Explanatory Memorandum to COM(2001)259 - Minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2001)259 - Minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking. |
|---|---|
| source | COM(2001)259  |
| date | 23-05-2001 |
Drugs affect the social, economic and organisational fabric of our society in countless ways, posing a direct or indirect threat to public and individual health and safety and undermining people's quality of life. They are a major source of concern for Europe's citizens.
Since 1990, the European Union has recognised the need for a comprehensive, multidisciplinary and integrated strategy for tackling drugs, based on four main elements: (i) reducing demand, (ii) reducing supply and combating illegal trafficking, (iii) international cooperation and (iv) coordination at national and EU level.
This Commission initiative to tackle illicit drug trafficking is thus part of a comprehensive anti-drugs strategy, based on an approach that balances measures to cut demand and supply and combat illicit trafficking.
The aim of the proposed instrument is to target illicit trafficking, the source of supplies of narcotic drugs and psychotropic substances in our societies.
Member States have a crucial responsibility for combating illicit drug trafficking. Illicit drug trafficking often involves several Member States, so action by the European Union can contribute real added value to national policies.
The Commission believes that close cooperation is needed between the various judicial, police and customs authorities in the Member States to tackle the problem of illicit drug trafficking. If it is to be effective, such cooperation must be based on a common set of principles and aims, so that illicit drug trafficking is recognised as a criminal offence and is the subject of effective, proportionate and dissuasive penalties in all Member States.
The need to adopt a common and clearly-defined approach to this problem should also be seen in the context of the future enlargement of the European Union.
Both the Vienna Action Plan on how best to implement the provisions of the Treaty of Amsterdam on an area of freedom, security and justice i and the Conclusions of the Tampere European Council refer to the need to adopt additional legislation at European level to counter illicit drug trafficking.
The European Parliament has also urged the Council and the Member States to introduce new legislation to combat illicit drug trafficking.
The European Union's anti-drugs strategy (2000-2004) calls for the gradual adoption of measures to introduce minimum rules on the constituent elements of criminal acts and the penalties applicable in the field of illicit drug trafficking. The European Union's Action Plan on Drugs (2000-2004) explicitly calls on the Commission to propose measures aimed at introducing minimum rules on the constituent elements of and penalties for trafficking in illegal drugs.
The Commission has decided to propose this framework decision in order to lay down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking. This legislative initiative also features in the Commission's Work Programme for 2001 i and its Scoreboard to review progress on the creation of an area of freedom, security and justice in the European Union i.
By way of preparation for this initiative, the Commission carried out a study of the definitions used and penalties applied in the field of illicit drug trafficking, based on the replies provided by Member States to a questionnaire sent out in July 2000. This study has now been published.
The aims of this framework decision cannot be achieved by the Member States, given the transnational dimension of the offence, and can therefore best be attained by the European Union, in accordance with the principles of subsidiarity and proportionality. This framework decision is confined to the minimum necessary to achieve these aims and does not go beyond what is required for this purpose.
Reference may be made to the Charter of Fundamental Rights of the European Union and in particular Chapter VI, which lays down the principles of the right to justice, given that the instrument proposed is entirely in keeping with the principles expounded.
Contents
- 1. LEGAL CONTEXT
- 2. EXISTING INSTRUMENTS IN THE FIGHT AGAINST ILLICIT DRUG TRAFFICKING
- 3. THE FRAMEWORK DECISION: COMMENTARY ON INDIVIDUAL ARTICLES
- Article 2 - Criminalisation of illicit drug trafficking
- Article 3 - Incitement, aiding and abetting and attempt
- Article 4 - Penalties
- Article 5 - Aggravating circumstances
- Article 6 - Mitigating circumstances
- Article 7 - Liability of legal persons
- Article 8 - Penalties for legal persons
- Article 9 - Jurisdiction and prosecution
- Article 10 - Cooperation between Member States
- Article 11 - Implementation and reports
- Article 12 - Entry into force
Article 29 of the Treaty on European Union seeks to provide citizens with a high level of safety within an 'area of freedom, security and justice'. This objective is to be achieved, among other things, by preventing and combating illicit drug trafficking.
Point (e) of Article 31 provides for the progressive adoption of measures establishing minimum rules relating to the constituent elements of criminal acts and to penalties in fields including illicit drug trafficking. A declaration on this Article i specifies that these provisions do not have the consequence of obliging a Member State whose legal system does not provide for minimum sentences to adopt them.
As regards the choice of legal instrument, the framework decision provided for in point (b) of Article 34 i serves to approximate the laws and regulations of the Member States. It is a means of enabling Member States to proceed further on certain aspects of criminal law and judicial cooperation.
