Drug law and regulation
Many people from abroad see the Netherlands as a kind of drug paradise where you can use drugs with impunity. But in the Netherlands there are of course also laws about drugs.
What about our legislation on drugs and drug use? What is legal and what is not and what does the tolerance policy entail? What happens if you get caught at a party with illegal drugs?
The Opium Act
In the Netherlands we have the Opiumact. The Opium Act prohibits the possession, trade, sale, transport, manufacture, etc. of the substances covered by the Act. The use of drugs in itself is not punishable.
The Opium Act consists of two lists:
List 1: drugs with an unacceptable risk to health (hard drugs). For example: cocaine, ecstasy, GHB, amphetamine, LSD, heroin.
List 2: drugs that are less harmful to health (soft drugs). For example: hash and weed and truffles.
Until the end of 2014, it seemed possible to tackle New Psychoactive Substances (NPS) with the Medicines Act. But the European Court has issued a ruling in which it became clear that it must first be obvious that a medicine also cures. According to the European Court, not every psychoactive substance is a medicine. Only medicines may fall under the Medicines Act.
Legale drugs are alcohol, tobacco and caffeine. Legal does not mean that everything is allowed. There are also all kinds of laws and regulations for legal drugs (for example age limits for alcohol and tobacco). These products fall under the Commodities Act. Most ingredients used in smart products are also legal, such as guarana and kola nut.
(legal) New Psychoactive Substances (NPS)
Clubs, parties and festivals have a zero-tolerance policy, because the security and police cannot see with the naked eye what substance is involved, they will refuse you access if you have NPS on you or other legal substances that look like drugs.
The Liquor and Catering Act
The Licensing and Catering Act is an important instrument of the government’s alcohol moderation policy. The law sets requirements for the sale and distribution of all alcoholic beverages. Enforcement of the law lies with the municipalities. As of January 1, 2014, the age at which alcohol can be sold has been raised to 18 years.
Other important provisions of the Licensing and Catering Act are:
- A license is required for the sale of strong alcoholic drinks. This is not necessary for selling weak alcoholic drinks (for example in a shop or supermarket).
- If the law is violated, the mayor can suspend the license of a catering establishment or liquor store.
- Supermarkets or other retailers are faced with a so-called ‘3 strikes out’ measure. That means that the part of the shop where alcohol is located can be (temporarily) closed if the company is caught selling illegally 3 times in 12 months.
- As of 1 January 2014, young people under the age of 18 are punishable by law if they have alcoholic beverages in public places (a fine of €45) (was 16).
- Happy hours or other price promotions may be limited by the municipality.
- Municipalities must draw up an ordinance with, among other things, serving times in sports clubs, student associations and club and community centers.
- Alcohol may not be sold along the highway (e.g. at gas stations)
- Professional knowledge is required for serving alcohol in the catering industry.
- Admission and gift ban.
Click here for the full text of the law (Dutch).
Responsibility for Dutch drug policy lies with various ministries. The Ministry of Health, Welfare and Sport (VWS) is responsible for coordinating drug policy and charged with prevention and assistance policy.
The Ministery van Security and Justice is in charge of criminal enforcement, and municipal administration and police belong in the portfolio of the Ministery of Internal Affairs and Royal relations.
Municipalities discuss their own drug issues in a ‘triangle meeting’: the mayor, the chief of police and the public prosecutor.
Many people make the mistake when talking about the Dutch drug policy that they think that the use and sale of cannabis is not punishable. We apply a so-called tolerance policy, which means that a policy is in place where certain behaviors and violations of a law are no longer prosecuted. In this case, this means that possession and sale are still punishable, but the police no longer act and the Public Prosecution Service no longer prosecute.
In concrete terms, we are only talking about the sale in coffee shops and the small-scale consumption of hash and weed. Small consumption is an amount of a maximum of 5 grams that you can have on you for your own use and can therefore buy in the coffee shop. The coffee shop may have a maximum trading stock of 500 grams at any moment.
The production and trade of cannabis is therefore prohibited. The point is that the use of cannabis and its sale through coffee shops cannot be done without production and trade. They are inextricably linked. How else do those coffee shops get their merchandise? As a result of the tolerance policy, an enormous illegal cannabis market has arisen, which has caused a change of course in the Dutch tolerance policy. Indications for the changing course of the tolerance policy can be found in the more restrictive tolerance policy that has developed in recent years. Changing the minimum age, closing coffee shops, stricter regulations such as the distance measure from schools and changing the use and trade stocks are just a few attempts by the government to influence the tolerance policy.
The Public Prosecution Service is charged with the investigation and prosecution of, among other things, the punishable conduct under the Opium Act. There are certain guidelines when it comes to criminality and priorities. According to the guidelines, trade in hard drugs must receive the most attention and is punished the most, followed by trade in soft drugs. Less attention is needed for personal use. However, some regions have a zero-tolerance policy. In those regions, users may also have to deal with the police. In that regard, they remain guidelines that local public prosecutors can deviate from. In addition, there may also be local guidelines.
Normally, possession of both hard drugs and soft drugs for personal use is not detected and prosecuted. Possession for own use means: 5 grams for hash and weed, half a gram for cocaine and 1 pill for ecstasy.
In regions with a zero-tolerance policy, the police pay attention to use as well as dealing. It is hoped in this way that the drug trade can be further countered. If the police stop you with a user amount, the drugs will be seized. You will not be fined and you will not be prosecuted. The seizure is registered however. Your name is then known to the police, but you do not have a criminal record. It is not possible to say with certainty whether the arrest will lead to a note on your criminal record. It is possible that an offense for which you will not be prosecuted or fined on your criminal record will be seen as a dismissed case. It is also possible that the arrest is only registered in the local police register and does not end up on your criminal record.
