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CHAPTER I

INTRODUCTION

Background of the Study

"The War on Drugs" is an initiative which involves a set of drug policies which

were created and intended to discourage the distribution, production, and

consumption of psychoactive drugs that are regarded as illegal by the United

Nations.

Drug abuse has already increased globally. The World Drug Report of 2013,

which was issued by the United Nations Office on Drugs and Crime reported, "167

million to 315 million people between the ages of 15 and 64 have used illicit

substances during the past year, or about 3.6 to 6.9 percent of the global population.

This number had increased by 18 percent from the year before."

With regards to the Philippines, the latest United Nations World Drug Report

stated that it has the highest abuse rate for methamphetamine hydrochloride in East

Asia. It is made known that 2.1 percent of Filipinos aged 16 to 64 were using "shabu"

and "domestic consumption of methamphetamine and marijuana continued to be the

primary drug threats in the Philippines.

After careful observation and after a series of tests were conducted, based on

its results, the United Nations established that the global war on drugs has failed with

devastating and vast consequences for both societies and individuals around the

world. A considerable amount of expenditures on criminalization, penalties and

reinforcements and repressive measures were made and directed to consumers,

producers, and traffickers of illegal drugs. The said apparent victories in eliminating
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sources or trafficking organization were condemned and negated instantly by the

emergence and growth of new sources and other traffickers. Several repressive

efforts which directed to consumers hindered and impeded public health measures to

reduce HIV/AIDS, overdose fatalities and other harmful consequences of drug use.

The government expenditures on supply reduction strategies and incarceration

displaced more cost-effective and evidence-based investments in demand and harm

reduction instead of dispensing it for policies which can significantly benefit the public

like treatment and reintegration.

The global "War on Drugs" may have failed: however, there some are

countries who are winning their respective "War on Drugs" in their respective

jurisdictions. These countries promulgated sets of policies which significantly reduced

the emergence of drug-related offenses and consolidated their efforts in the

prevention and control of drug use through the protection and rehabilitation of drug

users and offenders instead of imposing harsh punishments for the consumption and

use of psychoactive substances.

Three countries were given priority in this study. These countries were

liberally inclined and they placed more weight on the condition of the drug users

rather than the imposition of penalties and harsh punishments. "Law 30/2000 of

Portugal", "The 1976 Opium Act of Netherlands" and "The Federal Act on Narcotics

and Psychotropic Substances of Switzerland" were the laws which were adhered in

the conduct of this study.

In Portugal, the growing number of deaths and cases of HIV were relatively

linked to drug abuse. Thus, the Portuguese government in 2001 tried a new tack to

get a handle on the problem—it decriminalized the use and possession of heroin,

cocaine, marijuana, LSD and other illicit street drugs. The theory behind is to focus
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on treatment and prevention instead of jailing users. This move eventually led to a

decrease in the number of deaths and infections.

Five years after its implementation, the number of deaths from street drug

overdoses dropped from around 400 to 290 annually, and the number of new HIV

cases caused by using dirty needles to inject heroin, cocaine and other illegal

substances plummeted from nearly 1,400 in 2000 to about 400 in 2006.

Under the Portuguese drug law, the penalties for people caught dealing with,

using and trafficking drugs remain unchanged. The drug dealers caught are still

made to suffer in jail and subjected to fines depending on the weight and intensity of

their crimes. On the other hand, people who are caught using or possessing small

amounts equivalent to 10 days of personal use were brought before an administrative

body called “The Dissuasion Commission”.

In the Netherlands, the main goal of the drug policy is to protect the health of

each individual user, the people around them, and society as a whole. The Dutch

Drug Policy also aims to restrict both the demand and supply of drugs without

neglecting other active policies on care and prevention in order to reduce the

demand for drugs and curb suppliers and traffickers.

According to the 1995 Report of the European Monitoring Centre for Drugs

and Drug Addiction in Lisbon, "there were 2.4 drug-related deaths per million

inhabitants in the Netherlands in 1995. However, the Dutch AIDS-prevention program

was equally successful. In Europe, an average of 32.9% of AIDS victims was

considered as intravenous drug users. In the Netherlands however, the percentage is

as low as 10.5%. This is proof that the number of drug addicts in the Netherlands is
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low and has remained constant and stable for many years due to the intervention of

their drug policy.”

In Switzerland, what is highly praised is the Four-Pillar Model and the

innovative policy which provides drug addicts with free methadone and clean syringe.

This act has dramatically reduced deaths while cutting the crime rates. According to

drug policy model experts, "some 70 percent of the 20,000-30,000 opiate or cocaine

users in Switzerland now receive treatment, one of the highest rates globally.”

It should be noted that despite these successful drug policies, the global drug

problem remains unsolved. Drug use is elevating, and the quality of the support

provided by governments and states are deteriorating and are without effect on the

present dilemma. While most people insist on a liberal approach, others cannot

accept it readily. After all, there are various considerations which must be put forth

before deciding on what policy to adopt for the benefit of the nation and the welfare of

the State.

Therefore, here comes the generalization that "there are signs of inertia in the

drug policy debate in some parts of the world, as policymakers understand that

current policies and strategies are failing but do not know what to do instead. This is

an abdication of policy responsibility. Every year we continue with the current

approach, billions of dollars are wasted on ineffective programs, millions of citizens

are sent to prison unnecessarily, and millions more suffer from the drug dependence

of loved ones who cannot access health and social care services, and hundreds of

thousands of people die from preventable overdoses and diseases contracted

through unsafe drug use. Other approaches that have been proven to tackle these

problems that countries can pursue now. Getting drug policy right is not a matter for

theoretical or intellectual debate – it is one of the key policy challenges of our time.”
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Objectives of the Study

This study was conducted to critically analyze the legislation of other

countries on the "War on Drugs" and its implication to R.A. No. 9165 or the

Comprehensive Dangerous Drugs Act of 2002.

Specifically, this study determined the following:

1. The salient provisions of the legislations of Portugal, Switzerland, and

Netherlands and their effects on the “War on Drugs” of these countries.

2. The Philippine legislation on its "War on Drugs" or R.A. No. 9165 or "The

Comprehensive Dangerous Drugs Act of 2002" and its effects.

3. The implication of the "War on Drugs" of other countries to R.A. No. 9165 or

"The Comprehensive Dangerous Drugs Act of 2002".

Theoretical Framework

R.A. No. 9165 or the Comprehensive Dangerous Drugs Act of 2002

"The Comprehensive Dangerous Drugs Act of 2002 or Republic Act No.

9165" is a consolidation of "Senate Bill No. 1858" and "House Bill No. 4433". It was

passed and enacted by the Senate of the Philippines and House of Representatives

of the Philippines on May 30, 2002, and May 29, 2002, respectively. This bill was

signed into law by President Gloria Macapagal-Arroyo on January 23, 2002. This Act

also repealed the Republic Act No. 6425, otherwise known as the "Dangerous Drugs

Act of 1972", as amended and providing funds for its implementation.

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This law was critically analyzed by the researcher to identify the crucial

provisions and sections which are essential in the conduct of this study. This is also

the primary legislation which helped the researcher gain valuable knowledge as to

the present implementation of the drug laws in the Philippines. Through this law, the

researcher was able to scrutinize and compare the said legislation and the legislation

of other countries for deriving results and conclusions.

"Law 30/2000" of Portugal

This law was made effective on July 2001. The purpose of the law was to

decriminalize possession of small amounts of several controlled substances for

personal use in Portugal. According to the Portuguese legislation, persons who are

16 years old or older in possession of personal use quantities may be required to pay

a fine or undergo treatment, but are not liable for imprisonment. Portuguese

legislation provides that "personal use quantities are defined as ten times the

average daily dose of the substance and possession of larger amounts is still

punishable by jail, as is the sale or manufacture of any amount of a controlled

substance."

This law was interpreted and analyzed by the researcher to further

understand its provisions and its application to the Portuguese setting. By studying

this legislation, the researcher was able to determine its effects, advantages,

disadvantages and its implementation which reduced the harmful effects of drug use

in Portugal. Its implication to R.A. No. 9165 or The Comprehensive Dangerous Drugs

Act of 2002 was also be established.

"Opium Act" of Netherlands

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According to the Opium Act Directive, "The Dutch drugs policy aims to

discourage and reduce drug use, certainly in so far as it causes damage to health

and to society, and to prevent and reduce the damage associated with drug use,

drug production and the drugs trade" (Stc 2011-11134).

The 1995 white paper "Drug policy: continuity and change" provided for the

principles of the Dutch Drugs Policy. In lieu of a balanced approach, it sets the

distinction between soft and hard drugs. The law outlined four major objectives and

these are; to prevent drug use as well as to treat and rehabilitate drug users; to

reduce the possible harm that may be inflicted to users; to diminish and abolish

public nuisance caused by drug users and sellers; and to combat the production and

trafficking of drugs.

This law was evaluated and considered by the researcher in the formulation

of results, conclusions, and recommendations. It was also analyzed in order to

determine its implication to R.A. No. 9165 or "The Comprehensive Dangerous Drugs

Act of 2002". This law enabled the researcher to distinguish drug-related cases in the

Netherlands and the effectivity of the law in reducing drug use and drug-related

crimes.

"The Federal Narcotics Act on Drugs" of Switzerland

The Federal Narcotics Act on Drugs of Switzerland was created and intended

to prevent the unauthorized consumption of narcotics and psychotropic substances,

in particular by encouraging abstinence. It was also created to regulate the

availability of narcotics and psychotropic substances for medical and scientific

purposes as well as protect persons against the negative health-related and social

consequences of mental and behavioural disorders associated with dependence.

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Through this law, the goal to protect public order, safety and security were

established and another aim to reduce the risks posed by psychotropic substances

and combat criminal acts or misdeeds closely connected with psychotropic

substances and narcotics was implemented.

This law was chosen by the researcher due to the fact that it is one of the

most successful drug laws which greatly influenced Switzerland and encouraged

other countries to adopt a liberal approach whenever it is suited to the circumstances

and conditions laid in their respective jurisdiction. The success of this policy urged

the researcher to use this law in the course of the study. The researcher also

analyzed the provisions of this legislation and came up with concrete conclusions as

to identify its implication to R.A. No. 9165 or "The Comprehensive Dangerous Drugs

Act of 2002".

Definition of Terms

There were terms that were distinctive in RA 9165 and technically defined.

These are the following:

Administer – This refers to any act of introducing any dangerous drug into

the body of any person, with or without his/her knowledge, by injection, inhalation,

ingestion or other means, or of committing any act of indispensable assistance to a

person in administering a dangerous drug to himself/herself unless administered by a

duly licensed practitioner for purposes of medication.

Chemical Diversion – This suggests the sale, distribution, supply or

transport of legitimately imported, in-transit, manufactured or procured controlled

precursors and essential chemicals, in diluted, mixtures or in concentrated form, to

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any person or entity engaged in the manufacture of any dangerous drug, and shall

include packaging, repackaging, labeling, relabeling or concealment of such

transaction through fraud, destruction of documents, fraudulent use of permits,

misdeclaration, use of front companies or mail fraud.

Clandestine Laboratory – This is defined as any facility used for the illegal

manufacture of any dangerous drug and/or controlled precursor and essential

chemical.

Dangerous Drugs – These are those substances included and listed in the

Schedules annexed to the 1961 Single Convention on Narcotic Drugs, as amended

by the 1972 Protocol, and in the Schedules annexed to the 1971 Single Convention

on Psychotropic Substances as enumerated in the attached annex which is an

integral part of this Act.

Deliver – This is defined as any act of knowingly passing a dangerous drug to

another, personally or otherwise, and by any means, with or without consideration.

Den, Dive or Resort – It refers to a place where any dangerous drug and/or

controlled precursor and essential chemical is administered, delivered, stored for

illegal purposes, distributed, sold or used in any form.

Dispense – It constitutes any act of giving away, selling or distributing

medicine or any dangerous drug with or without the use of prescription.

Drug Syndicate – This means any organized group of two (2) or more

persons forming or joining together with the intention of committing any offense

prescribed under this Act.

Illegal Trafficking – This refers to the illegal cultivation, culture, delivery,

administration, dispensation, manufacture, sale, trading, transportation, distribution,

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importation, exportation and possession of any dangerous drug and/or controlled

precursor and essential chemical.

Manufacture – This is defined as the production, preparation, compounding

or processing of any dangerous drug and/or controlled precursor and essential

chemical, either directly or indirectly or by extraction from substances of natural

origin, or independently by means of chemical synthesis or by a combination of

extraction and chemical synthesis, and shall include any packaging or repackaging of

such substances, design or configuration of its form, or labeling or relabeling of its

container; except that such terms do not include the preparation, compounding,

packaging or labeling of a drug or other substances by a duly authorized practitioner

as an incident to his/her administration or dispensation of such drug or substance in

the course of his/her professional practice including research, teaching and chemical

analysis of dangerous drugs or such substances that are not intended for sale or for

any other purpose.

Cannabis or commonly known as "Marijuana" or "Indian Hemp" or by its

any other name – Embraces every kind, class, genus, or specie of the

plant Cannabis sativa L. including, but not limited to, Cannabis americana, hashish,

bhang, guaza, churrus and ganjab, and embraces every kind, class and character of

marijuana, whether dried or fresh and flowering, flowering or fruiting tops, or any part

or portion of the plant and seeds thereof, and all its geographic varieties, whether as

a reefer, resin, extract, tincture or in any form whatsoever.

Methylenedioxymethamphetamine (MDMA) or commonly known as

"Ecstasy", or by its any other name – Refers to the drug having such chemical

composition, including any of its isomers or derivatives in any form.

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Methamphetamine Hydrochloride or commonly known as "Shabu",

"Ice", "Meth", or by its any other name – Refers to the drug having such chemical

composition, including any of its isomers or derivatives in any form.

Opium– Refers to the coagulated juice of the opium poppy (Papaver

somniferum L.) and embraces every kind, class and character of opium, whether

crude or prepared; the ashes or refuse of the same; narcotic preparations thereof or

therefrom; morphine or any alkaloid of opium; preparations in which opium, morphine

or any alkaloid of opium enters as an ingredient; opium poppy; opium poppy straw;

and leaves or wrappings of opium leaves, whether prepared for use or not.

Opium Poppy – Refers to any part of the plant of the species Papaver

somniferum L., Papaver setigerum DC, Papaver orientale, Papaver

bracteatum and Papaver rhoeas, which includes the seeds, straws, branches, leaves

or any part thereof, or substances derived therefrom, even for floral, decorative and

culinary purposes.

Sell – This connotes any act of giving away any dangerous drug and/or

controlled precursor and essential chemical whether for money or any other

consideration.

Trading – This involves any transactions involving the illegal trafficking of

dangerous drugs and/or controlled precursors and essential chemicals using

electronic devices such as, but not limited to, text messages, email, mobile or

landlines, two-way radios, internet, instant messengers and chat rooms or acting as a

broker in any of such transactions whether for money or any other consideration in

violation of this Act.

Use – This refers to any act of injecting, intravenously or intramuscularly, of

consuming, either by chewing, smoking, sniffing, eating, swallowing, drinking or

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otherwise introducing into the physiological system of the body, and of the dangerous

drugs.

The Significance of the Study

The increasing number of illegal drug use is an adversity that people and

states are facing. This problem is not merely an issue of one state alone but also of

the whole global community due to the grave and tremendous consequences that it

carries. The world is indeed at war, the Philippines is at war and if we are on the

verge of losing this war we should at least try to understand and analyze policies

which are effective in eradicating the consequences and harmful effects of illegal

drugs without unnecessary sacrifices and without the undue deprivation of the rights

mandated in the constitution. Thus, this study may help in analyzing the legislation of

other countries on their respective "War on Drugs".

The results of this study may benefit the following:

Legislators. This study may serve as a guide in the implementation of laws

and legislation for the deterrence and reduction of illegal drug use and offenses while

protecting the interest of the citizens.

President. This study may be beneficial as a contributor to his realm of

knowledge as to the policies and effective legislation of other countries which are

effective on the War against Drugs.

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Citizens. This study may promote awareness as to the policies adopted by

other countries in the drug war and its effectiveness in answering the problems

caused by illegal drug use while promoting ways to protect its citizens.

Drug Offenders. This study may serve as an instrument in understanding the

consequences of illegal drug use. It may also inculcate the accepted legislations of

other countries on how drug offenders are treated.

Families of Drug Offenders. This study may serve as an instrument in

promoting awareness and knowledge as to the specific acts and omissions which led

to the conviction of their respective relatives and inform them of the consequences of

illegal drug use in the Philippines as well as educate them with the drug laws of other

countries.

Future Researchers. This study may be used as a reference for future

research concerning the "War on Drugs" as well as the legislation of other countries

and the Philippines.

Scope and Delimitation of the Study

This critical analysis study was conducted to analyze the legislation of other

countries in their respective wars against drugs and its implication to R.A. No. 9165

or "The Comprehensive Drugs Act of 2002". The laws and drug policies of Portugal,

Switzerland, and the Netherlands were analyzed and examined. The effectiveness of

these laws was taken into consideration. In lieu of this, the Philippine drug law was

also examined. This study also considered the applicability and imposition of foreign

drug laws in the Philippines.

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The researcher took advantage of the information provided for by this

technologically inclined society to gather the legislation or drug laws of Portugal,

Switzerland, and Netherlands. Reliable sources from the internet as concurred by

and proven by recent articles, journals, and case studies were also used in this

study. The researcher was able to analyze the specific provisions or amendments of

these laws which led to a successful and effective drug policy by using the

summative approach. Such provisions were further analyzed to determine whether its

implementation is possible in the Philippine setting.

This study focused only on analyzing the legislation of other countries on the

"War on Drugs" and its implication to the Philippine legislation or “The

Comprehensive Dangerous Drugs Act of 2002".

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CHAPTER II

REVIEW OF RELATED LITERATURE

The Philippines, like many other countries, is currently at war. This is the "War

on Drugs". From the past years, the Philippines has created and promulgated a set

of drug laws and policies to prevent and stop the rapid and drastic effects of drug use

and consumption. R.A. No. 9165 or "The Comprehensive Dangerous Drugs Act of

2002" is the product of careful examination and observation of the spread of

psychotropic substances and drug trend in the Philippines. However, despite the

efforts and amendments to solve the increasing drug problem through this legislation,

there is no indication that it resulted in the eradication of illegal drug use in the

country.