The principle of formal cooperation between certain Member States, which was aimed among other things at combating illicit drug trafficking, was expounded for the first time in the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders. Chapter 6, Article 71 i, of this Convention i states that the Contracting Parties undertake 'to prevent and punish by administrative and penal measures the illegal export of narcotic drugs and psychotropic substances, including cannabis, as well as the sale, supply and handing over of such products and substances'. This framework of cooperation will of course continue to apply, particularly as it includes the prevention aspect and the adoption of administrative measures, two aspects which are not covered by the present framework decision.
This proposal represents a further development of the law enforcement side of the Schengen acquis. Because Article 71 of the Schengen Convention is covered by Annex A to the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway, the proposal for a framework decision must be dealt with under the procedures provided for in this Agreement. By Decision 2000/365/EC of 29 May 2000 i, the Council authorised the United Kingdom to take part in some of the provisions of the Schengen acquis, notably Article 71 of the Schengen Convention. Under Article 8 i of this Decision, the United Kingdom is deemed irrevocably to have notified the President of the Council under Article 5 of the Schengen Protocol that it wishes to take part in all proposals and initiatives which build upon the Schengen acquis and in which it has been authorised to participate.
On 17 December 1996, the Council adopted Joint Action 96/750/JHA based on Article K.3 of the Treaty on European Union concerning the approximation of the laws and practices of the Member States of the European Union to combat drug addiction and to prevent and combat illegal drug trafficking i. Article 1 of this Joint Action states that the Member States 'shall endeavour to approximate their laws to make them mutually compatible to the extent necessary to prevent and combat illegal drug trafficking in the Union'. Article 4, moreover, commits the Member States to ensuring that 'under their legal systems the penalties imposed for serious drug trafficking are among the most severe penalties available for crimes of comparable gravity'. This framework decision is entirely in keeping with the spirit of the Joint Action and represents an important step forward in the prevention of illicit drug trafficking. Taking as its basis the provisions of the Treaty on European Union, and in particular point (e) of Article 31 and Article 34(2)(b), this initiative makes it possible to establish minimum rules relating to the constituent elements of criminal acts and to penalties in fields including illicit drug trafficking. The Commission does not believe that the Joint Action will become obsolete when the framework decision is adopted, given that it covers numerous other aspects connected with developing cooperation between the police, the customs services and the judicial authorities with a view to combating illicit drug trafficking more effectively.
The Council adopted another important instrument in 1996: the Resolution of 20 December 1996 on sentencing for serious illicit drug trafficking i. This calls on the Member States to ensure that 'their national laws provide for the possibility of custodial sentences for serious illicit trafficking in drugs which are within the range of the most severe custodial penalties imposed by their respective criminal law for crimes of comparable gravity'. The framework decision being proposed here by the Commission is a legal instrument that goes well beyond the political significance of the Council Resolution. The Commission believes that when this framework decision is adopted the Council Resolution of 20 December 1996 will become obsolete.
In order to intensify the fight against money laundering linked to illicit drug trafficking, the Council adopted on 10 June 1991 a Directive on the prevention of the use of the financial system for the purpose of money laundering i. Work is currently in hand in order to extend and update this Directive. Moreover, a reinforcement of cooperation between Member States in this field is foreseen by the Joint Action of the Council of 3 December 1998 adopted on the bases of Article K.3 of the Treaty on European Union, on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds from crime i. This Joint Action covers in particular activities linked to illicit drug trafficking.
Article 1 - Definitions
The first Article contains definitions of the terms used for the purposes of the framework decision.
1. Paragraph 1 defines illicit drug trafficking as the act, without authorisation of selling and marketing as well as, for profit, of cultivating, producing, manufacturing, importing, exporting, distributing, offering, transporting or sending or, for the purpose of transferring and for profit, of receiving, acquiring and possessing narcotic drugs or psychotropic substances.
This definition embraces the key elements of part of the definition of trafficking used in the 1988 United Nations Convention against illicit traffic in narcotic drugs and psychotropic substances. It also takes into account the national provisions defining the offences connected with illicit drug trafficking analysed as part of the study carried out by the Commission, prior to proposing this framework decision, on the definitions, sanctions and practical implementation of the legislation on illicit drug trafficking in the Member States. This study shows that no national legislation includes a legal definition of illicit drug trafficking as a particular offense. Some acts are forbidden by national law. The main punishable offenses included in the national legislations are: the production, cultivation, extraction, fabrication, acquisition, possession, importation, exportation, transport, sale, offer to sell, and the illegal transfer of ownership of drugs. The study has also shown that there is a significant difference between the national legislation and their application in practice: in the majority of Member States, a drug addict who sells drugs is in principle considered in the law as much a drug trafficker as any other drug seller. However, in practice, in all the Member States, a drug addict is less severely punished if he made the sales to finance his own addiction.
