Drug policy of the Netherlands
The drug policy of the Netherlands is based on two principles:
- Drug use is a public health issue, not a criminal matter
- A distinction between hard drugs and soft drugs exists
It is a pragmatic policy. Most policymakers in the Netherlands believe that if a problem has proved to be unstoppable, it is better to try controlling it instead of continuing to enforce laws that have shown to be unable to stop the problem. Most other countries take the point of view that drugs are bad and must be outlawed, whether that course of action yields any results or not. This has caused friction between the Netherlands and other countries, most notably with France and Germany. As of 2004, Belgium seems to be moving toward the Dutch model and a few local German legislators are calling for experiments based on the Dutch model. Switzerland has had long and heated parliamentary debates about whether to follow the Dutch model, but finally decided against it in 2004; currently a ballot initiative is in the works on the question.
The use of soft drugs in general is not prohibited, on the general principle of self-determination in matters of the body. Specifically, that it is not illegal to hurt yourself even if it is harmful to society; however, you remain liable for the consequences of your actions. Because of this, users are not prosecuted for possession of small quantities of soft drugs ("for personal use"). Driving under the influence of drugs is nevertheless prohibited, as is being under the influence in public (of either alcohol or other drugs), mainly from a public nuisance perspective.
Hard drugs/soft drugs
A distinction is drawn between hard drugs (which bear "unacceptable" risks; e.g. cocaine, heroin and ecstasy) and soft drugs such as the psychedelic psilocybin mushrooms as well as cannabis products: hashish and marijuana (as defined in the Dutch Opium Act). The distinction is drawn on whether the substance is only psychologically addictive (i.e. producing no worse effect than moderate craving when withdrawn) or also physically addictive (i.e. there is solid proof the drug could cause dangerous withdrawal symptoms and/or lasting physical damage). One of the main aims of this policy is to separate the markets for soft and hard drugs so that soft drug users are less likely to come into contact with hard drugs. This policy also aims to take the soft drug market out of the hands of the criminals, thus reducing crime.
So-called coffee shops are allowed to sell soft drugs openly, and to keep supplies greater than the amounts allowed by law for personal use, though they are only allowed to sell individual customers the amount allowed for personal use. The coffeeshops' wholesale suppliers, however, are still criminalized. In practice, the limit of the "for personal use" clause is 5 cannabis plants per person for growing, or possession of 5 grams of hashish or marijuana per person. Example of sentence in 2004 for possession of 360 grams: confiscation and a fine of €750. Coffeeshops pay taxes just like any other business, though there are some special exemptions for them, mostly because they cannot show receipts for their supply of marijuana.
Large-scale dealing, production, import and export are prosecuted to the fullest extent of the law, even if this does not supply end users or coffeeshops with more than the allowed amounts. Exactly how coffeeshops get their supplies is rarely investigated, however. What is certain is that coffeeshops do sell cannabis that comes from countries where it is illegal. Large suppliers tend to be criminals motivated by profit who do not make the distinction between hard and soft drugs. Hence, the soft drug policy, by failing to address the issue of supply, has made the Netherlands the main centre for hard drug trafficking in Europe. Creating a highly controlled, legal production chain for cannabis to combat this problem has been proposed by a number of Dutch politicians over the last few years, so far without results.
Cannabis remains a controlled substance in the Netherlands and both possession and production for personal use are still misdemeanors, punishable by fine. Coffee shops are also illegal according to the statutes.
However, a policy of non-enforcement has led to a situation where reliance upon non-enforcement has become common, and because of this the courts have ruled against the government when individual cases were prosecuted.
This is because the Dutch Ministry of Justice applies a gedoogbeleid (policy of tolerance) with regard to soft drugs: an official set of guidelines telling public prosecutors under which circumstances offenders should not be prosecuted. This is a more official version of the common practice in other countries, in which law enforcement sets priorities as to which offenses are important enough to spend limited resources on.
Proponents of gedoogbeleid argue that such a policy offers more consistency in legal protection in practice, than without it. Opponents of the Dutch drug policy either call for full legalization, or argue that laws should penalize morally wrong or decadent behavior, whether this is enforceable or not.