Hence, in lieu of this, the implication of the legislation of countries with

effective drug policies to R.A. No. 9165 or "The Comprehensive Dangerous Drugs

Act of 2002" were determined. In aid of this objective, a summary of the related

literature and studies were hereby indicated to fulfil the gap which warranted the

establishment of facts and ideas in deriving results and generalizations for this study.

R.A. No. 9165 or "The Comprehensive Dangerous Drugs Act of 2002"

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"The Comprehensive Dangerous Drugs Act of 2002" or R.A. No. 9165 is a

consolidation of Senate Bill No. 1858 and House Bill No. 4433. This law was passed

and enacted by Congress on May 30, 2002, and May 29, 2002, respectively and was

signed into law on January 23, 2002.

This Act repealed Republic Act No. 6425 or "The Dangerous Drugs Act of

1972", as amended. As provided under this Act, the Dangerous Drugs Board serves

as the body in charge of policy making and strategy- planning including the

formulation and implementation of programs and policies related to drug control,

supervision and prevention.

The creation of the "Philippine Drug Enforcement Agency" is also attributed to

"The Comprehensive Drugs Act of 2002". This agency serves as the implementing

organ of the DDB and is deemed responsible for the effective and efficient law

enforcement of all the provisions connected to any psychotropic substances or any

other controlled chemicals or precursors as mandated under the law.

"Law 30/2000" of Portugal

Law 30/2000 is the leading drug legislation of today. Based on its provisions,

it disallowed the use or possession of drugs without due authorization. However, the

offense was changed from a criminal offense to an administrative offense. The

administrative procedure is also used while dealing with drug-related crimes and

offenses. The drugs are seized from persons who possess more than ten daily doses

of psychotropic substances or drugs. "The Commission for the Dissuasion of Drug

Abuse" carries jurisdiction over these drug cases and will rule on the case after due

process and hearing. After rendering its decision, it will then evaluate the
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circumstances and recommend treatment and rehabilitation whenever the situation

calls for such action.

After the transmission of the case to the Commission, there are several

options presented and available. These options include warnings, bans from

specified places, bans from meeting specified and certain people, and removal of any

form or kind of license or firearms license. Drug involvement may also be sanctioned

with a fine but prosecution in court is only guaranteed to users who are found to be in

possession of more than ten daily doses of the prohibited substances.

"The Revised Opium Act of 1976" of Netherlands

The revised Opium Act of 1976 is considered as a compromise between

social integration and outright prohibition of illegal drugs. The most laudable

expression of what is known as the normalizing approach is the decriminalized status

of cannabis. The general trend of the 1976 penal law revision includes the following:

"a reduction of all penalties regarding soft drugs; a reduction of penalties for

possession for own use by maximally 4 years under the old Opium Act of 1928

compared to 1 year under the present Opium Act; a differentiation of maximum

penalties for different aspects of drugs trafficking; an increase of maximum penalties

for trafficking hard drugs, from 4 years to 12 years.”

"The Federal Act on Narcotic Drugs" of Switzerland

"The Federal Act on Narcotic Drugs which was implemented on 3 October

1951 of Switzerland constitutes the primary and fundamental mandates and

provisions governing drugs, narcotics, and psychotropic control. This control is

considered as the responsibility of the central authorities and the cantons.

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In principle and in lieu with the law, "all undertakings and persons wishing to

manufacture, prepare or trade in narcotic drugs must be licensed for this purpose by

the competent cantonal authority, whereas any medical practitioner, dentist,

veterinarian or responsible manager of a public pharmacy or hospital who is

practicing under his own responsibility in virtue of a decision given by the cantonal

authority may, without license, obtain, possess, use and dispense narcotic drugs

subject to the limits implicit in the rules governing the practice of his profession.

Medical practitioners and veterinarians are alone permitted to use, dispense and

prescribe narcotic drugs; dentists may only use and dispense such drugs.”

Background and Development of "Law 30/2000" of Portugal

Since the 1990s, the drug situation in Portugal remained problematic. The

"Commission for the National Strategy to Fight against Drugs" was created to

mandate and to produce reports in consideration of the fight against drugs and drug

addiction. This involves the topics of treatment, prevention, risk reduction and social

reintegration control (Dias, 2007).

The Commission is made up and composed of nine members, this includes

five experts, a representative from the minister, 2 from Health Ministries, and an

internationally recognized researcher, considered the Chairman of the Commission.

The Commission is responsible for the delivery of the report and suggested the

theory of decriminalizing drug use.

After the submission of the report, it was approved by the council. This policy

remains as the foundation and core of Portugal's drug policy. One example of the

values specified in the policy is ‘Humanism', which is "the recognition of the

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inalienable human dignity of citizens, including drug users, and translates into a

commitment to offer a wide range of services to those in need and to adopt a legal

framework that causes no harm to them". ‘Pragmatism' “encourages the adoption of

interventions and solutions based on scientific findings and knowledge", while

‘Participation' "calls for the involvement of the community in drug policy definition and

implementation.”

The strategy provides 13 options. These strategies are, " reinforce

cooperation among states; decriminalize (but still prohibit) drug use; focus on primary

prevention; assure access to treatment; extend harm reduction interventions; develop

treatment and harm reduction in prisons; develop treatment as an alternative to

prison; increase research and training; reinforce the fight against drug trafficking and

money laundering; and double public investment in the drugs field.”

In 2001, thirty objectives were created and related to the improvement and

increase of drug interventions. In order to reduce and decrease drug usage, drug-

related harms and risk behaviours were promulgated.

One of the most important propositions of the current drug strategy was the

decriminalization of drug use which was approved by the Parliament and which was

implemented and promulgated with "Law 30/2000”.

Background and Development of the Opium Act of Netherlands

The drug legislation of Netherlands is focused on "The Opium Act", which

was approved in 1928 and amended in 1976. The act defines "drug trafficking,

cultivation and production and dealing in and possession of drugs as criminal acts.

The Act and its amendments confirm the distinction between List I drugs (e.g.,
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heroin, cocaine, MDMA/ecstasy, amphetamines) and List II drugs (e.g., cannabis,

hallucinogenic mushrooms).”

In legal terms, drug use is not regarded and considered as an offense or

crime. The authorities are then tasked to regulate these conducts. As mandated in

the provisions of the law, "the possession of small quantities of drugs for personal

use is not subject to targeted investigation by the police. Anyone found in possession

of less than 0.5 g of List I drugs will generally not be prosecuted, though the police

will confiscate the drugs and refer the individual to a care agency. The threshold

amount for cannabis is set at 5 g. However, in 2012, the Opium Act Directive was

revised so that, instead of saying ‘a police dismissal should follow if a cannabis user

is caught with less than 5 grams of cannabis', it now states that ‘in principle a police

dismissal will follow if a person is carrying less than 5 grams of cannabis.”

The act of selling and trafficking drugs warrant conviction and is highly

prohibited. In 2004, a special law was introduced for in order to treat offenders. The

measure involves a combination and mixture of behavioural treatment and

imprisonment.

The Opium Act sets out that "supplying drugs (possession, cultivation or

manufacture, import or export) is punishable, depending on the quantity and type of

drug involved, by up to 12 years' imprisonment. However, the Opium Act Directive

sets out strict conditions under which cannabis sales and consumption outlets,

known as ‘coffee shops', may be tolerated by local authorities. In 2014, there were

591 coffee shops in the Netherlands.”

Drug law offense data are used to inform the implementation and policies

promulgated in consideration of the current drug law. It is a measure to ensure law

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enforcement and may aid in the creation of strategies that can help improve the drug

affairs and trend of a nation.

Background and Development of "The Federal Narcotic Act on Drugs" of

Switzerland

The drug situation in Switzerland is not that different from other European

countries before. Switzerland had a very high rate of consumption before when it

comes to psychoactive substances. After some time, the rate of heroin- dependents,

and consumers increased in a great range.

The spread of the AIDS AND HIV virus became the main reason why there is

a change in the Swiss drug policy. Syringes were then distributed and drug-based

treatments were made. The possibility of an open drug consumption and usage

however attracted drug users and is considered a grave mistake during that period.

But seeing that the way to treat the increasing drug problem is not as easy as it

seems, the people opted for a more pragmatic approach and it led to the emergence

of the four- pillar model.

According to lawmakers, "the fourfold model is the strategy for implementing

the consensus on the objectives of the national drug policy. The aims and objectives

are: To reduce the number of new consumers; to increase the number of individuals

who succeed in giving up drugs; to reduce damage to the health of drug addicts and

their marginalization in society; to protect society from the effects of the drug problem

and combat organized crime,”

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One of the areas is "Prevention". It is implemented in the general settings of

Switzerland and people live and aim to strengthen and improve the confidence of

both adolescents and adults. It also seeks to prevent users from becoming drug

addicts or drug dependents.

The goals of the "Therapy" pillar are to assist users to solve their drug-

dependence, improve their mental well-being, and ensure treatment and social

rehabilitation and reintegration. A wide range of treatments allowed the emergence of

new approaches for persons seeking help. This pillar allowed opiate addicts to

receive methadone therapy and heroin-assisted treatment.

The aim of "Harm-reduction" is not in lieu of abstinence. Rather, legislators

created it to, "enable individuals to survive the phase of drug use with as little harm

as possible. It aims to prevent further deterioration in the addicts' state of health and

to stabilize their social integration. This has proven to be beneficial not only for the

addicts but also for the rest of society. The prescription of methadone can also be

part of harm reduction measures. This "pillar" for example, reduces the spread and

transmission of infectious. Through this, drug- users are also given the opportunity to

live drug- free lives in the future.”

The immediate aims of "Law enforcement" are to reduce supply and stop

illegal trafficking and sale of drugs. It is also created to combat crimes and

emphasize law enforcement activities.

Current "War on Drugs" in the Philippines

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In 2012, the United Nations World Drug Report identified "the Philippines as

having the highest abuse rate for shabu in the East part of Asia, and tagging Chinese

crime groups and traffickers as its primary source. Newly-elected President of the

Philippines Rodrigo Duterte has clearly made the case for a renewed crackdown on

drugs, with the current Administration and its instrumentalities, especially the police,

going all out to accomplish the job.”

As recent news reports show, this "all-out war on drugs" has unconditional

trade-offs: "hit lists" are being drafted and vetted by questionable sources; right to

due process, which is a supposed non-negotiable in any lawful execution of crime

prevention programs, are deliberately set aside or ignored; and killing a human being

suspected of involvement by government-sanctioned operatives became excusable

and pardonable by the Chief Executive in the name of this war.

However, aside from extrajudicial killings, it can be said that there are

obviously a number of alternative solutions that can be employed by the government.

At this point, human rights organizations emphasized that killing a drug pusher or

drug user should not be the end goal for it does not solve the problem and sowing

fear and horror among the people is also not a sustainable deterrent.

The problem can be solved together as a nation if the premise is to solve the

problem while keeping true to the foundations that hold the nation together: human

rights, rule of law, and open participation of all.

 24

CHAPTER III

METHODOLOGY

Research Design

This study critically analyzed the legislation of Portugal, Netherlands and

Switzerland on the "War on Drugs" and its implication to R.A. No. 9165 or "The

Comprehensive Dangerous Drugs Act of 2002".

This study is a qualitative study. "Qualitative research is an inquiry process of

understanding based on distinct methodological traditions of inquiry that explore a

social or human problem. The researcher builds a complex, holistic picture, analyzes

words, reports detailed views of informants, and conducts the study in a natural

setting."

The qualitative method of research design was chosen due to the fact that

this study consists of interpretations and analysis of existing legislation and its

possible implementation in the Philippines. The laws are analyzed through inductive

reasoning and such analysis became the backbone and basis for the researcher to

draw conclusions and results. Expanding the researcher's analysis through theories
 25

in consonance with the purpose and objective of this study is also one of the reasons

why a qualitative method is deemed applicable.

The researcher utilized Critical Analysis in the development of means to

derive conclusions and evaluate the structure of the laws of Portugal, Switzerland,

and the Netherlands. "The Comprehensive Dangerous Drugs Act of 2002" was also

examined and evaluated to accomplish the purpose of the study and gain insights as

to possible recommendations and application of foreign policies. The use of logical

ways to identify the strengths and weaknesses of the laws as well as its vague

provisions was also essential in the formation of the researcher's analysis and

proposed amendments.

Critical Analysis is known and defined as a cynical and analytical exploration

into matters closely related to arts, the academic or scientific exploration which is

aimed to recognize, exact out and discern examinations and determinism by

asserting facts and inquiring into the available data at hand.

Critical analysis as a qualitative research method was used in this study to

primarily and critically analyze the various legislations and policies of Portugal,

Switzerland, and the Netherlands as well as its implication to RA No. 9165 or "The

Comprehensive Dangerous Drugs Act of 2002".

Instrumentation

The data used were the legislation of the Philippines, Portugal, Netherlands,

and Switzerland. In this study, the researcher utilized four laws on the "War on

Drugs". These laws are Republic Act No. 9165 or "The Comprehensive Dangerous

Drugs Act of 2002" of the Philippines, "Law 30/2000" of Portugal, the "1976 Opium
 26

Act" of Netherlands and the "Federal Act on Narcotics and Psychotropic Substances"

of Switzerland.

Case studies and facts procured from articles, books, web sources, journals

and recent studies were used to understand the effects of the legislation of other

countries and support the argument and conclusions drawn by the researcher. These

were also used to further evaluate the analysis and strengthen the outcome and the

results derived by the researcher after careful understanding of the laws and its

provisions. Such are also utilized further in order to determine the positive and

negative effects of the legislation of Portugal, Netherlands, Switzerland, and the

Philippines. They were also used to identify the effectivity of the legislation of these

countries in reducing drug-related crimes and served as guides in the development of

the researcher's ideas in drawing valid results.

Data Gathering Procedure

The researcher was able to critically analyze "Law 30/ 2000" of Portugal,

"The Federal Act on Narcotics and Psychotropic Substances" of Switzerland and the

"1976 Opium Act of Netherlands". The researcher then compiled and studied these

laws together with R.A. No. 9165 or "The Comprehensive Dangerous Drugs Act of

2002".

In order to procure copies of these legislations, the researcher used reliable

sources from the internet which stated the full mandates of these laws. In order to

gain assurance as to the validity of these laws and the correctness of their English

translations, the researcher also utilized the availability and convenience provided by

online communications by tapping the European Monitoring Centre for Drugs and

Drug Addiction (EMCDDA). Secondary sources were further studied to establish the
 27

effects of the laws of these countries in connection with the reduction of drug-related

offenses.

In order to gather qualitative data for the study, the researcher employed

critical analysis while examining the legislation of other countries. The researcher

then utilized critical reading and critical writing. After both processes, the researcher

provided information as to the structure of the law, its purpose, the general

stakeholders, its summary and the means to accomplish its purpose. The researcher

then interpreted the laws of Portugal, Switzerland, Netherlands and the Philippines

and discussed its meaning and rationale. Evaluation of the provisions of these laws

followed including the drawing of conclusions as to whether these laws can be

applied in the Philippines as well as its implications to RA No. 9165 or "The

Comprehensive Dangerous Drugs Act of 2002".

Data Analysis Plan

The researcher employed the purposive sampling technique. The researcher

selected the legislation of three countries mainly Portugal, Netherlands, and

Switzerland as the subject of this study. These legislations were critically analyzed to

establish results and conclusions. The provisions of these legislations were

scrutinized to achieve the objectives of the study as well as identify the provisions

which manifestly reduced the rate of drug-related offenses and the harmful effects of

drug use in these countries. These provisions were examined to determine its

relationship with the recent successes and benefits provided by these drug laws.

Consequently, after careful analysis, its implication to the Philippine legislation or

R.A. No. 9165 or "The Comprehensive Dangerous Drugs Act of 2002" was eventually

determined.
 28

Particularly, as previously mentioned, "Law 30/2000", the "1976 Opium Act"

and the "Federal Act on Narcotics and Psychotropic Substances" were critically

analyzed by the researcher. Its effects and provisions which led to the reduction of

drug-related crimes in the respective states were studied as well as the strengths and

weaknesses of its provisions which were evaluated in order to derive conclusions.

R.A. No. 9165 or "The Comprehensive Dangerous Drugs Act of 2002" was

also critically analyzed by the researcher to determine the strengths of its provisions

and relate it with the present Drug War that the country is facing. The implication of

the legislation of other countries to this law was also given due consideration.
 29

CHAPTER 4

RESULTS AND DISCUSSION

I. The Salient Provisions of the Legislations of Portugal, Switzerland,

and Netherlands and Their Effects on the “War on Drugs” of These

Countries.

"Law 30/ 2000" of Portugal

Portugal enacted "Law 30/ 2000" which is considered as one of the most

extensive drug reform law in the world upon its declaration and mandate to

decriminalize low-level use and possession of illicit drugs. The Portuguese drug

experience is not only a success, it is a demonstration that drug decriminalization

together with a profound investment in harm reduction, supervision, and treatment

services can greatly improve public health and safety.

The drug decriminalization of Portugal resulted in the decrease of drug use,

reduction of problematic and adolescent drug use, fewer people are arrested and

incarcerated for drugs, reduced drug-induced deaths, and reduced social costs of

drug misuse decreased by 18 percent.

 30

Professors Caitlin Hughes and Alex Stevens wrote in the British Journal of

Criminology in 2010 that, "contrary to prediction, the Portuguese decriminalization did

not lead to significant increases in the drug use. Indeed, evidence indicates

reductions in problematic use, drug-related harms, and criminal justice overcrowding.

Therefore, to further determine the backbone of the policy which showcased a

remarkable outcome, the provisions of the "Law of 30/ 2000" of Portugal is now noted

and discussed as follows:

Article 1, clearly defines the legal framework which applies to the

consumption of narcotics and psychotropic substances, as well as the social and

medical welfare of the consumers of materials without medical prescription. This

provision narrates the primary aim of the law and signifies the purpose for which it is

created and implemented.

Article 2, mainly deals with consumption. This article provides for the

decriminalization of the acquisition and possession of drugs, provided that the

quantity shall not exceed the amount required for an average person to use and

possess for 10 days. Instead of criminal sanctions, violations under this article

constitute and were regarded as administrative offenses.

Article 3, Article 12, and Article 14 deals with treatment and intervention

measures provided for by the government in cases of addiction and drug

dependency. These measures involve spontaneous treatment, submission to

treatment, and suspension of penalties applied in the event of voluntary treatment.

