4 stakeholder interviews conducted in each Member State. The input of EU agencies involved in the drug policy area - the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA), Europol, Eurojust - as well as the views of international organisations (e.g. the United Nations Office on Drugs and Crime (UNODC)) have also been sought through interviews. A full list of the stakeholders interviewed is provided at Annex 1. th th Two meetings with experts in the field of illicit drug trafficking (10 November 2011 and 4 May 2012) were also convened. Participants included representatives from EU agencies, research institutes and academic experts. These and other views have been taken on board in the definition of the problem and in the identification and assessment of policy options. A public consultation on EU anti-drugs policy was open between 28th October 2011 and 3rd February 2012. This consultation included a question on drug trafficking, notably "What actions should the EU take to prevent the production of illicit drugs and their smuggling to and within the EU? 4) Development of a baseline scenario building on the above assessment of the current drug trafficking situation and the evaluation of the functioning of the Framework Decision. This provided the required underpinning for the impact assessment through developing an explanation of how the situation would evolve without additional intervention (the 'no policy change scenario'). 5) Building on the above and in close liaison with DG JUST, development of the required analysis of the justification for EU action having due regard to subsidiarity and proportionality. This has included the development of a series of potential policy objectives and policy options in liaison with the Commission. The options which are judged worth carrying forward for detailed assessment are organised in the form of 'clusters', reflecting alternative approaches to the different aspects which a new instrument might seek to address. 6) Assessment of the likely impacts of the policy options in terms of achieving the identified policy objectives; financial impacts; economic, social and environmental impacts including impacts on fundamental rights; acceptability to stakeholders; and, likely impacts on national legal systems. This assessment builds upon the evidence from the literature and the expert and stakeholder consultations. It draws heavily upon the findings of the second expert workshop which focused on the emerging options and testing the proposed objectives and intervention logic of a new instrument. 7) A comparison and ranking of policy options based on multi-criteria analysis as applicable, taking as a reference the baseline scenario. This leads on to a summary assessment of the likely overall impacts of the preferred option. 8) A proposal for relevant monitoring and evaluation arrangements for the preferred policy option.

1.1

Structure of the report

This report is structured as follows: Section 2 outlines the context for the study. Section 3 the Problem provides an overview of the drug trafficking problem, including the drivers and who is affected. Section 4 sets out the potential objectives and intervention logic of a new legislative instrument on drug trafficking. Section 5 identifies the policy options and analyses their likely impacts. Section 6 presents a multi-criteria analysis to compare the options and identify the preferred option. Section 7 presents proposals for future monitoring and evaluation arrangements. Annex 1 presents the list of interviewees consulted through the study Annex 2 includes the research materials used in the Member State level research Annex 3 provides a series of tables summarising the legal framework in each Member State in relation to the Framework Decision Annex 4 presents the assumptions and calculations used to determine the economic costs of illicit drug trafficking.

2.0 Context for the study

This section summarises the context in which the Framework Decision was implemented and the current context in which any new instrument will operate.

2.1

Competency of the EU

The EU has a clear competence in the field of justice and home affairs and a requirement to act arising from the commitments made in the Treaty on the Functioning of the European Union (TFEU). This competence was first created by the 1993 Maastricht Treaty which introduced new forms of cooperation between EU governments in the field of justice and home affairs in the so-called third pillar, which was based on intergovernmental cooperation. The Lisbon Treaty strengthened the competence of the EU in the field of criminal law. The European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules concerning the definition of offences and sanctions in the areas of particularly serious crimes with a cross boarder dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis, which includes illicit drug trafficking (Art. 83(1) TFEU). The intention is that, by approximating the laws and regulations of Member States, the EU will strengthen mutual trust between Member States' judiciaries and thus facilitate cooperation and mutual recognition of judicial measures. 3 The Lisbon Treaty also enhanced the roles of the European Parliament and national parliaments in the field of justice and home affairs, whilst creating a scrutiny role for the Court of Justice. In the creation and exercise of competences in the field of justice and home affairs, it is understood that the fundamental principles of EU law will apply, namely respect for human dignity, liberty, democracy, equality, solidarity, rule of law, human rights. Before the Lisbon Treaty, the Council had previously adopted two legal instruments within the context of its drug control policy. The first is the Council Framework Decision 2004/757/JHA that forms the subject of this current study, which lays down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit trafficking of drugs. 4 This was introduced under Article 31(e) and 34(2) (b) of the TEU. The second is the Council Decision on information exchange, risk-assessment and control of new psychoactive substances.5

2.2

EU anti-drugs policy

Whilst a European plan against drugs has existed since at least the European Council in Rome 1990, the Maastricht Treaty gave new impetus to European intervention in this area. Making use of the EU's new competences created by the Maastricht Treaty, the Commission proposed in 1994 a European Action Plan to combat drugs, covering the years 1995-99 and which aimed to establish general guidelines for future Union measures to combat drugs. This plan was then succeeded by subsequent European Union Drugs th Strategies6. The latest Strategy covering the period 2013-2020 was adopted on 7 December 2013. The 2013-20 Strategy takes into account new approaches and challenges which have been identified in recent years and has been drafted on the basis of the principles set out in the Stockholm Programme, the Lisbon Treaty and on the respective competences of the Union and individual Member States. Due regard is given

3 4

http://ec.europa.eu/justice/criminal/criminal-law-policy/index_en.htm

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, p. 8.
5

Council Decision 2005/387/JHA of 10 May 2005 on the information exchange, risk-assessment and control of new psychoactive substances, OJ L 127, 20.5.2005, p. 32.
6

See: "Policies and strategies to combat drugs in Europe: the Treaty on European Union: Framework for a new European strategy to combat drugs?" ed. Georges Estievenart, Kluwer, 1995.

to subsidiarity and proportionality, as this EU Strategy intends to add value to national strategies. The Strategy is also based on the relevant UN Conventions which provide the international legal framework. The Strategy is structured around two policy areas; drug demand reduction and drug supply reduction, and three cross-cutting themes of coordination, international cooperation and research, information, monitoring and evaluation. The detailed implementation of the new Strategy will be set out in two consecutive four year EU Drugs Action Plans for the years 2013-2016 and 2017-2020. Alongside the European Drug Strategies, the EU has introduced a number of complementary or parallel policy developments. In 2009 the Council adopted the multi-annual Stockholm Programme: An open and secure Europe serving and protecting citizens. The Stockholm Programme aims to "strengthen the European area of freedom, security and justice for the benefit of the citizens of the Union" by making full use of the opportunities offered by the Lisbon Treaty. To that end, it defines strategic guidelines for legislative and operational planning within the area of freedom, security and justice in accordance with Article 68 of the TFEU, including with relation to developing a core of common minimum rules in the area of criminal law. More specifically, the Council invited the Commission to consider submitting new legislative proposals in respect of common definitions and sanctions related to criminal offences. The Justice and Home Affairs Council meeting of 3 June 2010 agreed a European pact to combat international drug trafficking: disrupting cocaine and heroin routes. The Pact highlighted three main commitments, i.e. to disrupt cocaine routes, disrupt heroin routes, and counter the proceeds of crime. In addition, the Council adopted in 2011 a European Pact on synthetic drugs which included a focus on countering trafficking in synthetic drugs and precursors. In October 2011, the Commission has issued a Communication setting out a number of new policy proposals by which to scale up its response to drugs 7, which make use of the new opportunities provided by the Lisbon Treaty. More specifically, the new legislative proposals are: Legislative proposals on drugs, notably on the revision of the Council Framework Decision on the illicit trafficking of drugs (the focus of this study) and of the Council Decision on new psychoactive substances Legislative proposals on drug precursors Legislative proposals on the confiscation and recovery of criminal assets and on strengthening mutual recognition of freezing and confiscation orders New legislative measures to combat money laundering It also proposes to present: Indicators to monitor drug supply, drug-related crime and drug-supply reduction to help improve the effectiveness of supply-reduction measures; Minimum quality standards to improve drug prevention, treatment and harm-reduction services.

2.3

United Nations Conventions

As well as being committed to co-operation at EU level, EU Member States are also signatories to a number of United Nations (UN) Conventions. These Conventions clearly form an important part of the context for EU drug control policy. The Conventions provide internationally-recognised definitions and have also shaped Member State policies for many years. The Conventions of most relevance are the following: Single Convention on Narcotic Drugs (1961, amended in 1972); this Convention codified all existing multilateral treaties on drug control and extended the existing control systems to include the cultivation of

Communication from the Commission to the European Parliament and the Council: Towards a stronger European response to drugs; Brussels, 25.10.2011 COM (2011) 689 final.

plants that were grown as the raw material of narcotic drugs. The principal objectives of the Convention are to "limit the possession, use, trade in, distribution, import, export, manufacture and production of drugs exclusively to medical and scientific purposes and to address drug trafficking through international cooperation to deter and discourage drug traffickers." The Convention also established the International 8 Narcotics Control Board. Convention on Psychotropic Substances (1971); this Convention established an international control system for psychotropic substances in order to "respond to the diversification and expansion of the spectrum of drugs of abuse and introduced controls over a number of synthetic drugs according to their 9 abuse potential on the one hand and their therapeutic value on the other". Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988) introduced measures against drug trafficking, notably with respect to money laundering (article 2) and the diversion of precursor chemicals (article 12). Importantly it also provided for international cooperation including 10 extradition of drug traffickers, controlled deliveries and transfer of proceedings. The EU is Party to this convention.

2.4

Framework Decision 2004/757/JHA and its rationale

As noted above, the subject for the current study is Framework Decision 2004/757/JHA, which was established under the provisions of articles 31(e) and 34(2) (b) of the Treaty on the European Union. The Framework Decision lays down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit trafficking of drugs. Specifically, it established minimum rules relating to the offences of illicit trafficking in drugs and precursors, so as to allow a common approach at EU level to the fight against trafficking. As a Framework Decision it required unanimity by the Council, which proved hard to achieve. As such the provisions in the final approved Framework Decision represent a lower level of requirements compared to 11 the original Commission proposal . Specifically, the Framework Decision defines drugs (Article 1) as substances listed under the UN Conventions of 1961 and 1971 including the substances subject to controls under Joint Action 97/396/JHA concerning the information exchange risk assessment and the control of new synthetic drugs (repealed by Council Decision 2005/387/JHA on the information exchange, risk assessment and control of new psychoactive substances). Precursors are defined as substances scheduled in the Community legislation giving effect to the obligations deriving from the UN Convention 1988, i.e. Regulation (EC) No 273/2004 of 12 the European Parliament and of the Council of 11 February 2004 on drug precursors and Council Regulation (EC) No 111/2005 of 22 December 2004 laying down rules for the monitoring of trade between 13 the Community and third countries in drug precursors . The Framework Decision defines crimes linked to trafficking in drugs and precursors (Article 2), but personal consumption as defined by national law - is not included in the scope of the Framework Decision. This is a fundamental decision since in some Member States consumption of drugs is also a criminal offence, although there are big differences in the prosecution and punishment of such acts. Moreover the Framework Decision contains a provision on incitement, aiding and abetting and attempt of one of the offences (Article 3). Article 6 provides that Member States take

8 9 10 11 12 13

www.incb.org/incb/convention_1961.html. www.unodc.org/unodc/en/treaties/psychotropics.html. www.unodc.org/unodc/en/treaties/illicit-trafficking.html. COM (2001) 259 final. OJ L 47, 18.2.2004, p. 1. OJ L 22, 26.1.2005, p. 1.

necessary measures to ensure that legal persons can be held liable for all offences defined in the Framework Decision, if they are committed for their benefit. Member States are obliged to take measures necessary to ensure that the offences committed by individuals or legal persons are punishable by effective, proportionate and dissuasive criminal penalties (Article 4 and 7). Beside this general obligation, it sets minimum / maximum levels of penalties for offences committed by individuals (Article 4) and introduces the possibility for the Member States to reduce penalties under certain particular circumstances (Article 5). Article 8 establishes compulsory territorial jurisdiction and non-compulsory extra-territorial jurisdiction if the offender is one its nationals or if the offence is committed for the benefit of a legal person established in the territory of that Member State. A report published by the Commission in 2009 on the implementation of the Framework Decision 14 2004/757/JHA indicated that at this stage the implementation of the Decision had not been completely satisfactory. Specific issues highlighted in the review included: The transposition of provisions on crimes linked to trafficking in drugs and precursors had not been implemented by all Member States to the same extent. Since most Member States already had similar provisions before the adoption of the Framework Decision, not all of them saw it as necessary to amend their legislation after the adoption of the Framework Decision. Differences in respect of the offence of precursor trafficking, since not all Member States have specific provisions in their criminal law frameworks. Notable differences were identified between Member States' provisions on level of sanctions for the offences defined in the Framework Decision. The consequence is that legislative disparities between the Member States remain and again the Framework Decision does not appear to have had an approximating effect. A lack of clarity as to whether all Member States fulfilled the obligation to introduce a liability of legal persons provided for in Articles 6 and 7 of the Framework Decision. Amongst the Member States where provisions were introduced, there are differences between the models of corporate liability and the practical use of these provisions. It was unclear if and how far jurisdiction over the territoriality principle has been implemented in the Member States. The Commission is, therefore, exploring the possibility of replacing the Council Framework Decision 2004/757/JHA. This preparatory study and particularly the elements focussed on updating the knowledge on the transposition of the Framework Decision at a Member State level are therefore important to inform any subsequent action or developments to address the on-going issues associated with illicit drug trafficking.

14

COM (2009) 669 final.

3.0 Problem definition

There is evidence that illicit drug trafficking is a major and growing problem in the EU with evidence demonstrating an upward trend in its incidence and complexity. The drugs market is resilient and flexible with new drugs being trafficked and evolving trafficking routes making it a dynamic problem. The involvement of fluid organised criminal groups with increasingly sophisticated methods for multi-commodity trafficking also poses significant challenges. The main causes of the problem are identified as weaknesses in the Framework Decision, the profits generated from the illicit trafficking of drugs, the demand from drug users and uncoordinated actions at a national level. These dimensions of the problem of major trafficking of illicit drugs are summarised diagrammatically overleaf in figure 3.1. The rest of this chapter provides a more detailed commentary on the problem.

3.1
3.1.1

The problem of major Illicit drug trafficking

Evolving markets and trafficking routes

An overall trend emerging from the literature is that the vast majority of drugs illicitly trafficked within the EU are destined for final consumption in the EU, and much of this is imported from other parts of the world. Within this there is much complexity relating to developing markets and evolving trafficking routes for different drugs. A summary of recent trends in the trafficking of different illicit drugs is presented below. 3.1.1.1 Cannabis Cannabis can be broken down into two main categories resin and herbal. Cannabis resin is typically considered more suited to international trafficking than cannabis herb, since it is much less bulky, much 15 more malleable and devoid of the herbs pungent odour . Resin is also reported to survive storage better 16 than herb . Most of the cannabis resin on the European market appears to be imported from Morocco or Afghanistan. The available information suggests that cannabis resin largely enters Europe through the Iberian Peninsula 17 and the Netherlands and Belgium, from where it is distributed to the rest of Europe. However, it is also possible that, beginning in the mid-2000s, the dominance of Moroccan cannabis resin in European markets has been challenged by the re-emergence of resins from south-west Asia, the Middle East and the Balkan region which has resulted in a diversification of trafficking routes. Specifically it is also indicated that that non-EU but continental European regions such as Albania, the Former Yugoslav Republic of Macedonia, 18 Moldova, Montenegro and Serbia are other trafficking sources . The number of cannabis resin seizures has 19 declined since a peak in 2008 of 373, 965 seizures to 272,000 in 2010.

15 16

EMCDDA (2012) Cannabis production and markets in Europe. UNODC (2006) World drug report 2006, Volume 1: Analysis, UNODC, Vienna. 17 EMCDDA (2012) Cannabis production and markets in Europe. 18 INCB, (2010), Report of the International Narcotics Control Board for 2009. www.incb.org/pdf/annualreport/2010/en/AR_2010_English.pdf . 19 EMCDAA (2012) Statistical Bulletin 2012.
8

Figure 3.1 Problem Tree Trafficking of illicit drugs

Drivers

Weaknesses of FD

Demand for illicit drugs

Profitability of trafficking

Unco-ordinated national initiatives the ballooning problem

Problem

New challenges of major drug trafficking

Consequences

Corruption risks

Crime directly related to trafficking

Crime related to drug Use

Impacts on health and quality of life of problem drug users (PDUS)

Wider social impacts of drug use e.g. family breakdown

Productivity, costs of trafficking

Economic, social and environmental impacts in supplier countries

Crime related to use and laundering of profits of trafficking

Costs to law enforcement agencies and criminal justice system

Healthcare costs

Productivity costs of PDUS

Associated public sector costs

Historically, the Netherlands has been the main source of cannabis herb supply within Europe. More recently, however, it appears that there has been some shift in the market as domestic production has increased throughout Europe. There was a sharp increase in production from the early to mid-1990s in some western European countries typically believed to be due to advances in horticultural knowledge and 20 technology, which increased yields and reduced the chances of detection. More recently Eastern Europe appears to be experiencing growth in relation to domestic production and subsequent intraEuropean trafficking. Seizures of cannabis herb have more than quadrupled over the period 2004-2010 potentially reflecting the growth in production. In 2004, EMCDDA data suggests 145,000 seizures were made increasing to 369,000 in 2010. The amount of cannabis herb seized also increased during this 21 period. 3.1.1.2 Heroin and opioids 22 The majority of heroin consumed in the EU comes from Afghanistan . Heroin arrives in Europe mainly by two trafficking routes. The historically important Balkan route through Pakistan, Iran and Turkey and the silk route through central Asia and towards Russia. This heroin is then smuggled through Belarus, Poland and Ukraine to other destinations such as Scandinavian countries via Lithuania 23 There was an overall increase in the number of seizures of heroin in Europe between 2004 and 2010, 24 although there was a small decline in the amount of drug seized in these years . This contrasts with a doubling of the amount of drug seized in Turkey, arguably due to greater collaboration between EU and 25 Turkish law agencies . The EMCDDA data suggests that in Europe, an estimated 54 000 seizures resulted in the interception of 24 tonnes of heroin in 2009, two thirds of which (16.1 tonnes) was reported 26 by Turkey.' Declining seizures were reported in most of the countries in 2010 however, with the 2010 27 opium crop failure in Afghanistan potentially accounting for this. A current challenge is clearly predicting the potential impact of the opium crop failure in Afghanistan. There is some evidence that synthetic opioids have emerged to potentially meet demand. Trends in the 28 production sources and associated trafficking routes of these synthetic drugs are evolving and the lack of available data makes it impossible to draw definitive conclusions as to whether traffickers are seeking alternative routes for these drugs. As reported in the UNODCs World Drug report the opiate market 29 continues to be extremely flexible and adaptable.

20 21

EMCDDA (2012) Cannabis production and markets in Europe. EMCDDA (2012) Statistical Bulletin 2012. 22 European Monitoring Centre for Drugs and Drug Addiction (2008) Monitoring the Supply of Heroin to Europe, EMCDDA, Lisbon. p. 8. 23 INCB, (2010) Report of the International Narcotics Control Board for 2009. www.incb.org/pdf/annualreport/2010/en/AR_2010_English.pdf. 24 EMCDDA (2012) Statistical Bulletin 2012. 25 European Monitoring Centre for Drugs and Drug Addiction (2011) Annual Report 2011 - the State of the Drug Problem in Europe. EMCDDA, Lisbon. p. 73. 26 European Monitoring Centre for Drugs and Drug Addiction (2011) Annual Report 2011 - the State of the Drug Problem in Europe. EMCDDA, Lisbon. p. 73. 27 EMCDDA (2012) Statistical Bulletin 2012. 28 UNODC, (2012) World Drug Report 2012. http://www.unodc.org/documents/data-andanalysis/WDR2012/WDR_2012_web_small.pdf. 29 UNODC, (2012) World Drug Report 2012. http://www.unodc.org/documents/data-andanalysis/WDR2012/WDR_2012_web_small.pdf.
10

3.1.1.3 Cocaine Global cocaine production is concentrated in the Andean region of South America. Available data suggests there has been a major decline in cocaine manufacture in Colombia in the five-year period 2006-2010 but a sizeable shift has taken place as coca bush cultivation and coca production increased in 30 the same period in Bolivia and Peru. According to the EMCDDA, cocaine is trafficked into Europe via different air and sea routes. The Iberian Peninsula (especially Spain) and the Low Countries (particularly the Netherlands) have traditionally been key points of entry for cocaine being smuggled into Europe. As with other drugs, however, cocaine is often trafficked via indirect routes to Europe. In the early 1990s large amounts of cocaine were seized in Poland, which would have then been smuggled onward to the Netherlands and Britain. Since 2000, West Africa has emerged as an important cocaine route to Europe, representing a shift from Latin America. More recently reports suggest that cocaine trafficking is also moving eastwards, with an increase in seizures for 10 central and Eastern European countries. Once within Europe, it appears that France, Italy and the UK are dominant end-destinations. There is evidence that traffickers are continuing to adapt their trafficking practices in response to law enforcement efforts. More advanced techniques to conceal cocaine are being identified in particular, for example, the mixing of liquid cocaine into commercial goods such as clothes, liquids or plastic, converting 32 it into powder cocaine in laboratories in Europe, or making it odourless. The number of seizures in Europe has steadily increased for 20 years, but have accelerated especially 33 since 2004, peaking at around 99,000 cases in 2008. In 2010, some 83,000 seizures were made. The total amount of drug seized peaked earlier in 2006 however, before reducing by around 50% to around 49 tons in 2009. This decrease in quantity is not easily explained, although it has been suggested that it again may reflect either changes in trafficking routes and practices, or changes in law enforcement 34 activity . 3.1.1.4 Amphetamine-type stimulants 'Amphetamine-type stimulants' is a term that includes amphetamine, methamphetamine and ecstasy 35 which are amongst the most commonly used drugs in Europe . The information available suggests that Europe is the worlds number one producer of amphetamine; an estimated minimum of 34 200 seizures, amounting to 8.7 tonnes of amphetamine, were made in Europe in 2009. There is evidence that production in some regions is also increasing. Since the early to mid-2000s, the capacity of machinery in production sites in northern Europe has increased to reach larger-scale capacity such as a single 36 machine being able to produce between 20 and 50 kg of amphetamine a day. Much of this production 37 is known to be consumed within European borders although some is exported abroad. Methamphetamine on the other hand, is manufactured in South East Asia and America, with trafficking coming through the Middle East to Europe.
31

30

UNODC (2012) World Drug Report 2012. http://www.unodc.org/documents/data-andanalysis/WDR2012/WDR_2012_web_small.pdf. 31 EMDCCA (2010) Cocaine: a European Union perspective in the global context. 32 European Monitoring Centre for Drugs and Drug Addiction (2011) Annual Report 2011 - the State of the Drug Problem in Europe. EMCDDA, Lisbon. 33 EMCDDA (2012) Statistical Bulletin 2012. 34 European Monitoring Centre for Drugs and Drug Addiction (2011) Annual Report 2011 - the State of the Drug Problem in Europe. EMCDDA, Lisbon. 35 EMCDDA (2011) Amphetamine: a European Union perspective in the global context, Lisbon. 36 EMCDDA (2011) Amphetamine: a European Union perspective in the global context, Lisbon. 37 EMCDDA (2011) Amphetamine: a European Union perspective in the global context, Lisbon.
11

The number of amphetamine seizures in Europe has been fluctuating for the last 5 years, with a decrease reported in 2008 and 2009. In contrast, the quantities seized have stabilised at a high level: between 7 and 8 tonnes has been recovered annually in Europe since 2004, with a low of 5.5 tonnes in 2006 and a 38 peak of 8.2 tonnes in 2007. Examination of EMCDDA seizure data suggests that amphetamine production and trafficking in Europe can be thought of as concentrated in geographically distinct areas north-west and north east Europe. A key challenge for agencies, however, is that the chemical nature of amphetamine-type stimulants allows for manufacture anywhere, and manufacturing can be easily shifted to take account of changing laws regarding constituent chemical components. Amphetamine-type stimulants are also subject to frequent changes reflecting shifts in the popularity of different drugs in the nightlife cultures in which they are most frequently consumed. New substances therefore frequently emerge to respond to user demand.39 3.1.2

A major and increasing problem

There are obvious barriers to determining the scale of illicit drug trafficking activity using data sources it is an illicit and therefore hidden activity. The "trade" is also truly global; therefore any attempt to narrowly define EU-related trafficking is a challenge. In addition, statistics and data sets are largely dependent on national-level information which may be based on slightly divergent categories of crime definitions. As a result, 'systematic and routine information to accurately describe the scale illicit drug markets and 40 trafficking is still limited'. Data sets on drug seizures can, however, be used as a basis for estimating the size of the drugs trade. The EMCDDA collects detailed statistics on volumes of drug seizures in every country in Europe. As with all crime data, the seizures data provide only a proxy of the true scale of illicit trafficking within a country or region. An increase in the number of seizures, for instance, may indicate greater effectiveness in detecting and intercepting the illicit trafficking of drugs rather than an increase in the underlying crime rates. Nonetheless recent data available from the EMCDDA suggests that the trafficking of illicit drugs continues to be a major issue in the EU with over 5 million seizures of illicit drugs between 2004 2010 (Table 3.1). The annual data also show an upward trend in seizures for some types of drugs. Table 3.1 Number of seizures by drug type in Europe 2004-2010
2004 Cannabis resin Cannabis herb Heroin Cocaine Amphetamine Ecstasy Methamphetamine Total Source: EMCDDA 264,673 145,495 42,470 55,718 7,288 21,221 2,188 539,053 2005 293,258 159,893 52,343 73,783 7,477 21,784 2,354 610,892 2006 310,196 227,436 51,974 86,020 5,537 23,207 3,364 707,734 2007 314,857 271,363 55,017 95,664 8,222 21,653 4,129 770,905 2008 373,965 302,656 56,210 99,847 7,980 16,730 4,710 862,098 2009 318,483 340,467 54,099 94,194 8,053 9,725 7,368 832,389 2010 272,906 369,604 50,393 83,074 5,022 8,476 7,330 796,805 Total 2,148,338 1,816,914 362,506 588,300 49,578 122,796 31,443 5,119,875

The amount of drug seized likewise demonstrates the scale of the problem, with over 4.4 kg of drugs seized in total in the last 5 years. The annual data on the quantities seized shows a more mixed picture with a declining amounts seizure rate from 2008 overall but increased seizures for some drug types.
38 39

EMCDDA (2011) Amphetamine: a European Union perspective in the global context, Lisbon. EMCDDA (2011) Amphetamine: a European Union perspective in the global context, Lisbon. 40 EMCDDA (2011) Annual Report 2011.
12

Other intelligence on drug markets relating to production (e.g. the poppy failure in Afghanistan) suggests this could be a temporary supply issue (see section 3.1.1.2 above.) Table 3.2 Drug seizures (kilograms) in the EU by drug type 2006-2010
ATS Cannabis-type Cocaine-type Opioids T ota l 2006 4,023 701,939 120,542 8,301 834,804 2007 7,656 916,430 78,458 9,263 1,011,807 2008 728 1,077,357 62,159 9,333 1,149,578 2009 12,059 692,386 54,123 8,612 767,180 2010 T ota l 13,028 37,494 632,778 4,020,889 60,634 375,916 6,913 42,422 713,354 4,476,722

Source: EMCDDA Crime associated with drug trafficking is a further measure to determine the scale of the problem. 41 Eurostat Crime and Criminal Justice statistics unlike other data sources, takes a narrower definition than some sources giving confidence that it is a more accurate assessment of the scale of the problem. It defines drug trafficking as including offences relating to illegal possession, cultivation, production, supplying, transportation, importing, exporting, and financing of drug operations which are not solely in connection with personal use. Table 3.3 outlines the number of drug trafficking offences recorded annually in each EU country for the period 2006-2009 which suggests an upward trend in drug trafficking in the EU since 2006. Reflecting on earlier data in the series, the majority of Member States in fact 42 recorded increases of over 10% since 2002 . Table 3.3 Number of police-recorded offences for drug trafficking in EU Member States
EU Country Belgium Bulgaria Czech Republic Denmark Germany Estonia Ireland Greece Spain France Italy Cyprus Latvia Lithuania Luxembourg Hungary Malta Netherlands Austria Poland Portugal Romania Slovenia 2006 11,826 2,824 2,668 2,917 64,865 981 3,160 9,600 12,711 5,792 32,306 653 997 704 1,201 6,740 123 19,769 2,377 3,220 3,610 3,079 1,590 2007 12,674 2,844 2,639 3,258 64,093 1,449 3,824 9,271 14,098 5,797 34,439 876 1,434 765 1,448 4,676 149 19,405 2,473 3,926 3,265 2,796 1,429 2008 13,061 2,857 2,812 3,237 55,905 1,558 4,028 11,861 14,574 6,128 34,082 780 2,512 793 1,343 5,464 180 18,672 1,980 3,317 3,710 3,621 1,434 2009 13,428 3,662 3,046 2,849 50,965 1,042 4,019 12,335 14,345 6,007 34,101 705 2,307 874 2,232 4,801 187 18,188 2,099 3,975 4,260 3,228 2,096

41 42

Eurostat (2012) Crime and Criminal Justice, 2006-2009. Eurostat (2012) Crime and Criminal Justice, 2006-2009.
13

EU Country Slovakia Finland Sweden England and Wales Scotland Northern Ireland (UK)

2006 411 4,837 6,449 26,550 10,890 473

2007 488 5,115 6,918 28,330 9,827 529

2008 524 5,659 7,997 29,894 10,315 607

2009 602 6,335 8,192 33,009 9,223 668

Source: Eurostat The European Sourcebook of Crime and Criminal Justice Statistics likewise shows a largely upward trend in drug trafficking crime between 2003 and 2007 (Table 3.3 below). In exceptional cases, this increase is quite significant; for example, Slovenia and Estonia showed the most marked increase of 83% and 76% respectively. Table 3.4 Drug trafficking offences per 100 000 population per country
2003 2004 2005 Albania 1 ... 1 Armenia ... 2 2 Austria 31 30 28 Belgium 10 11 12 5 3... 1 Bosnia-Herzegovina ... 35 Bulgaria 25 30 34 Croatia 33 33 33 Cyprus 18 15 20 Czech Republic 28 23 22 Denmark 49 58 50 Estonia 45 37 51 Finland 11 10 99 4 1 France 10 10 10 Georgia 0 0 0 Germany 91 98 97 Greece ... ... ... Hungary 3 7 6 Iceland 52 56 32 Ireland 61 56 67 Italy ... ... 42 Latvia 14 15 15 Lithuania 14 20 29 Luxembourg ... ... ... Malta ... ... 29 Moldova 38 59 58 Netherlands ... ... ... Norway ... ... ... Poland 7 9 9 Portugal 36 35 34 Romania ... ... ... Russia 12 97 11 1 1 Slovakia 13 13 15 Slovenia 39 50 51 Spain 28 28 28 Sweden 42 45 43 Switzerland 98 97 84 TFYR of Macedonia ... ... 5 Turkey ... ... ... Ukraine 37 38 38 UK: England & 47 46 47 Wales UK: Northern 24 22 20 Ireland UK: Scotland 18 18 18 Source: European Source book Statistics 9 9 of Crime 4
43

43

2006 1 5 29 12 3 34 36 32 11 22 54 52 92 9 1 89 ... 5 30 75 40 11 20 ... 27 56 ... ... 8 34 ... 13 57 79 29 61 75 3 16 38 49 27 21 3

2007 1 8 30 ... ... 38 34 15 22 ... 80 96 9 2 90 ... 4 ... 93 ... 18 21 ... ... 48 ... ... 10 31 ... 14 99 71 31 63 80 ... 33 37 52 30 19 1

2003-7 47 ... -2 ... ... 5 2 3 18 22 ... 7 8 16 -7 28 9 -2 ... 6 ... 5 3 ... 30 47 ... ... 2 8 ... ... 51 14 ... 2 3 36 8 3 1 2 49 19 ... ... 1 1 2 6 1

Aebi et al (2010) European Sourcebook of Crime and Criminal Justice Statistics 2010.
14

The Lisbon Treaty defines drug trafficking as one of the "particularly serious crimes with a cross border dimension." The cross border dimension, specifically, is a key factor in the significance of drug trafficking as a major issue for the EU. Eurojust and Europol help coordinate cross border investigations within the EU, and with third countries and their increasing focus on drug trafficking cases serves to demonstrate the challenges that are faced by the EU. Since 2004, Eurojust has dealt with more cases of drug trafficking than any other type of crime. The number of drug trafficking cases referred to Eurojust increased more than threefold over this period, from 77 to 254, and this trend is continuing in 2011. In 2010, around a third of operational support provided by Europol to national law enforcement agencies was related to illicit drug trafficking. Taken together this is a further indication of drug trafficking as a growing problem in the EU. 3.1.3 The involvement of criminal organisations
44

Under the United Nations Convention against Transnational Organized Crime , an organised criminal group is defined as a group of three or more persons. The very nature of drug production and trafficking involving a spectrum of activities often in different continents and regions means that a sufficient number of individuals are likely to be involved to characterise the activity as involving an organised crime group. However, aggregated national drug seizure or crime figures say very little about the nature of the trafficking and who is involved. Intelligence from a number of agencies has been used to build a picture of groups involved in trafficking on particular routes. For example, criminal groups present in the Balkan region have been identified as having control over the long-established trafficking networks of the Balkan Routes. Recently, a number of criminal groups with roots in the former Yugoslav Republic of Macedonia have emerged in several Western European cities as organisers of heroin trafficking. Columbian criminal groups responsible for the trafficking of cocaine have been known to establish links with criminal groups in both transit and 45 destination countries in the EU. Europol's on-going assessment of trends in organised crime highlights the inherent difficulties in proving the involvement of those in charge as increasingly these enterprises are becoming more anonymous. The use of Internet technologies for communication and the use of applications to allow remote monitoring of production and storage sites in particular are factors in 46 this. Organised crime groups are also increasingly diverse in their group structures. Europols assessment is that a new criminal landscape is emerging; marked increasingly by highly mobile and flexible groups operating in multiple jurisdictions and criminal sectors. While previously, prominent groups involved in drug trafficking have had an ethnic basis, there is evidence of more multi-national groups emerging with 47 outsiders being used by groups to facilitate trafficking . For example, EU citizens are being used by non-EU groups to courier heroin and cocaine, in an attempt to evade law enforcement measures based on nationality or ethnic appearance. Even within the EU there is evidence of trafficking being subject to greater organisation and developing linkages with other groups. EMCDDA information from country focal points, for example, suggests the existence of commercial distribution of cannabis, with organised and complex distribution networks appearing to exist in Belgium, Bulgaria, Denmark, Ireland, France and the Netherlands. This is evidence that organised crime groups are becoming increasingly sophisticated, bringing in external expertise to maximise the emerging technologies to facilitate the trafficking and concealment of illicit drugs. Europol highlights a higher level of complicity of external specialists providing, for example, maritime, pharmaceutical, mechanical, legal and financial expertise.

44 45

UNODC (2004) UN Convention against Transnational Organized Crime. Europol (2011) Organised Crime Threat Assessment. 46 Europol (2011) Organised Crime Threat Assessment. 47 Europol (2011) Organised Crime Threat Assessment.
15

Overall, criminal groups are increasingly multi-commodity and poly-criminal in their activities. West African organised crime groups are amongst the most successful in poly-drug trafficking, arranging the 48 transport of cocaine, heroin, herbal cannabis and ecstasy to EU destination markets. This in turn has resulted in a barter market, in which consignments of drugs and their precursors are exchanged for stolen property, firearms and, indeed, other drugs, intensifying an informal economy which makes organised 49 crime even less visible.