In the Dutch courts, however, it has long been determined that the institutionalized non-enforcement of statutes with well defined limits constitutes de facto decriminalization. The statutes are kept on the books mainly due to international pressure and in adherence with international treaties.
Drug law enforcement
Despite the high priority given by the Dutch government to fighting narcotics trafficking, the Netherlands continue to be an important transit point for drugs entering Europe, a major producer and exporter of amphetamines and other synthetic drugs, and an important consumer of illicit drugs. The export of the synthetic drug ecstasy to the U.S. during 1999 reached unprecedented proportions. The Netherlands' special synthetic drug unit, set up in 1997 to coordinate the fight against designer drugs, appears to be successful. The government has stepped up border controls and intensified cooperation with neighboring countries.
Although drug use, as opposed to trafficking, is seen primarily as a public health issue, responsibility for drug policy is shared by both the Ministry of Health, Welfare, and Sports, and the Ministry of Justice.
Contrary to most countries' policies, the Dutch policy has yielded positive results in the war against drugs. The Netherlands spends more than €130 million annually on facilities for addicts, of which about fifty percent goes to drug addicts. The Netherlands has extensive demand reduction programs, reaching about ninety percent of the country's 25,000 to 28,000 hard drug users. The number of hard drug addicts has stabilized in the past few years and their average age has risen to 38 years. The number of drug-related deaths in the country remains the lowest in Europe.
On 27 November 2003, the Dutch Justice Minister Piet Hein Donner said that his government was considering rules under which coffeeshops would only be allowed to sell soft drugs to Dutch residents to meet its obligation to dissuade tourists from going to Amsterdam for drugs. This was due in part to the rising crime rate that was blamed on tourists coming from across Europe to take advantage of the lax drug laws.
Implications of international law
The Netherlands is a party to the 1961 Single Convention on Narcotic Drugs, the 1971 Convention on Psychotropic Substances, and the 1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. The 1961 convention prohibits cultivation and trade of naturally-occurring drugs such as cannabis; the 1971 treaty bans the manufacture and trafficking of synthetic drugs such as MDMA; and the 1988 convention requires states to criminalize illicit drug possession:
- Subject to its constitutional principles and the basic concepts of its legal system, each Party shall adopt such measures as may be necessary to establish as a criminal offence under its domestic law, when committed intentionally, the possession, purchase or cultivation of narcotic drugs or psychotropic substances for personal consumption contrary to the provisions of the 1961 Convention, the 1961 Convention as amended or the 1971 Convention.
The International Narcotics Control Board typically interprets this provision to mean that states must prosecute drug possession offenses. The conventions clearly state that controlled substances are to be restricted to scientific and medical uses. However, Cindy Fazey, former Chief of Demand Reduction for the United Nations Drug Control Programme, believes that the treaties have enough ambiguities and loopholes to allow some room to maneuver. In her report entitled The Mechanics and Dynamics of the UN System for International Drug Control, she notes:
- Many countries have now decided not to use the full weight of criminal sanctions against people who are in possession of drugs that are for their personal consumption. The Conventions say that there must be an offence under domestic criminal law, it does not say that the law has to be enforced, or that when it is what sanctions should apply. . . . Despite such grey areas latitude is by no means unlimited. The centrality of the principle of limiting narcotic and psychotropic drugs for medical and scientific purposes leaves no room for the legal possibility of recreational use. . . . Nations may currently be pushing the boundaries of the international system, but the pursuit of any action to formally legalize non-medical and non-scientific drug use would require either treaty revision or a complete or partial withdrawal from the current regime.
The Netherlands policy of keeping anti-drug laws on the books while limiting enforcement of certain offenses is carefully designed to reduce harm while still complying with the letter of international drug control treaties. This is necessary in order to avoid criticism from the International Narcotics Board, which historically has taken a dim view of any moves to relax official drug policy. In their annual report, the Board has criticised many governments, including Canada for permitting the medicinal use of cannabis, Australia for providing injecting rooms and the United Kingdom for proposing to downgrade the classification of cannabis, which it has since done.
- Bewley-Taylor, David R. and Fazey, Cindy S. J.: The Mechanics and Dynamics of the UN System for International Drug Control, 14 March 2003.