Spontaneous treatment applies when the minor or his legal representative requests

the assistance of public or private health services. It also involves the duty of the
 31

doctor or any other health officer to notify the state in case of abuses of narcotics or

psychotropic substances encountered in the cause of his professional duties.

Submission to treatment involves the process undertaken when the addicted

consumer agrees to undergo treatment and the responsibility of the health sectors to

finance and bear the respective costs of treatment. Among these provisions is the

power of the Commission to suspend proceedings and suspend the penalties during

the period of the treatment.

Article 5, Article 6, Article 9, and Article 10, emphasize the role of the

Commission in the drug policy and its coordination with the other bodies. The

provisions provide for the power of the Commission to apply, process and enforce

fines and penalties as well as to regulate the conduct and coordination with other

bodies. It can be noted that the participation of other public and private health

institutions are mandated in order to secure their assistance and services. It is also

upon the Commission to determine the nature and circumstances of consumption. It

is responsible for the gathering of information needed in order to arrive at a judgment

of whether the individual is an addict or not, the substances used, the circumstances

of the consumption, the place where the drug was used and the economic situation.

Article 15, Article16, Article 17, and Article 18, of "Law 30/2000" provides

for the penalties, the fines, other penalties, and warnings. Upon weighing the

circumstances involved and related to each case, the Commission may sentence the

non- addicted consumers to a fine or a non-pecuniary penalty.

The commission may also issue a warning or apply alternative measure

instead of a fine such as: banning from the exercise of a profession or occupation,

banning from certain places, prohibition from accompanying housing, prohibition from

traveling abroad without permission, disenfranchisement, seizure of objects, or even

 32

a financial donation to a public or private charitable organization or provide

community service free of charge.

"The Opium Law" of Netherlands

The "Opium Law" of Netherlands is understood as a partial decriminalization

of the use and small-scale trade of illegal drugs. The decriminalization of cannabis

primarily aims to separate soft drugs from hard drugs. It is also a manifestation of the

intention of the policy to confront the objective negative effects of psychoactive

substances, instead of their social or moral symbolism.

"The Opium Act", as scholars consider it, is a compromise between the

outright prohibition and social integration of illegal drugs. The law includes two

schedules, and properties are reflected in each schedule. Schedule 1 classifies

"drugs presenting unacceptable risks" such as opiates, cocaine, amphetamines, etc.

Schedule 2 deals with cannabis only without any qualification of non-acceptability.

The penalties are also lower for offenses committed in consideration of Schedule 2

than in schedule 1.

The Dutch Drug Policy is therefore pragmatic and devices to eradicate the

threat of drug use and harm by using an approach which will not force or threaten an

innocent society. It embraced the idea of the existence of hard and soft drugs and

created a policy which resulted from evaluation and normalization which aims to

exterminate drug which is untenable and prioritize public health.

Hence, the following are the provisions in the Opium Law which deserve

emphasis and highlight.

 33

Article 2, Article 3, Article 3b, and Article 4, are the provisions which

provide for the offenses which may be committed in violation of the Opium Act.

These illegal acts include the preparation, sale, supply, transport, possession, and

manufacturing of drugs classified in List 1 which are considered as hard drugs. Other

offenses involve; publication to promote the sale and supply of hard drugs, the

issuance of a prescription to use drugs as referred to in List 1 or List 2 unless in the

interest of interest of public health or by order of the council, presentation of a fake or

forged prescription and the presentation of a prescription in which a different name or

address is stated.

Article 6, Article 7, Article 8, Article 8a, Article 8b, Article 8c, Article 8d,

Article 8e, Article 8f, and Article 8g, are provisions which deal with the exemptions

issued by the Minister of Health, conditions for its acquisition, application, grant,

extension, denial revocation and when an exemption is deemed to ceased. The

exemption mandated herein refers to the power of the minister to allow exemptions

as to the preparation, sale, supply, transport, and possession of drugs as well as the

general conditions laid down in the issuance of prescriptions. It is also upon the

Minister of Health to extend, supplement, modify or revoke an exemption provided

that the requisite conditions are present. These conditions are also with consideration

to the profession of some individuals in the field of health operations and in

consideration to the interest of the public. The revocation of exemption is only

prevalent at the request of the holder of the exemption, when public health requires,

when the purpose of the exemption can no longer be realized or when the fee has

not been paid. The exemption would also cease to take effect if the holder dies if the

applicant is placed under guardianship pursuant to a judicial decision, and if the legal

person to which the exemption was granted id dissolved.

 34

Article10, Article 10a, Article 11, and Article 13, provides for the penalties

and offenses stated in "The Opium Act". They are divided into minor offenses and

crimes. Minor offenses are punishable by imprisonment of 6 months or a fine, while

crimes are penalized with imprisonment of at most 2 years or a fine. Crimes are

offenses which include any publication which is clearly intended to promote the sale,

supply or provision of drugs. Other offenses are considered minor crimes provided

that a distinction should be made between soft and hard drugs. In conclusion, the

Dutch Drug Policy is an embodiment of what is phrased as follows "The basic aim

has not been to combat drug use itself or to prosecute person because they are drug

users, but to reduce these risks.”

"The Federal Act on Narcotics and Psychotropic Substances" of Switzerland

The Federal Act on Narcotics and Psychotropic Substances of Switzerland is

considered as one of the most prominent and successful drug policies of today.

Experts claim that the idea behind the policy is not only effective but also progressive

and innovative when dealing with addiction. It is a policy focused on achieving a

drug-free community and the implementation of its purpose as stated in Article 1,

are: First, to prevent the unauthorized consumption of narcotics and psychotropic

substances; Second, to regulate the availability of narcotics and psychotropic

substances for medical and scientific purposes; Third, to protect persons against the

negative health-related and social consequences of mental and behavioural

disorders associated with dependence; Fourth, to protect public order, safety and

security; and, lastly, to combat criminal acts closely connected with narcotics and

psychotropic substances.

Contrary to other drug policies which adopted a stricter approach, the Swiss

government focused on a liberal drug policy with a foundation based on the need to
 35

rehabilitate and reintegrate drug- addicted persons to the society treating them as

victims who need the cure.

Hence, in lieu with this idealism, it is notable to consider and put emphasis on

the salient provisions of the Federal Act on Narcotics and Psychotropic Substances

which led to a successful and innovative approach in consideration of this study.

Article 1a introduces the core foundation of the Swiss Drug Policy which is

the Four- Pillar model. The federation introduced the pillars as representations of the

four major areas which consist of specific measures to combat drugs and achieve the

aim and purpose of the whole legislation. The four pillars are Prevention; Therapy

and Reintegration; Harm Reduction and Survival Support; and Control and Law

Enforcement.

Article 3b and Article 3c, are the main provisions intended to answer the

demand to prevent the further manifestation and spread of societal and health-

related consequences caused by drug abuse among the minors and the citizens.

These provisions provide for the division of tasks between the confederation and the

cantons. Each should take part in the promotion of education and advice on the

negative effects and disorders caused by addiction as well as the health and social

drawbacks. The provisions focused on the protection and general benefit of children

and adolescents including programs to raise public awareness. The provisions also

provide for the power of public offices and specialists in education, social work,

health, justice and police sectors to report cases of existent or anticipated cases

relevant to addiction.

Article 3d, Article 3e and Article 3f, relate to measures on therapy and

reintegration. These provisions specifically discuss supervision and treatment,

 36

narcotics- based treatment and data processing. The goal is to ensure the

supervision of persons with disorders and their respective treatments while

guaranteeing therapeutic and social integration while creating conditions which will

allow them to live a drug-free life. Also, included among these provisions is the

license requirement issued by cantons for the purpose of prescribing, administering,

and dispensing narcotics in the treatment of narcotic- dependent persons as well as

the protection of personal data of the persons under treatment.

Article 3g and Article 3h, emphasizes Harm Reduction and Survival

Support wherein the cantons are required to introduce harm reduction and survival

support measures in order to reduce problems associated with drug-dependent

persons. The cantons are also required to create the required facilities or support

private institutions that meet the quality requirements.

Article 4, Article 5, Article 6, Article 7, and Article 8, of the policy, provides

for Control and Law Enforcement. These provisions include measures related to the

issuance of a license- its use and limitations when it comes to production and trade,

import, export and transit restrictions under international agreements, raw materials

and products with narcotic- type effects and prohibited narcotics. This license is

issued by the Swiss Agency for Therapeutic products and is a requirement for

business or persons who cultivate, produce, trade or process narcotics. Import and

transit also requires a license but subject to international agreements. Exceptional

licenses are also provided for in these provisions which are issued in circumstances

and incidents duly reviewed by appropriate officers.

Article 19, Article 19a, Article 19b, Article 19c, Article 20, Article 21,

Article 22, and Article 23, of the law, provides for the offenses and their respective

penalties. These offenses are categorized as acts or omissions committed without a

 37

valid license or authorization. The penalty mandated by law for these violations is a

custodial sentence of not less than one year, which may be combined with a

monetary penalty. An act constituting the supply of narcotics to a person below 18

years old without any medical ground is liable to a custodial sentence not exceeding

3 years or a monetary penalty. Several acts or majority of the acts cited in this policy

are punishable by a fine such as inciting others to consume narcotics, a breach in the

implementation and regulation by the council, and personal consumption of narcotic

without authorization, but may be waived in minor cases. Some acts are not even

considered punishable. These are when any person prepares a negligible amount of

narcotics and when a public official responsible for combating unauthorized dealings

in narcotics accepts an offer of narcotics in order to assist with the investigation.

In view of the notable articles and provisions of the Narcotics Act especially

on the Four- Pillar Policy and the offenses and penalties for each violation, it can be

inferred that a liberal approach in dealing with drug-related problems is adhered to

and implemented by the Swiss government. The approach seems to focus on the

need to prevent, control, supervise and treat drug dependents instead of pressuring

them to stop using drugs through strict methods and penalties. It can be derived from

the whole Swiss legislation that the lawmakers intend to emphasize more on the

rehabilitation and reintegration of the individual to the society. The Swiss government

gives the drug dependents an opportunity to gain access to various modes of

treatment which would enable to cure and help them stand on their own feet. What

deserves admiration is the fact that this system encourages treatment more than the

penalty and treat drug dependents as patients who need cure and support instead of

considering them as criminals who should be penalized and convicted for minor drug

intake and use.

 38

II. The Philippine Legislation on Its "War on Drugs" or R.A. No. 9165 or

"The Comprehensive Dangerous Drugs Act of 2002" and Its Effects

R.A. No. 9165 is the main drug law of the Philippines. It contains a set of

provisions created to embody the will of the legislators in lieu of the present demand

to combat drugs in the country. This law is of course with consideration to the culture

and tradition of the Filipino community.

Like most Asian countries, the Philippines insists on the promulgation of drug

laws limiting the activities of drug addicts, sellers, and dealers. The current war on

Drugs of the President which can also be associated with extrajudicial killings is a

proof that the Philippines would rather contain and implement strict and harsh rules

to threaten users and sellers that focus on building rehabilitation and treatment

centers for addicted persons compared to the liberalized view of some European

countries.

The Philippines would, after all, give more focus on the offenses and the

penalties prescribed for each offense. What comes hereafter is a careful scrutiny of

R. A. No. 9165 or "The Comprehensive Dangerous Drugs Act of 2002" and

highlighting the main and fundamental provisions of the law.

Section 2, clearly emphasizes the policy of the state to protect its territory

and citizens from the harmful effects of illegal drug use. The creation of programs

and projects is also included as well as the support in finding medications to addicted

users and their reintegration into the society after treatment and rehabilitation.
 39

Article 2 which include Section 4- Section 32, defines the penalties and

offenses for illegal drug use. The most common criminal acts committed under this

Article is the Sale, Trading, Administration, Dispensation, Delivery, Distribution and

Transportation of Dangerous Drugs or Controlled Precursors and Essential

Chemicals which is mandated under Section 5, Possession of Illegal Drugs as stated

under Section 11, and Use of Dangerous Drugs as specified under Section 15. The

Article provides for other offenses and penalties in consequence of the use and

manufacture of drugs. Among these provisions is also the Plea Bargaining Provision

wherein any person charged under this act shall not be allowed to plea- bargain. The

Non- Applicability of the Probation Law for Drug Traffickers and Pushers is also a

salient provision under this Article.

Article 4 with Sections 41- 46, Article 5 with Sections 47 and Section 48,

Article 6 with Section 49 and Section 50, Article 7 with Section 51 and Section

52, deals with the Participation of the Family, Students, Teachers and School

Authorities in the Enforcement of the Act, The Participation of Private and Labour

Sectors and the Department of Labour and Employment and Participation of Local

Government Units respectively. This whole article is the accumulation of the duties

and responsibilities of all the sectors responsible for helping the government to

achieve its goal of eradicating drug use and abuse. The foregoing bodies are

expected to assist and offer their help in the promotion of a drug-free community.

Article 8 which is mainly composed of Section 54, discusses the Program for

Treatment and Rehabilitation of Drug Dependents. The drug dependent or his parent

or guardian may apply for treatment and rehabilitation. Upon the decision of the

court, he may be placed in a drug center or whenever there is no specialized drug

 40

center, under the care of a DOH-accredited physician. The drug-dependent should

be confined to the center for at least 6 months and not more than one year.

Generally, upon careful analysis of the law, it is evident that majority of the

provisions provide for penalties and the criminalization of certain acts. There is a little

feature on treatment and rehabilitation and the law even acknowledge the non-

existence of drug centers in some areas. In fact, drug dependency is a national crisis

for it not only harms the individual, it also produces harmful effects to the society and

even threatens the peace, health, and interest of the general public.

But there is already a current move to fight against drugs. The presidential

campaigns discourage drug use and even supports the bill created by the legislature

encouraging harsh penalties for drug users specifically highlighting the “Proposition

to Impose Death Penalty to Drug-Related Heinous Crimes”.

By the end of the day, there is no perfect legislation and what is clearly

evident and undebatable is the fact that each country would create policies and ways

to combat drug abuse and create laws and legislation for the benefit of all its citizens

with greater concern to their basic welfare, health, and safety.

III. The Implication of the "War on Drugs" of Other Countries to

Republic Act No. 9165 or "The Comprehensive Dangerous Drugs Act

of 2002".

"Law 30/2000" of Portugal

 41

Table 1 provides for the salient provisions of The Law 30/2000 of Portugal

and Its Implication to RA 9165 or The Comprehensive Dangerous Drugs Act of 2002.

Table 1: Implication of The Salient Provisions of The Law 30/2000 of Portugal

to RA No. 9165 or The Comprehensive Dangerous Drugs Act of 2002.

Salient Provisions of Law 30/2000 of Implication to RA 9165 or the

Portugal Comprehensive Dangerous Drugs

Act of 2002

Article 1 clearly establishes the legal This provision maintains that moderate

framework which applies to the consumption of narcotics and

consumption of narcotics and psychotropic substances is allowed in

psychotropic substances, as well as the Portugal. In lieu with RA no. 9165, the

social and medical welfare of the consumption or use of drugs regardless

consumers of materials without medical of the amount is clearly prohibited and

prescription punishable. There arises an implication

that small scale use of psychotropic

substances should not be deemed

criminally punishable for it is not

necessarily addicting as would lead to

the infestation of drug related crimes.

Article 2, mainly deals with the With consideration to RA 9165, an

decriminalization of the acquisition and implication suggesting that a quota

possession of drugs, provided that the should be maintained and that despite

quantity shall not exceed the amount of decriminalization, drug use should be

required for an average person to use regulated. Excess usage is not deemed

and possess for 10 days. Instead of a criminal offense but is regarded as an

criminal sanctions, violations under this administrative offense. This provision


article constitute and were regarded as
administrative offenses.
Article 3, Article 12, and Article 14
provides for the treatment and
intervention measures provided for by
the government in cases of addiction
and drug dependency. These measures
involve spontaneous treatment,
submission to treatment, and
suspension of penalties applied in the
event of voluntary treatment.
Article 5, Article 6, Article 9, and
Article 10, emphasize the role of the
Commission in the drug policy and its
coordination with the other bodies. It
can be noted that the participation of
other public and private health
institutions is mandated in order to
secure their assistance and services. It
is also upon the Commission to
determine the nature and circumstances
of consumption. It is responsible for the
gathering of information needed in order
to arrive at a judgment of whether the
42
clearly solves the clogging of criminal
dockets, the tremendous small-time
drug related cases and the
overcrowded penitentiaries.
With pertinence to RA no. 9165, there is
an implication that treatment and
intervention measures must be afforded
to the drug addicted individuals instead
of directly filing a case in court. The
provisions of the drug law of Portugal
recognizes moderate drug users as
victims rather than offenders.
With regards to RA no. 9165, it is
implied that a Commission responsible
for the coordination with other bodies of
the government should be created not
only to investigate, rehabilitate and
intervene with the patients but also to
promote awareness and education as to
drug use and its effects to the people
and the society.
 43

individual is an addict or not, the

substances used, the circumstances of

the consumption, the place where the

drug was used and the economic

situation.

Article 15, Article16, Article 17, and
Article 18, of "Law 30/2000" provides
for the penalties, the fines, other
penalties, and warnings. Upon weighing
the circumstances involved and related
to each case, the Commission may
sentence the non- addicted consumers
to a fine or a non-pecuniary penalty.
There is an implication that non-
addicted consumers should not be
immediately criminalized for there is
very little risks of committing drug
induced acts. Instead of sending small
time consumers to the penitentiary, the
government may use and recommend
other sanctions similar to the

Portuguese model. Imprisonment is not

The commission may also issue a
warning or apply alternative measure
instead of a fine such as: banning from
the exercise of a profession or
occupation, banning from certain
necessarily the solution since moderate
drug use is more of a social problem
than a criminal act triggered by intent to
produce harm.

places, prohibition from accompanying

housing, prohibition from traveling

abroad without permission,

disenfranchisement, seizure of objects,

or even a financial donation to a public

or private charitable organization or

provide community service free of

charge.
 44

The War on Drugs is a move adopted by several countries to combat, prevent

and decrease the spread of the harmful effects of drugs. It basically consists of

policies, laws, and legislation created and promulgated by each sovereign nation to

regulate drug trade and drug abuses.

Due to the diversities in the tradition of each nation, the policies are modelled

according to the views of each state as to the cause of the problem, the persons

affected, and the solutions which must be implemented. To adopt a liberalized or

strict approach is wholly up to the initiative and prerogative of the legislators and the

central controlling power of the state. There are several successful drug policies and

some are featured in this study in order to determine the implication of these policies

to the Philippine drug law. In lieu of this, it is important to identify the outcome and

effects of these legislations through careful study, deliberation, and analysis.