3.2

Main drivers of the problems

The main drivers of the problem of major trafficking of illicit drugs are identified as: Weaknesses of the Framework Decision The demand for illicit drugs The profitability of trafficking Un-coordinated national initiatives Driver 1: Weaknesses of the Framework Decision

3.2.1

One of the EU's responses to the problems outlined above was the adoption of Framework Decision 2004/757/JHA, which lays down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking. Specifically, it established minimum rules relating to the offences of illicit trafficking in drugs and precursors, so as to allow a common approach at EU level to the fight against illicit trafficking in drugs. A programme of Member State level research was conducted for this study to provide an updated and detailed evaluation of the implementation, effectiveness and impact of the Framework Decision. The conclusion reached from the research was that while the Framework Decision represented a first step towards ensuring a European approach, it has several weaknesses. The assessment has shown that the instrument scarcely led to any alignment of national measures in terms of the practice of prosecutions, convictions and sentencing. In most Member States the Framework Decision was not 50 acknowledged to have brought any improvements. These findings are examined in more detail below . 3.2.1.1 Limited overall impacts from transposition of the Framework Decision 2004/757/JHA Synthesis of the Member State level research suggests that in general, the impact of the Framework Decision on the Member States legislation has been limited. For the majority of States it required no or only small alterations to national legislation. Only eleven Member States (AT, CY, DK, FI, GR, LT, NL, PL, RO, SE, SK) were reported to have amended their national drug laws but in the main only small amendments were made and four Member States (BG, CZ, ES, PT) only introduced the liability of legal persons, for which not only the FD, but several other international and European legal acts were the reason. 3.2.1.2 Limited approximating effect in penalties and provisions In some Member States, the Framework Decision did not address issues of variation in definitions. The definitions of trafficking in drugs are in compliance with the Framework Decision, even if the wording in several Member States is different. Particular differences exist in the definition of precursor trafficking. In most Member States there are special provisions on trafficking of chemical precursors, in others they are regulated in the same way as drugs. In DK precursor trafficking is covered by aiding and abetting of drug trafficking. In CZ the exact scope of the term precursor remains unclear, namely whether it also covers
48 49

Europol (2011) Organised Crime Threat Assessment. Europol (2011) Organised Crime Threat Assessment. 50 The full implementation report is available ECLAN (2012) Evaluation of the transposition and impact of the Framework Decision 2004/757/JHA on illicit drug trafficking.
16

medicines containing precursors. FR does not criminalise trafficking in precursors at all. In MT, there is no concept of "precursor" chemicals as such; the law rather contains a long schedule of banned substances within which precursor chemicals appear. Consequently the judiciary might still face obstacles in effectively prosecuting these offences. In terms of penalties, the Framework Decision did not appear to have a significant approximating effect. There were only exceptional examples where Member States had to raise their penalties to bring their legislation in line with the Framework Decision (AT, DK, GR, NL). As penalties in many Member States were higher before the adoption of the Framework Decision, there was no reason for them to amend their legislation. The provisions of the Framework Decision in respect of aggravating circumstances which influence the penalties available have not been transposed to the full extent by all Member States and there remains variation between the Member States in how they are defined and applied. The provisions set out in the Framework Decision were considered by some stakeholders to be insufficient as they do not include all aggravating circumstances listed in previous UN instruments. The mitigating circumstances provided for in the Framework Decision did not lead to an amendment of national laws and as a consequence the requirement for a reduction in penalties differs between the Member States provisions and the prov isions of the Framework Decision. In this regard the approximating effect of the Framework Decision has been quite limited. Provisions on confiscation are now evident in most Member States but most did not change their legislation due to the Framework Decision, but due to other obligations, particularly the Framework Decision 2005/212/JHA on Confiscation of Crime-Related Proceeds, Instrumentalities and Property. Differences are still evident in how confiscation provisions have been transposed as several Member States have not established these provisions in their drug laws, but in more general parts of criminal law. 3.2.1.3 Limited impacts in practice Statistical data gathered from Member States concerning trafficking offences is on the whole difficult to compare since the criteria for identifying a case as being related to trafficking in illicit drugs is quite different. In some Member States data is also not broken down to allow the assessment of the police reports, indictments and convictions relating specifically to illicit trafficking in drugs. Where data is available for a period of five years, there are no clear trends that police reports or convictions for the illicit trafficking in drugs are increasing or declining significantly. It does not appear, from this data alone, that the application of the Framework Decision had a marked effect. Overall, there is no homogenous picture concerning the imposition of penalties in the Member States. In reality, there are a large number of factors which influence sentencing, and it is difficult to evaluate sentencing practice merely based on the penalties that are foreseen in laws. The research findings have confirmed that individual Member States approach sanctioning in a variety of ways, which is not only influenced by drug trafficking law, but is more generally influenced by differing criminal law systems and criminal law philosophies. 3.2.1.4 Problems with judicial cooperation Since illicit trafficking in drugs has typically a trans-national dimension, cooperation between Member States and Member States and EU bodies is essential for an effective prosecution of such offences. The national reports concluded that cooperation generally works well, although the degree of cooperation certainly varies. The functioning of cooperation, however, relies mainly on bilateral contacts, especially on personal contacts. Cooperation between Member States and Member States and EU bodies is important for the effective investigation and prosecution of drug trafficking offences. The table below - which is based largely upon
17

recent Eurojust research but echoed by findings from the Member State level research - summarises key challenges and problems in securing law enforcement and judicial co-operation between Member States in relation to drug trafficking cases. Table 3.5: Problems and issues associated with cooperation Theme Key Problems Exchange of information and coordination Common problems relating to information exchange include: a reluctance to exchange information spontaneously or the timely transmission of information. Other issues include differences in laws governing the confidentiality of investigations/prosecutions and a lack of secure channels to transfer information also present barriers

51

Conflicts of jurisdiction

Conflicts of jurisdiction may arise in situations where the same person is subject to parallel criminal proceedings in different Member States. Key problems in pursuing a single concentrated prosecution include: duplication of investigative work; the complexity of investigations preventing the merger of investigations into a single concentrated investigation; the admissibility of evidence when transferred to proceedings in a different Member State; the practicalities of transferring evidence; ability of witnesses (e.g., police) to give evidence in other Member States Common problems include timely and accurate translation of required paperwork (European Investigation Order, European Arrest Warrant), difficulty identifying the appropriate authorities to execute measure or lack or resources/priority within appropriate authority to act. Proposals for JIT may come too late when investigations in respective Member States are concluding. Previous experience and lack of success in joint working in other cases can act as a disincentive for forming a JIT. Barriers to more extensive use of controlled deliveries include different processes for authorisation, cumbersome requirements for authorisation from countries on route, conflicting tactical and judicial issues in planning the practical implementation of a delivery.

Mutual Legal Assistance

Joint Investigation Teams (JIT)

Controlled deliveries

Source: Eurojust

There is no real evidence on the frequency and practical implications of such problems or the extent to which they undermine the efforts to combat trafficking of illicit drugs as Eurojust becomes involved only in a limited number of cases. In many instances the issues involved are dealt with through bilateral arrangements or in other instances the cases may simply not be pursued because of the complexities involved. In conclusion, the weaknesses in the Framework Decision contribute to the problem of drug trafficking indirectly rather than being a direct driver. There is no evidence that the legal framework and its consistency across Member States, substantially undermines the efforts of individual Member States in addressing illicit drug trafficking. However, it works against collective effort on the part of Member States (see below) to effectively address the cross border element of the illicit drug trafficking problem.

51

Eurojust (2012) Strategic project on enhancing the work of Eurojust in drug trafficking cases.
18

3.2.2

Driver 2: Profitability of trafficking

Trafficking in illicit drugs is essentially a market activity governed to a large extent by economic logic. A key driver is therefore the financial benefits derived from the illicit drug trafficking. This has long been 52 recognised, with the 1988 UN Convention including money-laundering within the ambit of drug trafficking activities and its objective is to create and consolidate international cooperation between law enforcement bodies to deprive drug traffickers of their ill-gotten gains. Under the United Nations Convention against Transnational Organized Crime53, an organized criminal group is defined as a group which exists in order to obtain, directly or indirectly, a financial benefit. This is a significant factor in the involvement of organised crime groups in the trafficking of illicit drug trafficking (see section 3.1.3 above). Estimates suggest that that global illicit drugs market generates an estimated income for criminals of up to 250 billion every year. Of this some 70 billion is generated in the EU. More recent research by UNODC suggests that the trafficking illicit drugs accounts for some 20% of all crime proceeds accessed by transnational organised criminal groups, equating to 0.6% to 0.9% of global GDP. In addition, drugrelated proceeds available for money-laundering are equivalent to between 0.4% and 0.6% of global 54 GDP. . Looking at the profits relating to specific drugs suggests that some 92% of global cocaine gross 55 profits were available for laundering in 2009. The recent trend observed of groups dealing in more than 56 one drug is also identified as a new approach to maximising profits. In the countries that produce the raw or source materials for illicit drugs, economic drivers are also evident. The production of the raw materials and trading with traffickers can generate higher incomes for 57 local farmers in comparison to other enterprises . These benefits are evidenced most clearly in cultivation of poppies in Afghanistan for the production of opium. The level of income for farmers from this crop is estimated by UNODC to have been about $750 per family between 1990-2000 which rose to $6,500/family since 2001 since the prohibition of the crop. These are extraordinary revenues in a country 58 where the average wage does not exceed $2 per day. 3.2.3 Cause 3: Demand for illicit drugs by users

The supply of illicit drugs of course links closely to demand, if no one wanted to use drugs there would be no financial returns for the traffickers, although equally, the addictive nature of many illicit drugs also means that supply is an important driver of demand. EMCDDA estimates suggest that over 75 million Europeans have used the drug at least once in their lifetime. The following table summarises the 59 prevalence of different types of drug use in the EU . Cannabis is the most commonly used drug (with almost a quarter of the working age population having consumed it at sometime during their life) followed by cocaine.

52 53

United Nations (1988) Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. United Nations (2000) United Nations Convention Against Transnational Organized Crime. 54 United Nations (2011) Estimating illicit financial flows resulting from drug trafficking and other transnational organized crimes. 55 United Nations (2011) Estimating illicit financial flows resulting from drug trafficking and other transnational organized crimes. 56 Europol (2011) Organised Crime Threat Assessment. 57 International Narcotics Control Board (2002) Illicit drugs and economic development. 58 UNODC (2003) The Opium Economy in Afghanistan. 59 EMCDDA (2011) Annual Report 2011: the state of the drugs problem in Europe.
19

Table 3.6 Drug use in Europe

Substance

60

Lifetime prevalence

Last year use

Country variation in last year use Overall range

Number of working age users

Percentage of working age population 23.2% 4.3% 3.2% 3.8%

Number of working age users

Percentage of working age population 6.7% 1.2% 0.7% 0.5%

Cannabis Cocaine Ecstasy Amphetamines Source: EMCDDA

78m 14.5m 11m 12.5m

22.5m 4m 2.5m 1.5-2m

0.4% - 14.3% 0.0% - 2.7% 0.1% - 1.6% 0.0% - 1.1%

Reflecting the complex pattern of drug use across the EU, the reasons and causes for drug use are equally diverse. A common explanation for drug use is addiction, given the addictive nature of many illicit drugs. However, commentators suggest that clinical addiction characterised by metabolic craving, 61 tolerance and dependence only accurately describes a small percentage of long-term drug use. Peer pressure is often cited as a reason for usage amongst young people. Various surveys, for example, covering a wide age range usually show minimal levels of drug experience at around age 11 or 12 but this 62 can rise to over 40% by 18 years old. Synthesis by ECMDDA of wider research suggests that drug use 63 in young people is linked closely to curiosity, peer-group behaviour and lifestyles. A number of specific risk factors associated with drug use after this initial experimental use has also been identified: 1 2 3 4 5 6 7 8 9 10 Age increasing use until mid-20s, then decreasing Gender usually higher in males, though not always much difference Outgoing lifestyles bars, discos, parties Precocity younger-than-average initiation into adult behaviour in general: sex, smoking, drinking and drugs Higher disposable income (in some studies, unemployment is also a risk factor) Urban settings higher for illegal drugs but not for alcohol, tobacco, medicines, solvents; less so for cannabis in countries with longer histories of use High-prevalence areas and drug availability Positive images of drug use among peers Alcohol or tobacco use Parental substance use

60 61 62

Figures include the EU27 plus Croatia, Turkey and Norway. Transform Drug Policy Foundations.

For example: Swedish Council for Information on Alcohol and Other Drugs (CAN) and the Cooperation Group to Combat Drug Abuse and Illicit Trafficking (Pompidou Group) (2000), The 1999 ESPAD report (European School Survey Project on Alcohol and Other Drugs), Stockholm, 2000.
63

EMCDDA (2002) Drugs in focus briefing: Measuring prevalence and incidence of drug use.
20

Overall, less is known about the risk factors for illicit drug use among older adults than young people. Significant evidence does exists, however, that makes a link between Illicit drug use and co-occurring mental health problems, with cannabis use in particularly being implicated. Social problems among older persons are also highlighted by other studies as being potential causes of substances misuse including that of illicit drugs. Problems commonly highlighted include those arises from bereavement, social isolation, lack of social support, and financial difficulties. More intensive problem drug use tends to be associated with individual or family difficulties and adverse 64 social and economic circumstances. EMCDDA research suggests the following factors are associated with problem drug use: Disrupted/dysfunctional upbringing/family Low socioeconomic status/social marginalisation/unemployment Other social and psychological problems early school difficulties, low self-esteem or depression Repeated exposure to drug availability especially in vulnerable groups with other risk factors Lack of clear and relevant information on health risks

In conclusion, demand is clearly a driver of the problem of illicit drug trafficking, reinforced by the addictive nature of many drugs. The opportunity for high levels of financial gain (see Driver 2 above) also creates powerful incentives for the market to respond to this demand. 3.2.4 Driver 4: Uncoordinated national initiatives

The balloon effect is now widely recognised as being one of the unintended consequences of the drug 65 control system . Specifically, the phenomenon results from squeezing (by tighter controls) drug production and trafficking in one place produces a swelling (namely an increase) in another place. This uncoordinated action is, therefore, a potential cause of the on-going problem of drug trafficking. The notion of the balloon effect is evident throughout the illicit drug trafficking supply chain. One example is the 100 % control policy implemented between 2002 and 2008 at Schiphol airport in the Netherlands. The control of all passengers on direct flights from risk countries for cocaine importation in South America and the Caribbean together with preventive measures (controls, radar, body scans) in departing countries, seemed to have achieved some results, as both the quantities of cocaine seized and the couriers arrested decreased over the period. However, there was some evidence that displacement of 66 trafficking to other airports in neighbouring European countries occurred. Uncoordinated action at other stages of production through to the trafficking poses the same risks. For example, some of the trafficking trends observed for Europe are the result of the balloon effect involving other parts of the world. Action in South America to prevent the trafficking of cocaine into the US has led 67 to a diversion of supply into Europe . Demand for cocaine in Europe, combined with the stepping up of policing in the Caribbean, has simply shifted the trafficking routes for cocaine to West Africa as a result of the balloon effect with negative consequences in terms of increased criminality and weakened governance in states that were already at risk. Similarly the crackdown on production in some countries has only had the effect to increased production in others. Uncoordinated national initiatives contribute to the problem of illicit trafficking of drugs by providing continued routes for the traffickers to exploit. The increasing sophistication of organised criminal groups who are known to switch trafficking routes and methods in response to initiatives or controls introduced by

64 65

EMCDDA (2002) Drugs in focus briefing: Measuring prevalence and incidence of drug use. See for example UNODC. 66 EMCDDA (2010) Cocaine: a European Union perspective in the global context. 67 UNODC (2012) World Drug Report.
21

individual Member States means that balloon effect will continue to be seen in the absence of new measures to better coordinate enforcement efforts.

3.3

Who is affected by the problems and how?

The following sections highlight the main groups affected by the trafficking of illicit drugs and where appropriate economic costs are highlighted. Further details of the calculations underlying these costs are included in Annex Four. 3.3.1 Society

Society at large is affected by drug trafficking in a number of ways. Firstly, due to the violent behaviour and crime associated with the trade. While traffickers generally avoid attracting attention from law enforcement authorities, at times competition between different trafficking groups can result in violence as 68 the different groups fight to defend or increase their illicit market shares . The production of some drugs within Europe, such as cannabis, may also sometimes rely on labour from individuals trafficked into the 69 European Union who are coerced to participate through the treat of or actual violence. The specific costs to law enforcement agencies of this crime are discussed below. The social impact of drug use can be felt widely where drug use affects an individuals work and social functioning. Some of the main social consequences associated with illicit drugs are set out by the 70 UNODC (1998) and summarised as follows: Family and community life the families of drug users may suffer in terms of "difficulties in interpersonal relationships, instability, violence, child abuse, economic insecurity, deprivation of 71 schooling and risk of sexually transmitted disease, including HIV infection." Health negative health impacts (including death) to drug users as well as the public health impacts of the spread of infectious diseases (see below). Education Negative impact on educational attainment of young drug users due to short-term memory and intellectual impairment, impaired tracking ability in sensory and perceptual functions, preoccupation with acquiring drugs and adverse emotional and social development.

The extent and nature of health related harms incurred by individual drug users are dependent on the drug used, the amount consumed, and the method of administration (UNODC, 2010). However, common consequences for an individuals health include the physical effects of, for example, injection drug use (open wounds, vein problems, abscesses) as well as the diseases that develop in relation to drug use (HIV, Hepatitis and other diseases including mental disorders). These may ultimately result in death or this may occur directly due to an overdose during drug taking. In the case of premature death, the EMCDDA Statistical Bulletin 2011 estimates that there were over 7,200 drug related deaths (DRDs) in the latest available year in the EU27 with a mean age of death of 35. Assuming that people in all countries work up to the age of 60 on average and that people who suffer from DRD would otherwise have the employment status of the average person in their country (in terms of earnings, employment rate and part-time employment rate), the total value of this lost labour is estimated to be a maximum of 2.6 billion in 2012 prices.

68 69

UNODC (2012) World Drug Report 2012. EMCDDA (2011) Annual Report. 70 United Nations Office on Drugs and Crime (1998) Economic and Social Consequences of Drug Abuse and Illicit Trafficking. 71 UNCDP (1995) The social impact of drug abuse", position paper for the World Summit for Social Development.
22

An individuals ability to function and contribute to society may also be impaired by their drug use. Most obviously, the addiction itself and illnesses brought on by drug use may prevent a drug user from being able to work for long periods of time or will cause the drug user to be less productive in their job, or have a lower paid job, than they would otherwise. The National Treatment Outcome Research Study (NTORS) found that 81% of PDUs in England entering a drug treatment programme were unemployed (i.e. 19% were employed). If we assume that this figure is a maximum representative of the PDU population in Europe and, in the absence of their drug problem, PDUs would have the same chance of being in employment as the average person in the population (about 63%) and would earn an average wage, then the estimated maximum annual cost of these additional people being out of work could be up to 27 billion. 3.3.2 Public health institutions

Public health institutions are also affected by drug trafficking because of the public health problems that the use of illicit drugs causes. Analysis based on EMCDDA Reitox national reports suggests that expenditure on health makes up the largest share of overall labelled expenditure. More specifically, a breakdown of drug-related health spending in selected countries for which there are data, from EMCDDA analysis can be presented (Figure 3.1) Extrapolating this to the EU27 as a whole, using EMCDDA estimates of the total number of drug users in the EU, it can be estimated that the total drug-related expenditure on health was 24bn. Figure 3.1 Labelled expenditure reported by COFOG, 2nd level health (EUR millions)

Source: Reitox national reports 2007

3.3.3

Law enforcement authorities and the criminal justice system

Law enforcement authorities and the criminal justice system are also affected by drug trafficking. Significant costs are incurred by the state in the detection, investigation, prosecution and punishment of drug traffickers or responding to the criminal activity associated with drug trafficking. This may be crime directly related to the trafficking activity, the criminal activity of organised groups involved in the trafficking or crime by individual drug users to acquire resources to pay for drugs or crime while under the influence of drugs, all of which pose and requires investment by public authorities in law enforcement and public safety activity. EMCDDA breaks down the estimated public expenditure costs into different aspects of law enforcement (Figure 3.2) for a small number of countries. Extrapolating these figures for all EU countries based on a series of typologies of Member States results in an estimate of 7 billion being incurred across the EU on public order and public safety costs.

23

Figure 3.1 Labelled expenditure on public order and safety by COFOG 2nd level classification, EUR million

Source: Reitox national reports, 2007

3.3.4

The rest of the world

Virtually all illicit trafficking of drugs in the EU is for final consumption within Member States. Much of this is sourced from elsewhere in the world; therefore, there is evidence of economic, social and environmental effects costs further back in the supply chain. Given the scale and complexities of the drug trafficking supply chain, it is not possible to provide a full account of the nature of these effects but rather illustrate typical affects with particular examples. The impact of the drug trade on security and governance is most evident in Colombia. The UNODC reports that conflicts between rival drug trafficking cartels, paramilitary groups, illegal arms groups and the state saw the murder rate in Colombia peak at 85 per 100,000 inhabitants, the highest national murder rate on record. Although this situation has improved somewhat, there remains a strong correlation between coca cultivation and the size of insurgent groups in the country. Countries operating as transit points in the trans-Atlantic cocaine trade also suffer negative consequences. Drug trafficking contributes to the very high murder rates in Caribbean countries such as Jamaica, while widespread corruption in West African transit countries has a destabilising impact on law and order. Another study on Mexico finds that the fear of violence in certain areas has affected wider society through psychological harm, restricted movement, outward migration and lack of investment. In Afghanistan, it is estimated that the Taliban earned revenue from opium of the order of US$350-650 million between 2005 and 2008, helping to fund soldiers, weapons and protection. Moreover, the value of the opium trade in Pakistan is estimated to be around US$1 billion per year, much of which funds insurgents active in the country. Therefore, there is a strong argument to suggest that lowering the scale of trafficking in opium-based products in the EU (the largest consuming region globally) will reduce the power of insurgents in Afghanistan and Pakistan and improve security and quality of life in that region. The rest of the world also suffers significant environmental costs due to the EU's demand for illicit drugs. The cultivation of drug crops displaces other more productive and environmentally sustainable land uses. For example, the Colombian government estimates that between 1998 and 2008, about 2.2 million hectares of rainforest were lost to drug production, with one hectare of coca field requiring four hectares of forest to be cleared. Compared to law-abiding farmers, cultivators of drug crops tend to have fewer ties
24

to the land and are less respectful of it, depleting the soil without allowing it to restore itself and using large amounts of herbicides and insecticides.

3.4

How would the problem evolve in the baseline scenario

Assuming that the current legal framework will remain unchanged, major drug trafficking will continue to be a significant and growing problem in the EU. The number of drug trafficking offences recorded annually in each EU country suggests an upward trend in drug trafficking in the EU since 2006 and this is likely to continue. However, the problem of the illicit trafficking of drugs is not a homogenous one. Trends in the trafficking of different illicit drugs will most likely show continued variation in response to specific factors in the supply chain. Overall, the illicit drug trafficking market will continue to evolve. The development of new trafficking routes in response to the efforts of agencies seeking to stop the trade will continue. The resilience and flexibility of the market as a whole suggests that the problem will remain significant and challenging for the agencies seeking to address it. The sophistication and poly-criminal nature of the criminal groups involved in drug trafficking are highly likely to continue to be a feature of the problem. One of the key drivers of trafficking is, of course, the substantial profits generated for the groups involved which are often used to finance other illegal activity or are 'laundered' through other means. There is no evidence that the existing legal responses will remove this driver. The situation in terms of consumption is a dynamic one with consumption of some drugs declining and that of others increasing, driving or responding to the illicit trafficking of drugs to different degrees. The addictive nature of many of the drugs concerned will continue to generate demand for drugs to be trafficked which when combined with the financial gains criminal groups can achieve will continue to sustain the existence of the problem of illicit trafficking of drugs. Member States will most likely continue to follow their own approaches and initiatives to address trafficking affecting them. The balloon effect will continue to be seen, with the traffickers switching routes and smuggling techniques in response to the control measures introduced at a national level. The balloon effect associated with uncoordinated control measures is one of the key unintended consequences of the current drug control policy which adds to the evidence that the problem is increasing. There is little evidence to suggest additionally that there will be further efforts to transpose the provisions of the Framework Decision into Member States laws and as such that there will be no more approximation of national legal provisions as a result of the Framework Decision. In most Member States there is an attitude that the legal situation is adequate and does not need any further change. Based on the findings presented in above the following situation will evolve, if there is no additional public intervention: Differences in provisions on drug and precursor trafficking will remain. Since differences regarding the definition of drug trafficking offences are only marginal, this circumstance will not cause bigger problems in relation to drug trafficking offences. However, precursor trafficking offences differ more significantly from each other and two states do not foresee criminal sanctions for precursor trafficking at all. There may be problems in Mutual Legal Assistance and Mutual Recognition in a case where in one Member State certain activities are not criminalized. There will be differences between the levels of penalties foreseen in national laws. Different levels of penalties could have the effect that offenders will choose Member States with lower penalties for their criminal activities. There is no robust evidence, however, that differences in the level of penalties
25

especially if they are as high as provided in the current Member States laws is a relevant motive for criminals to shift their activities to other jurisdictions. A more relevant factor may be the differences in the scale of resources directed to enforcement of criminal sanctions. The trafficking of illicit drugs will continue to affect a range of stakeholders, within significant costs incurred across a number of dimensions. The estimated 7 billion costs incurred by states in the EU in the detection, investigation, prosecution and punishment of drug traffickers or responding to the criminal activity associated with drug trafficking will continue to be incurred. Public health expenditure, estimated at 24b for the EU27 as a whole, likewise will continue to be incurred as long as there are users of illicit drug users. Wider impacts will be felt in society at large as the result of an individuals drug use, specifically the limitations drug use places on an individuals work and social functioning .

3.5

Right to act and subsidiarity

The principle of subsidiarity, as set out in Article 5(3) of the Treaty on the European Union (TEU), determines that action at Union level should only be taken when the aims envisaged cannot be achieved sufficiently by the Member States alone, but can rather, by reason of the scale or effects of the proposed action, be better achieved by the EU. Article 67(3) of the TFEU foresees that the Union shall provide citizens with a high level of security by preventing and combating crime. Illicit drug trafficking does not respect national borders. The respective offences have typically a cross border characteristic. This trans-national dimension, especially due to organized crime, requires an aligned approach on a common basis. Cooperation between Member States and Member States and EU bodies is essential for the effective investigation and prosecution of such offences. This necessary transborder cooperation cannot be fostered and improved individually by the Member States and, thus there is a clear need of EU action to combat illicit drug trafficking and related crimes. Furthermore, a consistent approach on EU-level is capable of increasing Member States trust in the capacity of the EU to handle trans-national crime issues, thus reducing the likelihood of unilateral Member State action. The principle of proportionality, according to Article 5(4) TUE, declares that the content and form of Union action shall not exceed what is necessary to achieve the objectives. Through the analysis and comparison of different possible option, this principle has been guiding the development of the present study. The options outlined in this proposal are focusing on identified weaknesses in the fight against illicit drug trafficking. Hence, these options do not go beyond to what is necessary in order to achieve the intended objectives.

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4.0

Rationale, Objectives and Intervention Logic for a New EU Legislative Instrument

Rationale

4.1

Section 3 makes it clear both that the problems of drug trafficking and its social and economic consequences are unlikely to diminish in the absence of effective new interventions and that the existing Framework Decision has proved a weak and ineffective response to the situation. Addressing weaknesses in the legal framework may be insufficient if it is not accompanied by effective enforcement activity. As noted, the consultation and other evidence indicate that the latter is key to reducing the supply of illicit drugs. Experience from the United States also makes it clear that the illicit drug problem is very unlikely to be effectively tackled simply through supply focussed measures. This reflects in part the characteristics of a market which means there is a risk that disrupting the supply of a product, particularly one with inelastic demand will increase the price and profitability of supply. Nevertheless, it is clear that actions to tackle the supply side have a crucial role in tackling the problems of drug use in conjunction with supporting measures to tackle the 'demand side' and reduce drug-related 'harms'. The potential role of the new instrument is to tackle identified gaps, weaknesses and anomalies in the current legal framework and in particular to foster co-operation between the law enforcement agencies and judiciaries of the Member States, so increasing the co-ordination and effectiveness of their individual efforts to tackle the supply side of the problem. Measures to address weaknesses in the operation of existing Mutual Legal Assistance instruments and strengthen asset confiscation activity also have an important role. However, experts consulted for the study agreed that existing 'horizontal' EU instruments applying to all crimes already address the issues and any further issues should be addressed in horizontal instruments rather than in an instrument specifically related to drug trafficking when there is no need for specific drug-related provisions. Experts mostly believe that no special needs exist in relation to drug trafficking that would need to be addressed in a future legislative instrument.

4.2

Objectives and intervention logic

Figure 4.1 sets out the hierarchy of objectives of the policy options as developed below. Figure 4.2 provides a schematic representation of its intervention logic.

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Figure 4.1 Hierarchy of objectives

General Objective To disrupt and reduce the supply of illicit drugs in particular by helping to tackle major trafficking, complementing measures to reduce demand and contributing to the health, safety and quality of life of EU citizens

Specific Objectives

To investigate drug trafficking and related criminal activity effectively

To prosecute drug trafficking and related criminal activity effectively

To convict criminals responsible for trafficking and dismantle their organisations

To improve the knowledge of the illicit drug market and trafficking related to it

Operational Objectives

Operational Objectives
Ensure minimum approximation of criminal provisions related to illicit trafficking in drugs and precursors Facilitate the prosecution of trafficking related crimes, including those committed outside the EU, in full respect of fundamental rights Encourage judicial cooperation

Operational Objective

Operational Objective

Facilitate use of special investigative techniques and encourage the role of informants in full respect of fundamental rights Improve exchange of information between national authorities

Introduce effective, proportionate and dissuasive criminal sanctions, in full respect of fundamental rights and taking account of individual circumstances Appropriate the assets of criminals and their organisations

Define and implement effective indicators

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5.0 Policy options

The Commission has designed a range of clusters of policy options that could help achieve the objectives identified. These options were thoroughly analysed, with the contribution of experts from various disciplines and on the basis of information received from stakeholders. Figure 5.1 overleaf shows the intervention logic underlying these options.

5.1

Discarded options

On the basis of the feedback received from experts and a pre-screening, the following policy options were discarded: 5.1.1 Discontinuing EU action

The possibility exists to discontinue EU action, i.e. to repeal the Framework Decision without replacing it with another instrument. This option was discarded. The evidence suggests that the problems associated with illicit drug trafficking are likely to grow further, requiring even stronger EU-level action. Discontinuing EU action would mean relying on horizontal instruments, for instance on organised criminal groups or confiscation. While these measures would address some elements of the problem and respond to some of the objectives identified they would not do so fully. The complexity and evolving nature of the problem suggests that only an instrument that targets illicit drug trafficking specifically can ensure that the problem as a whole is addressed. Repealing and not replacing the instrument would also convey an unhelpful message about the EUs policy towards drugs. 5.1.2 Improved implementation and enforcement of the existing instrument, also including additional guidance

The assessment of the implementation and transposition of the Framework Decision highlighted a number of areas where articles were not fully or consistently transposed by individual Member States. Further enforcement of the existing instrument by issuing guidance has, however, been discarded as an option. The conclusion reached from the research at a Member State level was that the Framework Decision had several weaknesses and was not acknowledged to have brought tangible improvements to the legal framework. 5.1.3 Existing international standards

The option to seek compliance with existing standards (e.g. UN Conventions) has been discarded as a stand alone option but has been taken into account where relevant in the 'cluster' based assessment below. It was not considered a feasible option on its own as it would face similar difficulties and limitations as found with the existing Framework Decision. As above, enforcement of international standards would not overcome the variation generated by the factors that influence practice in individual Member States.

29

5.1.4

Specific measures/sub-options discarded

A number of specific options or sub-options were discarded in the early stages of assessment: A specific measure on confiscation relating to the profits from illicit drug trafficking. Provisions for confiscation are already available to Member States as a result of a horizontal legal instrument: the Council Framework Decision 2005/212/JHA of 24 February 2005 on Confiscation of Crime-Related Proceeds, Instrumentalities and Property. In 2012, the Commission has also presented a proposal for 72 a Directive on on the freezing and confiscation of proceeds of crime in the European Union . Rules on universal jurisdiction discarded as it could lead to serious problems of positive conflicts of jurisdiction.

72

COM(2012) 85 final.
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Figure 5.1: Intervention logic

Problems and drivers

Objectives (general/specific)

Activities/Option Clusters

Weaknesses of FD

Conviction of criminals responsible for trafficking and dismantling of their organisations Effective prosecution of drug trafficking and related criminal activity Effective investigation of drug trafficking and related criminal activity Improvement in the knowledge of the illicit drug market and trafficking related to it

Defined scope for action

Definitions of offences

Profitability of trafficking Major trafficking of illicit drugs Demand for illicit drugs

Levels of sanctions

Disruption and reduction in the supply of illicit drugs in particular by helping to tackle major trafficking, complementing measures to reduce demand and contributing to the health, safety and quality of life of EU citizens

Financial penalties

Asset confiscation

Aggravating and mitigating circs

Uncoordinated national initiatives the ballooning problem

Jurisdiction

Judicial and law enforcement cooperation Data and statistics

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5.2

Legal basis and decision-making procedure

Framework Decisions were created in the Amsterdam Treaty and were the legislative act used within the EUs competences of police and judicial cooperation in criminal matters . Framework Decisions were binding in terms of the results to be achieved, but it was left up to the Member States to choose the form and methods to achieve that result. However, Framework Decisions do not have direct effect and are only subject to the optional jurisdiction of the European Court of Justice and enforcement proceedings could not be undertaken by the European Commission for any failure to transpose a Framework Decision into domestic law. The Lisbon Treaty does not foresee the possibility to adopt Framework Decisions at the EU level anymore; the EU can now enact Directives in the area of criminal justice. For this reason, the EU either can amend the current Framework Decision or replace it with a new legal instrument. Specifically, the legal basis for new approximating laws and regulations of Member States in the field of substantive criminal law is to be found in Article 83 of the Treaty on the Functioning of the European Union. This allows minimum rules concerning the definition of criminal offences and sanctions in areas of particularly serious crime with a cross-border dimension. These rules result from the nature or impact of such offences, or because there is a special need to combat them on a common basis. The same provision explicitly mentions inter alia illicit drug trafficking as one of these areas of crime. The legal basis for a Directive on illicit drug trafficking replacing the Framework Decision would therefore be Article 83(1) TFEU (Euro crimes). The decision-making process for adopting Directives follows the ordinary legislative procedure. However, where a Member State considers that a draft directive approximating substantive criminal law would affect the fundamental principles of its criminal justice system, it may request that the draft Directive be referred to the European Council. In that case, the ordinary legislative procedure would be suspended (the so-called emergency brake). After discussion, and in case of a consensus, the European Council can, within four months of this suspension, refer the draft back, which shall terminate the suspension of the ordinary legislative procedure. Within the same timeframe, in case of disagreement, and if at least nine Member States wish to establish enhanced cooperation on the basis of the draft Directive concerned, they shall notify the European Parliament, the Council and the Commission accordingly. Therefore it is advisable that before the presentation of any new instrument the feasibility is fully checked. A special legal situation in respect of any new Directive in substantive criminal law exists as a result of Denmark not participating in Title V of the Treaty on the Functioning of the European Union and the UK and Ireland only participating after they notify their intention to opt-in. This means a new Directive will not apply to Denmark, UK and Ireland, although the last two countries may decide to participate in it. This requires consideration as to whether the provisions of any new instrument could be made applicable to these States and this situation needs to be considered carefully.