If you have more drugs with you than a user amount, you will soon be seen as a dealer. This also applies if you have two types of drugs with you, for example a quarter gram of speed and an ecstasy pill.
Caught? What now?
Recently, the police and the judiciary have been enforcing the Opium Act more and more strictly. Any visitor to a festival/party can be arrested just like that; even if you don’t have any drugs with you. It appears to be a twilight zone where rights and obligations are unclear. Here you will find more information about your own rights and the rules that the police must follow.
If you have used drugs, you are not punishable under the Opium Act. Possession, trade and production are criminal offenses though. If you have a user amount (= 1 pill or half a gram of powder) on you, you have to give it up and you usually won’t get a fine.
One thing is clear: you have the right to be treated with respect, even if you break the law! The most important things at a glance:
Immediately ask for the identification of the undercover agent, what his name or serial number is. If he has broken any rules, you can find him later for a complaint.
- Ask for the reason for arrest.
- Stay friendly and calm, but don’t be intimidated. You have the right to be treated with respect!
- Don’t explain things you don’t want to explain.
- Don’t answer, don’t walk along and don’t hand over anything until he has done this.
- Ask bystanders or your friends if they want to be witnesses.
- You are a suspect at the time of arrest. A ‘friendly chat’ no longer makes sense. Think about what you say. Also, don’t let words put you in your mouth and don’t respond to suggestions. You don’t have to explain things you don’t want to explain. You are also not allowed to explain anything at all (right to remain silent).
- There must be a reasonable suspicion of guilt. Visiting a party and taking, for example, a peppermint from your pocket is not a reason to be arrested.
- A report must be drawn up. Read the official report carefully and write down what you are missing or why you may not sign it. Check whether the police state what your suspicious act consisted of. For example: bending over to your shoes, grabbing a mint or looking for drink vouchers in your pocket.
- Think carefully about everything you say during the interview. The interrogation is recorded on paper in an official report. This can be used as evidence against you.
- Do not pay the fine immediately, but wait for the payment form, because then you have time to think about whether you want to file a complaint or engage a (free) lawyer. The costs of a lawyer are reimbursed by the government in the case of a low income.
- The police are not allowed to provoke you, although provocation is often difficult to prove afterwards. If they ask you for a pill, make sure this is recorded in the police report. Check whether this is also typed, otherwise write it yourself when they ask to sign.
- Any physical contact used must be proportional. If you cooperate, there is no need for a crackdown, you have the right to be treated fairly and with respect by the police.
- You are entitled to a separate room for body examinations. So don’t get undressed in public. Also, do not undress in front of people of the opposite sex.
- If the above requirements are not met when you are arrested, make sure that this is recorded in the official report.Do not sign if it is not there, if necessary, instead write at the bottom of the official report why you are not signing it. So, for example, do not sign a police report if the agent has not identified himself immediately, or if there was incitement and this has not been written down.
- Get a lawyer.
What about a transaction proposal?
Sometimes a transaction is offered after arrest. This is a “settlement proposal” from the Public Prosecution Service. A transaction proposal is still not a debt statement and by surrendering you can no longer be prosecuted for the same offense. Nowadays, every crime is reported to the Central Legal Documentation Center. There they keep track of everything you have on your tally, including the transactions.
So do not pay the fine immediately, but wait for the payment form. If you pay immediately, you agree to the charge and it is much more difficult to appeal later. By waiting for the payment form, for example, you also give yourself time to consult with a lawyer. This is reimbursed in many cases, depending on your income (see also www.rvr.org). If you let it happen, the fine usually remains the same; once in a while he gets higher. If you agree with the transaction, it will be registered.
Do I now have a criminal record?
Articles 2 to 5 of the ‘Judicial Data Decree’ explicitly specify which criminal cases must be registered. Anyone aged 12 or older who is regarded as a suspect of a crime (serious offence), will be registered in the judicial documentation, thus creating a ‘criminal record’. This is not only the case with crimes; for some – but not all – violations, a registration in the judicial documentation is also made as standard. There is a lower limit for this: There must be a custodial sentence, a suspended sentence or the imposed fine or transaction must amount to at least 100 euros.
If the police leaves the prosecution of a criminal offense to the Public Prosecution Service and the Public Prosecution Service decides not to prosecute the case further, the case will be dropped. One reason to dismiss a case is, for example, that it concerned a “minor fact”. Such a case is then called a dismissal. Dismissals DO appear in your judicial documentation; this also creates a “criminal record” even if you have not been punished.
Can I go back to the party?
If drugs have been seized, there is basically no reason to refuse to go back to the party. You meet the requirements and you no longer pose a danger to public order and health risks. Unfortunately, the practice is often different and you are no longer admitted. The police often make agreements about this with the organizer of the party, so it may well be that you are indeed no longer allowed to go back to the party, but this varies per region and event.
To file a complaint
You are not punishable if you only use it (after consumption). Don’t be treated like a criminal. Take action and file a complaint if you feel you have not been treated with respect. Remember that you are not harming anyone by possessing a user dose. By filing a complaint, you can prevent other people from being treated in the same way as you in the future. Do you want to file a complaint but don’t know how? Contact us and maybe we can help you. Send an email to firstname.lastname@example.org.
Statement of conduct (VOG in Dutch)
For some jobs you need a Statement of conduct from the government (VOG). Most people get it, even if they have a criminal record. If you have any questions about the VOG contact us: email@example.com.