The Commission underlines that it proposes a common definition which covers the acts that are classified as offences in all Member States. Essential criteria in this definition are the notions of acting 'for profit' and 'without authorisation'.
Furthermore, in line with the practice in all the Member States, the Commission proposes to exclude from the scope of the present framework decision (i) simple users who illegally produce, acquire and/or possess narcotics for personal use and (ii) users who sell narcotics without the intention of making a profit (for example, someone who passes on narcotics to their friends without making a profit).
This definition, by contrast, covers (i) dealers selling illegally for profit; these will be people involved in neighbourhood dealing or a small-scale network, (ii) local traffickers, who in principle will use local dealers or will sell to individuals who then deal on their own account, and (iii) international traffickers who are involved in trafficking or organise or control trafficking on an international scale, or who import and export large quantities of narcotics.
The definition used by the framework decision thus targets illicit drug trafficking and in particular transnational trafficking and actions undertaken for the purpose of transferring ownership for profit. The definition does not specify the medium of communication used (i.e. telephone, fax, Internet) and, as consequence, embraces illicit drug trafficking via information and communication technologies, and particularly the Internet. The importance of making the necessary provision for effectively fighting computer-related drugs crime was underlined in the Commission Communication entitled 'Creating a Safer Information Society by Improving the Security of Information Infrastructures and Combating Computer-related Crime' i.
2. Paragraph 2 defines drugs. This definition covers all the substances referred to by the United Nations Conventions of 1961 (as amended by the 1972 protocol), 1971 and 1988. It thus includes chemical precursors. The substances subject to controls under Joint Action 97/396/JHA of 16 June 1997 on the basis of Article K.3 of the Treaty on European Union concerning the information exchange, risk assessment and control of new synthetic drugs i or within the framework of national measures, are also covered.
3. Paragraph 3 defines natural persons. The wording is taken from several other instruments concluded at European Union level, such as the Council Act of 19 June 1997 drawing up the Second Protocol of the Convention on the protection of the European Communities' financial interests i, in particular Article 1(d).
Article 2 requires the Member States to make illicit drug trafficking , as defined in Article 1, a criminal offence.
Article 3 requires the Member States to take the necessary measures to make incitement to commit, aiding and abetting, or attempting to commit the offence referred to in Article 2 a criminal offence. The wording is taken from several earlier instruments adopted at European Union level.
1. Paragraph 1 requires the Member States to take the necessary measures to ensure that the offences defined in Articles 2 and 3 are punishable by effective, proportionate and dissuasive penalties i, including custodial sentences with a maximum term of imprisonment of no less than five years in serious cases.
[1989] ECR 2965.
By virtue of this paragraph, the Member States are required to lay down penalties commensurate with the gravity of the offence and consisting of custodial sentences for serious offences.
In keeping with the nature of all framework decisions, which are binding on the Member States as regards the result to be achieved, but leave the choice of form and means to their discretion, the Member States retain some degree of flexibility to adapt their legislation to these rules and to determine the severity of the penalties that apply, within the limits imposed by the framework decision.
The Commission would stress that it is for the Member States to decide the criteria for determining the gravity of an offence, on the basis of their respective legal systems. In assessing the gravity of the offence factors such as the scale of the trafficking, its frequency, the nature of the narcotics concerned and the amount of revenue derived from the trafficking are to be taken into account. Punishment need not always take the form of imprisonment. In the most serious cases only (for example involving large-scale transnational trafficking), the maximum sentence may not be less than five years. This will ensure that the court has the power to impose a sufficiently severe sentence in the case of serious offences. This level fits into the margins of custodial sentences foreseen by a large number of national legislations.
It is also worth noting that a minimum of at least four years is being proposed at European level for the maximum sentence for the offence of money-laundering. Given that laundering the proceeds of illicit drug trafficking is an offence which flows from the main offence of illicit drug trafficking, it would seem to be proportionate to envisage a minimum level for this instrument that is higher than that proposed for the offence of money-laundering.
2. Paragraph 2 requires the Member States to provide for the confiscation of the substances that were being trafficked, the instrumentalities and property used in trafficking and the proceeds and advantages directly or indirectly derived from this trafficking. The terms confiscation, property and proceeds are used here in the sense defined in Article 1 of the Council of Europe's 1990 Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime.