32

5.3

Consistency of the options with EU policies and fundamental rights

Any action of the EU in this field must respect fundamental rights and observe the principles recognised in particular by the Charter of Fundamental Rights of the European Union (EU Charter) and the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). Member States, when implementing Union law, must do so in accordance with these rights and principles. Considering the problems and objectives identified a new instrument on illicit drug trafficking must be in full compatibility with fundamental rights and notably human dignity, prohibition of torture and human or degrading treatment or punishment (Article 4) and the right to liberty and security (Article 6). The options presented are also relevant to the following: Right to an effective remedy and to a fair trial (Article 47). Presumption of innocence and the right to defence (Article 48). Principle of legality and proportionality of criminal offences and penalties (Article 49). Right not to be tried or punished twice for the same offence (Article 50).

These rights and freedoms can be subject to limitations but only under the limits and requirements set out by Article 52(1) of the EU Charter. The options which are considered here seek to ensure full respect for these rights and principles and must be implemented accordingly.

5.4

Assessment criteria

The options which are judged worth carrying forward for detailed assessment are organised in the form of 'clusters', reflecting alternative approaches to the different aspects which a new instrument might seek to address. The assessment of the impacts is based on a multi-criteria approach that includes: the effectiveness in achieving the relevant policy objectives; the financial impact; the economic and social impacts (including on fundamental rights); acceptability to stakeholders (Member States and other agencies working in the field) and the potential impact on Member State legal systems. Environmental impacts are not assessed because they are likely to be marginal. For the status quo situation, impact is not reported explicitly, as it is expected that the situation and its likely evolution would remain unchanged as there is no impact as such. The qualitative and quantitative assessment has been conducted on the basis of the data and information gathered through this study. The results of this assessment are presented in the remainder of this section.

5.5

Cluster A scope for action

One cluster of options focuses on a redefining of the scope within which action is taken against illicit drug trafficking. Article 83(1) TFEU limits this scope to establish only minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis. Furthermore, the principles of subsidiarity (Art 5(3) TEU) and proportionality (Art 5(4) TEU) have to be respected. The specific options considered in this cluster and the assessment of their impact is outlined below:

33

5.5.1

Status quo

The Framework Decision 2004/757/JHA has a broad scope. To retain the status quo would mean that all drug and precursor trafficking activities on all levels of trafficking are covered except those activities committed exclusively for the perpetrators own personal consumption , which the Framework Decision explicitly excludes. Since the Member States have different ways to deal with the personal use of drugs, it is 73 useful not to include these activities in the scope of a new action. Following this option will mean the scope of the Framework Decision will remain the same in any new instrument and, therefore, will not bring any changes in Member States legal systems. Member States which were reluctant to implement the current Framework Decision will maintain their position. Table 5.1 Scope of action status quo Expected Impacts Effectiveness in Impact as baseline scenario: There will continue not to effectively contribute to Achieving Policy the policy objectives, notably disruption and reduction of supply of drugs in Objectives Europe. . Economic and financial Level of resources to address the problem of drug trafficking are likely to remain impacts stable though potentially subject to the general pressures on public expenditure. No change expected in Member States' budgets. Law enforcement costs (7b) will continue to be incurred in Member States remain in addressing the range of crimes/offences associated with drug trafficking crimes. Public health institutions will continue to deal with the health consequences of drug use driving trafficking (current cost 24bn). This option concerns the following fundamental rights: the right to an effective remedy and fair trial (Art. 47), presumption of innocence and right of defence (Art. 48) and the principle of legality and proportionality of criminal offences and penalties (Art. 49). This option provides for limitation of these rights in law while respecting the essence of these rights. Limiting these rights is necessary to achieve the objectives. The rights to liberty and family life are potentially affected as a result of imprisonment as a consequences of a conviction for drug trafficking. Since the scope remains the same, these fundamental rights are not affected more than under the current instrument and their possible restriction is duly justified by the seriousness of the offence. Acceptability to Stakeholders No Change: The acceptability to stakeholders will not change compared to the acceptability of the current Framework Decision, if the scope of action remains the same. Stakeholders agree with the necessity of a common fight against large scale trafficking, but are sceptical with regard to a broader scope of action. Member States have their specific ways how to deal with minor drug trafficking offences, particularly if the offence is committed for personal consumption or to finance the own addiction. Stakeholders do not see the necessity to give up these national approaches to solve this problem and to further harmonise legislation in this field. It is not expected that any further transposition of the Framework Decision provisions will occur so there would be no further consequences for national legal systems. If the scope of action remains the same it is not expected that there will be many more changes in national legal systems.

Social Impacts

Impact on fundamental rights

National Legal Systems

73

See the Report evaluating the transposition and impact of the Framework Decision.
34

5.5.2

Focus on major drug trafficking offences

Due to the different approaches in how Member States respond to different lower levels of drug trafficking, focusing a new instrument on major drug trafficking offences emerges as an option. The scope of the new instrument would be limited and focused on major drug trafficking by either excluding certain groups of minor drug trafficking offences or introducing a certain threshold (see sub-options below). Personal consumption would be excluded from the scope of action (as in the current Framework Decision), as well as other minor drug trafficking offences. This option would not mean that Member States had to decriminalize drug use or minor trafficking; it would give those states which do not wish to do so more freedom to deal with the drug problem in their chosen way. Member States would be obliged to transpose the provisions only within the scope of the legal instrument. Table 5.2 Scope of action major trafficking Expect Impacts Effectiveness in Achieving Policy Objectives Medium positive impact: A general objective of a focus on large scale trafficking would be to help to improve investigation and prosecution of transborder trafficking in drugs and precursors in the framework of criminal organisations by providing effective tools for combatting large-scale organised crime. Large-scale trafficking requires specific and different tools compared to minor or street dealing. In cases of large scale trafficking all instruments of criminal law and criminal procedure must be provided and applied (also intrusive instruments). In purely national cases in which criminal organisations are not involved and where no large quantities are trafficked, there is no necessity that the EU provides regulations to approximate the Member States laws. Since a higher acceptance of an instrument focused on large scale trafficking can be expected, this could result in a more effective transposition of the EU legal instrument which improves the investigation. However, there is the risk that a focus on major drug trafficking could be seen as a signal that minor drug trafficking is not considered a serious criminal activity. No necessary impact on the EU budget. No change is necessarily expected in Member States' budgets though there could be some refocusing of expenditure. Social Impacts Medium potential positive impact as much of the public safety costs incurred from drug use are the result of drugs made available by major traffickers. This could result in significant reductions in the current 7 billion incurred across the EU on public order and public safety costs and a in the 24bn total drug-related expenditure on health. This option concerns the following fundamental rights: the right to an effective remedy and fair trial (Art. 47), presumption of innocence and right of defence (Art. 48) and the principle of legality and proportionality of criminal offences and penalties (Art. 49). This option provides for limitation of these rights in law while respecting the essence of these rights. Limiting these rights is necessary to achieve the objectives. Each EU action must comply with the principle of proportionality and subsidiarity. According to the principle of subsidiarity (Article 5.3 of the TEU), action at EU

Economic and Financial Impacts

Impact on fundamental rights

35

Expect Impacts level should be taken only when the aims envisaged cannot be achieved sufficiently by Member States. This is the case with large scale trafficking which usually has a trans-border dimension and which requires that Member States cooperate in investigations against criminal organisations. In purely minor cases of drug trafficking, which in most cases are located within one Member State, EU action is not necessary to achieve the objectives. The principle of proportionality requires that any intervention by the EU is targeted and does not go beyond what is necessary to achieve the objectives. To achieve the mentioned objectives it does not seem to be necessary that an EU instrument covers all levels of drug trafficking, but it is sufficient that it is concentrated on large scale trafficking. Medium Positive impact. The focus of a European instrument on major drug trafficking would be viewed positively as an appropriate focus for an EU initiative. Interviews and consultations with stakeholders in the Member States showed that there is support for the need to fight criminal organisations involved in trafficking in drugs and precursors and to have a common approach in fighting against cross-border and large scale drug trafficking (which usually has a crossborder dimension). On the other hand, several stakeholders do not see the need to harmonise criminal provisions for street dealing or for those other dealers who supply street dealers. Member States have chosen different ways to treat these types of trafficker. Whereas some Member States have decriminalised some of these acts or provide for diversionary measures (e.g. therapy instead of prison or penalties), others provide for severe criminal sanctions even where only 74 personal consumption is involved. There is no doubt that there are different attitudes and approaches to dealing with small scale drug trafficking and how to achieve the aim to disrupt and reduce the supply of illicit drugs. Significant expenditure has been committed in many States to repressive measures directed at producers, traffickers and consumers of illegal drugs, which has failed to effectively curtail supply or consumption. Many people participating in the drug market particularly in the lower ends of illegal drug markets such as farmers, couriers or petty sellers are themselves victims of violence or are dependent on drugs. The Global Commission on Drug Policy therefore suggests ending the criminalisation and marginalisation of individuals involved in the drug trade who are themselves victims of violence and 75 intimidation or are drug dependent. A focus on organised crime or large scale trafficking would increase the acceptability of a new instrument in the various Member States, since it would allow the Member States to choose their own specific models of how to deal with street dealers, petty sellers or couriers. Medium impact, since all Member States already have rather severe legal provisions for major cases of drug trafficking. New EU provisions could help to harmonise these national provisions, if they are transposed into national law. It is expected that an EU legal instrument focused on major trafficking in drugs and precursors would be accepted better in most Member States and would not

Acceptability to Stakeholders

National Legal Systems

74 75

See European Monitoring Centre for Drugs and Drug Addiction, Annual Report 2011, p.23 f. War on Drugs, Report of the Global Commission on Drug Policy, June 2011, p. 2 f.
36

Expect Impacts cause discussions on the necessity and value of amending national provisions, particularly in those Member States which may prefer to decriminalize certain forms of minor trafficking. If there are fewer discussions in national legislation procedure on the necessity, it can be expected that it is more probable that provisions of an EU instrument are transposed to a full extent. Potentially controversial for Member States is the definition of large-scale trafficking in terms of quantities as Member States currently have very different approaches to defining quantities of drugs (weight of drugs, purity) and thus they may be requested to substantially change their national law see below. The important question is where the line should be drawn between those offences which should be included in a new instrument and those which should stay outside of its scope. There is no general definition of largescale trafficking neither in the European Union nor in the Member States. Following discussions with experts and stakeholders, the following approaches have been identified: exclusion of so called street dealing; specific focus on quantity of drugs; specific focus on the value of drugs; specific focus on profit element; specific focus on trafficking by criminal organisations.

These approaches shall be looked at in five sub-options. They are reviewed in the context of being an approach to defining major trafficking. 5.5.2.1 Sub-Option 1: Exclusion of so called street dealing The current Framework Decision only excludes trafficking in drugs and precursors from its scope when it is committed by its perpetrators exclusively for their own personal consumption. For the definition of personal consumption the Framework Decision refers to the national laws. This means that the scope of the Framework Decision covers all dealers who supply the consumer with drugs. But often these persons who supply consumers are themselves addicted and earn money by dealing drugs to finance their own 76 addiction. This group is treated specially in several Member States, as this is often foreseen as a mitigating circumstance and diversionary measures are provided for. One option to limit the scope of action to major trafficking could be to exclude all forms of street dealing. Street dealing in this context is understood as all forms of trafficking in relation to the final consumer. It is expected that among Member States such an exclusion of street dealing is preferred, since this gives them the chance to have their own provisions in this area. Their preference for this is demonstrated by the continued use of provisions which provided lower penalties even after the adoption of the Framework Decision.

76

See War on Drugs, Report of the Global Commission on Drug Policy, June 2011, p. 2 f.
37

Table 5.3 Scope of action - exclusion of so called street dealing Expect Impacts Effectiveness in Achieving Policy Objectives Medium positive impact, a focus on large scale trafficking to the exclusion of street dealing will help to improve investigation and prosecution of trans-border trafficking in drugs and precursors in the framework of criminal organisations. For the effectiveness in achieving the policy objectives it is not particularly important how the distinction between minor and large scale trafficking is made, since this concerns only the scope of the EU instrument. No impact on the EU budget. The focus of EU institutions means that street dealing is not a common concern so the resource allocation will not change.

Economic and Financial Impacts

Social Impacts

Impact on fundamental rights

Medium potential positive impact, as much of the public safety costs incurred from drug use are the result of drugs made available by major traffickers savings could be made by reducing this trafficking. This could result in significant reductions in the current 7 billion incurred across the EU on public order and public safety costs and a in the 24bn total drug-related expenditure on health. This option concerns the following fundamental rights: the right to an effective remedy and fair trial (Art. 47), presumption of innocence and right of defence (Art. 48) and the principle of legality and proportionality of criminal offences and penalties (Art. 49). This option provides for limitation of these rights in law while respecting the essence of these rights. Limiting these rights is necessary to achieve the objectives. Each EU action must comply with the principle of proportionality and subsidiarity. According to the principle of subsidiarity (Article 5.3 of the TEU), action at EU level should be taken only when the aims envisaged cannot be achieved sufficiently by Member States. This is the case with large scale trafficking which usually has a trans-border dimension and which requires that Member States cooperate in investigations against criminal organisations. In cases of street dealing, which regularly are located within one Member State, an EU action is not necessary to achieve the objectives. The principle of proportionality requires that any intervention by the EU is targeted and does not go beyond what is necessary to achieve the objectives. To achieve the mentioned objectives it does not seem to be necessary that an EU instrument covers all levels of drug trafficking, but it is sufficient that it is concentrated on large scale trafficking. High acceptability: The exclusion of street dealing from the scope of action of a new instrument was regarded positively by most consulted stakeholders. There is broad consensus that it should be up to the Member States to decide how to deal with street dealing. In principle the limitation of scope of action would only concern the European instrument. It would remain at the discretion of Member States how to punish street dealing. Member States would not be obliged to take this concept into their national legislation. The distinction between street dealing and large scale trafficking could raise issues in those Member States, which introduce a specific sanctioning system for street dealing or where penalties foreseen in their national laws do not comply with the penalties foreseen in the new instrument. To transpose the provisions of the European instrument it would be necessary that they introduce

Acceptability to Stakeholders

National Legal Systems

38

Expect Impacts a (European) definition of street dealing. Since such a definition does not exist in most Member States and existing definitions differ, how a European definition is implemented into national law could raise issues. 5.5.2.2 Sub-option 2: Specific focus on quantity of drugs Another option of how to define large scale trafficking is to refer to the quantity of drugs. The current Framework Decision refers to large quantities as an aggravating circumstance (Art. 4 (2) (a) FD) but does not, however, define what a large quantity is. There are two possibilities to define a large quantity in any new instrument: either Member States national laws are referred to or the new instrume nt defines a large quantity. To define the scope of action clearly, it is preferable that an EU wide definition is established. Within this option there are two further possibilities: reference to the absolute weight of drugs which are trafficked. This method is for example used in CY, DK, GR, LV, NL and has the advantage that it is a quite clear criterion, but it does not respect that drugs have different purity levels. As an alternative a combination of weight and purity is used in several Member States (for example in AT, DE, EE, ES, FI, IT, LT, SE, UK). Such a definition refers to the quantity of the active ingredient and allows better comparison of quantities of drugs. This seems to be a more objective criteria which also refers to the risk associated with the drug not just the absolute weight of drugs. Compared to sub-option 1 this sub-option would allow exclusion of a broader range of cases than only street dealing. Table 5.4 Scope of action quantity of drugs Expect Impacts Effectiveness in Achieving Policy Objectives Economic and Financial Impacts Medium positive impact, because this would facilitate a focus on large scale trafficking which will help to improve investigation and prosecution of transborder trafficking in drugs and precursors in the framework of criminal organisations. No impact on the EU budget. The focus of EU institutions means that small scale trafficking is not a common concern so the resource allocation will not change.

Social Impacts

Impact on fundamental rights

Medium potential positive impact as much of the public safety costs incurred from drug use are the result of drugs made available by major traffickers savings could be made by reducing this trafficking. This could result in significant reductions in the current 7 billion incurred across the EU on public order and public safety costs and a in the 24bn total drug-related expenditure on health. This option concerns the following fundamental rights: the right to an effective remedy and fair trial (Art. 47), presumption of innocence and right of defence (Art. 48) and the principle of legality and proportionality of criminal offences and penalties (Art. 49). This option provides for limitation of these rights in law while respecting the essence of these rights. Limiting these rights is necessary to achieve the objectives. Each EU action must comply with the principle of proportionality and subsidiarity. According to the principle of subsidiarity (Article 5.3 of the TEU), action at EU level should be taken only when the aims envisaged cannot be achieved sufficiently by Member States. This is the case with large scale trafficking which usually has a trans-border dimension and which requires that Member States cooperate in investigations against criminal organisations. In purely minor cases of drug trafficking, which in most cases are located within one Member State, an

39

Expect Impacts EU action is not necessary to achieve the objectives. Particularly the principle of proportionality and subsidiarity is important. According to the principle of subsidiarity (Article 5.3 of the TEU), action at EU level should be taken only when the aims envisaged cannot be achieved sufficiently by Member States. This is the case with large scale trafficking which usually has a trans-border dimension and which requires that Member States cooperate in investigations against criminal organisations. In purely minor cases of drug trafficking, which in most cases are located within one Member State, an EU action is not necessary to achieve the objectives. The principle of proportionality requires that any intervention by the EU is targeted and does not go beyond what is necessary to achieve the objectives. To achieve the mentioned objectives it does not seem to be necessary that an EU instrument covers all levels of drug trafficking, but it is sufficient that it is concentrated on large scale trafficking. High acceptability, focus of a European instrument on major drug trafficking would be viewed positively as appropriate focus for any EU initiative. The exclusion of small quantities from the scope of action of a new instrument was regarded positively by most consulted stakeholders. Broad consensus that it should be up to the Member States to decide how to deal with trafficking of minor quantities. Problems could appear in the acceptance of a definition of a large quantity, since there are different methods of defining a large quantity in the Member States. In principle the limitation of scope of action would only concern the European instrument. It would remain at the discretion of Member States how to punish minor drug trafficking cases. Member States would not be obliged to take this concept into their national legislation. There are special provisions in some Member States for minor drug trafficking cases or trafficking of small quantities particularly if the offenders are addicted. These national provisions would not be affected by the EU instrument. However, Member States which treat all drug trafficking offences the same, could keep this approach. Low impact: In Member States which provide different provisions or penalties for minor drug trafficking problems could be foreseen with the implementation of the definition of large quantities, since there are different provisions in the Member States. On the one hand it would create inconsistencies in approach if the definition was left to Member States. On the other hand substantial changes in Member States legislation could be required for a common definition to be applied. Since there are different approaches in how to define a large quantity this would require changes in nearly all Member States. The question of how to define a large quantity (i.e. only absolute weight or the weight of the pure drug) could cause discussions as would the issue of what is defined as large quantity for different drugs. Further questions could be raised in cases of more than one action of trafficking in drugs or more than one type of substances trafficked or how and whether the quantities of each offence are to be totalised. Such problems can already be seen in some Member States.

Acceptability to Stakeholders

National Legal Systems

40

5.5.2.3 Sub-option 3: Specific focus on value of drugs Another way how to define large scale trafficking is on the basis of the value of the trafficked drugs. There are several Member States (for example BG, IE, SK) which use this method to define a large quantity according to Art. 4 (2) (a) of the Framework Decision. The main problem of this option is in finding a common level for all Member States since drugs are illegal there is no official market price. Moreover, there are differences in the price between the different Member States due to different factors (standard of living, supply of drugs, etc.). As such this sub-option is considered one which should be discarded. Table 5.5 scope of action value of drugs Expect Impacts Effectiveness in Medium positive impact, because a focus on large scale trafficking would help Achieving Policy to improve investigation and prosecution of trans-border trafficking in drugs and Objectives precursors in the framework of criminal organisations. Economic and Financial No impact on the EU budget. The focus of EU institutions means that small Impacts scale trafficking is not a common concern so the resource allocation will not change. Social Impacts Medium potential positive impact as much of the public safety costs incurred from drug use are the result of drugs made available by major traffickers savings could be made by reducing this trafficking. This could result in significant reductions in the current 7 billion incurred across the EU on public order and public safety costs and a in the 24bn total drug-related expenditure on health. Impact on fundamental This option concerns the following fundamental rights: the right to an effective rights remedy and fair trial (Art. 47), presumption of innocence and right of defence (Art. 48) and the principle of legality and proportionality of criminal offences and penalties (Art. 49). This option provides for limitation of these rights in law while respecting the essence of these rights. Limiting these rights is necessary to achieve the objectives. Each EU action must comply with the principle of proportionality and subsidiarity. According to the principle of subsidiarity (Article 5.3 of the TEU), action at EU level should be taken only when the aims envisaged cannot be achieved sufficiently by Member States. This is the case with large scale trafficking which usually has a trans-border dimension and which requires that Member States cooperate in investigations against criminal organisations. In purely minor cases of drug trafficking, which in most cases are located within one Member State, an EU action is not necessary to achieve the objectives. The principle of proportionality requires that any intervention by the EU is targeted and does not go beyond what is necessary to achieve the objectives. To achieve the mentioned objectives it does not seem to be necessary that an EU instrument covers all levels of drug trafficking, but it is sufficient that it is concentrated on large scale trafficking In principle, the exclusion of small quantities from the scope of action of a new instrument was regarded positively by most consulted stakeholders. There was consensus amongst stakeholders that the focus on major drug trafficking would be viewed positively as an appropriate focus for any EU initiative and that it should be up to the Member States to decide how to deal with trafficking of minor quantities. Low acceptability, since only few Member States refer to the value of drugs for

Acceptability to Stakeholders

41

Expect Impacts defining a large quantity and it could be difficult to determine the value of drugs due to missing data on exact market prices. It could be difficult to find a consensus, since the price is not a stable criterion, but depends on the market situation, which can be different in the various Member States. The acceptance of this method to define major trafficking could be a problem. In principle the limitation of scope of action would only concern the European instrument. It would remain at the discretion of Member States how to punish minor drug trafficking cases. There are special provisions for minor drug trafficking cases or trafficking of little quantities particularly if the offenders are addicted in some Member States. These national provisions would not be affected by the EU instrument. However, Member States which treat all drug trafficking offences the same, could retain these approaches. Low acceptability: The definition of large scale trafficking could raise issues in those Member States, which introduce a specific sanctioning system for street dealing or where penalties foreseen in their national laws do not comply with the penalties foreseen in the new instrument. To transpose the provisions of the European instrument it would be necessary that they introduce a (European) definition of a high value of drugs. Since only a few Member States use this criterion, this could raise issues of how a European definition is implemented into national law. Problems could be foreseen with the implementation of the definition of what is large scale trafficking and which national provisions fall into the scope of action of the Directive, since there are different provisions in the Member States and only few Member States refer to the value of drugs. As it is difficult to define a certain value in a European instrument, it is to be expected that there will be problems with implementation of the value of drugs criterion into national legislation.

National Legal Systems

5.5.2.4 Sub-option 4: Specific focus on profit element Another option would be to define major trafficking in terms of the profit generated. This would require a method to calculate the profit of drug trafficking activities. This would be difficult since there is little experience in Member States of calculating this given the problems of proving profits or assets are the result of drug trafficking. As such this sub-option is considered one which should be discarded. Table 5.6 scope of action profit element Expect Impacts Effectiveness in Achieving Policy Objectives Positive impact, this would help define large scale trafficking a focus on which would help to improve investigation and prosecution of trans-border trafficking in drugs and precursors in the framework of criminal organisations. For the effectiveness in achieving the policy objectives it is not relevant how the distinction between minor and large scale trafficking is made, since this concerns only the scope of the EU instrument. No impact on the EU budget. The focus of EU institutions means that small scale trafficking is not a common concern so the resource allocation will not change. Medium potential impact as much of the public safety costs incurred from drug use are the result of drugs made available by major traffickers savings could be made by reducing this trafficking. This could result in significant reductions in the

Economic and Financial Impacts Social Impacts

42

Expect Impacts current 7 billion incurred across the EU on public order and public safety costs and a in the 24bn total drug-related expenditure on health. This option concerns the following fundamental rights: the right to an effective remedy and fair trial (Art. 47), presumption of innocence and right of defence (Art. 48) and the principle of legality and proportionality of criminal offences and penalties (Art. 49). This option provides for limitation of these rights in law while respecting the essence of these rights. Limiting these rights is necessary to achieve the objectives. Each EU action must comply with the principle of proportionality and subsidiarity. According to the principle of subsidiarity (Article 5.3 of the TEU), action at EU level should be taken only when the aims envisaged cannot be achieved sufficiently by Member States. This is the case with large scale trafficking which usually has a trans-border dimension and which requires that Member States cooperate in investigations against criminal organisations. In purely minor cases of drug trafficking, which in most cases are located within one Member State, an EU action is not necessary to achieve the objectives. The principle of proportionality requires that any intervention by the EU is targeted and does not go beyond what is necessary to achieve the objectives. To achieve the mentioned objectives it does not seem to be necessary that an EU instrument covers all levels of drug trafficking, but it is sufficient that it is concentrated on large scale trafficking. Low acceptability, while there is scepticism among interviewees and stakeholders about whether a new instrument is necessary, the focus of a European instrument on major drug trafficking would be viewed positively as appropriate focus for any EU initiative. There is a broad consensus that it should be up to the Member States to decide how to deal with trafficking of minor quantities. Since there is not much experience of referring to the profitability of drug trafficking in order to define large scale trafficking, the acceptability of this sub-option could be problematic. It is not clear how the profit should be calculated and there would be difficulties to prove a profit gained from drug trafficking. In principle the limitation of scope of action would only concern the European instrument. It would remain at the discretion of Member States how to punish minor drug trafficking cases. There are special provisions for minor drug trafficking cases or trafficking of smaller quantities particularly if offenders are addicted in some Member States. These national provisions would not be affected by the EU instrument. However, Member States which treat all drug trafficking offences the same, could retain these approaches. High impact, as profit is not used as criterion for large scale trafficking in the Member States, there could be problems in defining which cases fall into the scope of the new EU instrument. It would be difficult to define in national laws what level of high profit constitutes large scale trafficking. 5.5.2.5 Sub-option 5: Specific focus on trafficking by criminal organisations Trafficking in drugs and precursors is an activity typically linked to organised crime. It is one of the most widespread and lucrative activities of criminal organisations. Drug trafficking to and within the EU is increasingly controlled by groups dealing in more than one drug to maximise profits. It is no doubt that drug trafficking therefore is typically linked to other criminal activities as money laundering, counterfeiting and
43

Impact on fundamental rights

Acceptability to Stakeholders

National Legal Systems

illegal arms smuggling. There are global drug networks which import drugs into the EU and distribute drugs 78 over whole Europe. There is the risk that criminal organisations involved in drug trafficking undermine democratic institutions in the Member States and endanger public security and stability. The Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime defines criminal organisation as a structured association, established over a period of time, of more than two persons acting in concert with a view to committing offences which are punishable by deprivation of liberty or a detention order of a maximum of at least four years or a more serious penalty, to obtain, directly or indirectly, a financial or other material benefit (Article 1(1)). A structured association means an association that is not randomly formed for the immediate commission of an offence, nor does it need to have formally defined roles for its members, continuity of its membership, or a developed structure (Article 1(2)). This sub-option would have the consequence that every drug trafficking offence which is committed in the framework of a criminal organisation as defined in Framework Decision 2008/841/JHA falls into the scope of action of the new directive. Since Framework Decision 2008/841/JHA contains an EU definition of criminal organisation this definition should be used as long as there is no other EU definition. Table 5.7 scope of action criminal organisations Expect Impacts Effectiveness in Achieving Policy Objectives Low positive impact, because a focus on large scale trafficking will help to improve investigation and prosecution of trans-border trafficking in drugs and precursors in the framework of criminal organisations. For the effectiveness in achieving the policy objectives it is not relevant how the distinction between minor and large scale trafficking is made, since this concerns only the scope of the EU instrument. The question is how effective such a limitation is. It can be seen that in most Member States the aggravating circumstance of committing a drug trafficking offence within the framework of a criminal organisation is not used regularly. Some interviewees see the reason for this as the difficulty in proving the existence of a criminal organisation. It is also a question whether the focus on trafficking by criminal organisations actually covers all cases of large scale trafficking. On the one hand, a far-reaching interpretation of a criminal organisation would also cover lower levels of drug trafficking including street dealing, since these people take part in the organisations criminal activities. On the other hand, if it is required that the existence of a criminal organisation is proven, this could complicate prosecutions. No impact on the EU budget. EU institutions already allocate budget to targeting criminal organisations.

77

Economic and Financial Impacts

Social Impacts

Impact on fundamental rights

Medium potential positive impact as much of the public safety costs incurred from drug use are the result of drugs made available by major traffickers savings could be made by reducing this trafficking. This could result in significant reductions in the current 7 billion incurred across the EU on public order and public safety costs and a in the 24bn total drug-related expenditure on health. This option concerns the following fundamental rights: the right to an effective remedy and fair trial (Art. 47), presumption of innocence and right of defence

77 78

See Europol, EU organised crime threat assessment: OCTA 2011, Europol 2011, p. 24, 38 and 40. See an overview in Europol, EU organised crime threat assessment: OCTA 2011, Europol 2011, p. 10 ff.
44

Expect Impacts (Art. 48) and the principle of legality and proportionality of criminal offences and penalties (Art. 49). This option provides for limitation of these rights in law while respecting the essence of these rights. Limiting these rights is necessary to achieve the objectives. Each EU action must comply with the principle of proportionality and subsidiarity. According to the principle of subsidiarity (Article 5.3 of the TEU), action at EU level should be taken only when the aims envisaged cannot be achieved sufficiently by Member States. This is the case with large scale trafficking which usually has a trans-border dimension and which requires that Member States cooperate in investigations against criminal organisations. In purely minor cases of drug trafficking, which in most cases are located within one Member State, an EU action is not necessary to achieve the objectives. The principle of proportionality requires that any intervention by the EU is targeted and does not go beyond what is necessary to achieve the objectives. To achieve the mentioned objectives it does not seem to be necessary that an EU instrument covers all levels of drug trafficking, but it is sufficient that it is concentrated on large scale trafficking Medium acceptability, Some stakeholders agree it is sensible to put the focus of a new instrument only on criminal organisations, while others thought that this focus would be too narrow, since there are also cases of large scale trafficking or of cross-border trafficking where an involvement of a criminal organisation cannot be proved. In principle, most of the interviewees and stakeholders support the idea to concentrate a new instrument on the large-scale trafficking and particularly on criminal organisations. But a definition of the scope of action should not only refer to this organisation and structured association, since this is not always easy to prove. Moreover there is some scepticism about the definition of criminal organisations, since they are very broad and not sufficiently definite. Low impact: There are concerns that certain drug trafficking scenarios where the involvement of a criminal organisation cannot be proved, but which should be uniformly regulated on the European level would not be covered by the new instrument. Although there is an EU definition of criminal organisation in FD 2008/841/JHA, there are different definitions of organised crime in the Member States which may require work to achieve consistency. Most of the Member States (24) do refer to the commitment of drug offences in the framework of criminal organisations. Therefore this kind of limitation of the scope of action would not require so many amendments in national laws. Even in those Member States which do not contain such provisions in their drug laws, provisions on criminal organisations exist in their criminal laws, since they had to transpose FD 2008/841/JHA. Therefore this sub-option would not bring a completely new definition for the Member States. However, the scope seems to be quite narrow and difficulties in the interpretation of the definition can be expected.

Acceptability to Stakeholders

National Legal Systems

5.6

Cluster B definition of offences

The Member State level assessment indicates that there is some variation in how Member States have transposed the offences of illicit trafficking in drugs and precursors as defined in the current Framework Decision. The Framework Decision covered most of the provisions of the relevant UN Conventions but lists few activities in relation to precursors providing some evidence of scope for action to approximate definitions.

45

5.6.1

Status quo

The assessment found that in nearly all Member States (except IT, SK) the definitions for drug offences correspond with the definitions found in Art. 2(1) (a)-(c) Framework Decision. In Italian drug law, the term preparation is missing and in Slovak legislation does not include the activities cultivation and offering. In terms of precursors, the laws of three Member States (DK, IT, PL) do not fully comply with Art. 2(1) (d) Framework Decision. There are doubts whether Denmark fully complies with Art. 2(1) (d) and/or Art. 3 Framework Decision as the listed activities have to be combined with the general provisions on criminal attempt and/or participation of the Penal Code. Italy did not include the activity manufacture in its catalogue of precursor offences and in Polish law the activities transport and distribution are missing. Two Member 79 States (FR, MT) currently do not foresee criminal provisions for precursor trafficking offences. Table 5.8 definitions status quo Expected Impacts Effectiveness in Without further action the variation observed will continue. No further Achieving Policy implementation improvements on the basis of Framework Decision 2004 Objectives possible, as all MS are of the opinion that the Framework Decision was properly transposed into their national laws or did not saw any necessity to implement the 80 Framework Decision at all. Thus, no positive impacts in achieving policy objectives, especially in achieving the operational objective ensuring maximum approximation of criminal provisions related to illicit trafficking in drugs and precursors. Potential minor negative impacts as IT, SK (concerning drugs), DK, IT, PL, FR and MT (concerning precursors) will continue lacking fully compliant provisions in this field. But no evidence that current anomalies are a major source of weakness in effectiveness of efforts to combat drugs. All Member States have some legislation to control trade in precursors. Economic and Financial EU and Member State budgets remain the same. Impacts Social Impacts Public safety and health costs continue to be incurred in the region of 7 billion incurred across the EU on public order and public safety costs and 24bn total drug-related expenditure on health. Possible impacts regarding the existing criminal offences leading to imprisonment are impacts on the right to liberty (Art. 6 EU Charter), to private and family life (Art. 7 EU Charter) and to the freedom to choose an occupation and the right to engage in work (Art. 15 EU Charter). However, limitations resulting from imprisonment are provided for by law and respect the essence of the rights and freedoms provided for in the EU Charter. Furthermore, possible impacts on the right to legality and proportionality of criminal offences (Art. 49 EU Charter). Acceptable for Member States as no changes in national legal systems necessary. No changes in national legal systems necessary.