The Portugal policy to combat drugs is a model which addressed the issues

concerning drug addiction and dependency. Upon its implementation, several nations

scrutinized this approach and several critics voiced out their disagreement.

Law 30/2000 of Portugal maintained the illegality of using or possessing

drugs without authorization, but the offenses were changed from a criminal offense to

an administrative offense. One of the main aspects of this law is the administrative

procedures and sanctions when dealing with drug offenses. The law advocates that

when a person is caught in the possession of no more than ten daily doses of drugs

and the authorities have evidence of this violation, the drugs would be seized and the

person will then be subjected to the jurisdiction of the "Commission for the

Dissuasion of Drug Abuse".

 45

R.A. No. 9165 or the Comprehensive Dangerous Drugs Act of 2002 was

implemented with provisions focused on the offenses and their respective penalties.

Majority of the provisions signify that the Philippine policy embraces a law with a

strict approach when dealing with drug offenders and users. Contrary to the

Portuguese drug law, the Philippine law punishes even the slightest use or

possession of any kind of drug or psychotropic substances without classifying and

characterizing each as to their own kind and properties. Also, aside from penalizing

drug use, the Philippine approach is vastly different from the Portuguese approach

due to a wide array of notions and policies created to emphasize treatment rather

than imprisonment. In Portugal, several treatment centers were created for drug

addicts and instead of dumping them together in penal institutions while left

untreated, the government would organize and instruct institutions to treat and cater

to the needs of drug dependents. After all, the first step before reintegration is

treatment.

Based on the foregoing, it can be said that both countries adopted different

policies in their respective "Wars against Drugs". These policies greatly differ from

each other for one emphasizes liberalization while the other adheres to a stricter

method. "Law 30/2000" when weighed and evaluated has strong and weak points.

Careful study can inflict a great effect on R.A. No. 9165. Up to this day, several

propositions were even raised to allow the use of medical marijuana in treating

patients in the Philippines, however, this suggestion is still unaccepted and is

ostracized by several critics. If this simple feat cannot be achieved as of today, it is

also of great impossibility to decriminalize drug use and possession in the

Philippines. Unlike the liberalistic approach, the Philippines is not yet open to a

drastic change to its policy. What the Philippines may learn from Portugal is not only

exclusive and limited to decriminalization. What the Philippines needs is a pragmatic

and systematic approach which also focuses on the treatment of drug addicts who
 46

were made to suffer in penitentiaries. The mandate of R.A. No. 9165 speaks of

rehabilitation and reintegration. In order to achieve this, it is essential to lax the way

towards treatment and cure in order to reintegrate drug dependents back to society.

The intention of the Portuguese policy is a clear showcase of the successes of the

drug laws mentioned in this study. At the end of the day, what "The Law 30/2000 of

Portugal" considers is a rationale in lieu of its purpose- drug addicts are patients who

need treatment interventions and cure.

"The Opium Act" of Netherlands

Table 2 provides for the salient provisions of The Opium Law of Netherlands

and Its Implication to RA 9165 or The Comprehensive Dangerous Drugs Act of 2002.

Table 2: Implication of The Salient Provisions of The Opium Law of

Netherlands to RA No. 9165 or The Comprehensive Dangerous Drugs Act of 2002.

Salient Provisions of The Opium Law Implication to RA 9165 or the

of Netherlands Comprehensive Dangerous Drugs

Act of 2002

Article 2, Article 3, Article 3b, and
Article 4, provides for the illegal acts
punishable under the Opium Law.
These illegal acts include the
preparation, sale, supply, transport,
In lieu with these provisions arises an
implication to RA 9165 that drugs be
classified as either hard drugs or soft
drugs. The penalties provided for each
category is different with the

possession, and manufacturing of drugs
classified in List 1 which are considered
as hard drugs. Other offenses involve;
publication to promote the sale and
supply of hard drugs, the issuance of a
prescription to use drugs as referred to
in List 1 or List 2 unless in the interest
of interest of public health or by order of
the council, presentation of a fake or
forged prescription and the presentation
of a prescription in which a different
name or address is stated.
Article 6, Article 7, Article 8, Article
8a, Article 8b, Article 8c, Article 8d,
Article 8e, Article 8f, and Article 8g,
are provisions which deal with the
exemptions issued by the Minister of
Health, conditions for its acquisition,
application, grant, extension, denial
revocation and when an exemption is
deemed to ceased. The exemption
mandated herein refers to the power of
the minister to allow exemptions as to
the preparation, sale, supply, transport,
and possession of drugs as well as the
general conditions laid down in the
issuance of prescriptions.
47
consideration of the societal harm and
level of addiction that a narcotic may
cause in accordance with its
classification. Drug use is not
decriminalized, instead, it is classified
into two categories and afforded the
penalties in accordance with these
categories.
In lieu with RA No. 9165, the provisions
mandated that with the proper license
and exemptions, trade, sale and use of
drugs is allowed especially in cases
concerning the life and health of
individuals and patients. With the
correct agency afforded with the power
and jurisdiction to issue licenses and
regulate consumption, the policy will
eventually cater the purpose for which it
was created and eventually address
societal problems.
 48

Article10, Article 10a, Article 11, and
Article 13, provides for the penalties
and offenses stated in “The Opium Act”.
They are divided into minor offenses
and crimes. Minor offenses are
punishable by imprisonment of 6
months or a fine, while crimes are
penalized with imprisonment of at most
2 years or a fine. Crimes are offenses
which include any publication which is
clearly intended to promote the sale,
supply or provision of drugs. Other
The division of penalties into minor
offenses and crimes is highly advisable
and imposable when dealing with the
Philippine setting and RA 9165. The
burden of punishing all kind of drug use
regardless of the amount would highly
save time, effort and money for the
courts and government as well as
eradicate the unnecessary hassle to
government agencies as well as the
drug consumers.

offenses are considered minor crimes

provided that a distinction should be

made between soft and hard drugs. In

conclusion, the Dutch Drug Policy is an

embodiment of what is phrased as

follows “The basic aim has not been to

combat drug use itself or to prosecute

person because they are drug users,

but to reduce these risks.”

The Opium Act of Netherlands as revised in 1976 created a distinction

between hard and soft drugs. This created a general classification between cannabis

and other drugs. The law also provides for a difference in the penalties involved

between the two classifications. This is due to the fact that hard drugs have

unacceptable social risks compared to soft drugs which carry lower risks. The
 49

penalties for hard drugs involved imprisonment while the possession, preparation,

sale, and transport of soft drugs are penalized with dismissal or a fine.

The Comprehensive Dangerous Drugs Act of the Philippines, on the other

hand, punishes the possession, sale, trade or manufacturing of drugs without prior

qualification or without distinguishing the difference between the risks involved. As

mentioned earlier, the Philippine drug law gives more priority to the offenses and

their respective penalties. It considers every drug as harmful to the society and

believes in the notion that drugs in whatever form carries a grave and an

unacceptable social risk.

The Opium Act may not be as liberalized as "The Law 30/2000" of Portugal,

but the implementation of its general framework and some of its salient provisions

could not be regarded as an absolute possibility when dealing with its implication to

the Philippines. The provisions of the Opium Act is well thought of and the legislators

thoroughly distinguished the societal harm and social risks involved when using

drugs from both classifications. The thing with this policy is that it gives more credit to

how drug use can influence the society in a way as to render it tolerable or as a

threat to the welfare and the health of the population.

Instead of punishment, the law is lenient to offenders who are caught using

soft drugs. The characterization of these drugs as classified under Table I and Table

II of the law sets the line between the strict approach and the liberalized approach.

This policy remains as a far-flung idea judging from how the Filipinos perceive drug

use and abuse plus the controversial "War on Drugs" in the Philippines which

involves secular or societal issues. Majority of the Filipino citizens are compounded

with the belief that drug users deserve harsh punishments under the law. This
 50

mindset is nurtured by the strict dogmas and traditions of the Filipinos which allow

them not to tolerate any wrong, and drug use is an obvious act which deserves due

punishment.

Despite the success of "The Opium Act" of Netherlands, adopting its

provisions to R. A. No. 9165 would not be an easy feat. The Filipinos can only open

their minds to the reason behind the success of this approach and internalize its

benefits as they slowly pave the way to its acceptance.

"The Federal Act on Narcotics and Psychotropic Substances" of Switzerland

Table 3 provides for the salient provisions of The Narcotics Act of Switzerland

and Its Implication to RA 9165 or The Comprehensive Dangerous Drugs Act of 2002.

Table 3: Implication of The Salient Provisions of The Narcotics Act of

Switzerland to RA No. 9165 or The Comprehensive Dangerous Drugs Act of 2002

Salient Provisions of The Implication to RA 9165 or the

Narcotics Act of Switzerland Comprehensive Dangerous Drugs

Act of 2002

Article 1a introduces the core In consideration with the provisions of

foundation of the Swiss Drug Policy RA No. 9165, there is an implication that
which is the Four- Pillar model. The four a policy containing a model not solely
pillars are Prevention; Therapy and based on Law Enforcement can
Reintegration; Harm Reduction and produce greater results. Aside from

Survival Support; and Control and Law
Enforcement.
Article 3b and Article 3c, these
provisions provide for the division of
tasks between the confederation and
the cantons. Each should take part in
the promotion of education and advice
on the negative effects and disorders
caused by addiction as well as the
health and social drawbacks.
Article 3d, Article 3e and Article 3f,
relate to measures on therapy and
reintegration. These provisions
specifically discuss supervision and
treatment, narcotics- based treatment
and data processing. The goal is to
ensure the supervision of persons with
disorders and their respective
treatments while guaranteeing
therapeutic and social integration while
creating conditions which will allow
them to live a drug-free life.
Article 3g and Article 3h, emphasizes
Harm Reduction and Survival Support
wherein the cantons are required to
introduce harm reduction and survival
51
penalties, a law providing for a four-fold
model may be highly beneficial.
There arises an implication that
promotion of education, advice and
awareness must also be given
consideration as to educate the
members of the society especially the
youth as to the negative effects caused
by drug usage including the health and
social drawbacks.
The provisions of the law of Switzerland
gives the drug consumers the
opportunity to be cured, to undergo
therapy and to be reintegrated back to
the society. Instead of immediately
enforcing the law and the policies of the
State, drug dependents must be
afforded the opportunity to undergo
rehabilitation and cure their dependency
to drugs and other psychotropic
substances.
In consideration with RA 9165, the
emergence of agencies responsible for
facilitating intervention programs to
promote harm reduction and survival

support measures in order to reduce
problems associated with drug-
dependent persons.
Article 4, Article 5, Article 6, Article 7,
and Article 8, of the policy, provides for
Control and Law Enforcement. These
provisions include measures related to
the issuance of a license- its use and
limitations when it comes to production
and trade, import, export and transit
restrictions under international
agreements, raw materials and
products with narcotic- type effects and
prohibited narcotics.
Article 19, Article 19a, Article 19b,
Article 19c, Article 20, Article 21,
Article 22, and Article 23, of the law,
provides for the offenses and their
respective penalties. These offenses
are categorized as acts or omissions
committed without a valid license or
authorization.
52
support must be implemented.
There in an implication that the Swiss
policy punishes offenders especially
those using, trading and selling drugs
without the appropriate licenses. In
consideration to RA 9165, the sale and
trade of drugs must be properly
regulated in accordance with the drug
policy.
In lieu with RA 9165, the penalty
mandated by law for these violations
must be in relation to a custodial
sentence of not less than one year,
which may be combined with a
monetary penalty. An act constituting
the supply of narcotics to a person
below 18 years old without any medical
ground is liable to a custodial sentence
not exceeding 3 years or a monetary
penalty. Some acts are not even
considered punishable. These are when
any person prepares a negligible
 53

number of narcotics.

The Narcotics Act of Switzerland is based on an interlinked four-pillar model

which aims to establish interventions in the areas of Prevention, Therapy, Harm

Reduction, and Law Enforcement. In each of these areas are the repressive

measures created for each pillar to enable them to develop strategies to combat the

harmful effects of drug use. The Swiss model is pragmatic, systematic and

progressive. Even without the decriminalization of drug use, the Swiss policy is still

one of the most successful policies of today. It is a major breakthrough due to its

effectivity and efficiency while vying for a holistic approach.

The War on Drugs in the Philippines is a manifestation of the law promulgated

in the country and the Filipinos will not willingly accept a liberalized approach based

on the current trend in the country. The Swiss drug law, however, is not as liberalized

as that of Portugal and Netherlands since it did not decriminalize small-time

consumption of drugs. The penalties and sanctions for drug abuse remain while

giving priority to the four pillars of Prevention, Therapy and Reintegration, Harm

Reduction and Support, and Control and Law Enforcement. The Swiss law is

properly laid and implemented to answer the demands of a drug- dependent society.

The weaknesses of the law were supplemented by its subsequent amendments after

its initial approval.

The Swiss Policy is sufficient to supplement what the Philippines law lacks

and needs. It answers the questions on what should be done to drug addicts; what

are the appropriate treatment and methods to achieve its purpose; and what are

measures to prevent, control and regulate drug use. The Swiss Act is very thorough

when it comes to its purpose. It utilizes the participation and assistance of several
 54

private and governmental sectors. Upon careful evaluation, it can be said that R. A.

No. 9165 needs and requires further elaboration as to its provisions on reintegration

and rehabilitation. The government of the Philippines must also encourage the

participation of private sectors in its "War on Drugs". R. A. No. 9165 lacks a concrete

plan when it comes to treatment and reintegration. This is when the Swiss model

should be treated as an example to reach progress.

CHAPTER 5

SUMMARY, CONCLUSIONS, AND RECOMMENDATIONS

Summary

This study was primarily conducted to critically analyse the legislation of other

countries on the "War on Drugs" and its implication to Republic Act No. 9165 or "The

Comprehensive Dangerous Drugs Act of 2002". It specifically sought to determine

the legislations of Portugal, Switzerland, and the Netherlands which led to the control

of drug use and the reduction of drug related crimes; the effects of the legislation on

"the War on Drugs" of Portugal, Netherlands, and Switzerland; the Philippines

legislation on its "War on Drugs"; the current "War on Drugs" in the Philippines and

its effects; and the implication of the legislations on the "War on Drugs" of other

countries to R.A. No. 9165 or "The Comprehensive Dangerous Drugs Act of 2002".
 55

Critical analysis was employed in this study to determine the salient provision

of the law and to identify the rationale behind these laws and policies. The researcher

after that distinguished the implication of each law to R.A. No. 9165, as well as draw

conclusions as to its feasibility and practicability when adopted and applied to the

Philippines setting. This study analysed the laws and legislation including the factors

and circumstances surrounding them to garner results as to their nature and

applicability while finding facts to rationalize their successes.

Findings

The Philippine Drug Law is not perfect by itself. It is created based on how the

Filipinos view drug use and drug dependency. R.A. No. 9165 is patterned from a

policy which fully depicts the general idea towards drug addiction. Drug laws are after

all made in accordance with a nation's generally accepted values and principles with

consideration to other relevant circumstances. It is a set of principles coupled with

one's view and perspective on what should be done and on how to do it without

ignoring tradition, beliefs, and common practices.

It is not a requirement to dwell on a specific policy alone because the

circumstances of each nation gravely differ from each other. What is constant is the

certainty that each state can always learn from each other's policies, especially the

successful ones. Legislators must learn and observe the successes of other

countries and study its applicability and practicability. Adopting another's policy will

not immediately lead to the reduction of drug use and abuse, but what is certain is

that there is and there will always be an appropriate policy which will fundamentally

affect and bring success to a County's "War on Drugs".

Conclusions
 56

This study revealed that each country has their own unique drug policy which

led to a successful war against drugs. These policies are varied and are specifically

made to cater an answer to the specific needs and demands of each nation. The

demands are in consideration of the factors affecting health, politics, culture, tradition

and other societal dogmas which are established as the very backbone of the

community.

The differences between the liberalized approach and the strict approach

greatly affect the possibility of a law's adaptation. The laws of Portugal, Netherlands,

and Switzerland are liberalized to some degree as to give freedom and leniency,

which would even lead to the legalization and allowance of a moderate amount of

drugs for consumption and usage. These laws are more inclined to the creation of

treatment and rehabilitation policies for drug dependents instead of the imposition of

harsh punishments and penalties. When applied to the Philippine legislation, the

liberalized approach is not as easily acceptable and practicable as it sounds. Despite

its successes, it would be too difficult to change the mindset of the Filipinos

overnight. The issue of liberalization has been a controversial issue in the past.

European countries were greatly criticized and ostracized by opposing views from

local and international communities. How much more in the Philippines? A bill

legalizing marijuana for medical purposes was not even passed and approved into

law.

If decriminalization is quite difficult to attain, the Portuguese, Swiss and

Dutch models should be used as an example instead when it comes to prevention,

control, rehabilitation and enforcement methods since they have vast successes in
 57

these areas. Reintegration is also a priority by these policies and has a major role the

implementation of the law.

In conclusion, there exists a variety of policies due to the different needs of

each nation. What can be done despite these differences is the analysis of the

provisions and models which can greatly influence the growth of a nation's drug law.

Learning and acceptance is a process, and society learns by example, it is an utter

advantage to learn from the successes of others in order to improve one's own law.

The Philippines should cope, observe and learn with reason and understanding

because by the end of the day, it will always boil down to the desire to achieve

success, and successes are made through reason and example.

Recommendations

Based on the major finding and conclusions of this study, the following are

hereby recommended:

1. The Legislator should at least act, study and determine the successful

drug policies of other countries in order to come up with successful ways

to combat drugs.

2. Lawmakers should further implement the treatment and rehabilitation

measures mandated for the purpose of Republic Act No. 9165 or "The

Comprehensive Dangerous Drugs Act of 2002".

 58

3. Legislation and policy-makers should adopt and add measures on

treatment for drug users aside from solely focusing on penalties and

punishments.

4. Congress should consider the participation and commitment of

government agencies as well as other private sectors interested in the

"War on Drugs.'

5. Legislators and policy-makers should recognize the needs of drug

dependents and their reintegration into the society.

6. Lawmakers should carefully and reasonably scrutinize the law with

consideration to all the factors and circumstances present in the case,

with due attention to the mandates and provisions implemented in the

country.

7. Future researchers or law students should pursue further studies on the

"War on Drugs" and the legislation of other countries.