The Commission believes that the confiscation of the revenue derived from illicit drug trafficking could be complemented by national measures allowing all or some of this money to be used for measures to combat drug trafficking or for prevention and rehabilitation programmes for addicts and schemes to help their families. The European Parliament has supported this idea on several occasions, for example in its Resolution of 19 November 1999 on the Commission's Communication on a European Union Action Plan to combat drugs (2000-2004) i.
Paragraph 3 provides for the possibility for Member States to impose fines in addition to or as an alternative to custodial sentences, in line with their respective traditions and legal systems.
This Article provides for Member States to increase the penalties defined in Article 4 under certain circumstances. If one of the conditions listed is fulfilled, the maximum term of imprisonment may not be less than seven years.
The Commission would stress that the list of aggravating circumstances provided in this Article is without prejudice to any other circumstances regarded as aggravating in Member States' legislation. This list takes into account the aggravating circumstances described in the national provisions notified by the Member States in their replies to the questionnaire sent out by the Commission when preparing the proposal for this framework decision. This list also takes up the main elements of the Council Resolution of 20 December 1996 on sentencing for serious illicit drug trafficking i. In this Resolution, the Council held that 'factors which might be taken into account regarding the custodial penalties that might be applicable in relation to serious drug trafficking could for example include, among other factors: (i) the extent of the trafficking, (ii) the extent to which the person concerned has profited from the illicit traffic, (iii) the involvement in the offence of an organised criminal group to which the offender belongs, (iv) the extent to which the offender has control of the illicit drug-trafficking organisation, (v) the victimisation or use of minors'.
It is for the Member States to decide the criteria for determining the nature and gravity of the aggravating circumstances, on the basis of their respective legal systems. Only where the offences defined in Articles 2 and 3 are considered as serious and at least one of the aggravating circumstances referred to in this Article is present must the maximum term of imprisonment be no less than seven years. The Article thus sets a minimum term for the maximum sentence. The minimum level of the maximum sentence is raised by two years compared with the sentence provided for in Article 4 for serious offences, in order to ensure that the courts have the power to impose a sufficiently severe sentence in the case of serious offences with one or more aggravating circumstances. This two-year differential would appear to be proportionate. According to the Member States, the basic sentences are increased by a factor of anywhere between a third and double when there are aggravating circumstances.
The following should be considered as aggravating circumstances to be taken into account:
1. The person committing the offence referred to in Articles 2 or 3 has an important role in organising illicit drug trafficking, either by virtue of the power exercised directly or indirectly or because of the profit derived from the trafficking. The offender's membership of a criminal organisation will also be regarded as an aggravating circumstance. The term 'criminal organisation' is taken from Article 1 of the Joint Action of 21 December 1998 on making it a criminal offence to participate in a criminal organisation in the Member States of the European Union i.
2. The offence involves violence or the use of weapons. It is for the Member States to define these terms more precisely.
3. The offence led to minors or persons who are unable to exercise their free will. It is for the Member States to define the concept of a minor on the basis of their respective legal systems. Persons unable to exercise their free will include, for example, the mentally handicapped.
4. The offence took place in or near schools, youth clubs or leisure centres, or institutions for the treatment and rehabilitation of drug addicts.
5. The offender is a doctor, pharmacist, court official, police officer, customs officer, prison officer, probation officer, teacher, instructor or other employee in an educational establishment and committed the offence by abusing this position. Obviously the definition of illicit drug trafficking given in Article 1 of the framework decision applies specifically to unauthorised activity. The provisions do not apply to those acting with authorisation.
6. The offender has been convicted of one or more similar offences by a final judgment in a Member State of the European Union. This is the principle of recidivism, which takes account of any convictions obtained in other Member States.
This Article states that each Member State will take the necessary measures to ensure that the penalties provided for in Article 4 of the framework decision can be reduced if the condition set out below is fulfilled, without prejudice to any other mitigating circumstances provided for in the national legislation of the Member States.
The offender has supplied the competent authorities with valuable information for the enquiry or the collection of evidence about the identity of other offenders, or has helped to identify drug-dealing networks. The Commission would refer to the principle of cooperation as defined in Council Resolution of 20 December 1996 on individuals who cooperate with the judicial process in the fight against international organised crime i. It is for the competent authorities to define the criteria for determining what constitutes valuable information and to decide the amount by which the sentence will be reduced or even, depending on the circumstances, to waive the punishment altogether. Such provisions exist in most Member States.