Fundamental Rights

Acceptability to Stakeholders National Legal Systems

79

See ECLAN, A Report Evaluating the Transposition and Impact of the Framework Decision, June 2012, Chapter 2.11 and Table 2.6. 80 See ECLAN, A Report Evaluating the Transposition and Impact of the Framework Decision, June 2012, Chapter 2.10.
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5.6.2

Wider definition in relation to trafficking in precursors

In contrast to drug trafficking offences provided for in the Framework Decision, which cover a wide variety of 81 activities and correspond to the provisions of the respective UN Conventions , fewer activities are defined for trafficking of precursors. Art. 2(1) (d) Framework Decision criminalizes (only) the manufacture, transport or distribution of precursor, whereas Art. 3 UN Convention 1988 also asks states to criminalise the possession of precursors. However, there is no obligation for the parties to the Convention to implement this provision. Comparing to the activities in relation t o drug trafficking, the terms production, extraction, preparation, offering, offering for sale, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch on transit, importation, exportation, possession and purchase of precursors are missing in the Framework Decision. The main difference between the activities listed in relation to drug and precursor trafficking certainly is, that the possession and purchase of precursors are not covered. Furthermore, UN Convention 1988 obliges states to criminalise the manufacture, transport or distribution of equipment and materials when this is done in the knowledge that they are to be used in or for the production of drugs. The possession of equipment and materials is provided for as a non-binding provision in the Convention. A provision relating to equipment and materials is missing in the Framework Decision. Going further and strengthening the definition of trafficking in precursors has the potential to address some of the gaps and variation that exists across Member States. Table 5.9 Wider definitions Expect Impacts Effectiveness in Achieving Policy Objectives Potential for positive impacts, as the criminalisation of possession and purchase of precursors and the criminalisation of manufacture, transport, distribution and possession of equipment and materials as described above has the potential to achieve the general objective to disrupt and reduce the supply of illicit drugs and contribute to the health, safety and qualit y of EU citizens life. Especially helpful in achieving the operational objective to ensure minimum approximation of criminal provisions related to illicit trafficking in drugs and precursors. No impact on the EU budget. Limited negative impact on Member State budgets in implementing an EU Directive. Resource will be incurred in legal advice, communication and ministerial clearance. May involve additional resources for enforcement activity in some Member States. Positive impacts to the extent that it disrupts supply of precursors to drug producers. Medium negative impact, potential increase in prosecutions which will generate additional costs for law enforcement and criminal justice agencies. In the UK an 82 average court case costs 8600 . This in turn may result in effects on 'time served' leading to greater imprisonment costs. The level of these costs varies significantly across the EU but estimates are thought to range from 12,000 to 83 87,000 per year . Possible impacts regarding newly created criminal offences leading to imprisonment are impacts on the right to liberty (Art. 6 Charter), to private and family life (Art. 7 Charter) and to the freedom to choose an occupation and the

Economic and Financial Impacts

Social Impacts

Fundamental Rights

81

See especially Art. 3 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988. 82 Home Office (2004) Criminal Justice System Digest. 83 Based on data from Council of Europe (2010) Annual Penal Statistics. The average amount spent per day for the detention of one person in different Member States was multiplied by 365 days.
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Expect Impacts right to engage in work (Art. 15 Charter). However, limitations resulting from imprisonment are provided for by law and respect the essence of the rights and freedoms provided for in the Charter. Furthermore, possible impacts on the right to legality and proportionality of criminal offences (Art. 49 EU Charter). Medium acceptability, not particularly controversial in general terms though likely to raise issues for Member States which need to change legislation. Medium impact, Several Member States will be requested to amend their legislation. It may be controversial for FR and MT as they do not foresee criminal sanctions for precursor trafficking offences at all.

Acceptability to Stakeholders National Legal Systems

5.7

Cluster C level of sanctions (Imprisonment)

The system of criminal penalties in most Member States is more differentiated than the one in the Framework Decision, as it is dependent on activities and other factors. The Framework Decision did not have an approximating effect in terms of imprisonment sanctions as it only established minimum or maximum levels of imprisonment. 5.7.1 Status quo

Under this option, the existing system of criminal sanctions and the level of sanctions as provided in the Framework Decision will continue to exist. The Framework Decision contains a general obligation to foresee effective, proportionate and dissuasive penalties (Article 4(1)). Alongside this general obligation the Framework Decision provides minimum/maximum levels of sanctions. For the offences linked to trafficking in drugs and precursors criminal penalties of a maximum of at least between one and three years of imprisonment shall be provided for (Article 4 (1) FD). If a drug trafficking offence involves large quantities of drugs or the offence either involves those drugs which cause the most harm to health, or has resulted in significant damage to the health of a number of persons, penalties of a maximum of at least between 5 and 10 years of imprisonment shall be foreseen (precursors are excluded) (Article 4 (2) FD). If such an offence is committed in the framework of a criminal organisation, penalties of a maximum of at least 10 years of imprisonment shall be provided for (Article. 4 (3) FD). If the offence of trafficking in precursors is committed within the framework of a criminal organisation, Article 4 (4) FD provides for a maximum penalty of at least between 5 and 10 years of deprivation of liberty. Table 5.10 sanctions status quo Expected Impacts Effectiveness in Achieving Policy Objectives No impact. In most Member States the level of sanctions is also in comparison to other criminal offences in the Member States high and significantly higher than in the existing Framework Decision. There is, however, no evidence that the level of penalties is a relevant motive for criminals neither to commit nor not commit criminal offences nor to shift their criminal activities to other jurisdictions. A more relevant factor might be the enforcement of criminal sanctions. The level of drug trafficking crime will remain much the same as the baseline scenario and trafficking will remain a significant problem in the EU. The levels of penalties existing in the national laws of all Member States are high enough to enable the use of all relevant investigation measures which require in most Member States a certain seriousness of the offence to be able to investigate and prosecute drug trafficking and related criminal activity effectively. The existing level of penalties in the Member States also enables cooperation in criminal matters between the Member States. EU and Member State budgets remain the same.

Economic and Financial Impacts

48

Expected Impacts Social Impacts Public safety and health costs continue to be incurred in the region of 7 billion incurred across the EU on public order and public safety costs and 24bn total drug-related expenditure on health. This option concerns the following fundamental rights: the right to an effective remedy and fair trial (Art. 47), presumption of innocence and right of defence (Art. 48) and the principle of legality and proportionality of criminal offences and penalties. This option provides for limitation of these rights in law while respecting the essence of these rights. Particularly Article 49 is important. According to Article 49 EU Charter of Fundamental Rights of the EU the level of sanctions must not be disproportionate to the criminal offence. Increasing penalties for all cases of trafficking in drugs or precursors at least in some countries could constitute a proportionality issue. This could be a problem, particularly if higher penalties are also provided for basic offences and these higher penalties are also applicable to petty offences like street dealing. Regarding the principle of proportionality it is adequate to keep the penalties as provided in Framework Decision 2004/757/JHA. All imprisonment penalties have an effect on the right of liberty, but deprivation of liberty is justified as long as it is a lawful detention after conviction by a competent court. Most of the consulted experts saw no necessity to change the level of penalties, since penalties for drug trafficking are already higher than what foreseen in the FD. It is doubted that higher or lower penalties would have a positive effect in combatting drug trafficking. Medium - high acceptability: Most of the consulted experts saw no necessity to raise or reduce the level of penalties, since penalties for drug trafficking are already higher than what foreseen in the FD. It is doubted that higher penalties would have a positive effect in combatting drug trafficking. In those Member States where the level of penalties is not significantly higher than in the Framework Decision, a new instrument, which provides the same penalties as the Framework Decision does, in any case would be regarded positive, since this would not require any amendments.

Impact on fundamental rights

Acceptability to Stakeholders

National Legal Systems

5.7.2

Increasing the level of sanctions

Framework Decision 2004/757/JHA provide criminal penalties of a maximum of at least between one and three years of imprisonment. For the case of aggravating circumstances (large quantities of drugs, harm to health) maximum penalties of at least between 5 and 10 years of imprisonment are foreseen. When a drug trafficking offence is committed in the framework of criminal organisation, criminal penalties of a maximum of at least 10 years of deprivation of liberty were provided for. As the study on the impact of Framework Decision 2004/757/JHA showed, the level of sanctions in most Member States is significantly higher. Following these Member States provisions, it could be considered to provide higher penalties in a new EU legal instrument. Regarding the level of sanctions in the Member States, the following levels could be considered: for the basic offence maximum penalties of at least between two and five of imprisonment, for minor aggravating circumstances a maximum of at least 10 years of imprisonment, for the commission of drug trafficking offences in the framework of a criminal organisation a maximum of at least 15 years of imprisonment, for precursor trafficking in the framework of a criminal

49

organisation a maximum of at least 10 years of imprisonment. Life imprisonment is not considered feasible to introduce, since some Member States do not provide life imprisonment for any criminal offence (e.g. PT, SI, ES). For these Member States the obligation to introduce life imprisonment penalties would cause fundamental legal problems. Moreover, life imprisonment sentences for drug trafficking would raise at least in some Member States concerns regarding the proportionality principle. Table 5.11 sanctions increased level Expected Impacts Effectiveness in Achieving Policy Objectives No impact: Most Member States provide very high penalties for drug trafficking; only in some Member States would this option lead to an increase of penalties in their national legal system. Where this would lead to an increase in penalties, it is not clear whether it would in turn change the actual time served in prison due to judicial discretion and more differentiated systems of criminal penalties in most Member States. The option of increasing the severity of sanctions raises the question of deterrence of criminal penalties and whether higher penalties are an effective strategy to deter from the commission of criminal offences. In general, the impact of higher penalties on the behaviour of people is difficult to analyse, since there are many factors which are relevant for special and general deterrence, not only the penalties provided in the law, but inter alia also the risk of being caught and to be convicted, the penalties which are actually imposed by the judges or the application of alternative sanctions. Many studies show that increasing the number of police officers on the street and increasing the risk of getting caught does deter some amount of crime. But it can also be seen that there is no evidence that either 84 imprisonment itself or the length of imprisonment is effective in deterring crime. It is important to have criminal provisions to affirm particularly to those people who are willing to accept these rules that certain norms and values have to be observed, but that harsh sentences have the effect to motivate persons not to 85 commit an offence, cannot be proved. Some authors even think that too many and too harsh sanctions lead to a habituation effect and that criminal measures are no longer an effective means to prevent criminal offences. Even in countries 86 where harsh penalties are provided for, no preventive effects can be seen. Until now, studies have not proven a relationship between the crime rate and the severity of sanctions, but an inverse correlation between the crime rate and the 87 probability of being punished. In principle, these general results may be applied to drug trafficking offences.

84

Gottfredson, Michael, Sanctions, situations, and agency in control theories of crime, European Journal of Criminology 8(2) (2011) 128 (134); Kreuzer, Arthur, Mehr Sicherheit durch strengeres Strafen?, KrimPd, 2004, Vol. 43, p. 4 (8 f.); Heinz, Kriminalprvention auf justizieller Ebene: Hilft weniger mehr? Alternativen zu klassischen Sanktionen: Erfahrungen aus Deutschland, in: Kury/Karimov (eds.), Kriminalitt und Kriminalprvention in Lndern des Umbruchs, Bochum 2006, p. 293 (299); ); Harrel/Roman, Reducing Drug Use and Crime among Offenders: The Impact of Graduated Sanctions, Journal of Drug Issues 31(1), 2001, p. 210; Snacken/van Zyl Smit, Neue Kriminalpolitik 2/2009, p. 58; A. Pagliaro, Empirical Verfication of the Effects of General Prevention and Incapacitation, European Journal of Crime, Criminal Law and Criminal Justice, 2003 4, p. 406. 85 nd Streng, F., Strafrechtliche Sanktionen, 2 ed. Stuttgart 2002, p. 30 ff; Heinz, W., Kriminalprvention durch Strafrecht Postionsbestimmung des Strafrechts, in: Kury/Karimov (Eds.), Kriminalitt und Kriminalprvention in Lndern des Umbruchs, Bochum 2006, p. 300. 86 Kreuzer, Arthur, Mehr Sicherheit durch strengeres Strafen?, KrimPd, 2004, Vol. 43, p. 10. 87 See A. Pagliaro, Empirical Verfication of the Effects of General Prevention and Incapacitation, European Journal of Crime, Criminal Law and Criminal Justice, 2003 4, p. 406.
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Expected Impacts Regarding the drug policy in many countries, it can be seen that states which 88 provided harsh penalties for drug trafficking have not as yet solved the problems. For example, the situation in Portugal shows that even a decriminalization of the use and possession of all illicit drugs combined with the use of alternative therapeutic responses did not lead to an increase in drug use, but that use 89 remained at a level consistent with other similar countries. Similar experiences were seen in the USA, where the consumption of cannabis did not increase in States where possession of cannabis was decriminalised compared to those 90 States which maintained strict prohibition with criminal penalties. Regarding the policy objectives, higher penalties would not improve investigations and prosecution of drug trafficking offences. Since penalties are already very high in all Member States, there is no need to introduce higher penalties. Economic and Financial Impacts No impact on the EU budget. Limited negative impact In Member States where lower sanctions are provided for, an increase in sanctions may also lead to effects on 'time served' leading to greater imprisonment costs. The level of these costs varies significantly across 91 the EU but estimates are thought to range from 12,000 to 87,000 per year. Low negative impacts, greater time served in prison by traffickers would lead to negative costs in terms of low productivity in the formal economy to the detriment 92 of a minimum monthly wage of 148. Additionally, where an imprisoned offender has a family costs are increased by state agencies (health and social services). In the UK, this has been estimated to be an average of 6000 per family over six months. Costs are also incurred by the family themselves with an average of 250 spent on their imprisoned relative over a period of six months, together with an average of 75 on clothing for the 93 prisoner and just under 500 on visiting costs. This option concerns the following fundamental rights: the right to an effective remedy and fair trial (Art. 47), presumption of innocence and right of defence (Art. 48) and the principle of legality and proportionality of criminal offences and penalties. This option provides for limitation of these rights in law while respecting the essence of these rights. Article 49 is particularly important. According to Article 49 EU Charter of Fundamental Rights of the EU the level of sanctions must not be disproportionate to the criminal offence. Increasing penalties for all cases of trafficking in drugs or precursors at least in some countries could constitute a proportionality issue. This could be a problem, particularly if higher penalties are also provided for basic
88

Social Impacts

Impact on fundamental rights

See e.g. Herman, Measuring culpability by measuring drugs? Three reasons to reevaluate the Rockefeller Drug Laws, 63 Albany Law Review Nr. 777, 2000. 89 Hughes, C.E. and Stevens, A., What Can We Learn from the Portuguese Decriminalization of illicit Drugs?, British Journal of Criminology, Vol. 50, Issue 6 (2010), p. 999. 90 Room, R., Fischer, B., Hall, W., Lenton, S. and Reuter, P., The Global Cannabis Commission Report, Oxford: Beckley Foundation http://www.beckleyfoundation.org/pdf/BF_Cannabis_Commission_Report.pdf. 91 Based on data from Council of Europe (2010) Annual Penal Statistics. The average amount spent per day for the detention of one person in different Member States was multiplied by 365 days. 92 Eurostat data (2012) on minimum wages across Europe, based on minimum wage in Bulgaria, the lowest in Europe. 93 Rose et al (2007) Poverty and disadvantage among prisoners' families. Joseph Rowntree Foundation.
51

Expected Impacts offences and these higher penalties are also applicable to petty offences like street dealing. Increasing the level of penalties would require that differentiation between minor and major trafficking is made not only depending on the quantity of drugs, but also on the level of drug trafficking, the circumstances of the people concerned (particularly whether they are drug addicted themselves) and the involvement of criminal organisations. High penalties for pure possession of small quantities or street dealing could be seen as disproportionate in relation to penalties for other offences. All imprisonment penalties have an effect on the right of liberty, but deprivation of liberty is justified as long as it is a lawful detention after conviction by a competent court in a fair trial. Unclear: the acceptability of a higher level of penalties for drug trafficking is not clear and not homogenous. Some consulted stakeholders supported an increase in criminal penalties; others were strongly against it. This very much depends on their role, position and where they come from. Medium impact: Considering an increase in the level of penalties, the first question is what level of penalties could be introduced. Regarding the Member States penalties, there are 12 Member States which provide life imprisonment at least for the most severe cases. For the basic offence, six Member States provide for maximum penalties of between one and three years, nine Member States up to five years, twelve up to ten years, five up to 15 years and eight more than 15 years. Regarding the national provisions on aggravating circumstances (FD: 5 to 10 years) there are several Member States which provide maximum penalties between 5 and 10 years but there are 14 Member States which provide higher penalties in the case of large quantities (7 life imprisonment) and 15 Member States for the case of harm to health (6 life imprisonment). For the case of the commission of a drug offence in the framework of a criminal organisation (FD: max. of at least 10 years) 25 Member States provide higher penalties (12 life imprisonment); for the commission of precursor trafficking in the framework of a criminal organisation (FD: 5 to 10 years) eight Member States provide maximum penalties up to 10 years, ten Member States more than 10 years (six life imprisonment). As mentioned above, life imprisonment is not considered, since this would cause unsolvable problems in Member States which do not provide life imprisonment for any offences. The proposed option would not be in line with the Council Conclusions on the 94 approach to apply approximation of penalties adopted by the Council in 2002. These conclusions provide a standardised scale of four levels of minimum/maximum penalties and in level 4 maximum sentences of at least 10 years. This means that the penalties foreseen in the current Framework Decision are on the maximum level of this standardised scale. However, there are other EU legal instruments which are not in line with these Council Conclusions as e.g. the Directive 2011/92/EU of 13 December 2011 on combatting the sexual abuse 95 and sexual exploitation of children and child pornography . In most of the Member States an amendment of legislation would not be necessary, since their penalties are already high enough. An increase of sanctions

Acceptability to Stakeholders

National Legal Systems

94 95

Council conclusions on the approach to apply regarding approximation of penalties, 9141/02 LIMITE DROIPEN 33. OJ 17.12.2011, L 335 p. 1.
52

Expected Impacts in the considered way would mean: With regard to the basic offence, six Member State would have to amend their laws. Regarding aggravating circumstances the number depends on the specific aggravating circumstances, but only a few Member States would have to change their laws. Although the potential increase in the level of penalties would only require amendments in few Member States for these Member States such an increase could cause fundamental problems, since higher penalties would not fit into the whole national criminal law system and could be incompatible with their criminal sanctioning system in general. In general, it seems that the introduction of higher minimum/maximum penalties in a new instrument would create more problems in the Member States legal systems than it would solve. For some Member States the penalties in the Framework Decision particularly for basic offences have already required the increase of penalties and caused some problems. It is expected that for those and probably also some other States even higher penalties would cause problems. On the other hand, there still would remain several Member States with higher penalties, since it is not expected that Member States would introduce lower penalties due to the new directive, although there is no obligation to lower them. Even if a need to approximate criminal law provisions is seen, it is necessary to take into account that national legal systems have developed quite different sanctioning systems. Some systems prefer more general and broad penalty frameworks; others utilise a rather sophisticated multiple-tier scheme. The consequence is different sanctioning systems in the Member States which are consistent in their philosophy, but difficult to combine with other systems. Considering these aspects and due to the fact that the Member States already foresee quite high penalties for drug trafficking offences, the question must be answered whether more approximation is necessary (e.g. for better cooperation). After consultations with external experts it is not clear what the added value of higher penalties would be and there are also considerable doubts that increasing the level of penalties in a new instrument would have much effect in bringing about the approximation of sanctions in the Member States and would overcome all disparities which currently exist at the between Member States laws.

5.7.1

Reducing the level of sanctions

It could be an option to reduce the minimum maximum level of sanctions for all or for certain activities to get a more differentiated system of sanctions. Overall, lower sanctions combined with other measures (particularly health programmes) could be more useful than harsh punishment in some cases. For cases of street dealing, particularly when the dealer is addicted himself, a reduction in penalties could be an option. Reducing the level of sanctions should be considered only for minor drug trafficking, with sanctions for such offences at the level of under one year of imprisonment. Reducing the level of sanctions for (certain forms of) minor trafficking and keeping those for large-scale trafficking would lead to a more differentiated system of sanctions. It could be recommended to the Member States that a reduction in the level of penalties for lower level penalties is combined with certain health and therapy programmes for addicted offenders. This option could be relevant particularly if the scope of action remains the same as it is in the Framework Decision. If the scope of action is limited to large scale trafficking, this option might not be relevant. The minimum maximum level of sanctions for minor offences (e.g. trafficking in small quantities of certain drugs as for example cannabis) could be reduced to six months. For

53

aggravating circumstances the minimum maximum could be reduced to penalties of at least between 3 and 5 years. For the commission of drug trafficking in the framework of a criminal organisation the penalty of a maximum of at least 8 years could be considered. For the commission of trafficking in precursors in the framework of a criminal organisation a minimum maximum penalty of five to seven years could be established. Table 5.12 Sanctions reduction in sanctions Expect Impacts Effectiveness in Achieving Policy Objectives Low negative impact, a reduction of the level of sanctions would have no significant consequences as it is not recommended that it is applied to major trafficking which is the focus of the objectives. If reductions were applied to large scale trafficking this could be seen by the public as a signal that largescale trafficking is not a serious offence, which could have counter-productive effects. No impact on the EU budget. A reduction in sanctions has the potential to reduce imprisonment costs. The level of these costs varies significantly across the EU but estimates are thought 96 to range from 12,000 to 87,000 per year. However, the option is that any reduction is applied only to minor offences which may not lead to significant imprisonment anyway. There is also a recommendation that any reduction is accompanied by therapeutic support. Yearly expenditure on this is estimated to 97 cost 550 to 4 900 per individual based on data from 13 member States. Low positive impacts, less time served in prison by traffickers could lead to positive impacts in terms of increased productivity in the formal economy at a 98 minimum monthly wage of 148. However, accompanying treatment may limit the immediacy of these benefits to society. This option concerns the following fundamental rights: the right to an effective remedy and fair trial (Art. 47), presumption of innocence and right of defence (Art. 48) and the principle of legality and proportionality of criminal offences and penalties. It provides for limitation of these rights in law while respecting the essence of these rights. Article 49 is particularly important. According to Article 49 EU Charter of Fundamental Rights of the EU the level of sanctions must not be disproportionate to the criminal offence. From the point of the proportionality principle a reduction of the level of sanctions for (certain) minor drug trafficking offences is seen positive. This particularly the case of possession of small quantities, street dealing or drug trafficking for the purpose to finance the own addiction. It would require that a differentiation between minor trafficking and major trafficking is made not only depending on the quantity of drugs, but also on the level of drug traffic, the circumstances of the people concerned (particularly when they are drug addicted themselves) and the involvement of criminal organisations. High penalties for pure possession of small quantities or street dealing could be seen as disproportional in relation to penalties for other offences.

Economic and Financial Impacts

Social Impacts

Impact on fundamental rights

96

Based on data from Council of Europe (2010) Annual Penal Statistics. The average amount spent per day for the detention of one person in different Member States was multiplied by 365 days. 97 EMCDDA (2011) Cost and financing of drug treatment services in Europe: an exploratory study. Figures presented are maximum and minimum estimates based on data reported for 13 Member States. 98 Eurostat data (2012) on minimum wages across Europe, based on minimum wage in Bulgaria, the lowest in Europe.
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Expect Impacts All imprisonment penalties have an effect on the right of liberty, but deprivation of liberty is justified as long as it is a lawful detention after conviction by a competent court in a fair trial. Medium acceptability, if the level of sanctions for large-scale trafficking is reduced, stakeholders particularly law enforcement authorities would probably see this as a wrong signal to drug trafficking offenders. If this focus was solely on reduction in penalties for minor drug trafficking, this would be more accepted by parts of the group of stakeholders. No impact, the effect on national legal systems is likely minimal, since minimum-maximum penalties allow Member States to provide higher penalties. It is likely that most Member States will not amend their legislation and reduce the sanctions for drug trafficking due to the new instrument. Therefore, more approximation of sanctions provided in national laws is not to be expected.

Acceptability to Stakeholders

National Legal Systems

5.8

Cluster D financial penalties

The evidence suggests there is some opportunity to approximate the use of financial penalties as there is variation in their application across Member States. 5.8.1 No financial penalties (status quo)

The current Framework Decision provides only imprisonment penalties and does not contain any provisions on financial penalties for individuals. Despite this 25 Member States provide for financial penalties in cases of illicit drug or precursor trafficking. Only RO and SI do not provide financial penalties for illicit drug trafficking, since financial penalties, which usually are only provided for petty offences, are not seen as appropriate for illicit drug trafficking offences which are considered dangerous. The first option concerning financial penalties would be that no provisions on financial penalties, as in the current instrument, are contained in the new instrument. This would mean for the Member States that they could keep their provisions or amend them in a way they see fit. Table 5.13 Financial penalties status quo Expected Impacts Effectiveness in Achieving Policy Objectives Economic and financial impacts Social Impacts If there is no provision on financial penalties in the new instrument, in terms there will be no opportunity to achieve policy objectives

Level of EU resource to address the problem of drug trafficking remains stable. No change expected in Member States' budgets. Law enforcement costs (7b) will continue to be incurred in Member States in addressing the range of crimes/offences associated with drug trafficking crimes. Public health institutions will continue to deal with the health consequences of drug use driving trafficking (current costs 24bn). None

Impact on fundamental rights Acceptability to

Since there is no change, it is likely to be accepted by stakeholders.

55

Expected Impacts Stakeholders National Legal Systems There will be no impact on national legal systems. The Member States will keep their national provisions on financial penalties for drug trafficking offences. The different systems of financial penalties will remain. In most Member States financial penalties only will be applied to minor cases.

5.8.2

Provisions on the general obligation to introduce financial penalties

The Framework Decision does not provide any provisions on financial penalties. As outlined above, nearly all Member States, except RO and SI, provide financial penalties for certain drug trafficking offences. Systems to administer financial penalties in the Member States are, however, very different and more diverse than the system for custodial sentences (see below). It is one policy option to introduce a provision in the new instrument which obliges the Member States to foresee and apply financial penalties, without introducing more specific requirements. Table 5.14 Financial penalties in line with national law Expect Impacts Effectiveness in Achieving Policy Objectives Very limited positive impact: the effectiveness of this option in achieving policy objectives very much depends on the scale of the financial penalties and on the national system of financial penalties. If only low fines are provided for minor cases, the effectiveness will be very limited. The success of fines for minor drug trafficking also depends on the financial and social situation of the offender. If s/he is addicted and commits drug trafficking offences to finance his/her addiction, financial penalties will typically have no positive impact, since the convicted person cannot pay the fine. For major drug trafficking cases the evidence suggests they will have minimal effect on achieving the policy options, since for these people or organisations amounts of up to 1M will not have any effect and will not be high enough to deter them from drug trafficking. There is more potential for some impact if very large fines are used as an alternative to asset confiscation in relation to criminal organisations - it avoids the problem of having to prove assets were acquired through criminal activity. In conclusion, as long as financial penalties are limited and the limit is not very high, financial penalties for large-scale trafficking will not have any deterrent effect. Only if the financial penalties are very high, could they have the secondary function to skim off the profits of the offenders or criminal organisations. No impact on the EU budget. Limited negative impact on Member State budgets in terms of the need to implement an EU Directive. Resource will be incurred in legal advice, communication and ministerial clearance. There is the potential for the receipt of additional revenue from the fines collected. The level of this revenue is difficult to establish robustly given the

Financial Impacts

56

Expect Impacts Social Impacts different systems employed in Member States. Medium adverse impact, should fines be implemented for minor offences, which are typically committed by those with addiction problems. There is evidence of the disproportionate impact fines can have on the lives of 99 disadvantaged people. Low negative impact, if fines are used for major trafficking but are of insufficient level to act as a deterrent. In this situation, public safety and law enforcement costs will still be incurred in addressing the social consequences of drug trafficking. Financial penalties touch the right to property (Article 17 Charter). Deprivation of possessions is admissible, if it is in the public interest and the cases and the conditions are provided in law. Financial penalties are admissible if they are foreseen in the law and the requirements are sufficiently determined. In terms of proportionality of criminal offences and penalties (Article 49 Charter) it is necessary that financial penalties are proportional to the gravity of the offence. In principle, the interference with the right to property is less intensive than the interference with the right to freedom. Therefore, in principle, financial penalties potentially respect the principle of proportionality. Medium acceptability: The perceived potential effectiveness of financial penalties in cases of drug trafficking is very different among stakeholders and national experts. Doubts from stakeholders can be expected on whether such a provision is necessary in a new instrument, since in several Member States financial penalties are not regarded adequate to combat large-scale drug trafficking. At least in ten Member States no added value is seen in financial penalties for drug trafficking offences. In many Member States they are rarely used, since they are too low for large-scale trafficking and trafficking in the framework of criminal organisations. In minor cases the problem is seen that most traffickers are drug addicted and do not have money to pay the fines. In most of the Member States that apply financial penalties to minor offences it seems unlikely that financial penalties are an effective and deterrent instrument against large scale trafficking, but in those cases only imprisonment is regarded as adequate. These States follow a legal tradition that financial penalties for individuals are limited and are not appropriate to be used against large scale criminality. In principle a general obligation to provide and apply financial penalties in line with national law, is likely to be accepted, if this does not require changes in fundamental national legal provisions. Low impact, dependent on how the provisions form this option and to which cases financial penalties shall be applied. Nearly all Member States, except RO and SI, provide financial penalties for certain drug trafficking offences. Systems to administer financial penalties in the Member States are, however, very different and more diverse than the system

Impact on fundamental rights

Acceptability to Stakeholders

National Legal Systems

99

Law and Justice Foundation (2008) Fine but not fair: fines and disadvantage.
57

Expect Impacts for custodial sentences Ten Member States provide for a system of day fines, while 15 Member States operate fines based on absolute amounts. In these states different circumstances influence the amount of the financial penalties. There are notable differences in the maximum financial penalties available in the Member States, ranging from 22.600 to an unlimited amount. Differences can also be seen in the character of financial penalties: on the one hand in some Member States they are foreseen as alternatives to an imprisonment sentence for minor offences, in others they are provided as additional sanctions which are imposed cumulatively with imprisonment sentences. While in some Member States they are regularly used in drug trafficking cases, in others they have no relevance. One group of Member States only applies them to minor offences; in contrast, in other Member States financial penalties are imposed in more severe cases, with them seen as a way of compensating for the gains made from drug trafficking. Taking Spain as one example, the size of the financial penalty depends on the value of the trafficked drugs, with the maximum fine being triple or quadruple the value of the drugs. In nearly all Member States there is no direct relationship between financial penalties and confiscation of assets, since they have completely different purposes. Whereas penalties have the purpose of prevention and deterrence, confiscation is aimed at reversing the achieved enrichment that results from a criminal act, principally in the form of financial gain. Despite this separation, there is a view amongst some stakeholders that financial penalties could be useful to remove financial gain where confiscation is not possible as the source and ownership of the assets of the offender cannot be proven. This is contrary to considerations on confiscation where penalties and confiscation are strictly divided. This proposed option would respect the fundamentally different systems of financial penalties in the various Member States and have only minor impacts on the Member States legal systems, if they can keep their provisions on financial penalties. It would not require that Member States introduce specific systems or a certain level of financial penalties, but give the Member States the opportunity to keep or change their systems. If Member States are obliged to introduce financial penalties for drug trafficking offences, but are free to apply them to offences in line with their national provisions, only the two Member States that do not foresee financial penalties would be obliged to introduce financial penalties for drug trafficking offences. If a new instrument only covers large scale trafficking and/or provides for an obligation to introduce financial penalties for major drug trafficking, this could cause some problems with sanctioning systems in national legal systems, since there are criminal law systems where fines are only foreseen as alternative to short-term imprisonment. In these Member States fines are regarded as less severe and less intensive penalties and are therefore used in the field of minor criminality. For more serious cases only imprisonment is foreseen and applied in practice. This is not only the case in Member States where financial penalties are an alternative to short imprisonment, but also in Member States where fines

58

Expect Impacts can be imposed together with imprisonment (e.g. NL). For such Member States (at least ten) such an obligation would cause conflicts within their legislation, because they would have to introduce specific rules for financial penalties for drug trafficking law which are not in line with other criminal law provisions.

5.8.3

Provision introducing minimum maximum level of fines

A third option in this cluster is the establishment of a provision that introduces minimum/maximum levels of fines in a new EU instrument. Since Member States provide very different maximum levels of fines, it is difficult to say what amount should be introduced. The level of maximum financial penalties in the Member States ranges from 22.600 to an unlimited amount. In five Member States the maximum amount is below 100.000 , ten Member States provide maximum levels between 100.000 and 1 Million , six Member States provide more than 1 Million , in three Member States the maximum amount depends on the value of the drugs, in two Member States there is no limitation to the amount of the penalty. If it is the case that the new instrument is focused on large-scale trafficking, only a high level would make sense. For these cases a minimum/maximum financial penalty of at least 5 Million Euro is proposed. Another option would be unlimited amounts of financial penalties which depend on the value of the trafficked drugs (e.g. three times of the value of drugs). Such a system for example exists in ES. Table 5.15 Financial penalties minimum/maximum levels of fines Expect Impacts Effectiveness in Achieving Policy Objectives Financial Impacts Potential for low positive impact if very large fines are used as alternative to asset confiscation in relation to criminal organisations - it avoids the problem of having to prove assets were acquired through criminal activity. No impact on the EU budget. Limited negative impact on Member State budgets in terms of the need to implement an EU Directive. Resource will be incurred in legal advice, communication and ministerial clearance. There is the potential for the receipt of additional revenue from the fines collected. The level of this revenue is difficult to establish robustly. Medium adverse impact, should fines be implemented for minor offences, which are typically committed by those with addiction problems. There is evidence of the disproportionate impact fines can have on the lives of 100 disadvantaged people. Low negative impact, if fines are used for major trafficking but are of insufficient level to act as a deterrent. In this situation, public safety and law enforcement costs will still be incurred in addressing the social consequences of drug trafficking. Financial penalties touch the right to property (Article 17 Charter). Deprivation of possessions is admissible, if it is in the public interest and the cases and the conditions are provided in law. Financial penalties are admissible if they are foreseen in the law and if the requirements are sufficiently determined. In terms of the principle of proportionality and penalties (Article 49 Charter) it is

Social Impacts

Impact on fundamental rights

100

Law and Justice Foundation (2008) Fine but not fair: Fines and disadvantage.
59

Expect Impacts necessary that financial penalties are proportionate to the gravity of the offence. In principle, the interference with the right to property is less intensive than the interference with the right to freedom. Low acceptability, this would be potentially highly controversial. Since at least half of Member States (depending of the minimum maximum amount of the financial penalty) would have to change their system of fines or introduce special system of fines in drug trafficking law, opposition is expected. Many consulted stakeholders doubt that financial penalties are useful in cases of drug trafficking. High impact, due to the varying systems of financial penalties it may be complicated to establish and formulate EU provisions which do not cause significant problems in implementing a new instrument in Member States. Until now no EU legal instrument has contained provisions on the approximation of financial interests. Most Member States do not have a specific system of financial penalties for cases of drug trafficking but have a system which applies to all aspects of criminal law. Therefore it might be difficult to introduce a completely different system only for drug trafficking offences. This could lead to fundamental conflicts and make it difficult to change systems In contrast to the second option, this option would have an approximating effect, since there would be a common level of financial penalties for drug trafficking offences in all Member States. However, the introduction of this would require fundamental changes to fine systems. The added value of this option, very much depends on the national system of financial penalties. As described and analysed above in section 5.8.2, there are very different systems of financial penalties in the Member States and notable differences in the maximum financial penalties available. The establishment of minimum maximum levels of fines would cause fundamental problems in a number of Member States. On the one hand maximum levels of fines are difficult to combine with systems of daily rates which refer to the economic capacity of the perpetrator. This problem arises in ten Member States. Also in several systems of absolute amounts for financial penalties the obligation to introduce financial penalties of 5 Million Euro would cause problems, since the penalties in most of them are much lower. Only for the Member States which do not provide any maximum and one other Member State which provides higher maximum penalties (FI), this requirement would be no problem. For all the other Member States, it would it would mean not only to change specific provisions, but also their system of financial penalties. Another problem with establishing a certain level of fines is the need to acknowledge the different standards of living in the Member States and the different values of money in the Member States which must be respected by legal provisions on financial penalties. Unlimited maximum levels of financial penalties or penalties which depend on 101 the value of drugs in some Member States (e.g. Germany ) could cause constitutional problems due to violations of the principle of certainty of legal provisions. Furthermore, the different standards of living in Member States could prove problematic in defining maximum amounts.