REFERENCES

Anton van Kalmthout & Jack Derks in Prosecution of drug users in Europe: varying pathways

to similar objectives, EMCDDA 2001.

Bergeron, H. and Griffiths, P. (2006) ‘Drifting towards a more common approach to a more

common problem: epidemiology and the evolution of European drug policy’, in

Hughes, R., Lart, R. and Higate, P. (eds), Drugs: Policy and Politics, Open University Press,

London.

Dias, L. (2007) As drogas em Portugal: o fenómeno e os factos jurídico-políticos de 1970 a

2004, Pé de Página Editores, Coimbra.

 59

EMCDDA (European Monitoring Centre for Drugs and Drug Addiction) (2008) Selected

Issue: Towards a better understanding of drug-related public expenditure in Europe.

Available at: http://www.emcdda.europa.eu/publications/selected-issues/public-

expenditure. Retrieved 15 May 2017.

EMCDDA (European Monitoring Centre for Drugs and Drug Addiction) (2011a) National drug

strategies: Portugal. Available at:

http://www.emcdda.europa.eu/html.cfm/index33629EN.html. Retrieved 1 June 2017.

EMCDDA (European Monitoring Centre for Drugs and Drug Addiction) (2011b) Country

overview: Portugal. Available at: http://www.emcdda.europa.eu/publications/country-

overviews/pt. Retrieved 1 June 2017.

Eurocare (European Alcohol Policy Alliance) (2011) Country profiles. Available at:

http://www.eurocare.org/resources/country_profiles. Retrieved 1 June 2017.

George, F., Castanheira, J.L., Martins, J.N., et al. (eds) (2007) Health in Portugal 2007,

Directorate-General of Health, Lisbon.

Hughes, C. and Stevens, A. (2010) ‘What can we learn from the Portuguese

decriminalization of illicit drugs?’, British Journal of Criminology 50, pp. 999–1022.

Instituto da Droga e da Toxicodependência, I.P. (IDT, I.P.) (2009) Plano de Acção –

Horizonte 2008: Relatório de Avaliação Interna. Available at:

http://www.idt.pt/PT/IDT/RelatoriosPlanos/Documents/2010/PlanoAccaoH2008_RAI.

pdf. Retrieved 1 June 2017.

Instituto da Droga e da Toxicodependência, I.P. (IDT, I.P.) (2010b) Relatório anual 2009: a

situação do país em matéria de drogas e toxicodependências, Instituto da Droga e

da Toxicodependência, I.P., Lisbon.

 60

Jorge Quintas and Ernesto Paulo Fonseca, in Prosecution of drug users in Europe,

EMCDDA 2002.

Joossens, L. and Raw, M. (2011) ‘The Tobacco Control Scale 2010 in Europe’. Available at:

http://www.ensp.org/sites/default/files/TCS_2010_in_Europe_FINAL.pdf. Retrieved 7

June 2017.

Kilpatrick, D.G. (2000) ‘Definitions of public policy and the law’. Available at:

http://www.musc.edu/vawprevention/policy/definition.shtml. Retrieved 7 June 2017.

Ministry of Justice, Plan of action for drug trafficking at Schiphol, 2002

Ministry of Health, Welfare and Sport, ministry of Justice and ministry of the Interior and

Kingdom Relations, Cannabis letter, 2004.

Ministry of Justice, Policy programme for the strengthening of combating organised crime

and financial-economic criminality, 2007.

Ministry of Justice, Continuation of the approach to synthetic drugs as of 2007.

Moreira, M., Trigueiros, F. and Antunes, C. (2007) ‘The evaluation of the Portuguese drug

policy 1999–2004: the process and the impact on the new policy’, Drugs and Alcohol

Today 7 (2), pp. 14–26.

Nationale Drugsmonitor, The Netherlands Drug Situation 2007; Report to the EMCDDA, by

the REITOX National Focal Point, Trimbos Instituut/European Monitoring Centre for

Drugs and Drug Addiction

Professors Caitlin Hughes and Alex Stevens wrote in the British Journal of Criminology in

2010.
 61

Portuguese Government (1993) Decree-law 15/93 of 22 January. Available at:

http://www.idt. pt/EN/Legislacao/Legislacao Internacional

Ficheiros/Decree-law/dl_15_93_eng.pdf. Retrieved 1 June 2017.

[State Secretary for Welfare Health and Cultural Affairs, 1983, p.2].

Study on the legislation and regulation on drug trafficking in the European Union Member

States, European Commission, 2001.

Tavares, L.V., Graça, P.M., Martins, O. and Asencio, M. (2005) Evaluation of the National

Strategy for the Fight Against Drugs 1999–2003, Instituto Nacional de Administração,

Oeiras.

Trigueiros, F., Vitória, P. and Dias, L. (2010) ‘Rather treat than punish: the Portuguese

decriminalization model’, Expert forum on criminal justice: national experiences with

quasi-coerced treatment of drug dependent offenders, The Pompidou Group of the

Council of Europe, Strasbourg.

 62

APPENDICES

Appendix A

Law No. 30/2000 of Portugal

Defines the legal framework applicable to the consumption of narcotics

and psychotropic substances, together with the medical and social welfare of the

consumers of such substances without medical prescription

The Assembly of the Republic hereby decrees the following, in accordance with

paragraph c) of article 161 of the Constitution, as a general law of the Republic:

 63

Article 1

Aim

1. This law defines the legal framework applicable to the consumption of narcotics

and psychotropic substances, together with the medical and social welfare of the

consumers of such substances without medical prescription.

2. The plants, substances and preparations subject to the framework established

here are Those listed in tables I to IV attached to Decree-Law no. 15/93 of 22

January.

Article 2

Consumption

1. The consumption, acquisition and possession for own consumption of plants,

substances or preparations listed in the tables referred to in the preceding article

constitute an administrative offence.

2. For the purposes of this law, the acquisition and possession for own use of the

substances referred to in the preceding paragraph shall not exceed the quantity

required for an average individual consumption during a period of 10 days.

Article 3

Spontaneous treatment

1. The provisions of this law shall not apply when the consumer or, in the case of a

minor, certified or disqualified person, his legal representatives, request the

assistance of public or private health services.

2. Any doctor may notify the State health services of the cases of the abuse of

plants, narcotic or psychotropic substances which he encounters in the course of his

professional duties, when he believes that treatment or healthcare measures are

 64

justified in the interest of the patient, the members of his family or the community, for

which he or she lacks the resources.

3. In the cases provided for in the preceding paragraphs there shall be a guarantee

of confidentiality, the doctors, technical staff and other health workers who care for

the consumer being subject to the duty of professional secrecy, and such persons

shall not be obliged to testify in inquiries or judicial proceedings neither to provide

information on the nature and evolution of the therapeutic process or on the identity

of the consumer.

Article 4

Seizure and identification

1. The police authorities shall identify the consumer and may also proceed to search

him and seize the plants, substances or preparations referred to in article 1 which

have been found in the possession of the consumer, which shall be forfeit to the

State, drawing up the respective police report, which shall be forwarded to the

relevant territorial commission.

2. Whenever not possible to identify the consumer at the place and the moment of

the occurrence, the police authorities may, if necessary, detain the consumer in order

to ensure that he or she appears before the commission, in accordance with the legal

rules on detention for the purpose of identification.

Article 5

Powers to process, apply and enforce

1. Offences shall be processed and the respective penalties applied by a commission

referred to as commission for the dissuasion of drug addiction, especially created for

this purpose, operating in the premises of the civil governments.

 65

2. The Governo Civil shall have powers to enforce fines and alternative penalties.

3. In districts with a greater concentration of proceedings, more than one

commission may be created by order of the member of the Government responsible

for coordinating drug and drug addiction policy.

4. The Governo Civil and the IPDT (Portuguese Institute on Drug and Drug Addiction)

shall provide the commissions with administrative support and technical support

respectively.

5. Expenses relating to the members of the commissions shall be borne by the IPDT.

Article 6

Central Register

The IPDT shall keep a central register of proceedings relating to the offences

provided for in this law, which shall be kept in accordance with regulations issued by

the Minister of Justice and the member of the Government responsible for the

coordination of drugs and drug addiction policies.

Article 7

Composition and appointment of commissions

1. The commissions provided for in paragraph 1 of article 5 shall comprise three

persons, one of which shall serve as chairman, appointed by the member of the

Government responsible for the coordination of drugs and drug addiction policies.

2. One of the members of the commission shall be a legal expert appointed by the

Ministry of Justice, and the Minister of Health and the member of the Government

responsible for the coordination of the drugs and drug addiction policies shall appoint

the other two, who shall be chosen from doctors, psychologists, sociologists, social

services workers or others with appropriate professional expertise in the field of drug
 66

addiction, who in the course of their duties shall guard against any possible direct

therapeutic interest or ethical conflict.

3. The Minister of Justice and the member of the Government responsible for the

coordination of drugs and drug addiction policies shall issue regulations on the

organization of the commissions, on their proceedings and procedures, and the

status of the members shall be established by joint order of the Minister of Finance,

the Minister for the Reform of the State and Public Administration and the member of

the Government responsible for the coordination of drugs and drug addiction policies.

4. The members of the commission shall be subject to the duty of secrecy with

regard to the personal data contained in proceedings, without prejudice of the legal

rules on the protection of public health and the criminal proceedings, where

applicable.

Article 8

Territorial jurisdiction

1. Proceedings shall be brought before the commission of the residence area of the

consumer, except in case of unknown address, in which case the proceedings shall

be brought before the commission of the area in which the consumer was found.

2. Appeals against penalties applied by the commissions shall be brought before the

court with jurisdiction at the head office of the commission in question.

Article 9

Cooperation with other bodies

1. In order to undergo treatment voluntarily accepted by the consumer, the latter may

use the public health services or duly licensed private services.

 67

2. In order to comply with the provisions of this law, the commissions and

the Governo Civil shall request the assistance, as the case may be, of the public

health services, the social welfare services, the police authorities and the

administrative authorities.

Article 10

Judgement as to the nature and circumstances of consumption

1. The commission shall hear the consumer and gather the information needed in

order to reach a judgement as to whether he or she is an addict or not, what

substances were consumed, the circumstances in which he was consuming drugs

when summoned, the place of consumption and his economic situation.

2. The consumer may request that a therapist of his or her choice takes part in the

proceedings, and the commission shall establish the rules for such participation.

3. In order to formulate the judgement referred to in paragraph 1, the commission or

the consumer may propose or request that appropriate medical examinations be

conducted, including blood or urine tests or any other tests as may be deemed

appropriate.

4. If the commission does not base its definition of the nature of consumption on the

findings of a medical examination with the characteristics set out in the preceding

paragraph, the consumer may request such examination, and the findings shall be

analyzed with a view to a possible reconsideration of the initial judgement reached by

the commission.

5. The commission shall have the examination conducted by a duly licensed health

service, the costs being borne by the consumer if he or she chooses a private

service, and the tests shall be carried out within a period of no more than 30 days.

Article 11
 68

Provisional suspension of proceedings

1. The commission shall provisionally suspend proceedings whenever a consumer

with no prior record of offences under this law is deemed to be a non-addicted

consumer.

2. The commission shall provisionally suspend proceedings whenever an addicted

consumer with no prior record of previous proceedings for offences under this law

agrees to undergo treatment.

3. The commission may provisionally suspend proceedings if an addicted consumer

with a prior record of previous proceedings for offences under this law agrees to

undergo treatment.

4. The decision to suspend proceedings may not be impugned.

Article 12

Submission to treatment

1. If an addicted consumer agrees to undergo treatment, the commission shall notify

the public or private health service chosen by the consumer, who shall be notified of

the alternatives available.

2. If the consumer opts for a private health service he or she shall bear the respective

costs of treatment.

3. The organization referred to in paragraph 1 shall notify the commission every three

months of whether treatment is continuing or not.

Article 13

Duration and effects of suspension

 69

1. Proceedings may be suspended for up to two years, which may be extended by

one additional year by means of a decision with due grounds by the commission.

2. The commission shall file proceedings, which may not be reopened, if:

a)      in the case of a non-addicted consumer, there is no repeated offence;

b)      an addicted consumer undergoes treatment and does not interrupt it unduly.

3. Other than as provided for in the preceding paragraph, the proceedings shall

continue.

4. The limit period for the expiry of proceedings shall not be counted whilst its

suspension.

Article 14

Suspension of penalties applied in the event of voluntary treatment

1. The commission may suspend a decision to apply a penalty if an addicted

consumer agrees to undergo, voluntarily, treatment in a public or duly licensed

private service.

2. Penalties may be suspended for up to three years.

3. If during the suspension period, for reasons attributable to him or her, the addict

does not undergo or interrupts treatment, the suspension shall be revoked and the

penalty corresponding to the offence applied.

4. The commission shall declare proceedings closed if, on expiry of the suspension

period, no reason has been found which could lead to revoking the suspension.

5. Refusal to undergo treatment under the terms of article 11 and the continuation of

proceeding under the terms of article 13 shall not prejudice the provisions of

paragraph 1 of this article.

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6. The provisions of paragraph 2 of article 12 and of paragraph 4 of article 13 are

correspondingly applicable.

Article 15

Penalties

1. Non-addicted consumers may be sentenced to payment of a fine or, alternatively,

to a non-pecuniary penalty.

2. Non-pecuniary penalties shall be applied to addicted consumers.

3. The commission shall set the penalty in accordance with the need to prevent the

consumption of narcotics and psychotropic substances.

4. In applying penalties, the commission shall take into account the consumers

circumstances and the nature and circumstances of consumption, weighing up

namely:

a)      The seriousness of the act;

b)      The degree of fault;

c)      The type of plants, substances or preparations consumed;

d)      The public or private nature of consumption;

e)      In the case of public consumption, the place of consumption;

f)        In the case of a non-addicted consumer, the occasional or habitual nature of

his drug use;

g)      The personal circumstances, namely economic and financial, of the consumer.

Article 16

Fines
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1. In the case of plants, substances or preparations contained in tables I-A, I-B, II-A,

II-B and II-C, the fine shall be fixed between a lower limit of PTE 5.000$00 and an

upper limit equivalent to the national minimum monthly wage.

2. In the case of substances or preparations contained in tables I-C, III and IV, the

fine shall be fixed between PTE 5.000$00 and PTE 30.000$00.

3. The proceeds of fines shall be distributed as follows:

a)      60% to the State;

b)      20% to the SPTT (Drug Addiction Treatment and Prevention Service);

c)      10% to the Governo Civil;

d)      10% to the IPDT.

Article 17

Other penalties

1. Instead of a fine, the commission may issue a warning.

2. Without prejudice to the provisions of paragraph 2 of article 15, the commission

may apply the following penalties, as an alternative measure to a fine or as the main

penalty:

a)      Banning from the exercise of a profession or occupation, namely those subject

to licensing requirements, when such exercise jeopardizes the well-being of the

consumer or third parties;

b)      Banning from certain places;

c)      Prohibiting the consumer from accompanying, housing or receiving certain

persons;

d)      Forbidding the consumer to travel abroad without permission;

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e)      Presenting himself periodically at a place to be indicated by the commission;

f)        Disenfranchisement, removing the right to be granted or to renew a fire arms

license for defense, hunting, precision shooting or recreation;

g)      Seizure of objects belonging to the consumer which represent a risk to him or

her or to the community or which encourage the committing of a crime or other

offence;

h)      Privation from the right to manage the subsidy or benefit attributed on a

personal basis by public bodies or services, which shall be managed by the

organization managing the proceedings or monitoring the treatment process, when

agreed to by the consumer.

3. As an alternative to the penalties provided for in the preceding paragraphs, the

commission may, if the consumer so agrees, instruct the consumer to make a

financial donation to a public or private charitable organization or to provide

community service free of charge, in accordance with the rules established in

paragraphs 3 and 4 of article 58 of the Criminal Code.

4. The commission may suspend enforcement of any of the penalties provided for in

the preceding paragraphs, replacing them by performance of certain duties, under

the terms of article 19.

Article 18

Warnings

1. The commission may issue a warning if, in view of the personal circumstances of

the consumer, the type of consumption and the type of plants, substances or

preparations consumed, it considers that the consumer will abstain from future

consumption.
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2. The warning shall consist of an oral reprimand, with the consumer being expressly

warned of the consequences of his behavior and urged to abstain from consumption.

3. The commission shall deliver the warning when the decision to apply it becomes

definitive.

4. The commission shall deliver an immediate warning if the consumer declares that

he waives the right to bring an appeal.

Article 19

Suspension of enforcement of penalty

1. In the case of an addicted consumer for whom there is no feasible treatment, or

who refuses to accept treatment, the commission may suspend enforcement of the

penalty, requiring the consumer to present himself or herself periodically at medical

services, with the frequency deemed necessary by such services, with a view to

improving his health conditions, and suspension of enforcement may also be made

conditional on the acceptance by the consumer of the measures provided for in

paragraph 3.

2. In the case of a non-addicted consumer, the commission may opt to suspend the

penalty if, in the light of the personal circumstances of the consumer, the type of

consumption and the type of plants, substances or preparations consumed, it

concludes that this is the most appropriate form of achieving the aim of preventing

consumption should the consumer agree to the conditions proposed by the

commission under the terms of the following paragraphs.

3. The commission may propose other follow-up solutions which may be particularly

advisable in view of the specific nature of each case, in such a way as to ensure

respect for the dignity of the individual and with the acceptance of the latter, such
 74

measures being chosen from those provided for in subparagraphs a) to d) of

paragraph 2 of article 17.

4. The rules governing periodic attendance as provided for in paragraph 1 shall be

issued by the Minister of Health.

Article 20

Duration of suspension of enforcement of penalty

1. Suspension shall have a duration of between one and three years as from the

date on which a decision becomes final, not counting the time for which the

consumer may be deprived of liberty due to coercive procedural measures, prison

sentence or security measure.

2. The commission shall determine the duration of the measures provided for in

paragraph 3 of the preceding article, never exceeding an upper limit of six months.

Article 21

Periodic attendance

1. In the case of suspension of the enforcement of the sentence with periodic

attendance at health services, the commission shall notify the health center of the

consumers area of residence or any other health service which may be agreed with

him.

2. The services referred to in the preceding paragraph shall notify the commission of

the consumers regular attendance or, when applicable, of his failure to attend,

indicating any reasons of which it may be aware.