It does not appear appropriate to include as an attenuating circumstance under Article 6 a parallel disposition to that foreseen in Article 5 in the form, this time, of a reduction in the level of the minimum of the maximum penalty.
It is also necessary to deal with situations in which legal persons are involved in the trafficking of narcotic drugs or psychotropic substances or chemical precursors. Article 7 therefore provides for the possibility of holding a legal person liable for the offences referred to in Articles 2 and 3 committed on its behalf by any person acting individually or as a member of an organ of the legal person in question. Such provisions exist in the legal systems of most Member States.
In addition, paragraph 2 states that a legal person may also be held liable if lack of supervision or control on the part of a person entitled to exercise such control made possible the commission of the offences for the benefit of the legal person in question. Paragraph 3 provides that legal proceedings against a legal person do not preclude parallel legal proceedings against the natural person who played a part in the commission of the offence for which the legal person is being held liable.
Article 8 places Member States under an obligation to impose penalties on legal persons. It requires the imposition of effective, proportionate and dissuasive sanctions, including fines. It also indicates the other types of penalty that may be imposed on legal persons.
The international nature of illicit drug trafficking means that an effective legal response requires procedural provisions on jurisdiction and extradition which should be clear and far-reaching at the European Union level, to ensure that offenders cannot escape prosecution.
Paragraph 1 sets out a series of criteria for conferring jurisdiction on national judicial authorities to prosecute and investigate cases involving the offences referred to in this framework decision. A Member State will establish its jurisdiction in three situations:
(a) where the offence is committed in whole or in part on its territory, irrespective of the status of the legal person or the nationality of the natural person involved (territoriality principle);
(b) where the offender is a national of that Member State (active personality principle). Member States that make no provision for extradition are responsible for prosecuting their own nationals who have committed offences abroad;
(c) where the offence is committed for the benefit of a legal person established in the territory of that Member State.
Given that not all Member States' legal traditions recognise extraterritorial jurisdiction for all types of criminal offence, the first subparagraph of paragraph 2 allows them not to apply the rules on jurisdiction set out in paragraph 1 as regards the situations covered by paragraph 1(b) and (c), provided that the offence was committed outside the territory of the Member State concerned.
The second subparagraph of paragraph 2 states that Member States are to inform the Council's General Secretariat and the Commission where they decide to apply this paragraph.
Paragraph 3 takes account of the fact that certain Member States do not extradite their own nationals and seeks to ensure that persons suspected of having trafficked in illicit drugs do not escape prosecution because extradition is refused on the grounds that they are nationals of one of these States to which an application for extradition has been made. A Member State which does not extradite its own nationals must, in accordance with paragraph 3, take the necessary measures to establish its jurisdiction over and, where appropriate, prosecute the offences concerned when committed by its own nationals outside its territory.
The purpose of Article 10 is to take advantage of the international instruments on judicial cooperation to which Member States are parties and which should apply to the matters covered in this framework decision. For instance, arrangements on mutual legal assistance and extradition are contained in a number of bilateral and multilateral agreements as well as conventions of the European Union. This Article also seeks to facilitate the exchange of information.
Paragraph 1 calls on the Member States to lend each other every possible assistance in matters of judicial and police procedure relating to illicit drug trafficking. Paragraph 2 states that if several Member States have jurisdiction, they will consult one another with a view to coordinating action and, where appropriate, to bringing effective prosecutions. The paragraph also points out that full use should be made of existing cooperation mechanisms, judicial or otherwise, such as Europol i, the exchange of liaison magistrates i, the European Judicial Network i and the Provisional Judicial Cooperation Unit i.
Article 11 concerns the implementation and follow-up of this framework decision. Paragraph 1 requires the Member States to take the necessary measures to comply with this framework decision not later than 30 June 2003. It also states that the Member States will immediately transmit to the General Secretariat of the Council and to the Commission the provisions transposing the obligations imposed on them under this framework decision into national law. The Commission will ensure coordination between, on the one hand, the follow-up and analysis of the impact of the mechanism proposed in this framework decision, and on the other the European Monitoring Centre for Drugs and Drug Addiction's Legal Information System, adopted by its Management Board in 1998. Paragraph 2 requires the Member States to submit a brief report on the implementation of this framework decision every five years and for the first time by 31 December 2006, to enable an overall evaluation to be made of the instrument and, if necessary, changes to be proposed. On the basis of the information referred to in paragraphs 1 and 2 of this Article, the Commission will report to the Council on the application by the Member States of the provisions of this framework decision every five years and for the first time by 30 June 2007.
Article 12 states that the framework decision will enter into force on the twentieth day following that of its publication in the Official Journal of the European Communities.