Acceptability to Stakeholders

National Legal Systems

101

See e.g. Bundesverfassungsgericht 20.3.2002, 2 BvR 749/95, Neue Juristische Wochenschrift 2002, p. 1779.
60

5.9
5.9.1

Financial penalties for legal persons

Status quo

Article 7 of the Framework Decision provides that all Member States shall take the necessary measures to ensure that a legal person held liable pursuant to Article 6(1) is punishable by effective, proportionate and dissuasive sanctions which shall include criminal or non-criminal fines. In nearly all Member States financial sanctions for legal persons (and other legal entities) are foreseen which are in most States of criminal nature but in some cases are of an administrative nature. Disparities exist due to very different maximum levels of financial sanctions for legal persons. The level of maximum penalties ranges from 120.000 to unlimited maximum penalties. As a first option concerning financial penalties for legal persons, it is proposed that the obligation to provide effective, proportionate and dissuasive sanctions as already contained in the Framework Decision is introduced in a new instrument. This general obligation which first was developed by the European Court 102 of Justice is very common in EU criminal law instruments, since it requires that Member States provide a certain quality of sanctions, but gives the Member States the possibility to choose how they transpose this obligation. Effective means in distinction to dissuasive that, if violations occur, the system is capable of responding to it. The Member States must endeavor to attain and implement the objectives of the relevant provisions of Union 103 law. Specifically, this includes rules laying down penalties are effective where they are framed in such a way that they do not make it practically impossible or excessively difficult to impose the penalty provided 104 for. The requirement to respect the principle of proportionality concerns the relationship between the 105 gravity of the offence and the sanction provided. A sanction is proportionate where it is appropriate (in particular, effective and dissuasive) for attaining the legitimate objectives pursued by it, and also necessary. Dissuasiveness of a measure requires that the measure must have the potential to deter persons from conducting themselves in the undesired manner. A sanction is dissuasive when it prevents an individual from 106 infringing the objective pursued and rules laid down by Union law.

102 103

See A. Klip, European Criminal Law An Integrative Approach (2012) p. 71. Opinion of Advocate General van Gerven of 5 December 1989, Case C-326/88, Anklagemyndigheden v. Hansen and Sn I/S [1990] ECR I-2911, point 8. 104 Opinion of Advocate General Kokott of 14 October 2004, C-387/02, C-391/02 and C-403/02, criminal proceedings against Silvio Berlusconi (C-387/02), Sergio Adelchi (C-391/02), Marcello Dell`Utri and others (C-403/02) [2005] ECR I3565, point 88. 105 2 See A. Klip, European Criminal Law An Integrative Approach (2012) p. 74. 106 Opinion of Advocate General Kokott of 14 October 2004, C-387/02, C-391/02 and C-403/02, criminal proceedings against Silvio Berlusconi (C-387/02), Sergio Adelchi (C-391/02), Marcello Dell`Utri and others (C-403/02) [2005] ECR I3565, point 89.
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Table 5.16 Financial penalties for legal persons status quo Expected Impacts Effectiveness in Achieving Policy Objectives Economic and financial Impacts Economic and Social Impacts No impact: Member States will not change anything concerning financial penalties for legal persons, so no further opportunity to achieve policy objectives

Level of EU resource to address the problem of drug trafficking remains stable. No change expected in Member States' budgets. Law enforcement costs (7b) continue to be incurred in Member States in addressing the range of crimes/offences associated with drug trafficking crimes. Public health institutions will continue to deal with the health consequences of drug use driving trafficking (24bn). Financial penalties touch the right to property (Article 17 Charter). Deprivation of possessions is admissible, if it is in the public interest and the cases and the conditions are provided in law. Financial penalties are admissible if they are foreseen in the law and if the requirements are sufficiently determined. In terms of the principle of proportionality of criminal offences and penalties (Article 49 Charter) it is necessary that financial penalties are proportionate to the gravity of the offence. Since the provision requires proportionate sanctions it guarantees that sanctions are introduced which are proportionate to the gravity of the offence. This is only to be understood as an upper limit for penalties.

Impact on fundamental rights

Acceptability to Stakeholders National Legal Systems

High acceptability, as no change is anticipated

Medium impact: Financial penalties for legal persons are foreseen in nearly all Member States, even if their level and the systems of financial penalties are quite different. Since the systems of corporate liability are quite different in the Member States and the level of sanctions is diverging, such a general obligation enables a quite unproblematic implementation into the national laws. The consequence will be that the differences between the Member States laws will remain. However, since the introduction of a (criminal) liability of legal persons is a very sensitive topic in some Member States and caused long discussions in several Member States in recent years, more acceptance is expected if Member States have a certain flexibility to choose how they implement such a liability and which financial penalties are foreseen. Since the provision remains the same, it is not necessary to change the national laws (except GR, which does not have regulations on financial penalties for legal persons).

5.9.2

Provisions on fine proportionate to seriousness of offence

The current Framework Decision only contains the general obligation to provide for dissuasive, proportionate and effective sanctions, but no minimum or maximum levels or other limits are set. One option would be to establish provisions on fines which are proportionate to the seriousness of offences. The criteria of what constitutes proportionality would need to be defined. For legal persons the criteria could be:
62

the involvement of large quantities of drugs, if drugs are involved which cause most harm to health, or has resulted in significant damage to health of a number of persons, if the offences are committed in the framework of a criminal organisation.

Moreover, other aggravating and mitigating circumstances can be used to define the seriousness of the offence. This option only dictates that there shall be a differentiation between the levels of fines proportionate to the seriousness of the offence. Member States would remain free to choose the level of the fines. The consequence would be a more differentiated system of sanctions for legal persons depending on the seriousness of the offence, but without providing minimum or maximum amounts. Since Framework Decision 2004/757/JHA requires proportionate sanctions, such a provision is not completely new, except that there are concrete criteria on how to differentiate the sanctions. For Member States which have linked the sanctions with the sanctions against individuals (either providing the same financial penalties also for legal persons or linking the fine against the legal person to the terms of imprisonment against legal persons) such a proportionate system of financial sanctions would not cause greater problems, as far as there are differentiations foreseen for individuals. Table 5.17 Financial penalties for legal persons fine relating to seriousness of offence Expect Impacts Effectiveness in Achieving Policy Objectives Low positive impact, since the Framework Decision has already required the provision of proportionate sanctions, the impact will be limited. Most Member States provide differentiation of sanctions against legal persons depending on the seriousness of offences but these differentiations are not foreseen in the law of all Member States, but are made by the courts (depending on the sanctioning system in general). A more general problem is that financial penalties against legal persons in several Member States are not very effective, since they are only rarely used, particularly in drug trafficking cases. Whether the provision on fines proportionate to the seriousness of the offence makes financial penalties against legal persons more effective, must be doubted. Provisions on sanctions against legal persons should not get too complicated, since this could be a deterrent for practitioners to use them. Financial Impacts No impact on the EU budget. Limited negative impact on Member State budgets in terms of the need to implement an EU Directive. Resource will be incurred in legal advice, communication and ministerial clearance. There is the potential for the receipt of additional revenue from the fines collected. The level of this revenue is difficult to robustly establish given the different systems employed in Member States. Low negative impact, if fines are used for major trafficking but are of insufficient level to act as a deterrent. In this situation, public safety and law enforcement costs will still be incurred in addressing the social consequences of drug trafficking. Financial penalties touch the right to property (Article 17 Charter). Deprivation of possessions is admissible, if it is in the public interest and the cases and the

Social Impacts

Impact on fundamental rights

63

Expect Impacts conditions are provided in law. Financial penalties are admissible if they are foreseen in the law and if the requirements are sufficiently determined. Regarding the principle of proportionality of criminal offences and penalties (Article 49 Charter), it is necessary that financial penalties are proportionate to the gravity of the offence. A provision which requires sanctions proportionate to seriousness of crime should guarantee that. Acceptability to Stakeholders Low acceptability, in several Member States reservations in using the provisions on financial penalties against legal persons can be seen. They are rarely or not used at for drug trafficking cases. Depending on the system of sanctions in the Member States, in some Member States stakeholders could see this option as a reduction of the judicial discretion when there are too many and too detailed legal provisions on the differentiation of sanctions. This could only be an issue in legal system where such differentiations are not foreseen in the 107 sanctioning system for individuals. Low impact, Since the Framework Decision required proportionate sanctions, this provision is not completely new, except that there would be concrete criteria on how to differentiate the sanctions. In most Member States differentiation depending on the seriousness of offences exists, therefore such a provision would have no significant impact. For those Member States which have linked the sanctions against legal persons with individuals such a proportionate system of financial sanctions would not cause greater problems.

National Legal Systems

5.9.3

Provision on minimum maximum level of fines

The introduction of a minimum or maximum level of fines for legal persons would be something new in EU law, since all EU instruments until now have provided only the general obligation to introduce a liability of legal persons. This option would certainly have an approximating effect, since there would be common levels of financial penalties for drug trafficking offences in all Member States. However, the systems and levels of sanctions for legal persons are very different in the various Member States as reported above. Four Member States (AT, IT, PT, SI) have a system of day fines for the determination of the financial penalty for legal persons and in all other Member States, absolute amounts are provided for. The majority of Member States provide criminal sanctions, but others non-criminal sanctions. The maximum penalties are very different and range from 120.000 to 37.5 M . In two Member States there is no limitation to the amount of the penalty. In three Member States the maximum amount depends on the value of the drugs, respectively on the gain out of the offence. Due to these different systems it is difficult to determine a common amount for all Member States. That is why in the past only general obligations to provide effective, proportional and dissuasive sanctions have been taken into the EU legal instruments on liability of legal persons. If the new instrument is focused on large-scale trafficking, only high minimum or maximum levels of fines make any sense. For the purpose of fighting against large-scale trafficking, maximum levels of at least 10 Million Euro for fines could be considered, since with regard to the profits of such criminal behaviour lower sanctions against organisations in this field do not seem to be deterrent.

107

This can also be relevant for other sanctions, but for other sanctions there is no option to provide for sanctions proportionate to the seriousness of the offence. The FD does not foresee that Member States must provide different sanctions depending on the seriousness or on the existence of an aggravating circumstance, if the maximum penalty for the basic offence is already high enough to fulfil the requirements for the aggravating circumstance.

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Table 5.18 Financial penalties for legal persons minimum/maximum fines Expect Impacts Effectiveness in Achieving Policy Objectives Low impact, since there are quite different systems of (criminal and noncriminal) liability of legal person in the Member States, it is likely to be difficult to implement a minimum maximum level of fine. If this is the case and implementation is less effective than expected it may not be used by practitioners. A more general problem is that financial penalties against legal persons in several Member States are not very effective, since they are only rarely used, particularly in drug trafficking cases. Whether a provision on a minimum maximum level of financial penalties makes financial penalties against legal persons more effective, must be doubted. For more effective investigation and prosecution of legal persons such a provision is not necessary. No impact on the EU budget. Limited negative impact on Member State budgets in terms of the need to implement an EU Directive. Resource will be incurred in legal advice, communication and ministerial clearance. There is the potential for the receipt of additional revenue from the fines collected. The level of this revenue is difficult to robustly establish. Low negative impact, if fines are used for major trafficking but are of insufficient level to act as a deterrent. In this situation, public safety and law enforcement costs will still be incurred in addressing the social consequences of drug trafficking. Financial penalties touch the right to property (Article 17 Charter). Deprivation of possessions is admissible, if it is in the public interest and the cases and the conditions are provided in law. Financial penalties are admissible if they are foreseen in the law and if they the requirements are sufficiently determined. In terms of proportionality of criminal offences and penalties (Article 49 Charter) it is necessary that financial penalties are proportional to the gravity of the offence. Low acceptability, this would be potentially highly controversial. It is highly likely that the maximum level might not fit into the sanctioning system of the Member State leading to ineffective implementation. Since in several Member States the acceptability of provisions on (criminal) liability of legal persons in general is limited, it is not expected that such a provision on minimum maximum levels of fines will be fully accepted. Medium impact, financial penalties are foreseen in all Member States, but the maximum levels are very different. Whatever amount would be chosen, this would always bring problems with national legal systems. To establish certain minimum maximum levels of fines would cause fundamental problems in a number of Member States, since it would require that these Member States had to change their whole system of financial penalties for legal persons. If, for example, absolute amounts to determine the fine would be introduced, at least four Member States as mentioned above would be requested to change their whole systems of financial penalties for legal persons. According to Member States level research, this would be highly controversial in the Member States legislative process and strong opposition is to be expected. A very high level (as e.g. 10 Million ) would cause implementation problems in those Member States which provide lower levels. 16 Member States provide

Financial Impacts

Social Impacts

Impact on fundamental rights

Acceptability to Stakeholders

National Legal Systems

65

Expect Impacts maximum levels for financial penalties for legal persons which are lower than 10 Million . For these Member States the introduction of such a provision would require an amendment of their laws and could cause serious problems with the implementation, since the maximum levels of penalties are mostly foreseen for the whole of criminal law. A low level could lead in Member States with high penalties to the impression that the existing levels are too high. The problem of such minimum maximum level of fines is that the maximum level might not fit into the sanctioning system of the Member State.

5.10

Cluster E aggravating and mitigating circumstances

There is a mixed picture in terms of the application of mitigating and aggravating circumstances in Member States. Evidence from Member States is that there are a great number of factors which influence sentencing in the concrete case and in most Member States the list of mitigating and aggravating factors is not exhaustive. 5.10.1 Aggravating circumstances 5.10.1.1 Status quo The current Framework Decision provides for aggravating circumstances as follows: If a drug offence involves large quantities of drugs. If the drugs involved are those which cause the most harm to health or their use has resulted in significant damage to health (Article 4(2) FD) (maximum of at least between 5 and 10 years imprisonment). If one of the offences is committed in the framework of a criminal organisation (penalties of a maximum of at least 10 years of imprisonment). For offences linked to precursor trafficking only the commission within the framework of a criminal organisation is provided for, if the precursors are intended to be used in or for the production or manufacture of drugs under the circumstances referred to in Article 4(2)(a) or (b) (maximum of a least between 5 and 10 years imprisonment).

Only ten Member States have transposed all aggravating circumstances provided for in the Framework Decision to the full extent. On the other hand, beside the aggravating circumstances provided in the Framework Decision, Member States laws contain a great variety of other aggravating circumstances which change the range of penalties. One reason for the variety of aggravating circumstances in the national laws is that the UN Convention against Illicit Trafficking in Narcotic Drugs and Psychotropic Substances 1988 provides for a list of aggravating circumstances (Article 3(5)) including: The involvement in the offence of an organised criminal group to which the offender belongs. The involvement of the offender in other international organised criminal activities. The involvement of the offender in other illegal activities facilitated by commission of the offence. The use of violence or arms by the offender. The fact that the offender holds a public office and that the offence is connected with the office in question. The victimisation or use of minors. The fact that the offence is committed in a penal institution or in an educational institution or social service facility or in their immediate vicinity or in other places to which school children and students resort for educational, sports and social activities.

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Prior conviction, particularly for similar offences, whether foreign or domestic, to the extent permitted under the domestic law of a Party.

It can be concluded that there is a large variety of different aggravating circumstances foreseen in the Member States, which leads to the effect that uniformity between the Member States is missing. Table 5.19 Aggravating circumstances status quo Expected Impacts Effectiveness in Achieving Policy Objectives

Without further action, the variations in the Member States will remain. Possible negative effects on the following objectives as approximated provisions on aggravating circumstances would be missing: the encouragement of judicial co-operation; the improvement of exchange of information between national authorities; the facilitation of prosecution of trafficking related crimes. Level of EU resource to address the problem of drug trafficking remains stable. No change expected in Member States' budgets. Law enforcement costs (7b) continue to be incurred in Member States in addressing the range of crimes/offences associated with drug trafficking crimes. Public health institutions will continue to deal with the health consequences of drug use driving trafficking (24bn). Not more than now. Possible impacts on the principle of proportionality of criminal offences and sanctions (Art. 49 EU Charter). Acceptable for Member States, as no changes to the current Framework Decision. Still changes in national laws necessary, as only ten Member States (CY, CZ, DE, ES, FI, GR, IT, LV, NL and SK) have fully transposed the aggravating circumstances foreseen in The Framework Decision. Quantity of drugs (Art. 4(2)(a) FD) is missing in BE, BG, FR, LU, MT, PT, RO and SI; harm to health (Art. 4(2)(b) FD) is missing in AT, EE, FR, HU, LT, MT, PL, SI, SE and UK; drug offences committed in the framework of a criminal organisation (Art. 4(3) FD) is missing in DK, EI and SE and precursor offences committed in the framework of a criminal organisation (Art. 4(4) FD) is missing in AT, DK, EE, FR, IE, MT, PL, RO and SE.

Economic and financial Impacts Economic and Social Impacts

Fundamental Rights Acceptability to Stakeholders National Legal Systems

5.10.1.2

New aggravating circumstances specific to drug trafficking

As already mentioned, Member States foresee different aggravating circumstances which influence the range of penalties. If only cases of large scale trafficking are covered by a new legal instrument, it is necessary to give consideration to which aggravating and mitigating circumstances could be relevant for large scale trafficking. In this case the introduction of the following additional aggravating circumstances could be considered:

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Table 5.20 Possible new aggravating circumstances major trafficking Possible new aggravating circumstance Description The involvement of the offender in other This proposed circumstance is contained in Art. 3(5) (c) UN illegal activities facilitated by commission of Convention 1988. According to the Commentary on the UN the offence Convention 1988 there are many cases in which the profits derived from illicit drug trafficking are used to fund other types of criminal or other illegal activities (for example also gambling or prostitution not subject to official control or 108 supervision). 109 The use of violence, arms or other A study by the Global Commission on drug policy shows dangerous means that new legislation should focus their actions on violent organised crime and drug traffickers to reduce the harms associated with the illicit drug market. The reason is that in many cases violence and intimidation is a threat to individual and national security and to democratic institutions. A very similar circumstance, namely the use of violence or arms by the offender is contained in Art. 3(5) (d) of the UN Convention 1988. This provision means that the offender uses violence or arms in the commission of the offence itself. A question is how the term arms should be interpreted. The Commentary on the Convention explains that arms does no t mean only firearms, but should be understood in a very broad 110 sense, also including other types of arms. This circumstance is open to different interpretations by the Member States, namely what a public office is and how the link between the offence and the public office is going to be established. Commonly the link will take the form of misuse of the powers or influence of the office, but the text does not 111 specify any particular form of connection. Minors are an especially vulnerable group of society, which are exploited by criminal groups to do the risky work of selling 112 drugs on the street. Protecting this group of society may be particularly helpful to contribute to the health, safety and quality of life of EU citizens. The term minor will be defined by the Member States according to their national legal systems. The term use as explained above will often mean the exploitation of minors, 113 but is not limited to that meaning. Serious consequences has a very broad scope of meaning and it is left to the Member States to give an appropriate interpretation. The approximating effect of this circumstance therefore will be low. The commission for the purpose of commercial gain means that the offence is committed repeatedly with the intent to earn money.

The fact that the offender holds a public office and that the offence is connected with the office in question

The victimization or use of minors

Serious consequences

Commission for the purpose of commercial gain

108

Commentary on the United Nations Convention against illicit traffic in narcotic drugs and psychotropic substances, 1988 (New York, 1998), p. 91, available at: http://www.unodc.org/documents/treaties/organized_crime/Drug%20Convention/Commentary_on_the_united_nations_c onvention_1988_E.pdf. 109 War on drugs, Report of the Global Commission on drug policy (June 2011) p. 14, available at http://www.globalcommissionondrugs.org/wp-content/themes/gcdp_v1/pdf/Global_Commission_Report_English.pdf. 110 Commentary on the United Nations Convention against illicit traffic in narcotic drugs and psychotropic substances, 1988 (New York, 1998), p. 91. 111 See also Art. 3(5)(e) UN Convention 1988 and Commentary on the United Nations Convention against illicit traffic in narcotic drugs and psychotropic substances, 1988 (New York, 1998), p. 92. 112 War on drugs, Report of the Global Commission on drug policy (June 2011) p. 16. 113 See also Art. 3(5)(f) UN Convention 1988 and Commentary on the United Nations Convention against illicit traffic in narcotic drugs and psychotropic substances, 1988 (New York, 1998), p. 92.
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Possible new aggravating circumstance Prior conviction, particularly for similar offences, whether foreign or domestic

Description In several countries this factor is foreseen as a circumstance which is considered by the judge in determining the concrete sentence in a case, but not as aggravating circumstance which changes the range of penalties. Therefore the introduction of this circumstance would not be completely new in most of the Member States laws, but it is likely that it does 114 not fit into the national legal sanctioning systems.

In relation to other drug trafficking offences (not only large scale trafficking, but also consumer trafficking) the following aggravating circumstances could be considered: Table 5.21 Aggravating circumstances new circumstances major trafficking Expected Impacts Effectiveness in Achieving Policy Objectives Some potential positive impact for achieving policy objectives in: Reducing/removing a possible barrier to judicial co-operation Approximated provisions on aggravating circumstances could establish common standards of investigation and prosecution, e.g. in the use of intrusive investigation measures. This could be helpful for judicial co-operation and mutual recognition. No impact on the EU budget. Limited negative impact on Member State budgets in terms of the need to implement an EU Directive. Resource will be incurred in legal advice, communication and ministerial clearance. In Member States, use of aggravating circumstances could lead to effects on 'time served' leading to greater imprisonment costs. The level of these costs varies significantly across the EU but estimates are thought to range from 12,000 to 115 87,000 per year. Low negative impacts, greater time served in prison by traffickers would lead to negative costs in terms of low productivity in the formal economy to the detriment 116 of a minimum monthly wage of 148. Additionally, where an imprisoned offender has a family costs are increased by state agencies (health and social services). In the UK, this has been estimated to be an average of 6000 per family over six months. Costs are also incurred by the family themselves with an average of 250 spent on their imprisoned relative over a period of six months, together with an average of 75 on clothing for the 117 prisoner and just under 500 on visiting costs. According to Article 49 EU Charter of Fundamental Rights of the EU the level of sanctions must not be disproportionate to the criminal offence. The introduction of aggravating circumstances would lead to a more differentiated system of penalties and as a result to sanctions which are proportionate to the criminal offences, since for more serious offences (committed under aggravating circumstances) higher penalties would be provided. Acceptable, provisions in the UN Convention should be uncontroversial; others

Economic and Financial Impacts

Social Impacts

Fundamental Rights

Acceptability to
114 115

This circumstance is also contained in Art. 3(5)(h) UN Convention 1988. Based on data from Council of Europe (2010) Annual Penal Statistics. The average amount spent per day for the detention of one person in different Member States was multiplied by 365 days. 116 Eurostat data (2012) on minimum wages across Europe, based on minimum wage in Bulgaria, the lowest in Europe. 117 Rose et al (2007) Poverty and disadvantage among prisoners' families. Joseph Rowntree Foundation.
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Expected Impacts Stakeholders

National Legal Systems

will be subject to general doubts on the case for further EU intervention. Depending on the system of sanctions in the Member States, in some Member States stakeholders could see this option as a reduction of the judicial discretion when there are too many and too detailed legal provisions on the differentiation of sanctions. Medium impact, as depending on specific aggravating circumstances, this option may require changes in several Member States where such an aggravating circumstance is not provided for. It should be considered that in several countries the above mentioned factors are not foreseen as aggravating circumstances which change the range of penalties, but which are considered by the judge determining the concrete sentence in a case. Therefore the introduction of those circumstances is not completely new in most of the Member States laws. It is possible that additional aggravating circumstances which change the range of penalties do not fit into the national legal sanctioning system.

Table 5.22 Possible new aggravating circumstances all drug trafficking Possible new aggravating circumstance Description Offences in relation to minors or vulnerable If minors or other vulnerable people are, for example, people induced to consume drugs, this shall serve as an aggravating circumstance. The terms minors and vulnerable people have to be interpreted by the Member States according to their national laws. The commission of the offence in a penal This circumstance, which is also provided for in the UN institution, in an educational institution or Convention 1988 (see Art. 3(5) (g)), tackles two problems: social service facility or in their immediate drug abuse in prisons and the danger children and other vicinity of or in other places to which school groups at risk are exposed to because of drugs. children and students go for educational, sports and social activities Drug abuse is a problem in many penal institutions, which is seen as an obstacle to the rehabilitation of offenders who may leave prison with problems they did not have at the start of their sentence. If children or students attending an educational institution or persons attending a social service facility are likely to become involved in any drug offence, this circumstance applies as well. The term immediate vicinity is left open for 118 interpretation by the Member States.

118

Commentary on the United Nations Convention against illicit traffic in narcotic drugs and psychotropic substances, 1988 (New York, 1998), p. 92 f.
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Table 5.23 Aggravating circumstances new circumstances all drug trafficking Expected Impacts Effectiveness in Achieving Policy Objectives Some potential positive impact for achieving policy objectives in: Reducing/removing a possible barrier to judicial co-operation Approximated provisions on aggravating circumstances could establish common standards of investigation and prosecution. This could be helpful for judicial co-operation and mutual recognition. No impact on the EU budget. Limited negative impact on Member State budgets in terms of the need to implement an EU Directive. Resource will be incurred in legal advice, communication and ministerial clearance. In Member States, use of aggravating circumstances could lead to effects on 'time served' leading to greater imprisonment costs. The level of these costs varies significantly across the EU but estimates are thought to range from 12,000 to 119 87,000 per year. Low negative impacts, greater time served in prison by traffickers would lead to negative costs in terms of low productivity in the formal economy to the detriment 120 of a minimum monthly wage of 148. Additionally, where an imprisoned offender has a family costs are increased by state agencies (health and social services). In the UK, this has been estimated to be an average of 6000 per family over six months. Costs are also incurred by the family themselves with an average of 250 spent on their imprisoned relative over a period of six months, together with an average of 75 on clothin g for the 121 prisoner and just under 500 on visiting costs. According to Article 49 EU Charter of Fundamental Rights of the EU the level of sanctions must not be disproportionate to the criminal offence. The introduction of aggravating circumstances would lead to a more differentiated system of penalties and as a result to sanctions which are proportionate to the criminal offences, since for more serious offences (committed under aggravating circumstances) higher penalties would be provided. Low acceptability, provisions in the UN Convention should be uncontroversial in principle; others will be subject to general doubts on the case for further EU intervention. However, a broad scope of action (including street dealing etc.) is a prerequisite for introducing those circumstances. As already mentioned before supra a broad scope of action will hardly be accepted by Member States. Depending on the system of sanctions in the Member States, in some Member States stakeholders could see this option as a reduction of the judicial discretion when there are too many and too detailed legal provisions on the differentiation of sanctions. Medium impact, as depending on specific aggravating circumstances, this option may require changes in several Member States where such an aggravating circumstance is not provided for. It should be considered that in several countries the above mentioned factors are not foreseen as aggravating circumstances

Economic and Financial Impacts

Social Impacts

Fundamental Rights

Acceptability to Stakeholders

National Legal Systems

119

Based on data from Council of Europe (2010) Annual Penal Statistics. The average amount spent per day for the detention of one person in different Member States was multiplied by 365 days. 120 Eurostat data (2012) on minimum wages across Europe, based on minimum wage in Bulgaria, the lowest in Europe. 121 Rose et al (2007) Poverty and disadvantage among prisoners' families. Joseph Rowntree Foundation.
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Expected Impacts which change the range of penalties, but which are considered by the judge determining the concrete sentence in a case. Therefore the introduction of those circumstances is not completely new in most of the Member States laws. It is possible that additional aggravating circumstances which change the range of penalties do not fit into the national legal sanctioning system.

5.10.2 5.10.2.1

Mitigating circumstances
Status quo

According to Art. 5 FD Member States may take the necessary measures to ensure that the penalties may be reduced, if the offender: renounces criminal activity relating to trafficking in drugs and precursors, and provides the administrative or judicial authorities with information which they would not otherwise have been able to obtain, helping them to prevent or mitigate the effects of the offence, identify or bring to justice other offenders, find further evidence, or prevent further offences of drug and precursor trafficking. This provision is not mandatory. Eleven Member States provide for a so-called "leniency notice", as stipulated in Art. 5 FD, in their drug laws and foresee a reduction of the penalty or even the possibility for the prosecutor to cease the proceedings against the perpetrator. Not all of these regulations provide for exactly the same and all the requirements as Art. 5 FD. The reason for that is that none of the Member States has amended its legislation in this respect as a result of the Framework Decision. Other Member States take these aspects into account in other ways. Some States, for example, take them into account when determining the sentence. In many Member States even the minimum threshold for punishment may be undercut. The requirements differ in the various Member States and do not completely comply with the Framework Decision.

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Table 5.24 Mitigating circumstances status quo Expect Impacts Effectiveness in Achieving Policy Objectives Economic and financial Impacts Economic and Social Impacts As previous experience shows non-binding provisions do not have an approximating effect. Thus, Member States will be reluctant to implement a nonbinding provision in their laws and as a consequence the operational objective to encourage the role of informants will not be achieved. Level of EU resource to address the problem of drug trafficking remains stable. No change expected in Member States' budgets. Law enforcement costs (7b) continue to be incurred in Member States in addressing the range of crimes/offences associated with drug trafficking crimes. Public health institutions will continue to deal with the health consequences of drug use driving trafficking (24bn). None. Acceptable to stakeholders as no changes in national laws necessary. No changes in national laws necessary.

Fundamental Rights Acceptability to Stakeholders National Legal Systems 5.10.2.2

To foresee Article 5 of current Framework Decision as a binding provision

Effective enforcement in drug trafficking in most cases requires information from informants who are involved in drug trafficking. This particularly applies to large scale trafficking which is typically linked to organised crime. Police and law enforcement authorities need information from insiders who have knowledge about internal processes in criminal organisations, otherwise it is difficult to get information on drug trafficking organisations. To provide lower penalties for offenders who cooperate with law enforcement authorities could provide motivation for drug trafficking offenders to cooperate. Table 5.25 Mitigating circumstances binding provisions Expect Impacts Effectiveness in Achieving Policy Objectives Economic and Financial Impacts So called leniency rules can bring potential benefits in improving effectiveness of law enforcement from provision re informants, thus contributing to achieving the policy objectives No impact on the EU budget. Limited negative impact on Member State budgets in terms of the need to implement an EU Directive. Resource will be incurred in legal advice, communication and ministerial clearance. If leniency results in less time served there is the potential to reduce imprisonment costs. The level of these costs varies significantly across the EU 122 123 but maximum estimates are thought to range from 90,000 to 48,000 per year. Low positive impacts, less time served in prison by traffickers could lead to positive impacts in terms of increased productivity in the formal economy at a 124 minimum monthly wage of 148. None. Medium acceptability, in principle the need for leniency rules is accepted, but concrete regulations are potentially controversial.

Social Impacts

Fundamental rights Acceptability to Stakeholders

122 123

Irish Prison Service (2012) Annual Report. House of Commons (2011) Should we build more prisons? 124 Eurostat data (2012) on minimum wages across Europe, based on minimum wage in Bulgaria, the lowest in Europe.
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Expect Impacts National Legal Systems

High impact, may require substantial changes in at least 16 Member States, since many do not provide such provisions or the provisions are very different.

5.10.3

Introduction of additional mitigating circumstances

Additional mitigating circumstances exist in some States but the national legislation differs widely. In some national laws, mitigating circumstances exist which change the range of penalties, in some Member States mitigating circumstances only influence the determination of a penalty by the judge. One option could, therefore, be to consolidate and provide for the below mentioned mitigating circumstances as circumstances which change the range of penalties. Table 5.26 Possible new mitigating circumstances Possible new mitigating Description circumstance Commission to finance personal Particularly at the lower levels of trafficking in drugs, many dealers addiction are committing drug trafficking offences to finance their personal addiction. In some Member States this circumstance is foreseen as a mitigating circumstance. For those persons harsh penalties are mostly not suitable and do not act as a deterrent, since they would need medical treatment instead of harsh punishment. Drug mules Drug mules take a very visible and risky role in the supply and delivery of drugs. They engage in drug trafficking primarily to get money for their own drug dependence or as a result of coercion and do not have an extensive and violent criminal history. Therefore, drug mules should arguably be treated differently 125 than persons engaged in criminal organisations.

Table 5.27 Mitigating circumstances new circumstances Expect Impacts Effectiveness in Achieving Policy Objectives Economic and Financial Impacts Potential benefits in prosecuting drug trafficking and related criminal activity effectively, thus contributing to achieving the policy objectives. No impact on the EU budget. Limited negative impact on Member State budgets in terms of the need to implement an EU Directive. Resource will be incurred in legal advice, communication and ministerial clearance. If mitigating circumstances results in less time served there is the potential to reduce imprisonment costs. The level of these costs varies significantly across 126 the EU but estimates are thought to range from 12,000 to 87,000 per year. Give the addiction status of individual who are given leniency, costs may be incurred on providing therapeutic support. Yearly expenditure on this in Europe is estimated to cost 550 to 4 900. Low positive impacts, less time served in prison could lead to positive impacts in terms of increased productivity in the formal economy at a minimum monthly

Social Impacts

125 126

War on drugs, Report of the Global Commission on drug policy (June 2011) p. 6. Based on data from Council of Europe (2010) Annual Penal Statistics. The average amount spent per day for the detention of one person in different Member States was multiplied by 365 days.
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Expect Impacts Fundamental Rights wage of 148. According to Article 49 EU Charter of Fundamental Rights of the EU the level of sanctions must not be disproportionate to the criminal offence. The introduction of further mitigating circumstances could lead to a more differentiated system of penalties by allowing imposition of lower penalties in the case of less severe offences. Low acceptability, the topic is potentially controversial, since in several Member States the addiction of the offender is not seen as a mitigating circumstance which changes the range of penalties. High impact, may require substantial changes in many Member States, since their provisions are very different.
127

Acceptability to Stakeholders National Legal Systems

5.11

Cluster F jurisdiction

There is some evidence of non-compliance with the Framework Decision in respect of jurisdiction 12 Member States are not in overall compliance with extra-territorial jurisdiction provisions. Although the provisions on extra-territorial jurisdiction, as laid down in Art. 8(1) (a)-(c) FD, are not binding for Member States, they have to inform the Council and the Commission about their intention to limit or waive jurisdiction in these cases, if they do not fully cover these rules. There is also evidence of variation in respect of how Member States deal with habitual residents. Therefore, some room for improvement has been identified. According to the Framework Decision 2009/948/JHA on prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings, conflicts of jurisdiction may arise in situations where the same person is subject to parallel criminal proceedings in different Member States in respect of the same facts. This might lead to the final disposal of the proceedings in two or more Member States thereby constituting an infringement of the principle of ne bis in idem. Drug trafficking is by i ts very nature a transnational activity, as many activities, especially the transport, import and export of drugs, involve two or more countries. Furthermore, many Member States foresee different provisions to establish extra-territorial jurisdiction in 128 relation to drug offences, therefore, positive conflicts of jurisdiction are likely to arise. In addition, positive conflicts of jurisdiction can have the result that Member States authorities tend to avoid prosecuting transnational cases as they want to a void possible conflicts with other countries authorities, which could lead 129 to the unwanted effect that some cases are not prosecuted at all. In order to avoid conflicts of jurisdiction by law, rules for solving such conflicts, meaning binding criteria for the choice of forum, should be established. At the moment the Framework Decision on prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings foresees only that Member States are obliged to exchange information and to enter into direct consultations. Another example is Art. 7(2) of the Framework Decision on the fight against organised crime which stipulates that when an offence falls within the jurisdiction of more than one Member State and when any one of the States concerned can validly prosecute on the basis of the same facts, the Member States concerned shall cooperate in order to decide which of them will prosecute the offenders, with the aim, if possible, of centralising proceedings in a single Member State. Howeve r, it has to be analysed whether a provision for solving conflicts of jurisdiction should be included in some horizontal instrument rather than in an instrument specifically for drug trafficking.