Article 22

Notification of measures
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1. The services and authorities whose cooperation is requested for the purpose of

monitoring compliance with measures shall be notified of the decision to suspend

enforcement of penalties.

2. The services and authorities referred to in the preceding paragraph shall notify the

commission of any failure to comply with measures, for the purposes of the

provisions of paragraphs 2 and 3 of the following articles.

Article 23

Effects of suspension

1. The commission shall declare a penalty to have been set aside if, on expiry of the

suspension period, there exist no reasons which would lead to revoking such

suspension.

2. Suspension of enforcement of penalty shall be revoked whenever, whilst such

suspension is in effect, the consumer repeatedly fails to comply with the measures

imposed.

3. If suspension is revoked, the penalty applied shall be enforced.

Article 24

Duration of penalties

The penalties provided for in paragraph 2 of article 17 and the follow-up measures

provided for in article 19 shall have a minimum duration of one month and a

maximum duration of three years.

Article 25

Compliance with penalties and follow-up measures

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The Governo Civil shall be notified of the decision to apply penalties or follow-up

measures, and shall notify the services and authorities whose cooperation is required

for the enforcement of such measures.

Article 26

Subsidiary law

In the absence of specific provisions herein, the general rules on administrative

offences shall apply.

Article 27

Application in the Autonomous Regions

In the Autonomous Regions, the geographical distribution and composition of the

commission, the powers to appoint their members, the definition of the services

taking part in proceedings and the distribution of the proceeds of fines shall be

established by regional legislative decree.

Article 28

Repeal

Article 40, save with regard to cultivation, and article 41 of Decree-Law no. 15/93, of

22 January, are hereby repealed, together with any other provisions which prove

incompatible with the framework established herein.

Article 29

Entry into force

The decriminalization approved herein shall enter into force throughout Portuguese

territory on July 1, 2001, and all the regulatory, organizational, technical and financial
 77

measures needed in order to apply the treatment and follow-up framework herein

provided for shall be adopted within 180 days from publication.

Appendix B

Opium Act

Opium Act, as after enforcement of the Act of 13 July, 2002, to amend the Opium

Act, and the Decree to actualize the Lists I and II of the Opium Act which Decree will

be enacted simultaneously with the aforementioned Act Law of 12 May 1928,

containing regulations concerning opium and other narcotic substances.

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Article 1

1. In this Act and the provisions based on it, the following terms shall have the

following meanings:

a. 'Our Minister': Our Minister of Public Health and Environmental Protection;

b. 'substance': a substance with a human, animal, plant or chemical origin,

including animals, plants, parts of animals or plants, as well as micro-organisms;

c. 'preparation': a solid or liquid mixture of substances;

d. 'drug': substance or preparation;

e. 'Single Convention': the Single Convention on Narcotic Drugs concluded in

New York on 30 March 1961 (Trb. [Bulletin of Treaties] 1963, 81), as amended by the

Protocol to Amend that Convention concluded in Geneva on 25 March 1972 (Trb.

1987, 90);

f. 'Convention on Psychotropic Substances': the Convention on Psychotropic

Substances concluded in Vienna on 21 February 1971 (Trb. 1989, 129);

g. 'Joint Action': The Joint Action No. 97/396/JHA of 16 June 1997 adopted by

the Council of the European Union based on Article K.3 of the Treaty on European

Union, on the information exchange, risk assessment and control of new synthetic

drugs (OJ L 167).

2. For purposes of the application of this Act and the provisions based on it,

the salts of the substances shall be considered equivalent to those substances.

3. For purposes of the application of this Act, 'manufacture' shall include

refining and converting.

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4. 'Bringing drugs into the territory of the Netherlands' as referred to in Articles

2 and 3 shall include: bringing objects or goods into the territory of the Netherlands in

which those drugs have been packaged or stored and every act of further transport,

storage, supply, receipt or transfer with regard to those drugs which have been

brought into the territory of the Netherlands or with regard to the objects or goods in

which those drugs have been packaged or stored.

5. 'Bringing drugs outside the territory of the Netherlands' as referred to in

Articles 2 and 3 shall include: bringing objects or goods outside the territory of the

Netherlands in which those drugs have been packaged or stored and the transport to

a foreign destination, acceptance for transport or presentation for transport or

declaration for export or reexport, including giving notice of the re-export, within the

meaning of Regulation (EEC) No. 2913/92 of the Council of the European

Communities of 12 October 1992 establishing the Community Customs Code (OJ L

302) of those drugs or of those objects or goods, or possession of those drugs or

those objects or goods in, on or at a vessel, vehicle or aircraft travelling to a foreign

destination.

Article 2 It shall be illegal to:

A. bring into or outside the territory of the Netherlands;

B. prepare, treat, process, sell, supply, provide or transport;

C. possess; or

D. manufacture a drug as referred to in List I accompanying this Act or

designated pursuant to Article 3a, fifth paragraph.

Article 3 It shall be illegal to:

A. bring into or outside the territory of the Netherlands;

 80

B. grow, prepare, treat, process, sell, supply, provide or transport;

C. possess; or

D. manufacture a drug as referred to in List II accompanying this Act or

designated pursuant to Article 3a, fifth paragraph.

Article 3a 1. Drugs shall be added to the List I or List II accompanying this Act

by an order in council if they are brought within the scope of the Single Convention or

the Convention on Psychotropic Substances or, pursuant to an obligation arising

under the Joint Action, must be brought within the scope of this Act. Drugs may be

deleted from List I or II by an order in council if they are removed from the scope of

the Conventions referred to in the first sentence or if the obligation referred to in that

sentence is extinguished on account of the Joint Action.

2. Drugs may be added to List I or List II by an order in council if it is shown

that they have an effect on the consciousness of a human being and that, if used by

a human being, they are damaging to his health and detrimental to society.

3. Drugs which have been added by an order in council pursuant to the

second paragraph may be deleted from List I or List II if it is shown that they do not or

no longer have the characteristics referred to in the second paragraph.

4. An order in council as referred to in the first, second and third paragraph

shall not be adopted until four weeks have passed since the draft of the order was

presented to both Houses of the States General and, during that time period, a wish

was not expressed by or on behalf of either of the Houses for the subject regulated in

the draft of the order to be regulated by statute.

5. If, in our Minister's judgment, acts as referred to in Article 2 or 3 in respect

of a drug must immediately be prohibited and the formulation of an order in council

as referred to in the first or second paragraph cannot be awaited, the drug may be
 81

designated by ministerial regulation. Our Minister shall ensure that, at the same time

that this ministerial regulation is adopted, the draft of an order in council with the

same content shall be presented to the Council of Ministers for evaluation. Unless

withdrawn earlier, the ministerial regulation shall remain in effect until the order in

council designating the drug concerned takes effect, but no later than up to a year

after the regulation becomes effective.

Article 3b 1. Any publication which is clearly intended to promote the sale,

supply or provision of a drug as referred to in Article 2 or Article 3 shall be prohibited.

2. The prohibition contained in the first paragraph shall not apply in respect of

publication related to medical or scientific information.

Article 3c 1. An order in council may designate drugs and applications for

which a prohibition described in Article 2 or 3 does not apply in whole or in part.

2. With regard to drugs as referred to in List I or II, an order in council may lay

down rules to ensure compliance with the provisions of the Single Convention or the

Convention on Psychotropic Substances or to prevent abuse of those drugs.

Article 4

1. It shall be illegal to issue a prescription for a drug as referred to in List I or

II, unless, in the interest of public health, the drug has been designated for this

purpose by an order in council. The order may lay down rules concerning the

prescription and the purpose for which the drug shall be prescribed. An order in

council adopted pursuant to the first sentence shall not take effect until eight weeks

after the date of issue of the Staatsblad [Bulletin of Acts and Decrees] in which it has

been published. The publication shall be reported immediately to both Houses of the

States General. In the interest of public health and in deviation from the first

sentence, a drug may be designated by ministerial regulation for which a prescription

 82

may be issued, as long as the drug has also been designated pursuant to Article 3a,

fifth paragraph.

2. The ordering of a drug as referred to in List I or II by: a. professionals as

referred to in Article 5, first paragraph, b. institutions and persons as referred to in

Article 5, second paragraph and third paragraph, and c. holders of an exemption as

referred to in Article 6, shall occur with due observance of the rules adopted by

ministerial regulation.

3. With respect to obtaining any drug referred to in List I and II, it shall be

illegal: a. to present a fake or forged prescription; b. to present a prescription in which

a different name or a different address is stated than the name or the address of the

person on whose behalf the prescription was issued.

Article 5

1. An order in council may lay down rules regarding the supply of drugs

designated pursuant to Article 4. Subject to this order in council, the prohibition on

preparing, treating, processing, selling, supplying, providing, transporting or

possessing a drug referred to in List I or II shall not apply to: a. pharmacists or

doctors operating pharmacies if, for medical purposes, they prepare, treat, process,

sell, supply, provide, transport or possess drugs designated pursuant to Article 4, first

paragraph, and these activities occur within the normal practice of their professions;

b. veterinary surgeons if, for veterinary medicine purposes, they sell, supply, provide,

transport or possess the drugs designated pursuant to Article 4.

2. The prohibitions on providing, transporting or possessing drugs as referred

to in List I or II shall also not apply to institutions designated by an order in council

and to those who need the drugs in question in the quantity present to practice

medicine, dentistry or veterinary medicine or for their own medical use or must have
 83

them in stock pursuant to statutory provisions and have obtained them in a legal

manner.

3. In addition, if an emergency situation as referred to in Article 1, first

paragraph, of the National Emergencies Act is proclaimed, other institutions or

persons besides those referred to in the first and second paragraph may be

designated by royal decree, at Our Minister's recommendation, for which/whom the

prohibitions on providing, transporting or possessing drugs as referred to in List I or II

shall not apply. This designation may be limited to certain areas and certain drugs.

Further conditions may also be attached to the designation. The designation shall

expire by law if the emergency situation is terminated and may also be revoked by

royal decree, at Our Minister's recommendation.

4. Moreover, the prohibition on transport and possession shall not apply to

those who transport or possess the drugs at the instruction of a person who is

authorized to engage in such transport.

Article 6

1. With due observance of Article 8i, first paragraph, Our Minister may grant

an exemption from a prohibition as referred to in Article 2 or 3. He may also extend,

modify, supplement or revoke an exemption.

2. An exemption or an extension thereof may be granted for at most five

years, on the understanding that an exemption from a prohibition as referred to in

Article 2, under A, or Article 3, under A, shall be granted on a case-by-case basis and

for at most six months. 3. Our Minister shall inform the applicant for an exemption or

for an extension thereof of his decision within three months after receiving the

application.

Article 7
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1. A fee may be levied for processing an application for an exemption or a

modification of, addition to or extension thereof. No fee shall be owed for processing

an application for an exemption as referred to in Article 8i, second paragraph.

2. A fee may be levied annually for an exemption. The provisions of the first

paragraph, second sentence, shall apply by analogy to the annual fee.

3. The amount of the fees referred to in the first and second paragraph shall

be set by ministerial regulation and may be set in a different manner for each

category of exemptions. If an exemption applies for a period of less than one year,

the fee referred to in the second paragraph shall be set proportionately at a lower

amount.

Article 8

1. An exemption may only be granted or extended if the applicant has

demonstrated to Our Minister's satisfaction:

a. that this shall serve the interest of public health or that of the health of

animals; b. that the applicant needs this to perform scientific or analytical chemical

research or for instructional purposes, insofar as the interest of public health does not

dictate otherwise, or c. that the applicant needs this to perform an act as referred to

in Article 2 or 3 pursuant to an agreement with:

1. another person to whom an exemption has been granted pursuant to

Article 6, first paragraph;

2. a pharmacist or a doctor operating a pharmacy;

3. a veterinary surgeon;

4. an institution or person designated pursuant to Article 5, second or third

paragraph; 5. a holder of a permit or exemption granted in another country to import

 85

the drugs in question into that country, insofar as the interest of public health does

not dictate otherwise.

2. An exemption may also be granted or extended if the applicant needs this

to grow cannabis pursuant to an agreement with Our Minister.

Article 8a

1. Conditions may be attached to an exemption to ensure compliance with the

provisions of the Single Convention and the Convention on Psychotropic Substances

and the rules laid down in or pursuant to this Act, or to prevent abuse of a drug as

referred to in List I or II.

2. The exemption shall at least state: a. the prohibitions as referred to in

Article 2 or 3 for which it is being granted; b. the purposes for which it is being

granted; c. on which property and in which locations the acts in question may take

place; d. the manner of storage; e. the manner of safeguarding; f. the manner in

which the stock records have been set up.

Article 8b An exemption or an extension thereof shall be denied if, pursuant to

a judicial decision which has become final and conclusive, the applicant has been

placed under guardianship or an administrator has been appointed over his property.

Article 8c

1. An exemption or an extension thereof may be denied in the event of and

under the conditions referred to in Article 3 of the Public Administration Probity in

Decision-making Act.

2. With an eye to the application of the first paragraph, the Bureau [Office for

Public Administration Probity in Decision-making] referred to in Article 8 of the Act

 86

referred to in the first paragraph may be asked for an advisory opinion as referred to

in Article 9 of that Act.

Article 8d An exemption shall be revoked:

a. at the request of the holder of the exemption;

b. if the interest of public health requires this;

c. if, in Our Minister's judgment, the purposes for which the exemption was

granted can no longer be realized;

d. if a fee owed pursuant to Article 7, second paragraph, has not been paid

within 30 days after being levied, nor has there been compliance with the written

demand of Our Minister, made after that time period has lapsed, to pay within eight

days.

Article 8e2

1. An exemption may be revoked:

a. if the holder of the exemption acts contrary to a rule laid down in or

pursuant to this Act; b. in the event of and under the conditions referred to in Article 3

of the Public Administration Probity in Decision-making Act.

2. With an eye to the application of the first paragraph, under b, the Office for

Public Administration Probity in Decision-making referred to in Article 8 of the Act

referred to in the first paragraph, under b, may be asked for an advisory opinion as

referred to in Article 9 of that Act.

Article 8f

1. A person whose exemption is revoked shall dispose of the drugs to which

the exemption pertains during the time period between the notification of the
 87

revocation and the last day on which the exemption is valid. He shall dispose of

these drugs either by destroying them or transferring them to persons, including legal

persons, which are authorized to perform acts as referred to in Article 2 or 3.

In deviation from the first paragraph, the holder of an exemption for growing

hemp shall dispose of the drugs to which the exemption pertains either by destroying

those drugs or transferring them to Our Minister. Article 8g An exemption shall cease

to have effect:

a. if the holder dies;

b. if, pursuant to a judicial decision which has become final and conclusive,

the applicant has been placed under guardianship or an administrator has been

appointed over his property;

c. if the legal person to which the exemption was granted is dissolved,

merges and is not the acquiring legal person, or is split up.

Article 8h Our Minister shall ensure that:

a. enough hemp is grown in the Netherlands for scientific research into the

medical application of hemp, hashish and hempseed oil or for the production of

medicines;

b. the hemp grown as referred to under a is used for a purpose referred to

under a.

Article 8i

1. Our Minister shall not grant any more exemptions from the prohibition on

growing hemp than are necessary for the purposes referred to in Article 8h and for

refining hemp.
 88

2. An exemption from the prohibition on growing hemp or processing, treating

or transporting hemp, hashish and hempseed oil for the purposes referred to in

Article 8h shall only be granted to the person with whom Our Minister enters into an

agreement in this regard to perform such acts.

3. An agreement as referred to in the second paragraph shall end by law as

from the date on which the exemption granted to the other party is revoked or

expires.

4. An agreement as referred to in the second paragraph shall in any case

state that the other party with whom Our Minister is entering into the agreement shall

exclusively sell and deliver to him the hemp grown within four months after it is

harvested and shall destroy the surplus hemp.

5. To the exclusion of others, Our Minister shall be authorized: a. to bring

hemp, hashish and hempseed oil into and outside the territory of the Netherlands; b.

to sell and supply hemp, hashish and hempseed oil; c. to possess hemp, hashish

and hempseed oil, with the exception of the stocks managed by those who have an

exemption to grow, treat or process these drugs.

6. The fifth paragraph shall not be applicable insofar as applications of hemp,

hashish or hempseed oil have been designated pursuant to Article 3c, first

paragraph.

Article 8j The civil servants of the [Public Health Inspectorate], and the civil

servants of the [Tax Department], insofar as they are competent with regard to

customs, shall be responsible for monitoring compliance with the provisions of or

pursuant to this Act.

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Article 8k In addition to the persons designated in or pursuant to Article 141 of

the Dutch Code of Criminal Procedure, the civil servants referred to in Article 8j shall

be responsible for investigating the offences made punishable in this Act.

Article 9

1. Insofar as reasonably necessary to perform their duties, the investigating

officials shall have access to: a. the means of transport, including residential portions,

which they know or which they reasonably may suspect are used to import or

transport drugs as referred to in List I or II, or in which, on which or at which these

drugs are stored or present; b. the locations where a violation of this Act is being

committed or where it may reasonably be suspected that such a violation is being

committed.

2. In the event of grave presumptions against a person suspected of an

offence made punishable as a crime by this Act, they shall be authorized to search

this person's clothing.

3. They shall be authorized at all times to seize objects which are capable of

being seized. To this end, they may demand their delivery.

4. The Public Prosecutor or Assistant Public Prosecutor before whom the

suspect is brought or who themselves have arrested the suspect shall be authorized

to order a person who has just entered the territory of the Netherlands or who is

about to leave this territory, and who has been arrested in connection with an offence

made punishable as a crime by this Act, to cooperate in a urinalysis designed to

demonstrate the presence in the body of drugs as referred to in article 2 or 3, first

paragraph. 3

Article 10
 90

1. A person acting contrary to: a. a prohibition given in Article 2, the

prohibition given in Article 3b, first paragraph, or a prohibition given in Article 4, third

paragraph; b. a rule given pursuant to Article 3c, second paragraph, or Article 4, first

or second paragraph; c. a condition attached to an exemption pursuant to Article 8a,

first paragraph; shall be punished with imprisonment of at most six months or a fine

of the fourth category.

2. A person wilfully acting contrary to the prohibition given in Article 2, under

C, in Article 3b, first paragraph, or in Article 4, third paragraph, shall be punished with

imprisonment of at most four years or a fine of the fifth category.

3. A person wilfully acting contrary to the prohibition given in Article 2, under

B or D, shall be punished with imprisonment of at most eight years or a fine of the

fifth category.