127 128

Eurostat data (2012) on minimum wages across Europe, based on minimum wage in Bulgaria, the lowest in Europe. Eurojust, Enhancing the work of Eurojust in drug trafficking cases Final Results, January 2012. 129 A. Klip, European Criminal Law, An Integrative Approach, 2012, p. 200.
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5.12
5.12.1

Territorial jurisdiction
Status quo

Currently all Member States foresee jurisdiction for drug and precursor trafficking offences which are committed in whole or in part within their territory. However, there is no provision in the Framework Decision dealing with territorial jurisdiction for offences which are committed on board of vessels or aircrafts of a Member State. Furthermore, the current provisions on extra-territorial jurisdiction in the Framework Decision are of a non-binding nature. Table 5.28 Territorial jurisdiction status quo Expected Impacts Effectiveness in Possible negative effects on the following objectives as approximated provisions Achieving Policy on jurisdiction would be missing: Objectives the facilitation of prosecution of trafficking related crimes; the facilitation of convicting perpetrators of trafficking related crimes. Economic and financial Impacts Economic and Social Impacts Level of EU resource to address the problem of drug trafficking remains stable. No change expected in Member States' budgets. Law enforcement costs (7b) continue to be incurred in Member States in addressing the range of crimes/offences associated with drug trafficking crimes. Public health institutions will continue to deal with the health consequences of drug use driving trafficking (24bn). Not more than now. Possible impacts on the right to liberty (Art. 6 EU Charter) and/or respect for private and family life (Art. 7 EU Charter). Acceptable for Member States, as no changes in national legal systems necessary. No changes necessary in national legal systems.

Fundamental Rights Acceptability to Stakeholders National Legal Systems

5.12.2

Extension of territorial jurisdiction to vessels and aircraft

A possible and useful extension of the current provisions would be to foresee territorial jurisdiction for offences committed on board of vessels and aircrafts. A comparison of the Framework Decision and relevant UN Conventions shows that the UN Conventions foresee mandatory provisions saying states are obliged to establish jurisdiction over offences which are committed on board a vessel flying its flag or an aircraft which is registered under its laws at the time the offence is committed (See Art. 4(1)(a)(ii) UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988; Art. 15(1)(b) UN Convention against Transnational Organised Crime, 2000), whereas the Framework Decision does not. In order to reach the standard set at UN level in EU legislation, binding provisions on jurisdiction over offences committed on 130 vessels and aircrafts should be foreseen. Table 5.29 Territorial jurisdiction extension to vessels and aircraft Expected Impacts Effectiveness in Useful extension to existing provisions in order to reach the standard set at UN Achieving Policy level also in EU legislation. Positive impacts on the facilitation of prosecution and Objectives conviction of trafficking related offenders. As drug and precursor trafficking is a typically cross-border offence which requires to a high extent transportation of illegal goods, a binding provision for the Member States on the establishment of jurisdiction over offences which are committed on board a vessel flying its flag or

130

Eurojust interviewee.
76

Expected Impacts an aircraft which is registered under its laws at the time the offence is committed would help to more efficiently prosecute and convict trafficking related offenders. No change to EU budget. Limited impact on Member State budgets as provisions foreseen. Costs may be incurred if there is a need to implement an EU Directive. Resource will be incurred in legal advice, communication and ministerial clearance. Low negative impact, could lead to greater prosecutions but likely to be small numbers. This could lead to greater imprisonment costs. The level of these costs varies significantly across the EU but estimates are thought to range from 131 12,000 to 87,000 per year. Possible impacts on the right to liberty (Art. 6 EU Charter) and/or respect for private and family life (Art. 7 EU Charter). High acceptability should not be specifically controversial for Member States, as provisions already foreseen in the 1988 UN Convention. Low impact as Member States already foresee such provisions.

Financial Impacts

Social Impacts

Fundamental Rights Acceptability to Stakeholders National Legal Systems

5.12.3

Extra-territorial jurisdiction

If the offence was not committed in whole or in part within the Member States territory or on board of a vessel flying its flag or an aircraft which is registered under its laws and thus if territorial jurisdiction cannot be established, rules on extra-territorial jurisdiction are potentially useful and necessary in cases where no other Member State establishes jurisdiction over that case. In order to avoid such negative conflicts of jurisdiction, uniform provisions on the establishment of extra-territorial jurisdiction in the Member States should be 132 provided for. 5.12.4 Status quo

Article 8 (1) of the Framework Decision foresees that Member States shall establish jurisdiction over the offences referred to in Articles 2 and 3 where the offender is one of its nationals (figure b) and where the offence is committed for the benefit of a legal person established in the territory of that Member State (figure c). A Member State may decide that it will not apply, or that it will apply only in specific cases or circumstances, the jurisdiction rules set out in paragraphs 1(b) and 1(c) where the offence is committed outside its territory (Article 8 (2) FD). According to paragraph 4, Member States shall inform the General Secretariat of the Council and the Commission when they decide to apply paragraph 2, where appropriate with an indication of the specific cases or circumstances in which the decision applies. As already detailed, 12 Member States are not in compliance with the provisions on extra-territorial jurisdiction, as they foresee different prerequisites in order to establish jurisdiction in these cases which are 133 not foreseen in the Framework Decision. Without further action the variation observed will continue and possible negative conflicts of jurisdiction will remain.

131

Based on data from Council of Europe (2010) Annual Penal Statistics. The average amount spent per day for the detention of one person in different Member States was multiplied by 365 days. 132 Eurojust interviewee. 133 ECLAN, A Report Evaluating the Transposition and Impact of the Framework Decision, June 2012, Table 2.6 Compliance of Member States legislation with Framework Decision 2004/757/JHA.
77

Table 5.30 Extra-territorial jurisdiction status quo Expected Impacts Effectiveness in Achieving Policy Objectives Economic and financial Impacts Economic and Social Impacts Conflicts of jurisdiction could continue to arise making the prosecution of some offenders difficult, thus policy objectives not achieved. Level of EU resource to address the problem of drug trafficking remains stable. No change expected in Member States' budgets. Law enforcement costs (7b) continue to be incurred in Member States in addressing the range of crimes/offences associated with drug trafficking crimes. Public health institutions will continue to deal with the health consequences of drug use driving trafficking (24bn). Not more than now. Possible impacts on the right to liberty (Art. 6 EU Charter) and/or respect for private and family life (Art. 7 EU Charter). Acceptable for Member States, as no changes in national legal systems necessary. No changes necessary in national legal systems.

Fundamental Rights Acceptability to Stakeholders National Legal Systems

5.12.5

Binding rules on extra-territorial jurisdiction

Foreseeing binding rules on extra-territorial jurisdiction in cases where the offender is one of the Member States nationals (active personality principle) or where the offence is committed for the benefit of a legal person established in the territory of that Member States are measures to ensure comprehensive prosecution of drug trafficking offences. However, Member States level research showed that the majority of Member States do not support obligatory rules on jurisdiction in drug trafficking cases (PT, IE, HU, DK, DE, BE, RO, UK, ES, NL, SI, SK, AT, GR). The only clear-cut endorsement came from a Lithuanian interviewee saying that only binding rules on jurisdiction in drug trafficking cases within the EU may solve the jurisdictional problems. In the current Framework Decision rules on extra-territorial jurisdiction in cases where the offender is one of the Member States nationals or where the offence is committed for the benefit of a legal person established in the territory of that Member State are provided for only as non-binding provisions (see Art. 8(1) (b), (c) and Art. 8(2)). Other new EU instruments under the Lisbon treaty, such as the Directive 2011/36 on preventing and combating trafficking in human beings and protecting its victims, stipulates mandatory jurisdiction rules for extra-territorial offences where the offender is one of the Member States nationals. Mandatory provisions are important in order to assure uniform provisions in the Member States on how to establish extra-territorial jurisdiction. Non-binding rules have only limited effect in this regard as experiences with the Framework 134 Decision show.

134

See ECLAN, A Report Evaluating the Transposition and Impact of the Framework Decision, June 2012, Chapter 2.8.2.
78

Table 5.31 Extra-territorial jurisdiction binding rules Expected Impacts Effectiveness in Achieving Policy Objectives Possible negative effects on the following objectives as approximated provisions on extra-territorial jurisdiction would be missing: the facilitation of prosecution of trafficking related crimes; the encouragement of co-operation; the facilitation of convicting perpetrators of trafficking related crimes. A major obstacle to prosecution of drug trafficking is the extreme mobility of criminal groups, moving from a country to another country within the EU area and beyond. Binding provision on extra-territorial jurisdiction would oblige Member States to establish jurisdiction over a case of drug or precursor trafficking when committed abroad by a national or for the benefit of a legal person established in that Member State. This provision would be an improvement compared to Framework Decision, which allows for Member States to waive or limit their jurisdiction in this regard. If binding provisions on extraterritorial jurisdiction are provided for in the Member States perpetrators of trafficking related crimes have no more possibilities to escape into other Member States and thus escape from justice. This would increase the possibility to prosecute and convict perpetrators. Binding rules on extra-territorial jurisdiction would further help to better prosecute cross-border offences (which drug related offences typically are). If the Member State in which the offence took place for whatever reason does not establish its territorial jurisdiction, Member States who have extra-territorial jurisdiction over trafficking related offences are able to establish jurisdiction in that particular case. To sum up, it would be a useful extension of existing provisions to avoid negative conflicts of jurisdiction and to enhance the possibilities to convict trafficking related perpetrators and to reach the standard of other European instruments (see e.g. Directive 2011/36). Financial Impacts No change to EU budget. Limited negative impact on Member State budgets with costs may be incurred if there is a need to implement an EU Directive. Resource will be incurred in legal advice, communication and ministerial clearance. Low impact, could lead to greater prosecutions. Possible impacts, on the right not to be tried or punished twice in criminal proceedings for the same criminal offence (Art. 50 EU Charter). Furthermore, possible impacts on the right to liberty (Art. 6 EU Charter) and/or respect for private and family life (Art. 7 EU Charter). Low acceptability, potentially controversial as opinion at Member States level shows that the majority of Member States do not support binding rules on jurisdiction. Medium impact, nearly all Member States foresee rules on jurisdiction for offences where the offender is one of its nationals or where the offence is committed for the benefit of a legal person established in the territory of that Member State. However, they foresee additional prerequisites in order to

Social Impacts Fundamental Rights

Acceptability to Stakeholders

National Legal Systems

79

Expected Impacts establish jurisdiction in these cases, which are not found in the Framework Decision. Thus, substantial amendments in 12 Member States laws would be necessary, if this provision becomes mandatory. The required adaptions in the Member States laws would be limited to drug trafficking offences, which are specific enough to warrant those adaptions.

5.12.6

Extension of extra-territorial jurisdiction to cover habitual residents

Due to the mobility of people in Europe, nationality is not the only grounds to establish jurisdiction. It could also be linked to the circumstance of a person, specifically his/her habitual residence in that Member State. In a judgment as regards the European Arrest Warrant the European Court of Justice has defined the term resident as a situation in which the person has either established his actual place of residence in the executing Member State or has acquired, following a stable period of presence in that State, certain 135 connections with that State which are of a similar degree to those resulting from residence. Relevant UN Conventions foresee non-mandatory provisions on the establishment of extra-territorial jurisdiction when the offender is a habitual resident in the country of the party to the Convention. The new established Directive on preventing and combating trafficking in human beings and protecting its victims also stipulates that a Member State may establish jurisdiction over offences where the offender is a habitual resident in its territory and where the offence is committed against one of its nationals or a person who is a habitual resident in its territory. A similar provision could be introduced in a new instrument on illicit drug and precursor trafficking. Table 5.32 Extraterritorial jurisdiction habitual residents Expect Impacts Effectiveness in Achieving Policy Objectives Medium positive impact, as it could be a useful extension of existing provisions to allow more effective prosecution of offenders thus contributing to the overarching policy objectives. A major obstacle to prosecution of trafficking is the extreme mobility of criminal groups and also single perpetrators, moving from a country to another country within the EU area and beyond. A provision on extraterritorial jurisdiction obliging Member States to establish jurisdiction over a case of trafficking when committed abroad by a habitual resident would help to more efficiently prosecute offenders of trafficking related offences. Financial Impacts No change to EU budget. Limited negative impact on Member State budgets with costs may be incurred if there is a need to implement an EU Directive. Resource will be incurred in legal advice, communication and ministerial clearance. Low impact, could lead to greater prosecutions. Possible impacts on the right not to be tried or punished twice in criminal proceedings for the same criminal offence (Art. 50 EU Charter), on the right to liberty (Art. 6 EU Charter) and/or respect for private and family life (Art. 7 EU Charter). Medium acceptability, Member States may well be concerned about need for changes in national legislation. At the moment, 16 Member States foresee extraterritorial jurisdiction for habitual residents, either without any further

Social Impacts Fundamental Rights

Acceptability to Stakeholders

135

Case C-66/08, Judgment of the Court (Grand Chamber) of 17 July 2008, Proceedings concerning the execution of a European arrest warrant issued against Szymon Kozowski, ECR I-6041, para. 46.
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Expect Impacts requirements (BE, FI, GR, LV, LT, MT, NL, SK) or under certain conditions (AT, BG, CY, DK, ES, IE, SE, UK). Medium impact, will involve a requirement for specific changes in many Member States (see above). The required adaptions in the Member States laws would be limited to drug trafficking offences, which are specific enough to warrant those adaptions.

National Legal Systems

5.13

Cluster G judicial and law enforcement co-operation

The national reports concluded that judicial cooperation generally works well, although the degree of cooperation certainly varies. In some cases prosecutors tend to avoid cooperation through EU bodies because it seems to be too time-consuming. Eurojust and Member States level research highlights a number of problems or issues particularly around: Information and communication; delays in the execution of requests for Mutual Legal Assistance; non-admissibility of evidence obtained in Member States; conflicts of 136 jurisdiction; joint investigation teams and controlled deliveries. 5.13.1 Status quo

The Framework Decision does not contain any provisions on judicial cooperation. Judicial cooperation in drug trafficking cases is guided by the general rules contained in other EU instruments and international treaties. The main instruments for judicial cooperation between the Member States are based on the mutual recognition of judgements and judicial decisions.

136

For details see Eurojust, Strategic Project on: Enhancing the work of Eurojust in drug trafficking cases Final Results (January 2012).
81

Table 5.33 Judicial cooperation status quo Expected Impacts Effectiveness in Achieving Policy Objectives Economic and financial Impacts Economic and Social Impacts If there is no provision on judicial and law enforcement cooperation there will not be any change in cooperation thus no contribution to policy objectives.

Level of EU resource to address the problem of drug trafficking remains stable. No change expected in Member States' budgets. Law enforcement costs (7b) continue to be incurred in Member States in addressing the range of crimes/offences associated with drug trafficking crimes. Public health institutions will continue to deal with the health consequences of drug use driving trafficking (24bn). If there is no provision in the new instrument, there is no impact on fundamental rights due to the new instrument. Acceptable, since no changes in national laws are necessary.

Fundamental Rights Acceptability to Stakeholders National Legal Systems

No impact, since no amendments of national law necessary.

5.13.2

Training of judiciary and law enforcement personnel

In order to prevent illicit drug trafficking and to facilitate cooperation between Member States, a profound basis for education of the judiciary and law enforcement personnel is essential. Therefore, training of judiciary and law enforcement personnel, especially in the field of criminal law and European Union law, 137 would play an important role. The Lisbon Treaty (see Article 82(1)(c) TFEU) has given the European Union competence to "support the training of the judiciary and of judicial staff" in matters relative to judicial cooperation in criminal law. The training of judges and legal practitioners in Union law is also one of the key recommendations in many 138 EU strategies and reports. For example in the Stockholm Programme Action Plan and the EU citizenship 139 report 2010 the Commission stated this to be a priority. The European Parliament also underlines that proper judicial training contributes significantly towards improving the operation of the internal market and 140 141 making it easier for citizens to exercise their rights. The Europe 2020 Strategy calls for efficient investment in training and for a coherent legal context at European level.

137

These priority areas of judicial training were also identified in the Communication from the Commission, Building Trust in EU wide Justice A new dimension to European judicial training, COM(2011) 551 final, p. 5. 138 COM(2010) 171. 139 COM(2010) 603. 140 Resolution on Judicial training Stockholm Programme, 17 June 2010. 141 COM(2010) 2020 final.
82

One of the current initiatives of the Commission is the Communication Building Trust in EU wide Justice A 142 new dimension to European judicial training. Key elements of this document are: The creation of a European judicial culture that fully respects subsidiarity and judicial independence is central to the efficient functioning of a European judicial area. Judicial training is a crucial element of this process as it enhances mutual confidence between Member States, practitioners and citizens. Existing structures at national, regional and local level are crucial to ensure that judicial training activities include sessions on Union law and procedures and to develop their frequency, effectiveness and impact on daily work. There is a large training capacity in the Member States, which bear the main responsibility for the quality and scale of judicial training. Judicial schools dealing with initial and continuous training exist in 17 Member States. In others, training is organised by the Ministry of Justice, the Council for the judiciary or court services. Bar or notaries' associations set up national requirements for continuous training of their members and organise training activities. As judicial training is essential for all legal practitioners, the objective is to target all legal practitioners whether judges, prosecutors, court staff, lawyers or other legal professionals. However, priority is given to judges and prosecutors as they are responsible for the enforcement and respect of Union law. Furthermore, exchanges are a good way to obtain hands-on knowledge of Union instruments and other legal systems, to exchange experience and thus increase mutual trust and understanding. The Commission wishes to develop exchanges, starting with newly appointed judges and prosecutors. Exchanges should be organised during initial training by national judicial training institutions. From the outset, it would enable judges and prosecutors to appreciate and fully engage in the European aspect of their role. The Communication concludes that the future European training scheme will be based on actions of:

the Member States: building on existing strengths to boost training activities developed by judicial
schools or legal professions on the Union acquis;

the European-level partners: enhancing their cooperation, increasing the number of activities and
exchanges, whether through European-level professional organisations, training providers or the EJTN (European Judicial Training Network);

the European Commission: increasing its financial support to quality training projects, promoting
consortia of judicial schools, aiming at reaching 20 000 legal practitioners trained at European level per year by 2020, boosting the use of modern technologies and in particular the European e-Justice Portal. It is anticipated that the most effective approach to addressing the training of the judiciary option would be to build on the existing actions and offer principally financial assistance to ensure delivery of quality local training programmes as well as EU level training and exchange opportunities.

142

COM(2011) 551 final.

83

Table 5.34 Judicial cooperation training for practitioners Expect Impacts Effectiveness in Achieving Policy Objectives Financial Impacts Potential to help tackle range of cases highlighted by Eurojust where current implementation of Mutual Legal Assistance Instruments is not satisfactory. Potential to achieve operational objective encourage judicial cooperation. Medium impact on EU budget, current arrangements are that most EU judicial training is funded to the level of up to 80% or 90% by the Commission. There would be an expectation that this would continue as costs are a potential barrier 143 for participation. Low negative impact on Member State budget, in terms of the full cost to the employers to facilitate training which would include the salary paid for staff on training, any employers contribution to the cost of training (10 -20%) and the cost of replacement staff. Low impact, could lead to greater prosecutions but likely to be small numbers. Positive impacts on the respect for fundamental rights, if judges and other judicial personnel are trained in this area. High acceptability should not be particularly controversial, although not clear if it requires legislation. Low impact, if this is introduced as non-legislative action.

Social Impacts Fundamental Rights Acceptability to Stakeholders National Legal Systems

5.13.3

Facilitate exchange of information

The facilitation of exchange of information is regulated in different horizontal instruments on Mutual Legal 144 Assistance and Mutual Recognition. The most common problems in this field are according to Eurojust and Member States level research the following: Difficulties in identifying counterparts in a cross-border case; Different procedural stages in linked investigations/prosecutions or lack of investigation in the Member States involved; Reluctance to exchange information spontaneously; Differences in laws governing the confidentiality of investigations/prosecutions; Lack of ratification of basic legal instruments; Technical limitations (e.g. secure channels of communication); Timely transmission of information; Inclusion of information exchanged spontaneously in national files.

Furthermore, exchange of information in criminal procedure can be very controversial, since a closely related issue is always whether and under what conditions evidence obtained in another Member State can be used in criminal proceedings. Some evidence could be found that admissibility of evidence is problematic in cases of covert investigation, which are used intensively in cases of drug trafficking.

143 144

European Parliament (2011) Judicial Training in European Union Member States. Eurojust, Strategic Project on: Enhancing the work of Eurojust in drug trafficking cases Final results (January 2012) p. 12.
84

However, the overall question is, whether facilitation of exchange of information is better seen as a general problem requiring horizontal approach rather than something specific to drug trafficking. Horizontal 145 instruments in this field are the European Evidence Warrant and the proposed European Investigation Order in Criminal Matters. As agreement between Member States was / is already very difficult to achieve in relation to relevant horizontal instruments, reaching consensus on single provisions on exchange of information in a new Directive on illicit drug trafficking could be even more difficult. It is proposed that Member States are obliged to exchange information in cases of drug trafficking with a cross-border dimension automatically on a regular basis, e.g. every quarter. To facilitate this exchange of information, a European database on investigations in cross-border drug trafficking cases should be established, which enables prosecutors to access information on investigations and prosecutions of such cases in other Member States. Table 5.35 Judicial cooperation exchange of information Expected Impacts Effectiveness in Achieving Policy Objectives Medium positive impact: The first challenge in achieving coordination among Member States authorities affected by a common criminal phenomenon is to address the possible lack of awareness of on-going investigations/prosecutions and to clarify how investigations are linked in order to ensure a shared understanding of the case. The introduction of a mandatory system of regular exchange of information could improve spontaneous information exchange on cases of illicit drug trafficking and give information to prosecuting and investigating authorities which is necessary to coordinate investigation in cases with an cross-border dimension. The legal instrument of the directive could help to enforce this obligation. The establishment of a European database on investigations and prosecutions of drug trafficking cases could make exchange of information much easier and would enable prosecutors dealing with cross-border cases to get information on investigations and prosecutions in other Member States without a complicated way of contacting the other Member States. Medium impact to EU budget, some rebalancing of resourcing of EU institutions budgets to facilitate this activity. For example, the creation of a database may fall within the remit of Europol and Eurojust requiring reallocation of resources from existing budgets. Limited negative impact on Member State budgets with costs may be incurred if there is a need to implement an EU Directive. Resource will be incurred in legal advice, communication and ministerial clearance. Low impact, could lead to greater prosecutions but likely to be small numbers. Possible high negative impacts on fundamental rights, especially procedural safeguards (Art. 47 of EU Charter) must be respected. The establishment of a database would raise issues of data protection (Article 8 Charter on Fundamental Rights) and would require strict rules on which data is contained in such a database and which specific persons have access to the database. There would be a requirement to protect the rights of the persons concerned who are not convicted, but only suspects. Low acceptability, especially controversial for Member States, since procedural safeguards are different in Member States and this may lead to difficulties in

Economic and Financial Impacts

Social Impacts Fundamental Rights

Acceptability to Stakeholders

145

Council Framework Decision 2008/978/JHA of 18 December 2008 on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters.
85

Expected Impacts National Legal Systems protecting the persons concerned by the relevant instruments. Low impact, but only if presented as non-legislative actions. If there is the obligation to introduce binding systems of regular exchange of information, this would require the introduction of such provisions in national laws which could cause some discussions in legislative process. The introduction of a database on investigations and prosecutions of crossborder drug trafficking cases would require major amendments in Member States laws and would likely cause intensive disputes in the Member States.

5.13.4

Introduction of new system for compulsory judicial co-operation if specific threshold reached

Member States are obliged to facilitate judicial cooperation according to the European Convention on Mutual Assistance in Criminal Matters, 1959 and according to the EU legal acts on cooperation and mutual recognition. In this option a system of compulsory judicial cooperation in certain cases of drug-related offences is proposed. The requested Member States would have the obligation to cooperate with the requesting Member State, if the request concerns a serious drug-related offence. To define what a serious drug-related offence is, it should be referred to the maximum criminal sanction foreseen in the requesting Member States. If this maximum penalty is of at least ten years, the requested Member States is obliged to provide the information at its disposal, give legal assistance, help with the prosecution and cooperate in any other way with the other Member State. Another possibility would be to introduce an obligation to cooperate, if a specific threshold is reached, but not to require other preconditions, such as particularly double criminality. This would be an instrument of mutual recognition and should be regulated in a horizontal instrument. Table 5.36 Judicial cooperation compulsory co-operation. Expect Impacts Effectiveness in Highly negative impact, since such a provision would be a step backwards Achieving Policy insofar as an obligation to cooperate would only exist, if maximum penalties of Objectives more than ten years are foreseen. There are several international conventions and treaties which oblige Member States to cooperate and give legal assistance to authorities of other Member States, in particular the European Convention on Mutual Assistance in Criminal Matters from 1959 and the EU Convention on Mutual Assistance in Criminal Matters between the Member States of the 146 European Union . These international conventions do not foresee any threshold, but this obligation applies to all Member States in criminal cases independently from the seriousness of the offence, if certain other preconditions are fulfilled, in particular the double criminality of a behaviour. A provision on an obligation to cooperate would only make sense without such a threshold. Since a new legal instrument would be a directive, the means to enforce the obligations of a directive would be available, if a Member State does not fulfil the obligation to cooperate. The problem of cooperation in criminal matters is not the obligation to cooperate itself, but enforcing this obligation. Low impact to EU budget, some rebalancing of resourcing of EU institutions budgets to facilitate this activity. For example, the creation of a database may fall within the remit of Europol and Eurojust requiring reallocation of resources from existing budgets.

Economic and Financial Impacts

146

OJ C 197, 12.7.2000.
86

Expect Impacts

Social Impacts Fundamental Rights

Acceptability to Stakeholders

National Legal Systems

Limited negative impact on Member State budgets with costs may be incurred if there is a need to implement an EU Directive. Resource will be incurred in legal advice, communication and ministerial clearance. Low impact, could lead to greater prosecutions but likely to be small numbers. Medium negative impacts on fundamental rights, especially procedural safeguards (Art. 47 of EU Charter), but interference is justified by the prosecution of criminal offences. Low acceptability, since a provision to cooperate, if a specific threshold is reached, would be seen as step backwards in comparison to the existing legal provisions. The provision does not foresee any means as how to enforce cooperation if authorities of one Member State do not cooperate and are not willing to cooperate. No impact, since all Member States are obliged to cooperate, to give mutual legal assistance or to extradite by several international and European conventions..

5.14

Cluster H Data and statistics

Consultations highlighted a need to improve the knowledge base on drug supply issues in order to better design and target measures to fight against drug production and trafficking. The current lack of EU wide indicators makes it difficult to robustly plan and implement an EU wide approach to addressing the problem of illicit drug trafficking. Current data and statistics gathered at a Member State level to estimate the burden of drug-related crime on society and to assess the impact and effectiveness of drug supply reduction measures are often based on varying definitions and collection mechanisms. The strong interest amongst various stakeholders to improve the evidence base for understanding issues of drug supply resulted in the European Commission and the EMCDDA joining forces, with the active involvement of Europol to address this issue. This work is on-going to identify key indicators for the monitoring of drug markets, drug-related crime and drug supply reduction. 5.14.1

Status quo

This option assumes the on-going work being led by EMCDDA does not come to fruition and the existing reporting obligations on Member States remain. As such the limitations of the existing information base will remain if no further action is taken. Table 5.37 Data and statistics status quo Expect Impacts Effectiveness in Gaps in knowledge will remain making it difficult to formulate policy or Achieving Policy enforcement activity based on robust intelligence and statistics. Objectives Economic and financial The level of EU resource to address the problem of drug trafficking remains Impacts stable. No change expected in Member States' budgets, their reporting obligations will not change. Law enforcement costs (7b) continue to be incurred in Member States in addressing the range of crimes/offences associated with drug trafficking crimes. Public health institutions will continue to deal with the health consequences of

Economic and Social Impacts

87

Expect Impacts Acceptability to Stakeholders National Legal Systems 5.14.2 drug use driving trafficking (24bn). No changes in Member States so acceptable by local stakeholders. Other stakeholders are in favour of improved intelligence. No change to Member State reporting obligations.

Introduction/collection of new drug supply indicators

Emerging from the first conference on this programme of work was agreement among participants on the pressing need to improve the knowledge base on drug supply issues in order to better design and target 147 measures to fight against drug production and trafficking. Work is continuing by EMCDDA and its partners to develop a set of technically sound and sustainable indicators for monitoring drug markets, crime and supply reduction for Europe. This option assumed that this work reaches a conclusion and a new set of indicators are agreed. This is not guaranteed of course given the inherent difficulties faced by approximating data collection systems. Table 5.38 Data and statistics new supply indicators Expect Impacts Effectiveness in Medium impact, will not directly achieve main objectives re supply but improved Achieving Policy knowledge base has the potential to improve policy making and the Objectives effectiveness of enforcement activity. Economic and Financial Low impact to EU budget, EMCDDA has already been allocated resource to Impacts implement new indicators and oversee their effective use in Member States. Potentially significant negative impact on Member State budgets should more significant data collection systems be required to collect the required data against the new indicators. In some Member States this may require radical changes to systems. Social Impacts Medium positive long term impacts on health and public safety, because it will increase the knowledge of the problem, thus allowing a more effective response to illicit drug trafficking. Acceptability to High acceptability amongst some stakeholders who advocate for a system of Stakeholders common indicators. Could be some controversy amongst Member State stakeholders depending on the scale of work in each Member State and the associated costs. National Legal Systems Medium impact, extent of change dependent on current data collection systems and their fit with the new requirement.

147

EMCDDA (2010) First European Conference on drug supply indicators.

88

6.0 Comparison of the options and identification of the preferred option

6.1 Comparison of impacts of the policy options

This section presents the comparison of the impacts of the policy options, to identify the best combination. The impacts of each option are rated against the status quo, which is rated 0 for the purposes of comparison. Financial impacts are regarded as negative where they involve cost increases. The scale used for the assessment of the options is the following: Table 6.1: Scoring system Symbol ---0 + ++ +++

Meaning

High negative impact Medium negative impact Low negative impact No impact Low positive impact Medium positive impact High positive impact

Although all impacts contribute to the identification of the preferred option, the effectiveness in achieving the objectives and the economic and the social impacts (including effects on fundamental rights) play a central role. The relative impact of the different options and sub-options are presented in the subsequent sections in this chapter.

6.2

Scope for action

Table 6.2 Cluster A: Scope for Action Options Effectiveness in Achieving Policy Objectives 0 ++ Economic and Financial Impacts 0 0 Social Impacts Acceptability to Stakeholders 0 ++ Impacts on National Legal Systems 0 Medium impact

Status Quo Focus on Major Drug Trafficking Offences Sub-option 1: Exclusion of street dealing offences

0 ++

++

++

+++

Low impact-

89

Options

Effectiveness in Achieving Policy Objectives ++

Economic and Financial Impacts -

Social Impacts

Acceptability to Stakeholders +++

Impacts on National Legal Systems Low impact-

Sub-option 2: Focus on quantity of drugs Sub-option 3: Focus on value of drugs Sub-option 4: Focus on profit element Sub-option 5: Focus on Trafficking by Criminal Organisations

++

++

++

Low impact-

++

Low impact-

++

++

Low impact-

There seems to be consensus from the evidence that a focus on major drug trafficking is preferred. From a legal point of view, this option gives Member States the possibility of keeping or introducing their own provisions for minor trafficking, whereas for large scale trafficking, which is typically border-crossing and where often criminal organisation are involved, common rules are foreseen, to enable and improve investigations and the exchange of information between national authorities. This facilitates the investigation and prosecution of drug trafficking and trafficking related offences. Regarding the sub-options, there is the problem that in the Member States the criteria to define major trafficking are quite different. From a legal point of view, all sub-options would require amendments in several Member States. A definition of street trafficking seems to be easier to implement, than one on profit gained, the value of drugs or on the quantity of drugs. The focus on criminal organisations could refer to the EU definition of a criminal organisation, but it seems unduly restrictive, potentially introducing further complications of proof. However, the criterion of the quantity (combined with purity) or value would be a compromise which does not only exclude street trafficking, but which cove rs more cases than the focus on criminal organisations. One of these should be preferred. A focus on major trafficking would potentially generate some significant reductions in the current 7 billion incurred across the EU on public order and public safety costs and in the 24bn total drug-related expenditure on health, conceivably of as much as 10% if it leads to a refocusing of law enforcement resource on the most serious offence though estimates are highly speculative. These costs would need to be balance against the costs incurred at Member State level to implement a Directive.

6.3

Definition of offences

90

Table 6.3 Cluster B: Definition of Offences Options Effectiveness in Achieving Policy Objectives 0 ++ Economic and Financial Impacts 0 0/Social Impacts Acceptability to Stakeholders 0 0/Impacts on National Legal Systems No impact Low impact

Status Quo Wider Definition in Relation to Precursor Trafficking

0 --

A wider definition in relation to precursor trafficking, closer to that for drugs, is the preferred option. It could remove some current anomalies as described above. The impacts on the national legal systems can be described as between zero and low negative. Problems in implementing such provisions only expected in FR and MT as they would have to change their legal systems. Other Member States would only have to add additional activities in relation to precursor trafficking as new offences.

6.4

Level of sanctions

Table 6.4 Cluster C: Level of Sanctions (Imprisonment) Options Effectiveness in Achieving Policy Objectives 0 0 Economic and Financial Impacts 0 -Social Impacts Acceptability to Stakeholders ++ 0 Impacts on National Legal Systems No impact Low impact

Status Quo Increased Level of Sanctions Reduced Level of Sanctions

0 --

0/-

Low impact

The Status Quo is the preferred option. In nearly all Member States the penalties comply with the current provisions in the Framework Decision and in several States the penalties are higher. Increasing the level of sanctions does not bring an obvious added value. Reducing the level of sanctions would also not be accepted by many stakeholders since it appears to give the message that drug trafficking is regarded as less serious. This option would not require changes to the EU or Member State budgets. The consensus is that the level of penalties is not a factor in offenders decision to commit drug trafficking offences so it would not have any direct impact on public safety costs.

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6.5

Financial penalties

Table 6.5 Cluster D: Financial Penalties Options Effectiveness in Achieving Policy Objectives 0 Economic and Financial Impacts Social Impacts Acceptability to Stakeholders Impacts on National Legal Systems

Individuals a) Status Quo existing national provisions b) Obligation to introduce financial penalties for drug trafficking offences (in line with national provisions) c) Obligatory Provisions to introduce minimum maximum level of fines Legal Persons a) Status Quo b) Provisions on fine proportionate to seriousness of offence c) Provision on Minimum/Maximum Levels of Fine

No impact

0/+

0/+

0/-

Low impact

0/+

0/+

0/-

--

Medium impact

0 0/+

0 0/+

0 0/-

++ -

No impact Low impact

0/+

0/+

0/+

--

Medium impact

Regarding financial penalties against individuals, the preferred option is the Status Quo. The legal systems on financial penalties are very different. Obligatory provisions to introduce financial penalties in line with national provisions would probably have limited effect. If it was required that financial penalties for largescale trafficking financial penalties are introduced, this would cause problems in several Member States, since in some of them financial penalties are only foreseen for minor drug trafficking offences. A provision on a minimum or maximum level of fines would cause a number of conflicts with national legal systems, as the levels of financial penalties in the Member States are very different and due to the different systems of financial penalties not compatible or easy to compare. Any potential benefits from introducing provisions on financial penalties would be marginal. They would not generate significant savings from the public costs associated with the problem as they would not act as a strong enough deterrent. Proposals here would also likely encounter strong resistance from Member States, partly because of the issues they would create for national legal systems and the potential costs involved in implementing a system of financial penalties for those counties where they are not applicable to major drug trafficking. Since the differences between the systems of financial penalties in Member States are big and an approximation therefore seems to cause major problems and the effectiveness of an introduction of financial penalties in a new instrument is not clear, the status quo would be the preferred option. Concerning financial penalties for legal persons, the general obligation to provide effective, proportionate and dissuasive (financial sanctions) is the preferred option, since it is acceptable for most of the stakeholders and enables Member States to provide financial penalties in line with their national system of liability of legal

92

persons.. The financial benefits of implementing this option are not strong. In this situation, public safety and law enforcement costs will still be incurred in addressing the social consequences of drug trafficking as the fines would not act as a sufficient deterrent.