4. A person wilfully acting contrary to a prohibition given in Article 2, under A,

shall be punished with imprisonment of at most 12 years or a fine of the fifth

category.

5. If the offence referred to in the second or fourth paragraph pertains to a

small quantity intended for personal use, imprisonment of at most one year or a fine

of the third category shall be imposed. Article 10a 1. If, in order to prepare for or

encourage an offence referred to in the third or fourth paragraph of Article 10, a

person:

1. attempts to induce another person to commit that offence, to have that

offence committed, to participate in committing that offence or to incite someone to

commit that offence, to aid and abet in this regard, or to provide the opportunity,

means or information for this,

 91

2. attempts to obtain for himself or another person the opportunity, means or

information to commit that offence, 3 A bill amending this article is proposed to

parliament on 13 January 2003. If accepted, this article will read: “The Public

Prosecutor or Assistant Public Prosecutor before whom the suspect is brought or

who themselves have arrested the suspect shall be authorized to order a person who

has just entered the territory of the Netherlands or who is about to leave this territory,

and who has been arrested in connection with an offence made punishable as a

crime by this Act, to cooperate in a urinalysis designed to demonstrate the presence

in the body of drugs as referred to in List I and II.”

3. has objects, means of transport, substances, money or other means of

payment on hand which he knows or has serious reason to suspect are intended for

the commission of that offence, shall be punished with imprisonment of at most six

years or a fine of the fifth category.

2. A person committing the offences described in the first paragraph shall not

be punished with regard to bringing into or outside the territory of the Netherlands a

small quantity intended for personal use.

Article 11

1. A person acting contrary to a prohibition given in Article 3 shall be punished

with imprisonment of at most one month or a fine of the second category.

2. A person wilfully acting contrary to a prohibition given in Article 3, under B,

C or D, shall be punished with imprisonment of at most two years or a fine of the

fourth category.

3. A person wilfully acting contrary to a prohibition given in Article 3, under B,

in connection with practicing a profession or operating a business shall be punished

with imprisonment of at most four years or a fine of the fifth category.

 92

4. A person wilfully acting contrary to a prohibition given in Article 3, under A,

shall be punished with imprisonment of at most four years or a fine of the fifth

category.

5. The second paragraph shall not apply if the offence pertains to a quantity

of hemp or hashish of at most 30 grams.

6. The second and fourth paragraph shall not apply if the offence pertains to a

small quantity, intended for personal use, of the drugs stated in list referred to in

Article 3, first paragraph.

Article 12 If the value of the objects with which or with regard to which the offences

made punishable in Articles 10, first, second, third and fourth paragraph, 10a, first

paragraph, and 11, second and third paragraph, were committed, or which were

obtained in full or in part through those offences, is higher than one-fourth of the

maximum of the fine imposed for those offences, a fine of the next highest category

may be imposed, even if the offence was committed by a natural person.

Article 13

1. The offences made punishable in Article 10, first paragraph, and Article 11,

first paragraph, are minor offenses.

2. The offenses made punishable in Article 10, second, third, fourth and fifth

paragraph, in Article 10a, first paragraph, and in Article 11, second, third and fourth

paragraph, are crimes.

3. The Dutch criminal laws shall apply to everyone who, outside the

Netherlands, is guilty of: a. one of the offences made punishable in Article 10a, first

paragraph, insofar as they were committed to prepare for or to encourage the offence

made punishable in Article 10, fourth paragraph, or b. attempting to or participating in

the offence made punishable in Article 10, fourth paragraph. Article 13a Subject to
 93

the provisions in Articles 33 to 35 inclusive and 36b to 36d inclusive of the Dutch

Criminal Code, the drugs referred to in List I or II shall be forfeited or confiscated.

4. A bill amending this article is proposed to parliament on 13 January 2003. If

accepted, this article will read: The second and fourth paragraph shall not apply if the

offence pertains to a small quantity, intended for personal use, of the drugs stated in

list II, with the exception of hemp and hashish.

Article 13b 1. The Mayor shall be authorized to apply administrative coercion

if, in buildings accessible to the public and the property on which they are located, a

drug as referred to in List I or II is sold, delivered or provided, or is present for this

purpose.

2. The first paragraph shall not apply if the buildings in question are used for

preparing medicines or practicing medicine, dentistry or veterinary medicine by

pharmacists, doctors, dentists and veterinary surgeons respectively.

3. If, based on the first paragraph, the Mayor has decided to close the

building or property in question; he shall have this order registered as soon as

possible in the public registers referred to in Article 16 of Book 3 of the Dutch Civil

Code. Article 24 of that Code shall not be applicable. Article 14 This Act may be cited

as the 'Opium Act'. Article 15 This Act shall take effect as from a date to be

determined by Us. On that date, the Act of 4 October 1919, Bulletin of Acts and

Decrees No. 592, Adopting Provisions concerning Opium and Other Illicit Drugs, as

this Act was amended by the Act of 29 June 1925, Bulletin of Acts and Decrees No.

308, shall cease to have effect.

Article 14 This Act may be cited as the 'Opium Act'.

Article 15 This Act shall take effect as from a date to be determined by Us. On that

date, the Act of 4 October 1919, Bulletin of Acts and Decrees No. 592, Adopting
 94

Provisions concerning Opium and Other Illicit Drugs, as this Act was amended by the

Act of 29 June 1925, Bulletin of Acts and Decrees No. 308, shall cease to have

effect.
 95

Appendix C

Federal Act on Narcotics and Psychotropic Substances

(Narcotics Act, NarcA)

of 3 October 1951 (Status as of 1 January 2018)

The Federal Assembly of the Swiss Confederation,

on the basis of Articles 118 and 123 of the Federal Constitution, and having

considered the Federal Council Dispatch dated 9 April 19514,

decrees:

Chapter 1  General Provisions

  Art. 1 Aim

This Act is intended to:

a.

prevent the unauthorized consumption of narcotics and psychotropic

substances, in particular by encouraging abstinence;

b.

regulate the availability of narcotics and psychotropic substances for medical

and scientific purposes;

c.

protect persons against the negative health-related and social consequences

of mental and behavioral disorders associated with dependence;

d.

protect public order, safety and security the risks posed by narcotics and

psychotropic substances;

e.
 96

combat criminal acts closely connected with narcotics and psychotropic

substances.

  Art. 1a Four-pillar policy

The Confederation and the cantons shall introduce measures in the following four

areas (the four-pillar policy):

a.

prevention;

b.

therapy and reintegration;

c.

harm reduction and survival support;

d.

control and law enforcement.

 In doing so, the Confederation and the cantons shall take account of the concerns of

protecting public health and minors.

  Art. 1b Relationship with the Therapeutic Products Act

Narcotics used as therapeutic substances are governed by the provisions of the

Therapeutic Products Act of 15 December 20002. The provisions of this Act apply,

insofar as the Therapeutic Products Act contains no rule or a less stringent rule.

  Art. 2 Definitions

In this Act:

a.

narcotics means substances and preparations that cause dependence that

have the effects associated with morphine, cocaine or cannabis, and

 97

substances and preparations produced on their basis of or that have a similar

effect to the same;

b.

psychotropic substances mean substances and preparations that cause

dependence that contain amphetamines, barbiturates, benzodiazepines or

hallucinogens such as lysergide or mescaline or that have a similar effect to

the same;

c.

substances mean raw materials such as plants or fungi or parts thereof, and

chemically produced compounds;

d.

preparations mean ready-to-use narcotics and psychotropic substances;

e.

precursors mean substances that do not cause dependence, but which may

be transformed into narcotics or psychotropic substances;

f.

auxiliary chemicals mean substances that assist in the production of narcotics

and psychotropic substances.

  Art. 2a List

The Federal Department of Home Affairs shall maintain a list of narcotics,

psychotropic substances precursors and auxiliary chemicals. It shall generally base

this list on the recommendations of the relevant international organizations.

  Art. 2b Rule for psychotropic substances

Unless this Act provides otherwise, the provisions on narcotics also apply to

psychotropic substances.

  Art. 3 Simplified control measures1

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 The Federal Council may make precursors and auxiliary chemicals subject to the

narcotics controls set out in Chapters 2 and 3. It may require a license or other less

stringent monitoring measures, such as customer identification, accounting

obligations and duties to provide information. In doing so, it shall generally follow the

recommendations of the relevant international organizations.

The Federal Council may partially or - in certain concentrations or quantities - entirely

exempt narcotics from the control measures if the relevant international organizations

(United Nations, World Health Organization) decide on or recommend the exemption

based on an agreement ratified by Switzerland.

 When implementing paragraph 1, in particular for duties to provide information or

advice, the Federal Council may call on the assistance of private organizations.

  Art. 3a

Chapter 1a  Prevention, Therapy and Harm Reduction

Section 1 Prevention

  Art. 3b Division of tasks between Confederation and cantons

 The cantons shall promote education and advice on the prevention of disorders

associated with addiction and their negative health-related and social consequences.

In doing so, they shall pay special attention to the protection of children and

adolescents. They shall introduce adequate general conditions and create the

required facilities or support private institutions that meet the quality requirements.

The Confederation shall conduct national programs on prevention and in particular

encourage the early recognition of disorders associated with addiction; in doing so, it

shall prioritize the concerns relating to the protection of children and adolescents. It

shall raise public awareness of the problems of addiction.

  Art. 3c Power to report

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 Public offices and specialists in the education, social work, health, justice and police

sectors may report cases of existent or anticipated disorders associated with

addiction, in particular in cases involving children and adolescents, to the relevant

treatment or social assistance agencies, if:

a.

they have identified the same in the course of their official or professional

activities;

b.

the persons concerned, their dependents or the general public are placed at

risk; and

c.

they regard a supervision measure as appropriate.

If a report relates to a child or an adolescent under 18, his or her legal representative

must also be informed, unless there is good cause for not doing so.

The cantons shall designate professionally qualified public or private treatment or

social assistance agencies that are responsible for supervising reported persons, in

particular children or adolescents at risk.

The staff of the relevant treatment or social assistance agencies are subject to official

and professional secrecy in accordance with Articles 320 and 321 of the Criminal

Code.

Public offices and specialists under paragraph 1 who learn that a person under their

supervision has breached Article 19a are not obliged to file a criminal complaint.

Section 2 Therapy and Reintegration

  Art. 3d Supervision and treatment

The cantons shall ensure the supervision of persons with disorders associated with

addiction who require the medical or psycho-social treatment or welfare measures.

 100

The treatment is carried out with the aim of guaranteeing the therapeutic and social

integration von persons with disorders associated with addiction, improving their

physical and psychological health and creating conditions in which they can live a

drug-free life.

The cantons shall also support the professional and social reintegration of such

persons.

 They shall create the facilities required for treatment and the reintegration or support

private institutions that meet the quality requirements.

 The Federal Council shall issue recommendations on the principles for funding

addiction therapies and reintegration measures.

  Art. 3e Narcotics-based treatment

 A license is required for prescribing, dispensing and administering narcotics in order

to treat persons dependent on narcotics. The license is issued by the cantons.

The Federal Council may lay down general conditions.

Heroin-based treatment requires a federal license. The Federal Council shall issue

special provisions. It shall in particular ensure that:

a.

heroin is only prescribed to persons dependent on narcotics who have failed

to respond to other forms of treatment or whose state of health precludes

other forms of treatment;

b.

heroin is only prescribed by specialist physicians in appropriate facilities;

c.

the conduct of and progress with heroin-based treatment is reviewed

periodically.
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  Art. 3f Data processing

 The authorities and institutions responsible for the implementation of this Act are

entitled to process personal data, and in particular sensitive personal data and

personality profiles in order to review the requirements for and the progress with the

treatment of persons dependent on narcotics.

 They shall guarantee the protection of data in accordance with paragraph 1 through

technical and organizational measures.

 The Federal Council shall regulate the details, in particular:

a.

the authorities and institutions responsible for the data processing;

b.

the data to be processed;

c.

the data flows;

d.

the rights of access.

Section 3 Harm Reduction and Survival Support

  Art. 3g Duties of the cantons

In order to prevent or reduce health-related and social harm among persons with

disorders associated with addiction, the cantons shall introduce harm reduction and

survival support measures. They shall create the required facilities or support private

institutions that meet the quality requirements.

  Art. 3h Risk to traffic

If an official agency fears that a person poses a risk to road, shipping or civil aviation

traffic due to a disorder associated with addiction, it must notify the competent

authority.
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Section 4 Coordination, Research, Training and Quality Assurance

  Art. 3i Services provided by the Confederation

The Confederation shall support the cantons and private organizations in relation to

prevention, therapy and harm reduction by providing services; it shall support them in

particular:

a.

with coordination, including planning and managing the service offered;

b.

with the implementation of quality measures and proven intervention models.

It shall inform them of new scientific findings.

It may take its own additional measures to reduce addiction problems or entrust their

implementation to private organizations.

  Art. 3j Promotion of research

The Confederation may in terms of the Federal Research Act of 7 October

19831 support scientific research in the following fields in particular:

a.

the mode of action of substances that induce addiction;

b.

the causes and effects of disorders associated with addiction;

c.

preventive and therapeutic measures;

d.

the prevention or reduction of disorders associated with addiction;

e.

the effectiveness of reintegration measures.

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  Art. 3k Basic and advanced training

The Confederation shall support basic and advanced training in the fields of

prevention, therapy and reintegration, and in harm reduction and survival support.

  Art. 3l Recommendations on quality assurance

In consultation with the cantons, the Confederation shall develop recommendations

on quality assurance in the fields of the prevention, therapy and reintegration, and of

harm reduction and survival support.

Chapter 2 Manufacturing, Dispensing, Obtaining and Using Narcotics

Section 1 Production and Sales Businesses

  Art. 4 License for production and trade1

 Businesses and persons that cultivate, produce, process or trade in narcotics require

a license from the Swiss Agency for Therapeutic Products (the Agency). Article 8 is

reserved.

 The Federal Council shall regulate the requirements for the grant, expiry or

withdrawal of the license, and its form, content and term of validity.

  Art. 5 Import, export and transit1

 Any import or export of narcotics subject to control requires a license from the

Agency. This shall be granted in accordance with the international agreement. An

export license may also be granted even if it is not required under this Act and the

international agreements but requested by the country of destination.3

The Federal Council may issue special provisions on the import or export of narcotics

by travelers suffering from medical conditions. The Agency may process sensitive

personal data connected with the import or export of narcotics by travelers suffering

from medical conditions, provided this is required by international agreements.4

The supervision of the transit of narcotics shall be carried out by the Customs

Administration in consultation with the Agency.

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  Art. 6 Restrictions under international agreements1

The Federal Council may prohibit license holders from cultivating, manufacturing

importing or exporting, or stockpiling on the basis of international agreements.

 It may delegate the power to issue such rulings to the Federal Department of Home

Affairs while retaining its oversight.

  Art. 71Raw materials and products with narcotic-type effects

 Raw materials and products suspected of having similar effects to the substances

and preparations in accordance with Article 2 may only be cultivated, produced,

imported or exported, stored, used or placed on the market with a license issued by

the Federal Department of Home Affairs and in accordance with its conditions.

 The Agency shall establish whether raw materials and products are substances or

preparations in accordance with Article 2. If this is the case, a license under Articles 4

and 5 is required.

 The Federal Department of Home Affairs shall maintain a list of these substances

and preparations.

  Art. 8 Prohibited narcotics1

 The following narcotics may not be cultivated, imported, produced or placed on the

market:

a.

opium for smoking and the residues created in its production or use;

b.

diacetylmorphine and its salts;

c.

hallucinogens such as lysergide (LSD 25);

d.

narcotics containing an effective concentration of cannabinoids.4

 105

 The Federal Council may prohibit the import, production and placing on the market

of further narcotics if international agreements prohibit their production or the most

important producer countries cease their production.6

 Any stocks of prohibited narcotics must be transformed under the supervision of the

relevant cantonal authority in to a legally-permitted substance or, if this is not

possible, destroyed.

 The Federal Office of Public Health may issue exceptional licenses for cultivating,

importing, producing and placing on the market the narcotics mentioned in

paragraphs 1 and 3, where this is not prohibited by an international agreement and

these narcotics are needed for scientific research, the development of medicinal

products or for restricted medical use.

 For the cultivation of a narcotic mentioned in paragraphs 1 and 3 that is an active

ingredient in an authorized medicinal product, an exceptional license is required from

the Federal Office of Public Health.8

 For the import, production and placing on the market of a narcotic mentioned in

paragraphs 1 and 3 that is an active ingredient in an authorized medicinal product, a

license is required from the Agency in accordance with Article 4.9

 The Federal Office of Public Health may grant exceptional licenses, provided the

substances mentioned in the paragraphs 1 and 3 are used in control measures.

Section 2 Medical Professionals

  Art. 9

 Medical professionals as defined in the therapeutic products legislation, who carry

out their professional activities independently in accordance with the Medical

Professions Act of 23 June 2006 either as a private business or in the service of the

cantons or communes and who have the relevant cantonal authorizations, and

managers of public or hospital pharmacies may acquire, store, use and dispense
 106

narcotics without licenses; the foregoing does not apply to exceptional licenses under

Article 8. Cantonal provisions on direct dispensing by physicians, dentists and

veterinary surgeons are reserved.

 Authorization under paragraph 1 is also granted to medical professionals and

students of medical professions at university level who are authorized by the relevant

cantonal authority to represent a medical professional in a medical profession at

university level.

a
 …

 …

 The cantons may limit the authorizations granted to dentists to specific narcotics.

 The conditions that apply to foreign sanatoriums in Switzerland shall be regulated by

the cantons shall in consultation with the Agency.

  Art. 10

 Self-employed physicians and veterinary surgeons as defined in the Medical

Professions Act of 23 June 20061 are authorized to prescribe narcotics.

 Foreign physicians and veterinary surgeons entitled to practice their professions in

the Swiss border areas under international agreements may use and prescribe the

narcotics required for doing so; the related prescriptions must be executed by a

pharmacy in the relevant border area.

 The Federal Council shall determine the additional requirements under which a

prescription for narcotics issued by a foreign physician or veterinary surgeon in

Switzerland may be executed.

  Art. 11
 107

 Physicians and veterinary surgeons are obliged to use, dispense and prescribe

narcotics only in the quantities necessary according to the recognized rules of

medical science.

 Physicians and veterinary surgeons who dispense narcotics authorized as medicinal

products for indications other than those for which they were authorized must report

this within 30 days to the relevant cantonal authorities. They must provide all the

information requested by the relevant cantonal authorities on the nature and purpose

of the treatment.