6.6

Aggravating and mitigating circumstances

Table 6.6 Cluster E: Aggravating and Mitigating Circumstances Options Effectiveness in Achieving Policy Objectives Economic and Financial Impacts Social Impacts Acceptability to Stakeholders Impacts on National Legal Systems

Aggravating Circumstances a) Status Quo

No impact

b) New provisions: the involvement of the offender in other illegal activities facilitated by commission of the offence, etc Mitigating Circumstances a) Status Quo b) Art.5 of current FD as binding provision c) New Provisions: drug mules, etc

++

Low impact

0 ++

0 0/+

0 0/+

0 +

No impact Low impact

0/-

High impact

The introduction of new aggravating circumstances is the preferred option. The scope of action introduced in a new instrument will determine which of the aggravating circumstances are suitable. If only large scale trafficking is covered by a new instrument, the circumstances offences in relation to minors or vulnerable people and the commission of the offence in a penal institution, in an educational institution or s ocial service facility should not be considered as aggravating circumstances as they would not fit into the newly defined scope of action. In addition, the circumstance serious consequences has a very broad scope of meaning and this could cause problems with the principle of legality, since it is very undefined and the approximating effect could be limited. All possible aggravating circumstances would require amendments in some of the Member States. Budgets at this level could also be affected as their use could lead to effects on 'time served' leading to greater imprisonment costs estimated to be in the range of 12,000 to 87,000 per 148 year . Concerning mitigating circumstances, (one of) the preferred options is to make the provisions contained in Art. 5 of the current FD binding, in particular to emphasise a focus on tackling trafficking by criminal organisations. It would help to achieve the objective to facilitate the prosecution of trafficking offences in

148

Based on data from Council of Europe (2010) Annual Penal Statistics. The average amount spent per day for the detention of one person in different Member States was multiplied by 365 days.
93

which criminal organisations are involved. A further preferred option is to introduce drug mules as new mitigating circumstance. In contrast to aggravating circumstances, if leniency through mitigating circumstances results in less time served in prison, there is the potential to reduce imprisonment costs at a Member State level.

6.7

Jurisdiction

Table 6.7 Cluster F: Jurisdiction Options Effectiveness in Achieving Policy Objectives Economic and Financial Impacts Social Impacts Acceptability to Stakeholders Impacts on National Legal Systems

Territorial Jurisdiction a) Status Quo b) Extension of Territorial Jurisdiction to Aircraft and Ships Extra-Territorial Jurisdiction a) Status Quo b) Binding rules on extraTerritorial Jurisdiction c) Extension to habitual residents

0 ++

0 0/-

0 0/-

0 +++

No impact Low impact

0 ++

0 0

0 0/-

0 0

No impact Low impact

++

0/-

Low impact

The following three options could be considered as preferred options: (i) extension of territorial jurisdiction to cover offences which are committed on board of an aircraft and vessels; (ii) extension of extra-territorial jurisdiction to cover cases where the offender is a Member States own national or cases where the offence is committed for the benefit of a legal person established in the territory of that Member State; (iii) extension of extra-territorial jurisdiction to cover habitual residents. The impact on national legal systems would be low regarding the extension of territorial jurisdiction. The other two options would certainly require legislative changes, but the majority of the Member States would not have to change their whole system of provisions on jurisdiction.

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6.8

Judicial and law enforcement cooperation

Table 6.8 Cluster G: Judicial and Law Enforcement Co-operation Options Effectiveness in Achieving Policy Objectives Economic and Financial Impacts Social Impacts Acceptability to Stakeholders Impacts on National Legal Systems

Judicial cooperation Status Quo 0 Training judicial and enforcement personnel Facilitation of Exchange of Information New compulsory system for judicial co-operation for law ++ 0 -0 + 0 No impact ++ No impact

++

0/-

No/Low impact

---

0/-

0/+

No impact

The preferred option involves training for judicial and law enforcement personnel to encourage co-operation. This would certainly require changes in the national legal systems, but should not be controversial for the Member States. There would be some financial impact on EU budgets, in covering the majority of the costs for the training. As regards facilitation of exchange of information the status quo is the preferred option. There is of course potential to improve Mutual Legal Assistance and Mutual Recognition between the Member States, but Member States level research showed that there is no reason why initiatives should be focussed specifically on drug trafficking. To reach consensus between the Member States on these issues already proved very difficult in relation to horizontal instruments.

6.9

Data and statistics

Table 6.9 Cluster H: Data and Statistics Options Effectiveness in Achieving Policy Objectives 0 ++ Economic and Financial Impacts 0 -Social Impacts Acceptability to Stakeholders Impacts on National Legal Systems No impact Low impact

a) Status Quo b) Introduction/ Collection of New Supply Indicators

0 +

0 ++

The preferred option here involves continuing the work led by EMCDDA to develop new drug supply indicators to improve the knowledge base in order to better design and target measures to fight against drug trafficking. There are potential risks that full approximation will not be achieved given the varying data

95

collection mechanisms in each Member State. Potentially high financial costs could be incurred should more significant data collection systems be required to collect the required data against the new indicators.

6.10

Outline of the preferred policy option

On the basis of the comparison of the potential options in relation to individual clusters, the preferred approach is a new initiative to tackle trafficking in illicit drugs, which will involve the following legislative and non-legislative components: a) A focus of EU initiatives on major trafficking. b) A wider definition of trafficking in precursors, similar to that for drugs. c) No changes in the provisions established by the existing FD in relation to terms of imprisonment. d) No changes in the provisions established by the existing FD in relation to financial penalties. e) No new provisions in relation to confiscation specific to drug trafficking. f) Introduction of new aggravating circumstances as foreseen in the UN Conventions.

g) Establishment of the existing Art.5 of the existing FD as a binding provision (cooperation with law enforcement authorities) and new provisions for mitigating circumstances in relation to drug mules and addicted offenders. h) Extension of provisions in relation to territorial and extra-territorial jurisdiction as well as binding rules on extra-territorial jurisdiction if the offender is a national of the Member State exercising jurisdiction or if the offence is committed for the benefit of a legal person established in that Member State. i) Training for judicial and law enforcement personnel to encourage co-operation (to introduce as nonlegislative actions). Specific Procedural rules (possible legal basis: Art. 82 TFEU).

j)

k) Development of new indicators and data collection arrangements (to introduce as non-legislative actions). The projected overall impacts of the preferred package are summarised below. Table 6.10 Preferred policy options Expected Impacts Effectiveness in Achieving Policy Objectives The proposed package should have positive effects in tackling drug trafficking and thus the supply of drugs. It would complement but not substitute for efforts to improve enforcement and measures to limit demand and reduce harms. Key elements of the preferred option which would have the strongest impact would be the focus on major trafficking which by its nature would allow a focus on trafficking which was cross-border and where criminal organisation are involved which generates the greatest economic and social impacts. The inclusion of training to encourage cooperation and the development of new

96

Expected Impacts indicators would directly respond to the objectives focused on effective investigation and improved knowledge of the market. Economic and Financial Impacts The economic and financial impacts of the package of preferred options are likely to be modest overall. To implement some elements of the preferred options there is likely to be limited impact on Member State budgets in terms of the need to implement an EU Directive. Resource will be incurred here in legal advice, communication and ministerial clearance. The rolling out, as a non-legislative action of training for judicial and law enforcement personnel to encourage co-operation would incur costs. It is likely that 80-90% of the costs would need to be covered by the Commission as per current arrangements. Modest costs would additionally be incurred by Member States through their contribution to training costs and the need to backfill for staff. Elements of the preferred options would result in costs to law enforcement agencies/national criminal justice systems but this is likely to be modest. Principally if greater co-operation in relation to investigations and exchange of evidence is encouraged or achieved there is mostly likely to be some rebalancing of existing law enforcement budgets rather greater budgets allocated. There is the opportunity, however, to achieve efficiency savings through this joint work. There also is potential for greater cooperation to lead to increased levels of prosecutions and convictions which in turn would result in increased costs to Member State criminal justice systems. Although, again, there should be offsetting receipts from fines and asset confiscation. Social Impacts Reducing the supply of drugs should reduce the longer term economic and costs of drug use. The impacts on wider society in terms of limitations to an individuals work and social functioning and the public service costs incurred should be lessened by the proposed package of measures assuming a reduction in supply leads to reduced drug use. However, in the short term there is a risk of some perverse effects if users respond to higher prices by resorting to larger volumes of crime to fund habits or the 'market' responds by increasing levels of adulteration. Considering the problems and objectives identified, a new instrument on illicit drug trafficking must be in full compatibility with fundamental rights and notably human dignity, prohibition of torture and human or degrading treatment or punishment (Article 4) and the right to liberty and security (Article 6). Acceptability to Stakeholders Most aspects of the proposed package should not be particularly specifically controversial to Member State stakeholders, especially where no changes in legal provisions are expected. The focus of a European instrument on major drug trafficking would be viewed positively as an appropriate focus for an EU initiative. Stakeholders in interviews and workshops preferred an option which focussed on organised crime or large scale trafficking. Stakeholders agree with the necessity of a common fight

97

Expected Impacts against large scale trafficking. Other elements of the preferred package are likely to be received positively. In the pursuit of greater judicial and law enforcement cooperation, a mechanism for more robust information is likely to be received positively but acceptability may vary dependent on the level of investment required. Impact on National Legal Systems Elements of the proposed package will require some changes in national legislation. However, these do not appear particularly problematic. In the main, where provisions are retained as in the Framework Decision, the impact is anticipated to be low. The elements which are proposed as non-legislative actions e.g. judicial training will also generate minimal impact on national legal systems. It is reasonable to assume that the impact resulting from the introduction of indicators to strengthen information on will vary between Member States depending on current data collection systems and their fit with the new requirement.

The positive benefits of the package particularly in terms of encouraging law enforcement and judicial cooperation should more than outweigh the modest potential financial costs involved.

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7.0 Monitoring and evaluation

The Commission will need to ensure that a system is in place to monitor the implementation and impact of the preferred policy option. It is suggested that the Commission will undertake an initial evaluation of the new initiative after 24 months of its launch focussing upon Whether the provisions of the new instrument have been satisfactorily transposed into legislation by member states, as relevant. The functioning of the instrument, focussing in particular on its effectiveness in improving law enforcement and judicial co-operation More generally, the operation of the instrument will be subject to a process of on-going monitoring. Use of the following indicators would allow a robust assessment of the implementation and impact of the new instrument. These indicators should be updated based on the on-going work to develop a new framework of indicators relating to illicit drug trafficking. Implementation Number of Member States who have altered legislation to focus on major trafficking Number of Member States who have altered definitions used in terms of precursors Number of Member States who have introduced new aggravating circumstances as foreseen in the UN Conventions. New aggravating circumstances introduced Number of training sessions for judiciary to encourage co-operation Impact Amount, quantity and purity of illicit drug seized since introduction of instrument Number of police recorded drug trafficking crimes Number of drug trafficking crimes recorded per 100,000 population

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Annex One: List of interviewees

A1

List of interviewees
External Stakeholders Total number of interviews: 7 Pedro Prez Enciso and Ioana Van Nieuwkerk Eurojust

Michael Carlin DG Justice Brendan Hughes - EMCDDA Neil Tolman - Europol Steven Malby - UNODC Adrianna Miekina - DG Home Claire Scharf-Kroener DG Enterprise

Member State Level Research Total number of interviews: 178 Austria (4 interviewees)

Leading prosecutor Hon.-Prof. Dr. Fritz Zeder, Head of Unit IV. 2 (Criminal matters and cooperation in the field of multilateral criminal affairs) in the Federal Ministry of Justice, national drug coordinator Prosecutor Mag. Jrgen Santin, dealing with organized crime, especially drug trafficking, criminal court Vienna Judge Mag. Helene Gnida, specialist in criminal cases dealing with drug offences and drug trafficking, criminal court Vienna Counsel for the defence/lawyer Dr. Roland Kier, experienced expert in the field of drug offences and drug trafficking cases, Vienna

Belgium (13 interviewees)

Maarten Collette: Orde van Vlaamse Balies (Flemish bar association), Brussels Serge de Biolley: member of the Permanent Representation of Belgium to the Council of the European Union -Justice and home affairs Tom Decaigny: lawyer at the bar of Antwerp and Teaching assistant at the Vrije Universiteit Brussel Criminal law and criminal procedure Alexander Hoefmans: civil servant at the Ministry for Justice, Directorate-General Legislation, Fundamental Rights and Freedoms Anne Bouflette: Referendary at the Court of First Instance of Hasselt J.M. Jeurissen: Judge at the Court of First Instance of Hasselt J. Van Gronsveld, Registrar at the Court of First Instance of Hasselt The prosecutors offices of Antwerp, Mechelen, Hasselt, Gent and Tongeren* The College of Prosecutor Generals, Brussels *Due to the unity of the prosecutor offices in Belgian law, it was requested not to explicitly mention the names of the prosecutors who were interviewed.

Bulgaria (5 interviewees)

Mrs Mariana Lilova - prosecutor, National Member for Bulgaria at Eurojust Mrs Ivanka Kotorova - prosecutor, International Cooperation Unit, Supreme Prosecution's Office Mrs Nevena Grozeva - judge, Sofia Court of Appeal Mr Borislav Petkov - acting head of International Cooperation Unit, Ministry of Justice Mrs Ralitza Ilkova - defence lawyer

Cyprus (8 interviewees)

Stelios Serghides, Head of YKAN (Anti-Drugs Unit of the Cyprus police)s Prevention Unit Alexandros Alexandrou, YKAN (Anti-Drugs Unit of the Cyprus police)s Prevention Unit Daniel Myller (Anti-Drugs Unit of the Cyprus police) Efie Kyprianou, Anti-drugs Council
A2

Nasia Fotiou, Anti-drugs Council Theano Mavromoustaki, Law Office of the Republic of Cyprus. Yiannis Polychronis, Criminal lawyer Michalis Deilinos, Criminal lawyer

Czech Republic (6 interviewees)

Ministry of Justice (Michael varc and Lucie Kresslov, from Department of International Penal Law, experts in international cooperation in penal law, involved in the evaluation of the compatibility of the FD with Czech penal law + consultation with head of the department) Ministry of Interior: Sylvie Reterova (Security Law Unit) Police Presidium: Lt.Col. David Kutenek, Section of National Drug Headquarters (experience both with policy coordination and with investigation of concrete cases) High Public Prosecutors Office in Prague (Vrchn sttn zastupitelstv v Praze): dr. Jaroslava Novotn (public prosecutor, experience with concrete cases + her office acts, in capacity of public prosecutor, as the appellate body in more serious forms of drug offences) Prague Municipal Court: Dr. Alexandr otol. Judge with experience both with appellate cases of less serious drug offences and the first instance cases of more serious cases of drug related crimes. In addition, Dr. otol was also a consultant of the Ministry of Justice during preparation of new Penal Code.

Denmark (4 interviewees)

Deputy Director, statsadvokat Jesper Hjortenberg, Eurojust Head of International Division, kontorchef Morten N. Jakobsen, Ministry of Justice Public Prosecutor, politiadvokat Jens Rasmussen, Copenhagen Police Attorney of Law, advokat Henrik Stagetorn, chairman of the Danish Association of Defence Lawyers

Estonia (5 interviewees*)

Ministry of Justice, Criminal Policy Department, Head of International Judicial Co-operation Division Office of the Prosecutor General, State Prosecutor (drug cases) Office of the Prosecutor General, State Prosecutor (international co-operation) Office of the Prosecutor, Chief State Prosecutor, Head of Prosecution Department. lawyer, Law-office Tehver & Partners *As there were very trusting relationships with the interviewees and the interviewees expressed their opinions very openly, it is very important not to make their names public in any further analysis or publication.

Finland (6 interviewees)

Defence lawyer Markku Fredman , Partner and Attorney at law at Law Firm Fredman & Mnsson State Prosecutor Leena Metspelto, Office of the Prosecutor General State Prosecutor Ritva Sahavirta, Office of the Prosecutor General, former Finnish national representative at Eurojust Civil Servant and Doctors of Law Heini Kainulainen, The National Research Institute of Legal Policy (operates under the Ministry of Justice), Drug Researcher at the Criminological Research Unit District Court Judge Eero Nikkarinen, District Court of Helsinki Detective Superintendent Risto Lohi, National Bureau of Investigation / Crime Investigations / Organised Crime

France (13 interviewees) 1. TGI et Cour dAppel de PARIS Vice-prsident charg de linstruction, Juridiction Inter-Rgionale Spcialise (JIRS) Tribunal de Grande Instance (TGI) de Paris Prsident de la Chambre de linstruction Cour dAppel de Paris 2. Ecole nationale de la magitsrature (ENM) Paris Ancien Juge dInstruction (JI) Marseille, Magistrat charg de mission au Dpartement International

A3

3. TGI de BOBIGNY Parquet Secrtaire gnral du parquet, Vice Procureur Procureur de la rpublique Adjoint (PRA) Bobigny, en charge de la division des affaires criminelles et de la dlinquance organise (DACRIDO) Vice-Procureur, chef de la section criminalit organise Sige 3. Secrtaire gnral adjoint de la Prsidence 4. Vice-prsidente coordinatrice de la 13me chambre, spcialise dans le traitement des ILS 4. Autres TGI Procureur de la Rpublique Adjoint, ancien Vice-Procureur JIRS Marseille, (Nicolas BESSONNE) Procureur de la Rpublique Adjoint , ancien substitut gnral la CA dAix (Pierre CORTES) 5. Ministre de la Justice et des Liberts DACG Magistrat charg du Bureau de la Lutte contre le Crime Organis, le Terrorisme et le Blanchiment (BULCO), en nom et reprsentation du service 6. Avocats Avocat au barreau de Crteil, pnaliste 7. Magistrat tranger Italien Substitut la DDA (District anti-mafia au Parquet de Naples Italie) (Vincenzo DONOFRIO) Germany (7 interviewees)

Dr. Leo Teuter, Criminal defense lawyer in Frankfurt a.M. Dr. Carsten Paul, Chief Judge at the district court Marburg Dr. Kurt Sippel, Public prosecutor at the district court Marburg Prof. Dr. Dieter Rssner, University professor for criminology and criminal law at the University of Marburg Two employees of the state criminal police office of Hesse (LKA), narcotics related crime division Benedikt Welfens: Senior prosecutor, deputy to the National member for Germany at Eurojust

Greece (5 interviewees)

Mr. Dimitrios Koulaxidis, Judge by the Court of First Instance of Athens, Greece. Mr. Dimitrios Zimianitis, Public Prosecutor by the First Instance, Athens, Greece Ms. Konstandia Gazeta, Public Officer, Ministry of Justice, Transparency and Human rights, Gen. Direct. of Legislative coordination & special international legal relations - Sector of Legislative coordination & special international legal relations Mr. Marios Sakelarios, Defence lawyer Mr. Lefteris Tamvakos, Police Captain, Police Officer, Central anti-drug coordinative unit-national intelligence unit Ministry of Citizen Protection

Hungary (4 interviewees)

Krisztin Gva, dr.; Under-secretary at Office of the Minister of State for Justice, Ministry of Public Administration and Justice gnes Frech, dr.; Leader of the Criminal College at Municipal Court of Budapest Lajos Korona, dr.; Prosecution Service of the Republic of Hungary Andrea Pelle, dr.; lawyer, Head of Legal Aid Service at Hungarian Civil Liberties Union

Ireland (7 interviewees)

Judge of the Circuit Court- Criminal Matters Senior Officials (2) Department of Justice & Equality Barrister- State prosecutor- 12 years experience Barrister - Criminal Defence- 9 years experience Academic Lecturer- Chair, Irish Penal Reform Trust
A4

Member - Garda National Drugs Unit

Italy (5 interviewees)

Risposte a cura del DOTT. ANDREA URSINO, Sostituto Procuratore della Repubblica presso la Direzione Distrettuale Antimafia di Catania Risposte del CONS. LUIGI LOMBARDO, Magistrato componente della Direzione Distrettuale Antimafia di Catania Risposte a cura del CONS. GIORGIO FIDELBO, Magistrato Corte di Cassazione Risposte a cura del CONS. GIACOMO PAOLONI, Magistrato Corte di Cassazione Risposte a cura del Dott. SERGIO BARBIERA, Procura della Repubblica presso la Direzione distrettuale Antimafia di Palermo

Latvia (9 interviewees)

The Ministry of Justice Ms Evita Miezane (Legal Adviser, Criminal Law Department), Mr Karlis Kleinbergs (Legal Adviser, Court Policy Department The Ministry of Interior (specialists from the Legal Department of the Ministry, as well as specialists from law enforcement body the State Police The Prosecutors Office Mr Ivars Zubulis (Head of the Prosecutors Office on Fight against Narcotic Offences, Ms Dace Trusinska (Deputy Head of the Prosecutors Office on Fight against Narcotic Offences), Ms Una Brenca (The Prosecutors General Office, Head of Division on International Cooperation) Mr Janis Rozenbergs Sworn Advocate Mrs Diana Hamkova Docent, Dr.iur., the University of Latvia, Criminal Law Division

Lithuania (10 interviewees)

Jrat Radiauskien, prosecutor, Department of the organized crime and corruption, Vilnius Region Prosecutor Office Aivaras Alimas, prosecutor, Department of the organized crime and corruption, Vilnius Region Prosecutor Office Rolandas Jurkeviius, prosecutor, Department of the organized crime and corruption, Vilnius Region Prosecutor Office Audron Gaublien, prosecutor, 5th department of the crimes investigation, Vilnius Prosecutor Office Tomas Kruna, chief prosecutor, Criminal proceedings department, Prosecutor General Office (international cooperation in criminal cases) Prof., dr. Jonas Prapiestis, judge, chairman of the Chamber of Criminal cases, Supreme Court of Lithuania Antanas Klimaviius, judge, Chamber of Criminal cases, Supreme Court of Lithuan ia Dr. Andelika Vosylit, legal adviser, Chamber of Criminal cases, Vilnius Region Court Doc., dr. Remigijus Merkeviius, defense lawyer, advocate Rolandas Tilindis, former prosecutor (Prosecutor General Office), former member of Eurojust, legal adviser; current position: defence lawyer

Luxembourg (5 interviewees)

Nathalie Jung, Vice-President, District Court of Luxembourg, President 12 Criminal law Chamber, (Tribunal darrondissement de Luxembourg) Sophie Hoffmann, Ministry of Justice Nicky Stoffel, Attorney at ETUDE STOFFEL cabinet davocats, specialized in drug law offences Jeannot Nies, First Advocate General (Premier Avocat Gnral), Prosecutor General's Office of Luxembourg (Parquet Gnral du Grand-Duch de Luxembourg) Steve Schmitz, Judicial Police (Police Judiciaire)

th

Malta (4 interviewees)

Dr Jose' Herrera, MP, Deputy House of Representative (Parliament), Malta Dr Leonard Caruana, Criminal Lawyer Ms Susann Shaw

A5

Empirical research conducted with the Attorney-General's Office, Executive Police and the Criminal Court Registry

Netherlands (6 interviewees)

Ms. M.A.C.L.M. Bonn (MB), senior adviser, Legislation Department, Ministry of Security and Justice Ms. P. Burgers (PB), judge, former investigative judge, Haarlem District Court Mr. W. Morra (WM), lawyer at Coumans & Van Gaalen lawyers, Leiden Ms. F. van der Plas (FP), Law Enforcement Department, Ministry of Security and Justice Mr. A.C.M. Rutten (AR), judge, Haarlem District Court Mr. C.J.W.M. van Spierenburg (CS), public prosecutor at the National prosecutors office, sHertogenbosch

Poland (6 interviewees)

Piotr Kosmaty, Prokurator Prokuratury Okrgowej w Krakowie delegowany do ProkuraturyApelacyjnej w Krakowie [Public Prosecutor at the Regional Prosecutors Office, seconded to the Appeal Prosecutor in Cracow], interview conducted on 17th October 2011 Krzysztof Chodak, Judge, District Court in Krakw, interview conducted on 17th October2011 Aleksandra Sotysinska, Judge, Regional Court in Krakw, interview conducted on 17th October2011 Piotr Kubaszewski, Public Interest Law Actions Program, Helsinki Foundation for Human Rights, Poland, interview conducted on 31st October 2011 Mikoaj Pietrzak, Advocate, Pietrzak & Sidor Chambers, interview conducted on 7th November Barbara Wilamowska, Coordinator of the Ministry of Justice for the National Programme of Counteracting Drug Addiction, interview conducted on 7th November 2011

Portugal (10 interviewees)

Mr. Euclides Dmaso Simes, District Prosecutor-General (Judicial District of Coimbra); National Contact Point of the EJN; former Director of the DIAP-Coimbra (Department for the Investigation and Prosecution of Criminal Offences Departamento de Investigao e Aco Penal) Mr. Vtor Guimares, Deputy Prosecutor-General; Director of the DIAP-Coimbra; former Director of the Judiciary Police Porto Mr. Jorge Leito, Senior Prosecutor; DIAP-Coimbra Mrs. ngela Pinto Bronze, Senior Prosecutor; Criminal Court Prosecutor (Coimbra) Mrs. Fernanda Jarmela, Senior Prosecutor; Criminal Court Prosecutor (Coimbra) Mr. Jos Nabais, Senior Prosecutor; Advisor of the District Prosecutor-General for Criminal Matters; former Court Prosecutor Mrs. Alexandra Alves, Deputy Prosecutor; DIAP-Coimbra; Responsible for the investigation and prosecution of all drug trafficking in the judicial area of Coimbra Mr. Antnio Pedro Nogueira, Judge, 2 Vara de Competncia Mista (Court for Civil and Criminal Matters), Vila Nova de Gaia Mr. Jos Jacob Simes, Defence Lawyer; President of the Deontological Council District of Coimbra of the Portuguese Lawyers Bar A former advisor of the Ministry of Justice, who had direct contact with the transposition of Framework-Decisions in 2003-2004, but asked not to be identified

Romania (5 interviewees)

Cristina Rotaru, Ph.D., Judge Criminal Division of the Romanian Supreme Court; associate professor, Faculty of Law, University of Bucharest; former Romanian Judicial Network Contact Point, Court of Appeal level Florin Mornil, Public Prosecutor Directorate for Investigating Organized Crime and Terrorism, Cluj Territorial Service Eugen Iordchescu, lawyer coordinating partner, Iordchescu, Udrescu & Associates Law Firm, Cluj-Napoca General (Chestor) Sorin Oprea - Director of the Romanian National Anti-Drug Agency, Bucharest Rodica Mitroiu Chief of the Precursors Service, Romanian National Anti-Drug Agency, Bucharest

A6

Slovakia (7 interviewees)

Doc. JUDr. Jozef ent, PhD., deputy head of the Criminal Department of the General Prosecutors Office JUDr. Alica Kovov, PhD., deputy head of the International Department of the General Prosecutors Office JUDr. Radovan Kajaba, prosecutor specialized in the field of drug related criminal offences, District Public Prosecution Office Bratislava V. Anonymous judge specialized in criminal matters (who did not approve disclosure of his identity), kpt. JUDr. Tom Jakabovi, head of the International Department of the National Anti Drug Unit of the Police Force JUDr. Mario Buksa, defense attorney specializing in criminal matters JUDr. Rastislav urove, Ministry of Justice, Department of Legislation

Slovenia (9 interviewees)

Andreja Lang, General Director of the Directorate for Judicial Legislation, Ministry of Justice Ana Buar Brglez, Head of Division Secretary, Mutual Legal Assistance Division, Ministry of Justice Katjua eferin, District Prosecutor, Ljubljana division Manja Prezelj, District Prosecutor, Ljubljana division Blanka gajnar, Prosecutor, Special unit for prosecution of organized crime, Ljubljana (procecutor in pending case Balkan Warrior) Mag. Alja Kratovac Prokopovi, Judge, District court Ljubljan a Mojca Zalar Kocjani, Judge, District court Ljubljana Zvjezdan Radonji, Judge, District court Ljubljana Dr. Marko Bonjak, Defence attorney, Legal office eferin

Spain (5 interviewees)

Gonzalo Boye Tuset, Criminal Law Lawyer at the Madrid Bar Ana Ferrer Garca, Judge, President of the Provincial Court (Audiencia Provincial) of Madrid Dr. Andrea Gimnez-Salinas Framis, Researcher in Criminology, Instituto de Ciencias Forenses y de la Seguridad at the Universidad Autnoma de Madrid Dr. Iigo Ortiz de Urbina Gimeno, Associate Professor of Criminal Law and Criminology (Universitat Pompeu Fabra); Special Advisor to the Minister of Justice (2009-2011) Javier Zaragoza Aguado, Prosecutor at the National Court ( Audiencia Nacional), Madrid

Sweden (4 interviewees)

Michael Hansson, prosecutor at the international prosecutor chamber in Malm Fredrik Blow, advocate (member of the Swedish Bar Association), defence counsel practising in Lund Per Ole Trskman, senior professor at the Faculty of Law, Lund University and expert and advisor to the Government on numerous legislative committees Thomas Albinsson, former police inspector, chief of surveillance, narcotics and aliens section in Malm

United Kingdom (6 interviewees)

Criminal lawyer (London) 3 Judges (1 Crown Court Judge, 1 Circuit Judge, 1 Magistrate) Prosecutor (London) Police officer (Serious and Organized Crime Agency)

A7

Annex Two: Research Materials

A8

Topic Guide Used in Member State Level Research

Preparatory study for an impact assessment on a new legislative instrument replacing the Council Framework Decision 2004/757/JHA on illicit drug trafficking Questionnaire
A. Drug trafficking situation in the Member States: To what extent is illicit drug trafficking a serious problem in your Member State? Please provide evidence from interviewees, media, statistics, research results and other material illustrating the situation.

B. Transposition of Framework Decision 2004/757/JHA: Information should be gathered from an analysis of legal texts, desk based literature review and in-depth interviews with relevant experts responsible for drafting implementation legislation and drug law experts. Please describe the national legislation in a short and precise way, give an overview/synthesis on your legislation and case law. As a starting point, use the report of the Commission from 2009. 1. When was the Framework Decision 2004/757/JHA laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking transposed into your national legislation? a. Was the legislation in your country amended to implement the Framework Decision? b. Was the FD transposed within the set time limit? c. If it was late, what were the reasons?

2.

Were any difficulties encountered during the transposition process? Were they of a legal, practical or political nature? What were they and why did they occur?

3.

Does the definition of drugs in your legislation correspond with the definition of Article 1 FD? If not, why and what is the definition?

4.

Have the crimes linked to trafficking in drugs defined in Article 2 FD completely been transposed in your MS? Has the wording of Article 2 (1) (a)-(c) been incorporated in its entity (all activities listed in Article 2 (1) (a)-(c)) into your national legislation? If not, which ones are missing and why? What are the definitions of the respective offences incorporated by you Member State?

5.

In what ways have the offences linked to precursor trafficking according to Article 2 (1) (d) FD been implemented into your legislation? What are the definitions of the respective offences incorporated by your Member State?

6.

Is Article 3 FD (incitement, aiding and abetting and attempt) completely implemented into your legislation? Please describe briefly under which conditions incitement, aiding and abetting on the one hand and attempt of the offences referred to in Article 2 FD on the other hand are punishable.

7.

Which penalties (and other sanctions) are provided for offences linked to trafficking in drugs? Which penalties are provided for offences linked to precursor trafficking? Do they comply with the penalties

A9

provided for in Article 4 FD? Please describe exactly which penalties are foreseen for the drug and precursor trafficking offences. a. Are the elements of quantity and harm to health provided for as aggravating circumstances? What sentences are provided for? b. Is there legislation regarding trafficking in illicit drugs and precursors, where the offence is committed within the framework of a criminal organisation (Article 4 (3) and (4))? What sentences are provided for? c. Are there other elements (specific to drug trafficking or general) that influence the level of sanctions?

8.

Was the system of reducing penalties in cases in which a. the offender renounces criminal activity relating to trafficking in drugs and precursors (Article 5 (a) FD), b. the offender provides the administrative or judicial authorities with information (Article 5 (b) FD) transposed into your legislation?

9.

Were the confiscation provisions of Article 4 (5) FD implemented into your national legislation? In which way?

10. Have the provisions on the liability of legal persons for drug trafficking provided by Article 6 been transposed in your legal order? If not, why? If yes, is it a criminal, administrative or civil liability? Under which circumstances legal persons are responsible? Which sanctions are provided for it?

11. Does your legislation provide for jurisdiction in all cases foreseen in Article 8 FD? a. In which cases the Member State has jurisdiction in relation to legal persons concerning drug trafficking offences? b. Does the Member State have jurisdiction, if the offence has been committed outside its territory? If yes, under which conditions (the ones foreseen in Article 8 (1) (b) and (c) and/or others)? c. In the case of extra-territorial competence, does the Member State only have jurisdiction for nationals or also for habitual residents (if a habitual resident has committed drug trafficking offences outside the territory)?

12. Does your national legislation make a distinction between possession/personal use (consumption) of drugs and trafficking of drugs? If yes, how (what are the relevant factors for the distinction between possession/personal use of drugs and trafficking of drugs?) Is personal consumption of drugs a criminal offence in your country? Are cases of drug trafficking to finance the personal addiction (street trafficking) treated in a different way?

13. What are the main changes brought about by the implementation of the Framework Decision to preexisting national legislation on drug trafficking? Please explain briefly the drug trafficking legislation in your Member State in general (not only focused on the Framework Decision) and the impact and added values of the Framework Decision.

A10

C. Application of the legislation transposing the Framework Decision Information should be gathered from literature reviews and consultations with practitioners (public prosecutors, judges, investigative judges (or judges dinstructions), defence lawyers, researchers), who have experience in the field of drug traffic offences and who work in this area. Please add quantitative data or statistics on drug and precursor trafficking-related prosecutions and sentencing, seizure of assets, confiscation of drugs in your Member State. If exact data is not available, please try to provide estimates and/or extrapolate what data is known. 1. Are the provisions foreseen in the Framework Decision applied in practice? Are the provisions of the Framework Decision transposed in a way that they can be applied by prosecution authorities and courts?

2.

How has the implementing law been interpreted by courts, and what are the specific issues they have encountered? Please point out the main problems.

3.

Referring to illicit drug trafficking statistics, please provide data on the following for the period 2005-2010 when available: a. How many cases are reported to the police? b. How many cases are prosecuted? c. How many cases indicted? d. How many convicted per year? e. Are diversionary measures applied in these cases of offences linked to drug and precursor trafficking? 4. What are the main problems and obstacles encountered in the anti-drug trafficking provisions? a. Are they of a legal or practical nature? b. Do they relate to specific FD provisions? 5. Which sanctions are applied in cases of illicit drug trafficking, which are not and why? a. Which penalties are imposed? (Please provide relevant data where available. If not, try to get estimates by the interviewees.) b. What is the level of sanctions? c. What are the mitigating and aggravating circumstances? d. Which are the relevant aspects that influence sentencing, not only according to legislation, but also in practice of drug trafficking cases (e.g. previous convictions, juvenility, addiction of the offender, lack of evidence, etc)? e. Are there sentencing guidelines for drug offences? If yes, what do they foresee?

6.

How long is a person who is actually in jail in your country (respecting the possibility of early release and other aspects which are relevant in practice), when he/she commits one of the following offences: a. trafficking offence involving 1 Kg of heroin/cocaine and/or 10 Kg of cannabis; b. trafficking offence involving 10 kg of heroin/cocaine and/or 100 Kg of cannabis; c. the previous trafficking offences committed within the framework of a criminal organisation. Please ask practitioners for their experiences and estimates. Did the Framework Decision improve/change the prosecution of drug and precursor trafficking or the respective sentencing practice? a. In general, what was the impact of the implementation of the Framework Decision on prosecutions, convictions and sentencing in drug trafficking cases? b. More specifically, has the Framework Decision had a positive or even negative effect on the prosecution of illicit drug trafficking? In what ways? c. Is this illustrated by data on prosecutions and convictions before and after the Framework Decision came into force? What are the differences?

7.

A11

8.

What problems are seen concerning defence rights of accused persons in drug trafficking cases? Why?

9.

Are confiscation measures applied to drug and precursor trafficking cases? How much is confiscated/seized? Are the rights of victims and of other third parties respected in the confiscation process?

10. Are there positive or negative conflicts of jurisdiction with respect to transnational drug trafficking offences? a. How have they been solved? b. Has Eurojust been involved (if yes, how often)?

11. Do you know about cases of forum shopping in cases of illicit drug trafficking? If yes, please specify.

12. Are there problems with ne bis in idem in cases of illicit drug trafficking in your country? If yes, please specify.

13. How does cooperation in drug trafficking cases between prosecution authorities of different Member States work? How does cooperation between national prosecution authorities and EU bodies work (Europol, Eurojust, )? What problems are encountered with this cooperation? In particular: a. Do mechanisms to get evidence from another Member State concerning illicit drug trafficking work? b. How does exchange of information work? Is it always possible to use evidence you get from other Member States? Does this depend on the investigation measure? E.g. is it possible to use evidence from covert investigation by another Member State or information gained by an agent provocateur? c. How does cooperation with other Member States work in the area of controlled deliveries? Are there relevant provisions on controlled deliveries in your Member State? If yes, please explain briefly. d. Are there joint investigation teams and how do they work? e. Please explain the relevant provisions on principal witnesses in your country and their relevance for cooperation in drug trafficking cases. f. Please indicate any other problems of mutual legal assistance instruments in cases of illicit drug trafficking. D. Relationship between the implementation of the Framework Decision and other legislative measures against drug trafficking: 1. Is it common to prosecute drug trafficking under the law on participation in a criminal organisation?

2. What is the law and judicial practice as regards drug trafficking as a money laundering predicate offence?

3. What is the law and judicial practice as regards the confiscation of proceeds from drug trafficking?'

E. Future perspectives: Information should be gathered from practitioners (public prosecutors, judges, investigative judges, and defence lawyers), researchers and stakeholders and from relevant literature. 1. Are the existing EU legal provisions sufficient to prosecute illicit drug trafficking cases effectively? What European and national level legal measures would be necessary for an effective and successful fight against illicit drug trafficking?
A12

2. Which provisions a new EU instrument concerning criminal law on drug trafficking should contain (concerning that Article 83 of the Treaty on Functioning of the European Union only provides for the establishment of minimum rules on definition of offences and sanctions)?

3. What should be improved about the cooperation between Member State authorities in cases of illicit drug trafficking? How should the cooperation between Member States authorities and EU bodies working in the field of illicit drug trafficking be improved?

4. Should there be strict binding rules on jurisdiction in drug trafficking cases within the EU? Do we need binding decisions by an EU body (e.g. Eurojust) on which country shall have jurisdiction?

5. Which instruments to protect the fundamental and procedural rights of accused people in illicit drug trafficking cases should be contained in any new EU instrument? 6. Is there the need for a regulation on procedural aspects regarding illicit drug trafficking? Which ones?

7. Do you foresee any opposition, in your country, to the establishment of a new binding EU instrument referring to illicit drug trafficking? What opposition do you see from political parties, by human rights groups or by other NGOs? Why?

8. Are there any other observations concerning drug trafficking?

A13

Preparatory study for an impact assessment on a new legislative instrument replacing the Council Framework Decision 2004/757/JHA on illicit drug trafficking Additional questions
(sent to national experts in December 2012) 1. Do aggravating /mitigating circumstances influence the range of penalties or do they only influence sentencing by the judge?

2. Confiscation: What objects are confiscated in practice? Also proceeds, instrumentalities? To what extent?

3. As far as in your country financial penalties are foreseen for illicit drug trafficking offences, could you please answer briefly the following questions (the Commission now is very much interested in that topic): a. What is the nature of these penalties? Are they criminal or administrative financial penalties (in relation to both individual and legal persons)? b. Are financial penalties actually used in cases of trafficking in illicit drugs? c. Are financial penalties seen as useful by practitioners? Do practitioners believe that they have an added value? Are they regarded really deterrent to crime (particularly in absence of the possibility to confiscate proceeds of crime)? d. What is the relationship between financial penalties and confiscation? e. How is the extent of these financial penalties determined in the sentencing process? Is there a system of daily fines? Is the extent of the penalty dependent from the value / amount of drugs? Is there another system of sentencing?

4. For all: Even if your legislation does not provide financial penalties in cases of drug trafficking, please answer the following questions briefly: How is the extent of these financial penalties determined in the sentencing process in general? Is there a system of daily fines or another system of sentencing (respecting the financial situation of the offender or not)? How are financial penalties determined? Depending on the value of the drugs?

5. If sources regarding data you mentioned in your report are missing, please add the sources.

6. If there was/is no impact of the FD (referring to questions B13 and C7 from the Questionnaire) what do you or your interviewees think are the reasons for that? In particular, were there no problems or was the FD not the right instrument to solve those problems?

A14

Annex Three: Summary Tables

A15

Table A: Compliance of Member States legislation with Framework Decision 2004/757/JHA

Transp. Def. drugs/precursors Art. 1 (1) Art. 1 (2) Def. Crimes Incitement/attempt Penalties Yes/no Art. 2 (1)(a)-(c) Art. 2 (1)(d) Art. 3 (1) Art. 3 (2) Art. 4 (1) Art. 4 (2)(a) Art. 4 (2)(b) Art. 4 (3) Mit. Legal Cir pers. c. Art. Art. Art. 6 4 5 (4) Jurisdiction Art. Art. Art. 8 8 8 (1) (1) (1) (a) (b) (c) Overall Compl.

AT BE BG CY CZ DE DK EE ES FI FR GR HU IE IT LT LU LV MT
149 150 151 152

Yes No Yes* Yes Yes* No Yes No Yes* Yes No Yes Yes No No Yes No No No

151 158

156

152 155 157 159

153

154

149

150

** ** ** **

** **** * *** **** **** **** *** **** ****

Only regarding certain offences of cannabis trafficking not in compliance with the Framework Decision. Although Cyprus has a corresponding provision, the foreseen penalty is not in compliance with Art. 4(4) FD. The exact scope of the term precursor remains unclear, namely whether it covers also medicines containing precursors or not. There are doubts whether Denmark fully complies with Art. 2(1)(d) FD and / or Art. 3 FD as they have to combine their listed activities with the general provisions on criminal attempt and/or participation of the Penal Code. See Endnote 3. See Endnote 3. France does not criminalize trafficking in precursors at all. Italian legislation does not include the activity preparation. The term manufacture is missing.
158

153 154 155 156 157

In Malta there is no concept of "precursor" chemicals. The law has a long schedule of banned substances on which the chemical appears or not. A16

Transp.

Def. drugs/precursors Art. 1 (1) Art. 1 (2)

Def. Crimes

Incitement/attempt

Penalties

Yes/no

Art. 2 (1)(a)-(c)

Art. 2 (1)(d)

Art. 3 (1)

Art. 3 (2)

Art. 4 (1)

Art. 4 (2)(a)

Art. 4 (2)(b)

Art. 4 (3)
160

Mit. Legal Cir pers. c. Art. Art. Art. 6 4 5 (4)

Jurisdiction

Art. Art. Art. 8 8 8 (1) (1) (1) (a) (b) (c)

Overall Compl.

NL PL PT RO SI SE SK UK TOT

Yes Yes No Yes No Yes Yes No 15 yes 12 no

27

24

161 165 25

22
162

27

163 164 25

26

19

17

23 17

** **** ** 10 21 27 16 16

Legend: These countries foresee a corresponding provision in their national legislation which fully complies with the Framework Decision. * In these countries the law was only amended with regard to the liability of legal persons and the Framework Decision 2004/757/JHA was not the only reason for this amendments. ** Liability of legal persons has been established, but not all cases of Art. 6 or 7 are covered. *** These Member States are not in full compliance with Art. 8(1)(b) FD, but informed the Commission that they decided to limit / waive their jurisdiction in accordance with Art. 8(2) FD. **** These Member States are not in full compliance with Art. 8(1)(c) FD, but informed the Commission that they decided to limit / waive their jurisdiction in accordance with Art. 8(2) FD.

159 160 161 162 163 164 165

The terms manufacture and transport are missing. Although The Netherlands has a corresponding provision, the foreseen penalty is not in compliance with Art. 4(3) FD. Doubts remain whether the activities extraction and production are properly reflected in Polish law. Activities transport and distribution are missing. In regard to cases of trafficking of a lesser gravity (Art. 25(b) DL 15/93) and concerning incitement (Art. 29 DL 15/93) Po rtuguese law does not comply with the FD. The attempt regarding crimes linked to trafficking precursors is not punishable under Romanian law. Slovak legislation does not include the activities cultivation and offering. A17

Explanatory remarks:

This table shows if Member States legislation is compliant with the Framework Decision 2004/ 757/JHA or not. It shows as well the cases in which Member States are only partly compliant with a provision of the FD and explains what is missing. If there is no yes or no, tick, endnote or star in the box, the Member State does not foresee a corresponding provision at all. In the first column (Transp.) it is indicated whether the Member States amended its legislation to implement the Framework Decision. The number of Articles in the following columns refer to the Articles in the Framework Decision 2004/757/JHA. Overall compliance in the last column means that the Member States legislation complies with all mandatory provisions of the Framework Decision.

A18

Table B: Financial penalties in cases of trafficking in drugs and precursors

Maximum penalty Drug trafficking 1,800.000 166 100.000 50.378 1,354.360 167 1,800.000 169 Maximum penalty Precursor trafficking 10.000 50.378 10.000 1,354.360 1,800.000 Individuals Max. penalty Day Aggravating fines? circumstances 100.000 100.755 10.000 No max. pen 4x worth 7,500.000 588.235 347.850 unlimited yes no no no yes yes yes yes no yes174 no no yes no Nature cum./ alt. Used in practice Added value Maximum penalty Drug trafficking 1,000.000 120.000 511.292 37.105.751 168 1,000.000 No max. pen. 16,000.000 Dep. on worth (up to 5x) 850.000 37,500.000 Max. penalty Precursor trafficking 550.000 120.000 511.292 10.000 37.105.751 1,000.000 No max. pen. 16,000.000 850.000 Legal persons Aggravating circumstances 1,800.000 480.000 511.292 10.000 Day fines ? yes no no no no no Nature Used Added value

AT BE BG CY CZ DE DK EE ES FI FR GR HU IE

Crim. Crim. Crim. Crim. Crim. Crim. Crim. Crim. Crim. Crim. Crim. Crim. Crim. Crim.

alt. cum. alt. alt. cum. alt. alt. alt. cum. alt. cum. cum. alt. cum.

Rarely yes yes yes

no yes no no

Crim. Crim. Admin . Crim. Crim. Admin . Crim. Crim. Crim. Crim. Crim. Adm./ civ. Crim. Crim.

no yes no -170 no no

no yes no no

Rarely yes171 Occa. yes yes yes yes Occa. rarely

no

No max. pen 16,000.000 Dep. on worth (up to 5x) 850.000 37,500.000 -

No max. penalty No max. penalty 500 daily rates172 500 daily rates Depending on worth of drugs (up to 3x)173 No maximum penalty 7,500.000 290.000 290.000 347.850 unlimited 347.850 unlimited

yes no

no no no no no no

no yes

no yes no rarely

no no no

no no

Three times the gain, but minimum 1590 unlimited unlimited unlimited

166

Only for minor cases. System of daily fines: max. 360 daily rates between 4 and 5.000 depending on financial situation of perpetrator, therefore this maximum amount is purely theoretical. System of daily fines: max. 930 daily rates between 100 (3,71 )and 50000 CZK (1.855 ) depending on financial situation of p erpetrator, therefore this maximum amount is purely theoretical. The system of penalties is general, i.e. applicable to any crime under the Penal Code. New law adopted in October 2011 established criminal responsibility of legal persons, including criminal responsibility for drug trafficking and precursor trafficking. Theoretically, extremely high financial penalties (over 1 billion CZK) are possible but they are purely theoretical. There is no practical experience with the application of the law in practice yet. Only for small cases. System of daily fines: min. 5 and max. 360 daily rates between 1 and 5.000 depending on financial situation of perpetrator, therefore this maximum amou nt is purely theoretical. There is no data available on the frequency of legal persons sentenced to pay financial penalty in drug related crimes. Still it can be said that administrative financial penalty for legal persons is in general only used rarely. But not for serious of drug trafficking. The court shall calculate the daily rate of a pecuniary punishment on the basis of the average daily income of the convicted offender. Financial penalty is applicable only for Illegal trafficking or mediation of small quantities (i.e. sufficient for causing drug intoxication to less than ten people) of narcotic drugs or psychotropic substances, or illegal manufacture, acquisition or possession of small quantities of narcotic drugs or psychotropic substances with the intention of trafficking. Together with imprisonment sentences. Relative to the offenders solvency. A19

167

168

169

170

171 172

173 174

Maximum penalty Drug trafficking 260.000 175 37.650

177

Maximum penalty Precursor trafficking 150.000 18.825 1,250.000 22,857.00 760.000 245.454 -

Individuals Max. penalty Day Aggravating fines? circumstances 433.333 37.650 1,250.000 760.000 368.181 no no no no no no yes yes -

Nature

cum./ alt.

Used in practice

Added value

IT LT LU LV MT NL PL PT RO SI

Crim. Crim. Crim. Crim. Crim. Crim. Crim. Crim. -

cum. alt. cum. alt. cum. cum.

180

yes yes yes yes yes yes yes rarely -

no yes

Maximum penalty Drug trafficking 1,549.000176 1,882.530 750.000 2,857.142 116.468 760.000 1,136,363 181

Max. penalty Precursor trafficking 1,549.000 1,882.530 750.000 2,857.142 760.000 1,136,363

Legal persons Aggravating circumstances

Day fines ? yes no no no no no no yes no yes

184

Nature

Used

Added value

1,882.530 750.000 760.000 1,136,363 22,500.00 0 Plus 1/4

Admin . Crim. Crim. Crim. Crim. Crim. Crim. Crim. Crim. Crim.

yes no

yes no

1,250.000 178 22,857.00 116.468 760.000 179 245.454 180.000 182 120.000 183 -

no no yes yes no -

no yes yes no

no yes no

cum. alt. -

18,000.000 2,400.000 220.000 150.000 200 times the damage/gain

yes no

no no

175 176

In IT financial penalties are imposed together with imprisonment sentences. Legal persons can be held liable only with regards to the activities provided for in Article 74, DPR No. 309/1990 entitled C riminal organization aimed to trafficking in illicit drugs and psychotropic substances. In LT the financial penalty for individuals among all criminal acts of drug trafficking are foreseen only for small cases and for the cases of the cultivation of opium poppy, coca bush or cannabis plant. In LU Financial penalties are foreseen for all type of cases. Financial penalties can be imposed alone or together with imprisonment. For legal person financial penalties can be applied together with other penalties (e.g. confiscation of property, exclusion from participating in public tenders, dissolution of the legal person). Financial penalties can go up to 760,000 Euros, which also goes for individual persons specifically in cases of drug trafficking. Both individual persons and legal persons can be sentenced to fines, but individuals will face these penalties only in minor cases, whereas they are sentenced to imprisonment in more serious ones. According to Dutch law accumulation is possible, but in practice they are mostly used as alternatives. In any case not higher than 3% of income generated in the material year. Legal maximum of 360 days (Art. 47(1) CC), at the maximum daily rate of 500 (Art. 47(2)), as a fine replacing sentences of imprisonment for one year (Art. 43 CC allows the courts to replace terms of imprisonment not exceeding one year for a fine when the actual execution of imprisonment is not required to prevent the commission of further offences). It can be applied to a very limited number of cases, due to the fact that, in principle, sentences not exceeding one year imprisonment can be applied only in relation to (i) trafficking of a lesser gravity of (ii) soft drugs (cannabis, etc.). Maximum of 240 days at the maximum daily rate of 500 , applicable as an autonomous penalty to trafficking of a lesser gravit y in the alternative to imprisonment of up to two years. Application is very rare, not only also because of the limited number of cases to which it can be applied in the abstract (please see previous note), but also because the (less grave) cases which could attract its concrete application usually involve defendants in situations of hardship, where the application of a fine would hardly make sense. Hence, those cases are preferably dealt with through other non custodial sanctions (eg., suspension of the execution of imprisonment accompanied by treatment in case of drug addiction , community service, etc.). A20

177

178

179

180 181 182

183

Maximum penalty Drug trafficking 22,600 331.930

185

Maximum penalty Precursor trafficking 22,600 331.930 unlimited

Individuals Max. penalty Day Aggravating fines? circumstances 22,600 331.930 unlimited yes no no

Nature

cum./ alt.

Used in practice

Added value

SE SK UK

Crim. Crim. Crim.

alt. cum. cum.

yes no yes

no no

Maximum penalty Drug trafficking 1,130,000 1,660.000 unlimited

Max. penalty Precursor trafficking 1,130,000 1,660.000 unlimited

Legal persons Aggravating circumstances

Day fines ? no no no

Nature

Used

Added value

unlimited186

1,130,000 1,660.000 unlimited

Noncrim. Crim. Crim.

no no yes

no no

Legend: -: not provided in national legislation Occa.: Occasionally Cum./alt.: Are financial penalties imposed together with imprisonment sentences (cumulative) or are they an alternative to imprisonment sentences? Notes:

This table shows the maximum levels of financial penalties for trafficking in illicit drugs and precursors in the Member States. Depending on the system of financial penalties (absolute amounts or system of day fines) these are either amounts which are explicitly provided in national laws or the product of the maximum daily fines and the highest number of days foreseen for the offence. The table is divided into two main parts, one concerning individuals, the other concerning legal persons. The first three columns in every part show the maximum financial penalties for trafficking in drugs (1), in precursors (2) and under aggravating circumstances (3). The fourth column indicates whether there is a system of day fines meaning that the judge imposes a number of daily rates and the amount of the daily rates depends on the income and solvency of the offender or the financial penalties are determined as an absolute amount. The fifth column shows the nature of the penalty: criminal, administrative or civil. In the sixth column it is shown whether financial penalties are (only) foreseen as alternative to (particularly low) imprisonment sentences (alt.) or whether they must or can be imposed together with imprisonment sentences (cum.).

184

185

186

The Act on liability of legal persons for criminal offences does not provide fines for specific criminal offences. There is only a general provision on how to punish legal persons for certain criminal offences using the analogy with Criminal Code (i. e. If the punishment is more than 3 years of imprisonment, the minimum fine for legal person is 50.000 EUR and the maximum fine is 200x the damage/gain.) Under Slovak law a financial penalty can be imposed under Section 56 of the Criminal Code within a range from 160,- to 331.930,- to any perpetrator who gained or sought to gain a financial benefit by committing crime, this might involve also drug trafficking cases. Since illicit drug trafficking is always qualified as felony, the personal liberty restricting penalty must always be determined and a financial penalty can be imposed concurrently. In respect to legal persons only two protective measures can be imposed under the Criminal Code, one of them being forfeiture of monetary sum, for the purpose of the study this can be considered a financial penalty. In the UK, the penalties for drug trafficking offences depend on the venue of the trial and the class of the drug (http://www.cps.gov.uk/legal/d_to_g/drug_offences/). A21

The seventh column shows whether financial penalties are used in cases of drug and precursor trafficking. The eight column contains an estimation whether an added value is seen in financial penalties and whether they are regarded deterrent. If there is a - in a field, this means that such a provision does not exist in the Member State. If there is nothing in a field, this means that information is not available, either since there are no statistics or it is not possible to get any estimation by interviewees (in some cases particularly concerning criminal liability of legal persons the provisions in the Member States are so new, that there have been no practical experiences until now).

A22

Table C: Maximum levels of sanctions (imprisonment) for trafficking in illicit drugs

Drug trafficking (basic offence Art. 2) (FD: min/max of at least 1 to 3 years)
Yrs. <1
187

Large quantities of drugs (FD: min/max 5 to 10 years)

Harm to health (FD: min/max 5 to 10 years)

Criminal organisation (FD: min/max of at least 10 yrs)

<10
190

Other aggrav. circumstances

13

-5

- 10

- 15

> 15

< 188 5

510

- 15

- 20

> 20

< 189 5

510

- 15

- 20

> 20

- 10

- 15

- 20

> 20

< 10

- 10

-15

- 20

> 20

AT BE BG CY CZ DE DK EE ES FI FR GR HU IE IT LT LU LV MT NL PL PT RO SI SE SK

X X
191

X X X X X X X X*

X X

X -

X*

X X

X X X

X* X X* X

X X X X

X X X X

X X

X* X X X X X X X* 192 X X X -

X X X X X X X X X X X X X* X X X X X X X X X 193

X X X X X X X X* -

X* X* X* X

X X -

X X X

X X X X*

X* X* X X X* X X X* X X X X X X X

X*

X X X X*

X X X X

X X -

X -

X X X X X X X*

X X X X

X*

X X
187 188

X X* X X

Not in compliance with Article 4 (1) FD. Not in compliance with Article 4 (2) (a) FD. 189 Not in compliance with Article 4 (2) (b) FD. 190 Not in compliance with Article 4 (3) FD. 191 Only regarding certain offences of cannabis trafficking. 192 Harm to society which includes harm to health. 193 Only to be taken into account when determining the sentence. A23

Drug trafficking (basic offence Art. 2) (FD: min/max of at least 1 to 3 years)

Yrs. <1
187

Large quantities of drugs (FD: min/max 5 to 10 years)

Harm to health (FD: min/max 5 to 10 years)

Criminal organisation (FD: min/max of at least 10 yrs)

<10
190

Other aggrav. circumstances

13

-5

- 10

- 15

> 15

< 188 5

510

- 15

- 20

> 20

< 189 5

510

- 15

- 20

> 20

- 10

- 15

- 20

> 20

< 10

- 10

-15

- 20

> 20

UK TOT

12

X 5

X* 8

X* 7

X* 12

Legend: < : less than years of imprisonment - 5: maximum penalty between more than 3 years and 5 years - 10: maximum penalty between more than 5 years and 10 years - 15: maximum penalty between more than 10 years and 15 years - 20: maximum penalty between more than 15 years and 20 years >: more than years of imprisonment X: sanction foreseen in the Member State -: not provided in national legislation *: Life imprisonment is foreseen in the Member State Notes: The table shows the maximum level of sanctions (imprisonment) foreseen by the legislation of the Member States. If there are more X in one category per Member State this means that there is more than one provision to implement the Framework Decisions and that there are different penalties foreseen (e.g. lower penalties for possession than for international drug trafficking; different penalties for different types of drugs lower sentences for cannabis than for hard drugs as heroin).

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Table D: Maximum levels of sanctions (imprisonment) for trafficking in precursors

Yrs. AT BE BG CY CZ DE DK EE ES FI FR GR HU IE IT LT LU LV MT NL PL PT RO SI SE SK UK TOT
194 195 196 197 198 199

Precursor trafficking (Art. 2 (1) (d)) (FD: min/max of at least 1 to 3 years) < 1-3 - 5 - 10 - 15 > 15 194 1 X X X X X X 196 X X X X 197 X* X X X X X X X X 198 X X X X X X X X 199 X* 0 6 11 5 3 3

Criminal organisation (FD: min/max at least 5 to 10 yrs) < -5 - 10 - 15 - 20 > 20 195 5 X X X X X X X X* X X X* X X X X X X* X* 1 0 6 4 1 6

Other aggrav. circumstances -3 X -5 X X X X X X X X* - 10 - 15 - 20 > 20

X X X X X

X X 1 2 4 5 X 3 2

Not in compliance with Article 4 (1) FD. Not in compliance with Article 4 (4) Framework Decision. Punishable as attempt to drug trafficking, therefore same penalties as drug trafficking. No criminal offence. No specific provisions on precursor trafficking, but depends on if a chemical is on a list of banned substances. There are no special provisions on trafficking in precursors, but lists of drugs.
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Legend: < : less than years of imprisonment - 5: maximum penalty between more than 3 years and 5 years - 10: maximum penalty between more than 5 years and 10 years - 15: maximum penalty between more than 10 years and 15 years - 20: maximum penalty between more than 15 years and 20 years >: more than years of imprisonment X: sanction foreseen in the Member State -: not provided in national legislation *: Life imprisonment is foreseen in the Member State Notes: The table shows the maximum imprisonment sentences in the Member States. If there are more X in one category per Member Sta te this means that there is more than one provision to implement the Framework Decisions and that there are different penalties foreseen (e.g. if different actions are treated differently as possession and trafficking).

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Table E: Aggravating and mitigating circumstances

Aggravating circumstances in FD Quantity of Harm to Crim. Crim. Organ. drugs health Organ. Precursors Art. 4 (2) Art. 4 (2) Drugs Art. 4 (4) (a) (b) Art. 4 (3) Commerci al gain Other aggravating circumstances in national laws Use of Specific Specific Serious dangerous addressees offenders consequenc means es Together with other offences Mitigating circumstances Transpositio Financing n of Art. 5 personal use FD (national law)

AT BE BG CY CZ DE DK EE ES FI FR GR HU IE IT LT LU LV MT NL PL PT RO SI SE SK UK TO T

19

24

18 4 5

15

17

10

200

200

Not all provisions of these Member States exactly comply with the ones in the FD. Other Member States take these aspects into account when determining the sentence.
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Explanatory remarks:

Use of dangerous means: e.g. arms, knifes, weapons Specific addressees: e.g. minors, pupils (schools), prisoners or trafficking in specific places as e.g. schools, universities, hospitals, medical centres, military establishments, prisons. Specific offenders: e.g. doctors, pharmacists, trainers, teacher Serious consequences: e.g. death, particular risk for life or physical integrity, e.g. by manipulation and mixing of drugs. Together with other offences: coincidence of several offences

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Annex Four: Detailed Cost Analysis

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Estimating the costs of drug trafficking In this section, we identify who is affected by the illicit trafficking in drugs by examining some of the key costs of drug trafficking in the EU accruing to different stakeholders, and present some indicative estimates of the magnitude of these costs. As far as possible, we have broken down these costs into the following two primary categories: Direct costs associated with the illicit trafficking of drugs includes the costs incurred by security and criminal justice agencies of anticipating and responding to drug trafficking offences and productivity losses due to traffickers' non-participation in the legitimate labour market Indirect costs incurred due to the consumption of drugs includes healthcare costs, reduced quality of life and premature death of drug users, productivity losses due to reduced employment and skills of drug users and costs of crime brought on by drug use (e.g. psychopharmacological and economic compulsive crimes) including victim costs It should be noted, however, that the estimates provided in this chapter are subject to a high degree of uncertainty due to inherent fragility in the data and the need to make a number of assumptions. Moreover, it is not always straightforward to split out the costs in this way. For example, traffickers (incurring direct costs) and users (incurring indirect costs) are not two distinct groups as users often get involved in trafficking to fund their habit. Therefore, the following quantitative estimates should be treated with caution and interpreted as indicative only. Costs to the government 201 EMCDDA (2008) estimates the total amount of drug-related government expenditure in EU countries. 202 Based on Reitox national reports in 2007, the study finds that, in 11 countries that provided information , total drug-related expenditure was estimated at 15.4 billion in 2007. Extrapolating this to the EU27 as a 203 whole, total drug-related expenditure was estimated to be 32 billion in 2007 . This is equivalent to 204 about 34 billion in 2012 prices . We estimate based on the data for individual countries that this figure consists of 7 billion public order and safety costs, 24 billion health costs and 3 billion other costs. We can assume that all health costs are indirect. It is also reasonable to assume that "other" government costs are also indirect, as these are predominantly made up of social protection, education, housing and community amenities and general public services. However, public order and safety costs are likely to comprise both direct and indirect elements. For the purposes of this study, we assume that all of the 7 billion total public order and safety costs are direct costs of the illicit trafficking of drugs based on a more detailed scrutiny of some of the 205 2007 Reitox national reports.

201

European Monitoring Centre for Drugs and Drug Addiction (2008) "Towards a better understanding of drug-related public expenditure in Europe" Belgium, Czech Republic, France, Luxembourg, Hungary, Netherlands, Poland, Slovakia, Finland, Sweden and United Kingdom EMCDDA estimates the total spending for the EU27 plus Norway, Croatia and Turkey to be 34 billion. As the EU27 accounts for 94% of the total GDP of the 30 EMCDDA countries, we estimate that EU27 expenditure is 32 billion. All adjustments for current prices are derived from the Euro-zone GDP deflator as reported by www.economywatch.com In the Czech Republic, 34% of total labelled expenditure on drug programmes was classified as "drug supply reduction" 205. In Poland, 37% of labelled expenditure was classified or jointly classified as "combating crime"205. In the United Kingdom, however, just 10% of labelled expenditure was classified or jointly classified as "enforcement" 205. Although these breakdowns do not fully separate out the direct costs of combating the illicit trafficking of drugs and the indirect costs of other drug-related crime, they provide a useful benchmark. The estimated 7 billion total public order and safety costs accounts for about a fifth of the 3 4 billion total government costs. A30

202

203

204
205

Costs to drug users As well as the burden caused to the state, drug users themselves, as the primary victims of the illicit trafficking of drugs, incur significant costs as a result of their consumption and addiction. This is particularly the case for PDUs. Reuter and Trautmann (2009) , drawing on a number of different sources, estimate that a quality adjusted life year (QALY) is worth 50,000 to an individual and his/her family (in 2006 prices). In their study, they also estimate that problem drug use diminishes this quality of life by 14%. Therefore, we can 207 assume that problem drug use costs each PDU 7,000 per year in terms of reduced quality of life. Using data from the EMCDDA Statistical Bulletin 2012 we estimate that there are about 1.8 million PDUs in the EU27. If all of these people suffer as a result of their addiction to the tune of 7,000 per year, then it is estimated that the total annual cost incurred by drug users and their families is about 14 billion in 208 2006 prices , or 15 billion in 2012 prices. This is likely to be a lower estimate as the definition of PDU is 'injecting drug use or long-duration/regular use of opioids, cocaine and/or amphetamines, and therefore excludes other drugs and notably cannabis. Productivity cost of drug users' unemployment and inactivity Drug users may also incur significant costs to the economy. The addiction itself and illnesses brought on by drug use may prevent a drug user from being able to work for long periods of time or will cause the drug user to be less productive in their job, or have a lower paid job, than they would otherwise. The 209 National Treatment Outcome Research Study (NTORS) found that 81% of PDUs in England entering a drug treatment programme were unemployed (i.e. 19% were employed). If we assume that this figure is representative of the PDU population in Europe and, in the absence of their drug problem, PDUs would have the same chance of being in employment as the average person in the population (about 63%) and would earn an average wage, then the estimated annual cost of these additional people being out of work 210 could be up to 27 billion . It should be noted that this is likely to be a maximum given that thw UK has one of the higher levels of PDUs in Europe. However, this is likely to be an overestimate as there may be other reasons for PDUs being more likely to be out of work (including reverse causality where unfavourable employment situations precipitate the drug use) and the earning potential of people vulnerable to becoming PDU is likely to be lower than the population as a whole anyway. Again, we make an alternative estimate that assumes that drug users who would be employed were it not for their condition would earn the minimum wage of their country of residence. This results in an estimated total cost per year in the order of 10bn. Productivity cost of premature death Much of the loss of economic output is attributable to premature death brought about by drug use. The EMCDDA Statistical Bulletin 2011 estimates that there were over 7,200 drug related deaths (DRDs) in the latest available year in the EU27 with a mean age of death of 35. This allows us to compute an estimate of the total number of life years lost due to DRDs in a given year. Assuming that people in all countries
206

206 207 208 209

Reuter, P. and Trautmann, F. (2009) "A Report on Global Illicit Drugs Markets 1998-2007" 50,000 x 14% 7,000 x 1.9 million

Gossop et al (1998) "NTORS at one year: changes in substance use, health and criminal behaviour during the five years after intake". London: National Addiction Centre, discussed in Godfrey et al (2002) "The economic and social costs of Class A drug use in England and Wales" This is calculated by estimating, for each country, the number of PDUs that would be employed if it wasn't for their PDU status (total number of PDUs x (employment rate 19%)) and multiplying that by the average annual earnings, in 2012 prices, in each country (adjusted for part time rate), then summing the costs for all EU27 countries. For example, a country that has 10,000 PDUs, an employment rate of 60% and an average (part time adjusted) wage of 20,000 would incur an annual productivity cost due to non-employment of 10,000 x (60%-19%) x 20,000 = 82 million A31

210

work up to the age of 60 on average and that people who suffer from DRD would otherwise have the employment status of the average person in their country (in terms of earnings, employment rate and part-time employment rate), the total value of this lost labour is estimated to be about 2.6 billion 211 (discounted to present values) in 2012 prices . However, again this is likely to be an overestimate as, for reasons not directly caused by their drug use, those most at risk of DRD are likely to have a lower earning potential than the average in the population. To account for this, we make an alternative lower estimate that assumes that victims of DRD would 212 otherwise earn, on average, the minimum wage of their country of residence. Under this assumption, the total value of lost labour is estimated to be about 0.9 billion (discounted to present values) in 2012 prices. Other costs Although predominantly covered by public sector institutions, private and third sector organisations may also bear some of the costs incurred through drug abuse and ultimately the illicit trafficking of drugs. This includes private healthcare providers and voluntary organisations working with drug users. The costs incurred by drug traffickers themselves are also worthy of consideration. Although it is reasonable to ignore any losses or gains experienced by those involved in criminal activity in the overall cost calculation, it can also be argued that many low-level drug traffickers are themselves victims of exploitation. This is particularly true where the individual is "employed" in the trade against their will (e.g. due to threat of violence, their own drug dependency or perceived lack of viable alternatives). However, due to insufficient data, risk of double counting and uncertainty about which costs should be included, we do not include these other costs in our overall estimates.

211

This is calculated by computing average annual earnings in each country (adjusted for employment rate and part time rate) and multiplying that by the number of years between the mean age of a DRD in that country and 60 (e.g. if the mean age of death were 40, we assume that each DRD in that country costs 20 times the average annual earnings). Any costs incurred beyond the first year are discounted using a discount rate of 3.5%. Where country has no minimum wage, or minimum wage is unknown, we assume that the equivalent figure is 41% of the average wage (the average minimum wage level across countries where minimum wage is known) A32

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doi:10.2838/73545

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