 Paragraphs 1 and 1 also apply to the use and dispensing of narcotics by dentists.2

  Art. 12

 The cantons may revoke authorizations in accordance with Article 9 for a limited

period or permanently if the authorized medical professional1 is narcotics dependent

or has committed an offence under Articles 19-22.2

 The order applies throughout the Confederation.

 Article 54 of the Criminal Code3 remains reserved.

  Art. 13

In pharmacies, narcotics may only be dispensed to the public on the basis of a

prescription from a physician or veterinary surgeon.

Section 3 Hospitals and Institutions

  Art. 14

 Hospitals may be granted a license by the relevant cantonal authority to acquire,

store and use narcotics according to their operational requirements, provided a

person specified in Article 9 is responsible for their storage and use.

 108

 Institutions involved in scientific research may be granted a license by the relevant

cantonal authority to cultivate, acquire, store and use narcotics to the extent required

for their own needs.

 Article 8 is reserved.

  Section 3a7  Organizations and Authorities

  Art. 14a

 The Federal Council may license national or international organizations such as

those of the Red Cross, the United Nations, its special organizations and national

institutions, and authorities such as the customs and border guard agencies to

acquire, import, store, use, prescribe, dispense or export narcotics in the course of

their activities.

 The cantons may grant a license cantonal authorities and communal authorities, in

particular the police, in accordance with paragraph 1.

 The Federal Council and the cantons may revoke the license they have granted for a

limited period or permanently where special circumstances so require.

  Section 4 … 

  Art. 15

  Art. 15a-15c

Chapter 3 Control

  Art. 16

For each supply of narcotics, a delivery note must be issued and handed to the

recipient with the product. The supply must be reported to the Agency separately.

Exempted from the foregoing is dispensing by authorised medical professionals2 for

the treatment of persons and animals and to physicians in the same cantonal territory

who do not dispense directly.

  Art. 17
 109

 Businesses, persons and institutions who hold a license under Articles 4 and 14

paragraph 2 are obliged to keep constant records of all dealing with narcotics.

 The businesses and persons mentioned in Article 4 must report to the Agency at the

end of each year on their dealing with narcotics and the stocks that they hold.

 Businesses and persons licensed to cultivate, produce and process narcotics must

also report to the Agency annually on the extent the area under cultivation and the

type and quantity of narcotics obtained, produced and processed.

 The persons authorized under Article 9 to acquire, use or dispense narcotics or the

persons responsible for them under Article 14 paragraph 1 must justify the use of the

narcotics.

 The Federal Council shall issue provisions on safeguarding, labelling and promoting

narcotics, as well as the information given on package inserts.5

  Art. 18

 The businesses, persons, facilities and institutions subject to official control must

make their areas under cultivation, production, sales and storerooms accessible to

the control agencies, together with their stocks of narcotics and all related receipts.

They must provide information whenever requested to do so by the authorities.

 The public officials of the Confederation and the cantons who are delegated the task

of controlling dealings in narcotics must treat the information obtained in doing so as

confidential. The duty of confidentiality as defined in Article 320 of the Criminal

Code2 is unlimited in time.

Chapter 3a  Data Protection under the Schengen Association Agreements

  Art. 18a Disclosure of personal data to a state bound by one of the Schengen

Association Agreements
 110

The disclosure of personal data to the relevant authorities of states bound by one of

the Schengen Association Agreements is equivalent to the disclosure of personal

data between federal bodies.

  Art. 18b

  Art. 18c Right to information

The right to information is governed by the federal or cantonal data protection

provisions.1 The proprietor of the data collection shall also provide information on the

details available on the origin of the data.

  Art. 18d and 18e

Chapter 4 Criminal Provisions

Section 1 Offenses

  Art. 19

 Any person who without authorization:

a.

cultivates, produces or otherwise produces narcotic substances;

b.

stores, sends, transports, imports, exports or carries in transit narcotic

substances,

c.

sells or prescribes narcotic substances, or otherwise procures for such

substances for another or places such substances on the market;

d.

possesses, keeps, buys, acquires or otherwise obtains narcotic substances;

e.

finances the unlawful trade in narcotic substances or arranges its financing;

f.
 111

publicly encourages the consumption of narcotic substances or publicly

announces the opportunity to acquire or consume narcotic substances;

g.

makes preparations for any of the acts mentioned in letters a-f,

is liable to a custodial sentence not exceeding three years or to a monetary penalty.

 The offender is liable to a custodial sentence of not less than one year, which may

be combined with a monetary penalty, if he or she:

a.

knows or must assume that the offence relates to a quantity of narcotic

substances that could directly or indirectly endanger the health of a large

number of people;

b.

acts as a member of a group that has been formed in order to trade unlawfully

in narcotic substances;

c.

achieves a high turnover or substantial profit through commercial trading;

d.

offers, provides or otherwise makes available narcotic substances in

educational institutions attended primarily by young persons or in the

immediate vicinity of such institutions.

 The court may at its discretion mitigate the penalty in the following cases:

a.

an offence under paragraph 1 letter g;

b.

an offence under paragraph 2, where the offender is dependent on narcotic

substances and the offence was intended to finance his or her own

consumption of narcotic substances.

 112

 The offender also commits an offence under the provisions of paragraphs 1 and 2 if

he or she committed the offence abroad but is apprehended in Switzerland and is not

extradited, provided the act is also an offence at the place of commission. If the law

at the place of commission is more lenient, it shall be applied. Article 6 of the

Criminal Code applies.

  Art. 19

Any person who offers, supplies or in any other way makes accessible narcotics to a

person under 18 without medical grounds for doing so is liable to a custodial

sentence not exceeding three years or a monetary penalty.

  Art. 19a

1. Any person who willfully consumes without authorization narcotics or any person

who commits an offence in terms of Article 19 for his or her own consumption is liable

to a fine.

2. In minor cases, no proceedings may be taken or the penalty may be waived. An

official caution may be issued.

3. If the offender is or makes himself or herself subject to medically supervised care

due to consumption of narcotics, prosecution may be waived. Criminal proceedings

shall be conducted if the offender withdraws from care or treatment.

4. If the offender is dependent on narcotics, the court may order him or her to be

admitted to a hospital. Article 44 of the Criminal Code3 applies mutatis mutandis.

  Art. 19b

 Any person who prepares a negligible quantity of a narcotic for his or her own

consumption or supplies a person over the age of 18 free of charge for the purpose

of consuming the narcotic together at the same time does not commit an offence.
 113

 10 grams of a narcotic containing an effective concentration of cannabinoids

constitutes a negligible quantity.

  Art. 19c

Any person who willfully incites or attempts to incite another to consume narcotics

without authorization is liable to a fine.

  Art. 20

 Any person who:

a.

makes an application containing false information in order to obtain an import,

transit or export license for him or herself or for another;

b.

without a license diverts narcotics or substances in accordance with Article 3

paragraph 1 for which he or she holds a Swiss export license to a different

destination in Switzerland or abroad;

c.

without a license cultivates, produces, imports or exports, stores or places on

the market substances and preparations in accordance with Article 7;

d.

as a medical professional2 uses or dispenses narcotics other than in

accordance with Articles 11 or 13;

e.

as a physician or veterinary surgeon prescribes narcotics other than in

accordance with Article 11;

is liable to a custodial sentence not exceeding three years or to monetary penalty.

 114

 The offender is liable to a custodial sentence of no less than one year if he or she

achieves a large turnover or substantial profit through commercial trading. The

custodial sentence may be combined with a monetary penalty.

  Art. 21

 Any person who willfully:

a.

fails to file reports under Articles 11 paragraph 1bis, 16 and 17 paragraph 1,

issue the required delivery notes or make narcotics controls or provides false

information therein or omits to enter information that he or she should have

included;

b.

uses delivery notes or narcotics controls that contain false or incomplete

information;

is liable to a custodial sentence not exceeding three years or monetary penalty.

 The offender is liable to a fine if he or she acts through negligence.

  Art. 22

Any person who willfully or negligently:

a.

fails to fulfil his or her duties of care as a person authorized to deal with

narcotics;

b.

breaches the provisions on narcotics advertising and information;

c.

breaches storage and retention obligations;

d.
 115

breaches an implementation regulation issued by the Federal Council or the

relevant department, the contravention of which is declared a criminal

offence, or an order issued to him containing a reference to the penalty under

this article;

is liable to a fine.

  Art. 23

 If a public official responsible for implementing this Act willfully commits an offence

under Articles 19-22, the penalty shall be increased appropriately.

 A public official responsible for combating unauthorized dealings in narcotics who

accepts an offer of narcotics in order to assist with investigations does not commit an

offence, even if he or she does not disclose his or her identity and function.

  Art. 24

 Unlawful assets located in Switzerland shall be forfeited to the State even if the

offence is committed abroad. Where there is no place of jurisdiction under Article 32

of the Criminal Procedure Code of 5 October 20072 (CPC), the canton in which the

assets are located is responsible for arranging their forfeiture.3

 The relevant authorities shall confiscate the narcotics obtained in implementing this

Act and arrange for their disposal or destruction.4

  Art. 25

  Art. 26

The general provisions of the Criminal Code apply unless this Act itself contains

provisions.

  Art. 27

 The special provisions of the Criminal Code and the provisions of the Foodstuffs Act

of 20 June 2014 are reserved.

 116

   In the event of the unauthorized import, export or transit of narcotics in accordance

with Article 19, the criminal provisions of the Customs Act of 18 March 2005 and the

Ordinance of 29 March 20006 to the Federal Act on Value Added Tax do not apply.

Section 2 Prosecution and Fixed Penalty Procedure

  Art. 28

 Prosecution is the responsibility of the cantons.

Articles 6 and 7 of the Federal Act of 22 March 19742 on Administrative Criminal Law

also apply to prosecution by cantonal authorities.

Notice of convictions, penalty orders and decisions not to proceed in cases under

Article 19 paragraph 2 must be given in full written form to the Federal Office of

Police immediately after they are issued where the indictment demanded an

unsuspended custodial sentence.

  Art. 28a

Offences under Articles 20-22 that are established by the relevant federal authority in

the area subject to federal law enforcement shall be prosecuted and judged by that

authority. The procedure is governed by the Federal Act of 22 March 19742 on

Administrative Criminal Law.

  Art. 28b Principle

Offences under Article 19a number 1 committed by consuming narcotics containing

an effective concentration of cannabinoids may be dealt with in a simplified

procedure by fixed penalty.

 The fixed penalty amounts to 100 francs.

 The previous conduct and personal circumstances of the offender are not taken into

account.

 When the fixed penalty is imposed, the cannabis product shall be confiscated.
 117

  Art. 28c Exceptions

The fixed penalty procedure is not permitted:

a.

if in addition to consuming cannabis, the offender commits other offences

against this Act or other acts at the same time;

b.

in the case of offences that were not witnessed by a police officer from a

competent police authority;

c.

in the case of offences committed by adolescents.

  Art. 28d Police authorities responsible

The cantons shall decide which police authorities are responsible for imposing the

fixed penalties.

  Art. 28e Payment

 The offender may pay the fixed penalty immediately or within 30 days.

 In the event of immediate payment, the offender is issued with a receipt.

 If the offender does not pay the fixed penalty immediately, he shall be issued with a

fixed penalty form. The police officer retains a copy of the form; if the offender pays

the fixe penalty within the period allowed, the copy is destroyed.

 The confiscated cannabis product is forfeited on payment of the fixed penalty.

 If the offender fails to pay the fine within the period allowed, the police authority

responsible shall institute ordinary proceedings.

  Art. 28f Forms

 The receipt for the fixed penalty contains the following details as a minimum:

a.
 118

the surname, first name(s) and address of the offender;

b.

the name of the relevant police authority;

c.

the date, time and place of cannabis consumption;

d.

the criminal offence committed;

e.

the amount of the fixed penalty;

f.

a description of the cannabis product confiscated;

g.

the place and date the issue;

h.

the name and signature of the police officer.

 The fixed penalty form contains the following details:

a.

the surname, first name(s), date of birth, place of origin and place of

residence of the offender;

b.

the date on which the notice was issued;

c.

notice that in the event of non-payment within thirty days, ordinary

proceedings will be instituted;

d.

the name of the relevant police authority;

e.
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the date, time and place of cannabis consumption;

f.

the criminal offence committed;

g.

the amount of the fixed penalty;

h.

a description of the cannabis product confiscated;

i.

the place and date the issue;

j.

the name and signature of the police officer.

 A payment slip will be provided with the fixed penalty form.

  Art. 28g Costs

No costs are charged in the fixed penalty procedure.

  Art. 28h Legal effect

On payment, the fixed penalty takes legal effect, subject to Article 28k.

  Art. 28i Offenders not resident in Switzerland

If an offender who is not resident in Switzerland does not pay the fixed penalty

immediately, he or she must deposit an equivalent amount in cash or provide other

appropriate security.2

  Art. 28j Refusal of the fixed penalty procedure

 The police authorities are required to inform the offender that he or she may refuse

to comply with the fixed penalty procedure.

 If the offender refuses the procedure, the ordinary criminal law and the procedural

provisions of the Criminal Procedure Code apply.

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  Art. 28k Fixed penalties and ordinary procedure

If the court holds in response to the offender's plea that Article 28c has not been

complied with, it shall cancel the fixed penalty and conduct ordinary proceedings.

  Art. 28l Fixed penalty in ordinary proceedings

A fixed penalty may also be imposed in ordinary criminal proceedings.

Chapter 5  Tasks of the Cantons and the Confederation

Section 1 Tasks of the Confederation

  Art. 29

 The Confederation exercises oversight over the implementation of the Act.

 It conducts controls at the border (import, transit and export) and in customs

warehouses and bonded warehouses.

The Confederation and the cantons work together to fulfil their tasks under this Act

and shall coordinate their measures. They may call on the assistance of other

organizations concerned.

 The Federal Council shall appoint a panel of experts to advise it on the issue of

addiction.

  Art. 29a

 The Federal Office of Public Health shall arrange for the scientific evaluation of the

measures under this Act. It may give the data obtained under Article 3fin anonymized

form to the Federal Statistical Office for evaluation and publication.

 On completion of important evaluations, the Federal Department of Home Affairs

shall submit a report to the Federal Council and the relevant committees of the

Federal Assembly on the results and shall submit proposals for further action.

 The Federal Office of Public Health shall maintain a documentation, information and

coordination office.
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 The Agency shall submit reports in accordance with the international agreements.

  Art. 29b

 In relation to combating unauthorized dealing in narcotics, the Federal Office of

Police acts as a national analysis, coordination and investigation agency in

accordance with the Federal Act of 7 October 19941 on the Central Offices of the

Federal Criminal Police.

 It has the following tasks:

a.

It assists the authorities of other states to combat unauthorized dealing in

narcotics within the framework of existing mutual assistance regulations and

legal practices.

b.

It compiles documents that may assist in preventing offences against this Act

and facilitate the prosecution of offenders.

c.

It liaises with:

1.

corresponding services in the Federal Administration (Federal Office of Public

Health, Directorate General of Customs);

2.2

Swiss Post;

3.

the Special Tasks Service (FDJP);

4.

the cantonal police authorities;

5.
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the central agencies in other countries;

6.

the International Criminal Police Organization Interpol.

 Customs and Border Guard authorities shall report offences against this Act to the

Federal Office of Police so that the information can be passed on to foreign and

international authorities; they shall also inform the cantons.

 Taking evidence in connection with international mutual assistance in criminal cases

relating to narcotics is governed by the relevant provisions of the Criminal Procedure

Code of 5 October 2007.

  Art. 29c

The Federal Council shall designate a national reference laboratory; this shall

conduct research, provide information and coordinate in analytical, pharmaceutical

and clinical-pharmacological matters involving narcotics and substances under

Articles 2, 3 paragraph 1 and 7 paragraph 3.

 The Federal Council shall designate a national monitoring agency to monitor the

problems of addiction. This agency shall collect, analyze and interpret statistical data.

It shall work with the cantons and the international organizations.

 The Confederation may delegate to third parties’ specific tasks of research,

information and coordination and of monitoring the problems of addiction under

paragraphs 1 and 2.

Section 2 Tasks of the Cantons

  Art. 29d

 The cantons shall issue the required regulations for implementing the federal law

and designate the relevant authorities and offices responsible for:

a.
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the tasks and powers in relation to prevention, therapy, reintegration, harm

reduction and survival support (Chapter 1a), in particular to receive reports on

persons with existing or imminent disorders associated with addiction (Art.

3c);

b.

granting licenses (Art. 3e, 14 and 14a para. 1);

c.

accepting reports on narcotics dispensed or prescribed for conditions other

than those permitted (Art. 11 para. 1);

d.

controls (Art. 16-18);

e.

prosecution (Art. 28) and for revoking authorization to deal in narcotics (Art.

12);

f.

the supervision of the authorities and agencies mentioned in letters a-e and of

authorized licensed treatment and social assistance agencies.

 The cantons have the power to charge fees for licenses that they grant (Art. 3e, 14

and 14a para. 1) and for special rulings and controls.

 The cantons shall notify the Federal Department of Home Affairs of their

implementing regulations.

  Art. 29e

 The cantonal governments shall report to the Federal Council regularly on the

implementation of this Act and the observations made in doing so, and shall provide

the required data (Art. 29c para. 2).

 The cantons must notify the Federal Office of Police promptly in accordance with the

provisions of the Federal Act of 7 October 19941 on the Central Offices of the Federal
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Criminal Police of any prosecutions initiated due to offences against this Act. The

relevant information shall be transmitted electronically or entered directly in the data

processing systems of the Federal Office of Police. The Federal Council shall

regulate the details.

Chapter 6 Final Provisions

Art. 301

 The Federal Council shall issue the required implementing provisions.

 It shall specify the fees that the Agency charges for licenses, controls and services.

It may delegate his power to the Agency.

 It shall specify in specific cases the powers, the detailed requirements for their

exercise and the methods for the required controls when granting licenses to

organizations, institutions and authorities as defined in Article 14a. It may if

necessary, issue alternative regulations to the Act when regulating the controls.

  Art. 31-34

  Art. 35

  Art. 36

  Art. 37

 The Federal Council shall specify the date on which this Act takes effect.

 On this date, the Federal Act of 2 October 19241 concerning Narcotics and

provisions of federal and cantonal acts and ordinances that conflict with this Act shall

be repealed.